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August 2024 Contents
 Welcome to the August 2024 issue of PI Brief Update Law Journal. Click the relevant links below to read the articles. CPD Note that there are no new monthly CPD quizzes since the SRA and the BSB have both updated their CPD schemes to eliminate this requirement. Reading PIBULJ articles can still help to meet your CPD needs. For further details see our CPD Information page.
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| Personal Injury Articles | |
 Attempted second bite of the cherry or a different fruit all together? Outotec and another v MW High Tech Projects UK Limited [2024] EWCA Civ 844 - Andrew Ratomski, Temple Garden Chambers Perfect for mid-summer reading, this case is about the much litigated question of whether a party was trying to have a second bite of the cherry or having a go at a different summer fruit all together. The issue for the Court of Appeal was whether the first-instance judge erred in concluding that proceedings would not be struck out as an abuse of process in accordance with the principles of Johnson v Gore Wood and Co [2002] 2 AC 1 and in particular whether a breach of the 'Aldi guidelines' was sufficient to justify strike out as abuse or whether it was necessary to demonstrate in addition vexation, oppression or... |
 Defendant's own YouTube posts provided evidence of contempt: Wye Valley NHS Trust v Murphy [2024] EWHC 1912 (KB) - Philip Matthews, Temple Garden Chambers This case, an application for committal for contempt of court, is noteworthy for the extent of evidence which came from the Defendant himself in the form of social media (YouTube) posts. Mr Murphy was the claimant in the underlying clinical negligence action against the Trust. He alleged breach of duty in surgical repair of a left bicep tendon rupture in 2017. He claimed that he had suffered permanent damage to his left arm, which rendered him unable to return to work as a builder and incapable of playing rugby and lifting weights. He claimed... |
 Expert witnesses and apparent bias: Biggadike v El Farra & Anor [2024] EWHC 1688 (KB) - Philip Matthews, Temple Garden Chambers Biggadike was a clinical negligence action against two defendants originating from allegedly mismanaged urinary stress incontinence. On liability, all sides called expert witnesses in urogynaecology. Two of those experts, Mr Toozs-Hobson and Mr Robinson, were subject to cross-examination which sought to undermine their integrity on the basis of their attendance at the same clinical conference during the trial. The questioning implied, in the words of Carmwel Wall J at §126, that the experts had... |
 Is a formal application to amend a costs budget always necessary and wise? Masudur Rahman v Dewan Hassan and Others [2024] EWHC 2038 (Ch) - Andrew Ratomski, Temple Garden Chambers HHJ Paul Matthews sitting as a Deputy High Court Judge considered a number of consequential matters following a three week trial where the underlying proceedings concerned whether a number of transactions made by the late Mr Al Mahmood, who the claimant maintained was his relative, were gifts in contemplation of death. After judgment was handed down, the successful claimant sought to apply formally to amend his costs budget (see paras. 42 to 53) and the application and factors relied on give a helpful indication of both the necessity of such applications to amend costs budgets and how a range of factors will be handled by the court when adjudicating on what is a... |
| Clinical Negligence Medicine by Dr Mark Burgin | |
 Why is it so hard for Lawyers to be organised? - Dr Mark Burgin Dr Mark Burgin in an occasional series on the SRA codes of conduct considers how to organise medical evidence. Medical evidence requires several steps to ensure that it fully addresses the issues in the court. Ensuring that all the material issues are identified can be difficult as they may not be obvious until the first expert report in the case is received. Counsel may find that they feel that they must suggest several experts in the hope that this will cover all the issues. Writing instructions can be difficult if is it not clear what will be material... |
 Why The Physician Associate PA Role may mean the end for GPs - Dr Mark Burgin Dr Mark Burgin discusses the existential risk to primary care posed by the increasing use of allied professions to work as in front line roles. Primary care is about 100 times more efficient than secondary care, they see 10 times as many patients for one tenth of the budget. As primary care staffing and funding falls the workload has dramatically increased in A and E and secondary care. The specialists are closing waiting lists and are becoming overwhelmed with the workload... |
July 2024 Contents
 Welcome to the July 2024 issue of PI Brief Update Law Journal. Click the relevant links below to read the articles. CPD Note that there are no new monthly CPD quizzes since the SRA and the BSB have both updated their CPD schemes to eliminate this requirement. Reading PIBULJ articles can still help to meet your CPD needs. For further details see our CPD Information page.
