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February 2023 Contents
 Welcome to the February 2023 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 | |
 Discontinuance and QOCS in the Court of Appeal: Excalibur & Keswick Groundworks Ltd v Mcdonald [2023] EWCA Civ 18 - Sebastian Bates, Temple Garden Chambers The Claimant in this case had discontinued on the morning of the trial, after being invited to consider his position in the light of inconsistencies between his pleaded case, witness statement, and medical records: see [7]. In this context, the Court of Appeal pronounced on what were described at [17] as 'three points of principle or practice'... |
 FREE CHAPTER from 'Low Velocity Impacts in Road Traffic Accidents: Law and Practice' by Jake Rowley In this book, Jake Rowley will provide a concise and practical consideration of the law and practice relating to 'low velocity impact' (or "LVI") road traffic accidents. Amongst other topics, the book will consider what is meant by the term 'LVI'; the tell-tale signs of a potential LVI claim; the key authorities setting out the the law in this area; the procedural steps which Defendants will likely need to take in order to advance allegations of LVI; the sorts of evidence which features in such claims and when, and how, it should be obtained and deployed; and how such cases are approached by Judges at trial... |
 Mixed Injury Cases and the Civil Liability Act 2018: Hassam v Rabot [2023] EWCA Civ 19 - Sebastian Bates, Temple Garden Chambers 'As a general rule, the quantification of damages for [pain, suffering, and loss of amenity, or PSLA] is governed by the common law': see [11] of Nicola Davies LJ's judgment in this case. However, as she recognised at [25], the Civil Liability Act 2018 and the Whiplash Regulations 2021 'represent a statutory incursion into the common law method of assessing damages and a radical departure from the common law approach to such an assessment in that they abandon the "fair and reasonable" approach to the assessment of whiplash injuries and minor psychological injuries in cases falling within the scope of the legislation'. Instead, as she explained... |
 Interrogation of draft judgments: Re (Care Proceedings: Fact-Finding) [2023] EWCA Civ 38 - Anisa Kassamali, Temple Garden Chambers Re (Care Proceedings: Fact-Finding) [2023] EWCA Civ 38 considered the correct approach for parties to take in relation to draft judgments produced by the Court. The appellant mother appealed against findings of fact made in care proceedings. The appeal was ultimately dismissed, but the Court had concerns about the process leading to judgment... |
 Third Party Cost Order Against Expert Witness Overturned on Appeal: Robinson v Liverpool University Hospitals Nhs Trust [2023] EWHC 21 (Kb) - Grace Corby, Temple Garden Chambers The first instance Judge had erred in making a third-party costs order against the Claimant's expert in a clinical negligence claim. The Claimant had brought a clinical negligence claim against the defendant NHS trust following a dental extraction procedure which she underwent on 8 November 2016. She alleged that the surgeon was negligent for failing to remove her upper left molar. She instructed Mr Mercier, the appellant, as her expert. He was a general dental practitioner, but not a maxillofacial surgeon... |
 Case Summary: H v S - Spencers Solicitors Limited The Claimant, aged 40, was involved in a road traffic accident. The Claimant was situated in her parked vehicle when the vehicle parked behind her, was struck by a passing vehicle. The parked vehicle was shunted into the Claimant's vehicle, forcing her into the vehicle parked in front... |
| Clinical Negligence Medicine by Dr Mark Burgin | |
 How should People with Mental Disability be Protected from Stress? - Dr Mark Burgin Dr Mark Burgin discusses whether the lessons learned from the adjustments for physical disability can be applied to those with mental disabilities... |
 How to become an expert in Lead Poisoning - Dr Mark Burgin Dr Mark Burgin considers how a solicitor can determine if they have the correct expert in a case involving lead poisoning... |
January 2023 Contents
 Welcome to the January 2023 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 | |
 Time limits for the assessment of a CFA - Anisa Kassamali, Temple Garden Chambers Menzies v Oakwood Solicitors Limited [2022] EWHC 3199 (KB) considered the approach to a solicitor's deduction under a conditional fee agreement ("CFA"). On the particular facts of the case, the client was able to challenge the deduction 21 months after settlement of the underlying proceedings... |