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| Personal Injury Articles | |
 Claimant has 'only himself to blame' for dismissal of multi-million-pound claim on the basis of fundamental dishonesty - Nancy Kelehar, Temple Garden Chambers Shaw v Wilde [2024] EWHC 1660 (KB).Date of Judgment: 27/06/2024. On 30 June 2018, the Defendant drove into collision with the Claimant's motorcycle causing the 26-year-old Claimant to suffer serious orthopaedic injuries, including the permanent shortening of his right leg. Liability for the accident was determined in the Claimant's favour. However, HHJ Sephton KC, sitting as a Judge of the High Court, dismissed the claim on the basis of the Claimant's fundamental dishonesty and was not... |
 Defendant requests for medical testing demand a careful balancing exercise - Amy Lanham Coles, Temple Garden Chambers Clarke v Poole [2024] EWHC 1509 (KB). This case provides an important re-examination of the law governing a thorny case management issue. Can and should a Claimant be compelled to undergo medical tests in order to pursue her claim? The Claimant suffered life changing injuries in a road traffic accident in 2018 at age 31, including weakness in her limbs, diminished mobility, and impairments with her memory, mental flexibility and processing speed. Separately, her mother had been diagnosed with... |
 Spanish Interest: Is an English court obliged to award 'penalty' interest? - Pierre Janusz & Anna Gatrell, 3 Hare Court The recent decision of the Court of Appeal in Nicholls & Ors v. Mapfre [2024] EWCA Civ 718 provided the Court of Appeal with an opportunity to give a definite ruling on whether, in a case where the law applicable to the claim is Spanish law, an English court is obliged to award 'penalty' interest pursuant to Article 20 of the Spanish Insurance Contract Act 50/1980 ('Article 20'). This article seeks to consider an issue which can arise in such cases, but in relation to which the Court of Appeal did not provide detailed guidance, namely what... |
 Damages awarded against Gary Glitter for historic sexual abuse: BRS v Paul Francis Gadd [2024] EWHC 1403 KB - Amy Lanham Coles, Temple Garden Chambers This case deals with the valuation of damages under the latest Judicial Colleges Guidelines (JCGs) for complex post-traumatic stress disorder (C-PTSD) arising from historic sexual abuse. Notably the Defendant did not engage with proceedings, and this should be borne in mind in respect of the quantification of damages - they were unchallenged. This deeply distressing case involved the repeated sexual assault and rape of a minor aged 12 years old by a singer. The child had been introduced to the Defendant on several occasions, during which... |
 The failure to pay costs is not a contempt enforceable by committal to prison - Nancy Kelehar, Temple Garden Chambers Smith v Kirkegaard [2024] EWCA Civ 698. Date of Judgment: 21/06/2024. The history between the parties to this appeal dated back to January 2018 when Mr Smith published a tweet that referred to Mr Kirkegaard. Mr Kirkegaard brought a claim for libel against Mr Smith in respect of four publications, including the tweet, which described Mr Kirkegaard as a supporter of child rape or paedophilia. Ultimately, Mr Kirkegaard discontinued his claim in May 2020 meaning that Mr Smith was entitled to his... |
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| Clinical Negligence Medicine by Dr Mark Burgin | |
 Why is it so difficult for lawyers to admit they do not know everything? - Dr Mark Burgin Dr Mark Burgin discusses the phenomenon of arrogance in the legal profession and how experience from working with arrogant doctors can help the law. A common joke amongst lawyers about doctors is that 'GPs think they are God, but surgeons know they are'. To have the courage to open a human body with a knife knowing what may go wrong needs arrogance. Simply knowing more than others (self assurance) is not enough, a doctor must believe that they are better than other people. It has been said that 80%... |
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June 2024 Contents
 Welcome to the June 2024 issue of PI Brief Update Law Journal. Click the relevant links below to read the articles. CPD Note that there are no new monthly CPD quizzes since the SRA and the BSB have both updated their CPD schemes to eliminate this requirement. Reading PIBULJ articles can still help to meet your CPD needs. For further details see our CPD Information page.