 If a claim is amended to add a personal injury component part way through litigation, QOCS protection still applies to the entirety of the matter - Grace Corby, Temple Garden Chambers Munira Pathan v Commissioner of Police of the Metropolis [2022] EWHC 3244 (KB). The Claimant (and Appellant) was arrested by police officers and then detained at a police station for 12 hours, before being released. The police took no further action against her. On 3 May 2019 she issued a claim form, drafted by her husband, alleging that her arrest and detention were unlawful. The particulars of claim said that she suffered high blood pressure and felt faint while in detention and that she 'has suffered loss and damage', but she did not indicate that she was making a claim for damages for personal injuries... |
 The Court of Appeal on the rules of the road, and of road traffic litigation - Sebastian Bates, Temple Garden Chambers In Taylor v Raspin [2022] EWCA Civ 1613, the Court of Appeal gave guidance on reasonable driving and the adjudication of road traffic litigation. As William Davis LJ summarised at [2]-[3], Mr Raspin had ridden his motorcycle along a major road, approaching a junction with 'a minor road on his right'. Ms Taylor had pulled out from the minor road and turned right, colliding with him. She... |
 When is adjournment appropriate in a high value personal injury claim? - Anisa Kassamali, Temple Garden Chambers Benford v East and North Hertfordshire NHS Trust [2022] EWHC 3263 (KB) considered whether a trial should be adjourned on the assertion that the assessment of future loss and expense arising from the Claimant's injuries was either impossible or so speculative that it would be unjust to the Defendant... |
 Case Summary: T v S - Helen Reynolds, Spencers Solicitors Limited The Claimant aged 25, was involved in a road traffic accident, in which the Defendant failed to slow his vehicle and collided with the rear of the Claimant's vehicle. Liability was admitted by the Defendant's insurers. As a result of the accident T suffered with neck pain, left shoulder, arm and hand pain, left knee pain and pain in his lower back with pins and needles in the left leg. He also developed travel anxiety, associated with flashbacks, nightmares and insomnia... |
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| Medico-Legal Articles, Edited by Dr Hugh Koch | |
 Legal Mind Case and Commentary No 41: Expert Witness Requirements - [Koch HCH, Jansen F, Ma SYA, Hughes R and Proctor B, February 2023] Two recent cases reviewed by Bond Solon and by Civil Litigation Brief have focused on Expert Witness Requirements and responsibilities. The key components and learning points are summarised here and discussed... |
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| Clinical Negligence Medicine by Dr Mark Burgin | |
 How to write an expert's report for a coroner's court - Dr Mark Burgin Dr Mark Burgin explains how to simplifying the expert's report can improve performance in a coroner's court. The coroner must read many written submissions and build a story of how the death occurred. They are trained to disregard complexity and instead will focus on the key events. This approach is in conflict with the medical and lay understanding... |
 Why is an expert Range Of Opinion so stressful for lawyers? - Dr Mark Burgin Dr Mark Burgin reflects on the problems that lawyers have with medical uncertainty and the expert range of opinion. There appear to be two constants in expert evidence, first that the experts have uncertainty and second that they disagree. These are two parts of the same problem, that there is a range of opinion with experts at different places on that range. Ideally all experts would offer a range of opinion and reduce the need for... |
December 2022 Contents
 Welcome to the December 2022 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 | |
 A Reminder That Interlocutory Cost Orders Can Be Made Against QOCS Protected Claimants - Grace Corby, Temple Garden Chambers Atmani & Ors v Royal Borough of Kensington & Ors [2022] EWHC 2618 (KB) - The court considered the costs consequences of the decisions made in a CMC. The court ordered 'defendant's costs in the case', following some of the claimants' unsuccessful applications. In doing so, the court affirmed that the QOCS regime did not prevent such interlocutory orders, it just prevented their enforcement... |
 Court's Approach to Undertakings Given by Parties in the Settlement of a Claim - Anisa Kassamali, Temple Garden Chambers Smith v Backhouse [2022] EWHC 3011 (KB) considers whether the Court can refuse to accept undertakings which a party has agreed to provide to the Court as part of the settlement of a civil claim. Nicklin J considered that "the consequences could be absurd" [28] if the Court had to accept any undertakings agreed between the parties and refused to accept certain of the undertakings in the parties' agreement on the basis that they were "too vague/wide" [29]... |
 The Importance of Discretion After Cable: Ahmed v Chojnowski [2022] EWHC 2863 (KB) - Sebastian Bates, Temple Garden Chambers In Cable v London Victoria Insurance Co Ltd [2020] EWCA Civ 1015, the Court of Appeal emphasised at [73] that '[h]aving established that there was an abuse of process, the second step for the court is the usual balancing exercise, in order to identify the proportionate sanction'. In this regard, the Court stressed that '[s]triking out the claim is an option, but [. . .] it is not the only, or even the primary, solution'... |
 Defective Witness Statement for Non-English Language Speaking Claimant Was Ruled Inadmissible Leading to Dismissal of His Claim - Grace Corby, Temple Garden Chambers Correia v Williams [2022] EWHC 2824 - The judgment set out the approach to be adopted in relation to the admission of witness statements for witnesses who do not speak English, which have not complied with the requirements of the Civil Procedure Rules... |
 Judicial College Guidelines 16th Edition: Damages for Asbestos-Related Disease - Jim Hester, Parklane Plowden Chambers This is my last article on the new (16th Edition) of the Judicial College guidelines, following earlier articles on Work-related Limb Disorders and Noise Induced Hearing Loss. This article covers Asbestos-Related Disease... |
 Case Summary: G v C - Stephanie Robinson, Spencers Solicitors Limited G was aged 54 at the time of her road traffic accident. She was the driver of a vehicle that was involved in a severe rear end shunt. Following the accident, G was in shock and was unable to exit the vehicle for approximately 10 minutes. Her vehicle was not driveable and subsequently written off. She had to be collected from the scene. Liability was admitted... |
| Clinical Negligence Medicine by Dr Mark Burgin | |
 Understanding the Barrister's Role in Clinical Negligence - Dr Mark Burgin Dr. Mark Burgin BM BCh (oxon) MRCGP explains that a barrister's success in their role in clinical negligence depends on medical experts working with solicitors... |
 Does the DPA 2018 Protect the Patient? - Dr Mark Burgin Dr Mark Burgin argues that the DPA 2018 is a new source of revenue for legal practitioners and both claimants and defendants should ensure that they have the best advice... |
November 2022 Contents
 Welcome to the November 2022 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 Civil Liability (Contribution) Act 1978 Is Without Overriding Effect - Sebastian Bates, Temple Garden Chambers The question in The Soldiers, Sailors, Airmen and Families Association - Forces Help was whether the Civil Liability (Contribution) Act 1978 has mandatory or overriding effect ('overriding effect') so that it applies to all contribution claims brought in England and Wales, or whether it applies only when domestic choice of law rules indicate that the contribution claim in question is governed by the law of England and Wales... |
 The Court of Appeal Clarifies The Meaning of 'Proceedings' In CPR 44.15 - Sebastian Bates, Temple Garden Chambers Achille v Lawn Tennis Association Ltd [2022] Ewca Civ 1407. As Males LJ explained at [4], 'CPR 44.15 allows a defendant to enforce a costs order made against a claimant [in a personal injury case] to its full extent without needing permission from the court in three categories of case', namely... |
 Vulnerable witnesses: AXX v Zajac [2022] EWHC 2463 (KB) - Anisa Kassamali, Temple Garden Chambers CPR Practice Direction 1A on the participation of vulnerable litigation in civil proceedings came into force in April 2021. The High Court (Master McCloud) considered the provisions for the first time in AXX v Zajac [2022] EWHC 2463 (KB)... |
 High Court Rejects Claimant's Application for Indemnity Costs: Evans v R&V Allgemeine Verischer [2022] EWHC 2688 (KB) - Grace Corby, Temple Garden Chambers After succeeding on the substantive personal injury claim, the Claimant sought indemnity costs against the Defendant. While the Judge accepted that the Defendant's conduct had been imperfect, it was not sufficiently poor to warrant indemnity costs... |
 Judicial College Guidelines 16th Edition: Damages for Noise Induced Hearing Loss - Jim Hester, Parklane Plowden Chambers Following my earlier article concerning Work-related Limb Disorders, this article concentrates on changes relevant for assessing damages for Noise Induced Hearing Loss under the 16th Edition of the JC Guidelines... |
 Case Summary: W v L - Steven Barke, Spencers Solicitors Limited The Claimant, aged 51, was involved in a road traffic accident on the 24th December 2018 when the vehicle he was travelling in was struck from behind by the Defendant's vehicle. Liability for the accident was admitted by the Defendant representatives... |
| Medico-Legal Articles, Edited by Dr Hugh Koch | |
 Legal Mind Case and Commentary No 40: Expert Witnesses, Beware Unconscious Bias - [Koch HCH, Jansen F, Maisey D and Natha F, November, 2022] This month's Legal Mind Case and Commentary summarises and comments on an excellent article by Meera Shah in Bond Solon newsletter and recent PLC Dispute Resolution blog. It relates to comments made by A. Meltzer QC in November 2021 about the inappropriate conduct of two experts and advises against forming opinions of a claimant suggesting a level of unconscious bias... |