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| Personal Injury Articles | |
 Pre-commencement Funding Arrangement vs. Protection under QOCS, plus a cameo for proprietary estoppel - Nancy Kelehar, Temple Garden Chambers Thomas v Southwick Car Centre Ltd [2024] EWHC 1315 (SCCO). A personal injury claim arose out of a tripping incident on the Defendant's premises in May 2012. At trial in May 2017, DJ Goddard dismissed the claim, finding that some of the evidence upon which the Claimant relied had been 'tailored and shaped' and the story had been 'elaborated upon over the months and years' following the accident... |
 Claimant injured during arrest entitled to pursue personal injury claim - Amy Lanham Coles, Temple Garden Chambers Ward v Chief Constable of Greater Manchester Police: [2024] EWHC 1297 (KB). This case offers some preliminary food for thought in respect of personal injury claims arising from policing and injuries sustained in the context of criminal activity. The Claimant sought to bring an action against the police for their alleged misuse of a police dog during his arrest. The dog had bitten the Claimant and he alleged this caused serious injury to his lower leg, including long term nerve damage and chronic pain. He had been evading arrest (first in a car chase and then on foot) before the incident and was later convicted and imprisoned for burglary and dangerous... |
 'What is sauce for the goose is sauce for the gander', but no presumption in favour of indemnity costs for unsuccessfully pursuing fundamental dishonesty - Amy Lanham Coles, Temple Garden Chambers Thakkar v Mican [2024] EWCA Civ 552. This case started, and notably ended, its life as a 'straightforward' road traffic accident claim. In the interim, the First and Second Respondent (the Defendant driver and his insurance company) contended that the Appellants (former Claimants) had been fundamentally dishonest. They failed in this submission, first failing in their application to amend their Defence to positively plead fundamental dishonesty and then later failing at trial, where the then Claimants were successful... |
 Calculating the correct 'Price' to pay in a claim for financial dependency - Nancy Kelehar, Temple Garden Chambers Price v Marston's PLC [2024] EWHC 1352 (KB). A number of issues were raised in this appeal before Mr Justice Griffiths. Primary liability had been admitted by the Defendant for the Claimant's husband's workplace fall. However, the Defendant appealed the judgment on causation that his death from sepsis was as a result of an infection caused by the workplace fall... |
| Clinical Negligence Medicine by Dr Mark Burgin | |
 Masterclass in Chaos: The Joint Conference - Dr Mark Burgin Dr Mark Burgin discusses the importance of a functional system for producing independent and accurate joint expert reports, ultimately serving the purpose of a just legal system. The case is straightforward, the experts are both engaged and understand each other's opinions, all that is needed is to write a joint report. The barriers to achieving their goal of an independent report addressing the material issues can be extreme. The problem is not down to any failure of the experts' skills or determination but unnecessary obstacles... |
 Red Flags: A Guide for Lawyers - Dr Mark Burgin Dr Mark Burgin considers the controversial topic of Red Flags and how they can describe how doctors use the clinical process. In many cases the concept of Red Flags becomes a battle ground with one side arguing that they do not exist and the other that they are an essential part of practice. The reality is that there is a responsible and reasonable body of opinion that does not use the concept. The medical leaders have not indicated which camp is correct and the GMC has not offered guidance... |
May 2024 Contents
 Welcome to the May 2024 issue of PI Brief Update Law Journal. Click the relevant links below to read the articles. CPD Note that there are no new monthly CPD quizzes since the SRA and the BSB have both updated their CPD schemes to eliminate this requirement. Reading PIBULJ articles can still help to meet your CPD needs. For further details see our CPD Information page.
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| Personal Injury Articles | |
 The Infected Blood Inquiry: Recent Updates in an Important Month - Nancy Kelehar, Temple Garden Chambers The Infected Blood Inquiry was formed in 2017 and the final report of the Inquiry will be published later this month. On 20 May, the report will be published online and on the same date, the Chair of the Inquiry, Sir Brian Langstaff, will speak about his conclusions and recommendations at Central Hall, Westminster. The report should expose the extent of the failings of the NHS and other institutions that resulted in widespread infection and is likely to include important recommendations in relation to the extent of the compensation scheme... |
 The LDFRC scheme latest: reforms expected by October 2024 - Amy Lanham Coles, Temple Garden Chambers April has come and gone and while the Lower Damages Clinical Negligence Claim ("LDFRC") scheme has not been implemented as originally planned, there have been two recent updates. Firstly, as per the Civil Procedure Rule Committee minutes from March 2024, the implementation date has been pushed back to October 2024 for the entire scheme. There remain outstanding issues to resolve before draft rules can be published (expect these in the summer)... |
 Surveillance evidence stymies Claimant's interim payment hopes - Amy Lanham Coles, Temple Garden Chambers Mehmood v Mayor [2024] EWHC 1057 (KB). This claim for personal injury arose out of a road traffic accident in which the Claimant alleged to have suffered a brain injury, amongst other injuries. This decision focused solely on the Claimant's application for retrospective approval of an interim payment of £10,000 and for a further interim payment in the sum of £75,000... |
 Court of Appeal reaffirms importance of responding to a proposal to engage in ADR - Nancy Kelehar, Temple Garden Chambers Northamber Plc v Genee World Ltd [2024] EWCA Civ 428. Date of Judgment: 01/05/2024. In this appeal, the underlying claim related to an alleged breach of an Exclusivity Agreement between the parties. The appeal was brought by the Claimant on five grounds; the fifth concerned the judge's costs order... |
| Clinical Negligence Medicine by Dr Mark Burgin | |
 Personality disorder (PD) in Occupational Health - Dr Mark Burgin Dr. Mark Burgin BM BCh (oxon) MRCGP considers how disability analysis reports on personality disorder PD can assist the tribunals assess capability to work. The descriptions of personality disorders PD sound like insults - emotionally cold, aggressive, unstable, suspicious and there are many experts who question their usefulness... |
 Does the Human Rights Act Apply to Alcohol Dependant Patients? - Dr Mark Burgin Dr. Mark Burgin BM BCh (oxon) MRCGP explains that the failure to provide benzodiazepines for harm reduction in Alcohol Dependant Patients may breach Article 3 of the HRA 1998. Alcohol is a potent anxiety reducing drug that has a narrow therapeutic index (the ratio between an effective dose and a harmful dose) and is likely to have no safe dose that is also effective... |
April 2024 Contents
 Welcome to the April 2024 issue of PI Brief Update Law Journal. Click the relevant links below to read the articles. CPD Note that there are no new monthly CPD quizzes since the SRA and the BSB have both updated their CPD schemes to eliminate this requirement. Reading PIBULJ articles can still help to meet your CPD needs. For further details see our CPD Information page.
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| Personal Injury Articles | |
 Large and Small Apples, not Apples and Pears: Hassam v Rabot [2024] UKSC 1 - Amy Lanham Coles, Temple Garden Chambers The long awaited Supreme Court decision in Hassam v Rabot is here. The Court of Appeal's approach to "mixed" injuries (comprising both non-whiplash and whiplash injuries) has been endorsed. This case confirms the approach to take in personal injury cases which are subject to the relatively new statutory regime laid down in the Whiplash Injury Regulations 2021. This regime limits the... |
 Future Case Management and Legal Costs: a point of principle & restrained guidance in Hadley v Przybylo [2024] EWCA Civ 250 - Amy Lanham Coles, Temple Garden Chambers This case raised an important question: is the cost of a fee earner's attendance at rehabilitation case management meetings recoverable as legal costs? Following catastrophic injuries sustained by the Claimant in a road traffic accident and admission of negligence by the Defendant, this claim was settled (subject to approval) for a lump sum of £5.6 million and an annual sum of £170,000 for case and care management. Costs remained... |
 Upcoming Statutory Review of the Whiplash Tariff: but will reform follow? - Nancy Kelehar, Temple Garden Chambers As readers will know, the whiplash tariff was introduced on 31 May 2021 under the Civil Liability Act 2018 ('the Act'). Section 4(2) of the Act requires the Lord Chancellor to review the regulations within 3 years of their coming into force, i.e. by 31 May 2024. This upcoming review may result in increased figures under the tariff. On 2 April 2024, the Ministry of Justice (MoJ) closed its Call for Evidence which it says forms a key part of... |
 Recent amendments to Practice Directions relating to Fixed Recoverable Costs (FRC) - Nancy Kelehar, Temple Garden Chambers As practitioners will be aware, the extension of fixed recoverable costs (FRC) came into force on 1 October 2023, applying to most simpler claims valued at £100,000 or less. Given the date of implementation, the courts have not had the chance to address some of the issues that may arise, e.g. as to assignment of the complexity band. In the meantime, the rules have been refined by the 163rd and 165th updates to the... |
| Medico-Legal Articles, Edited by Dr Hugh Koch | |
 The Complexity of Assessing Claimants with Psychological Vulnerabilities and Stoicism in Medicolegal Psychological Reporting - Dr Justin Savage, Chartered Clinical Psychologist In medicolegal psychological reporting, assessing claimants who exhibit both psychological vulnerabilities and stoicism presents a unique challenge. These two characteristics, seemingly at odds, can complicate the evaluation process and require a nuanced approach. Psychological vulnerabilities refer to certain predispositions or susceptibilities that make an individual more likely to... |
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| Clinical Negligence Medicine by Dr Mark Burgin | |
 Ten reasons you have the wrong expert - Dr Mark Burgin Dr Mark Burgin reveals ten reasons you may have the wrong expert. 1. Specialists: An expert too focused will miss key issues crucial to the case. 2. Popular: Close ties to solicitors could raise concerns about impartiality. 3. In current practice: Consider a full-time expert for a more responsive service. 4. Law: Using wrong legal tests and not following CPR35... |
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![Appeal judge rules that credit hire company has no costs liability following a finding of fundamental dishonesty in personal injury case: RSA v. Fastrack Solutions Limited [2023] 4 WLUK 92 - David Bowden, Erimus Chambers](/content/images/resized/images/stories/carkeys_72_72.jpg)