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| Clinical Negligence Medicine by Dr Mark Burgin | |
 Failing Negotiators in Public Services - Dr Mark Burgin Dr. Mark Burgin BM BCh (oxon) MRCGP explains how dysfunctional systems of negotiation within public services increase conflict with the public. Negotiation is a key skill with public services to manage disagreements particularly in situations where the service user does not pay for the service... |
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October 2022 Contents
 Welcome to the October 2022 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 | |
 Application of QOCS protection in a 'mixed' claim: Wokingham Borough Council v Arshad [2022] EWHC 2419 (KB) - Anisa Kassamali, Temple Garden Chambers Mr Justice Bourne considered the application of QOCS protection to claimants who have brought 'mixed' claims i.e. a claim for both personal injury damages and other special damages. The claimant brought a claim for damages against Wokingham Borough Council ('Wokingham BC'), which was heard in Oxford County Court. The claimant had sought confirmation from Wokingham BC that the vehicle he proposed to purchase was... |
 A Stark Reminder to Insurers About the RTA Protocol: London Borough of Islington v Bourous [2022] EWCA Civ 1242 - Sebastian Bates, Temple Garden Chambers 19/10/22. The Court of Appeal has recently given an extensive account of the appropriate functioning of the Protocol for Low Value Personal Injury Claims in Road Traffic Accidents ('the RTA Protocol'). The Court's judgment addressed two appeals brought by defendants who had unsuccessfully contended in the County Court that taxi drivers who had made claims under the RTA Protocol ought not to... |
 Gestwin Principles Applied in the Context of a Road Traffic Accident and the Potential for Eyewitness Accounts to Take Precedence Over Expert Evidence Affirmed - Grace Corby, Temple Garden Chambers Barrow (By His Litigation Friend and Grandfather Mr Hugh Barrow) & Ors v Merret and Anr [2022] EWCA Civ 1241. The Claimant unsuccessfully appealed the dismissal at first instance of his negligence claim. The first-instance judge had dismissed the claim after concluding that the expert evidence was of limited assistance and the case had turned principally on eyewitness evidence. The Court reiterated that they should not... |
 The incomplete cross-examination: Riley v Salford Royal NHS Foundation Trust [2022] EWHC 2417 (KB) - Anisa Kassamali, Temple Garden Chambers 21/10/22. Riley v Salford Royal NHS Foundation Trust [2022] EWHC 2417 (KB) serves as a timely reminder to practitioners to ensure that they put all points to a witness in cross-examination. The claimant suffered personal injury as a result of clinical negligence, specifically the amputation of his right lower leg below the knee. His claim included a number of heads of loss, including the cost of... |
 Case Summary: S v M - Stephanie Robinson, Spencers Solicitors Limited S, at the age of 39, was involved in a road traffic accident. S was on her way home from shopping when the vehicle in front of her started to brake sharply. S braked sharply but the vehicle behind her collided with the rear of her vehicle, causing extensive damage. Liability was admitted... |
 Case Summary: S v H - Steven Barke, Spencers Solicitors The Claimant aged 65 at the time of the accident, sustained personal injuries due to a road traffic accident. S suffered an 18-month neck and shoulder injury with associated left upper limb pain and an upper tooth was chipped with a fracture of the incisal edge and possible fracture of the upper right. S was unsure how the tooth was chipped in the accident. He developed soreness to his cheek and gum and whistling... |
| Medico-Legal Articles, Edited by Dr Hugh Koch | |
 E-scooter nerves can seriously affect you! Diagnosing and treating post-e-scooter accident anxiety - Professor Hugh Koch Electric scooters are now a common sight on UK public roads, private roads and parks, more so now that they are legal to ride in the UK, albeit with strict limitations. It is legal to ride e-scooters on roads and cycle lanes but not on pavements, although this is frequently seen. A combination of high speeds, limited braking capacity and very silent running make potential accidents for riders and pedestrians a frightening prospect, adding also... |
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| Clinical Negligence Medicine by Dr Mark Burgin | |
 Working with Solicitors in Clinical Negligence - Dr Mark Burgin Dr. Mark Burgin BM BCh (oxon) MRCGP explains why the solicitor's role is underestimated both in terms of its importance and the range of skills required. A successful solicitor makes their job look easy by solving problems before others become aware of them and planning for every eventuality... |
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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)
