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May 2023 Contents
 Welcome to the May 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 | |
 Unsuccessful parties can be ordered to pay the costs involved in applications against a non-party: McCarthy v Jones & Anor [2023] EWCA Civ 589 - Anisa Kassamali, Temple Garden Chambers The Court of Appeal considered an appeal against a decision that an unsuccessful party pay the costs involved in applications in relation to a non-party. The Claimant was awarded a sum in excess of £1 million for breach of contract. During the course of the proceedings, he had applied to the Court for an order requiring a third party to preserve documents, and for an order allowing him to rely on documents disclosed in the proceedings for the purpose of pursuing that third party. It was envisaged that a third party application for disclosure would follow but, in the event, this was not necessary as the third party gave voluntary disclosure... |
 Intervening Medical Treatment and the Chain of Causation: Jenkinson v Hertfordshire County Council [2023] EWHC 872 (KB) - Sebastian Bates, Temple Garden Chambers In this case, Andrew Baker J addressed whether Webb v Barclays Bank PLC and Portsmouth Hospitals NHS Trust [2002] PIQR P8 'establishe[d] as a rule of law that medical treatment of an injury caused by a defendant's tort cannot break the chain of causation unless it is such grossly negligent treatment as to be a completely inappropriate response to the injury': see [13] (emphasis original). Andrew Baker J referred to this putative rule as 'the Specific Rule'. It closely tracks what is currently the final sentence of [2-124] in Clerk & Lindsell on Torts, as Andrew Baker J noted at [39]... |
 Pre-Action Disclosure as to Impecuniosity: Holt v Allianz Insurance PLC [2023] EWHC 790 (KB) - Sebastian Bates, Temple Garden Chambers As set out at [1]-[11], there has been a divergence of practice in the County Court on whether prospective defendants in credit hire cases who apply for pre-action disclosure of documentation of prospective claimants' impecuniosity should succeed. This appeal, from a decision by HHJ Harrison to grant such an application by Allianz Insurance PLC, was heard by Andrew Baker J in order to make it possible for guidance to be given to address this divergence... |
 A reminder to practitioners about the importance of skeleton arguments: Masih & Anor v Royal Wolverhampton NHS Trust [2023] EWHC 1280 (KB) - Anisa Kassamali, Temple Garden Chambers A judgment handed down by Ritchie J reminds practitioners about the appropriate role of skeleton arguments in proceedings. The Appellant had been granted permission to appeal in relation to a 'complicated clinical negligence case' [33]. However, permission had only been granted on a number of grounds. There were also a number of grounds in respect of which no permission was granted... |
 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 Mr Shazad staged a car accident on 25th November 2015. The other driver said at the beginning 'I thought the accident was suspicious straight away'. A court claim was brought for minor whiplash injuries which the claim form valued at less than £1,000. Included in those court proceedings was a claim for storage of Mr Shazad's damaged car and the cost of hiring a replacement car (used as a taxi) from Fastrack Solutions Limited. Five years later the liability trial was heard before District Judge James in Wakefield County Court on 9th September 2020. In his reserved judgement dated 5th October 2020, DJ James ruled that the claim was fundamentally dishonest and stripped Mr Shazad of his costs protection. On 4th January 2021 RSA (as insurer of the other vehicle) issued an application seeking a non-party costs order ('NPCO') against the credit hire company. Unusually, the insurer obtained an order that its director attend court for cross-examination... |
 Paralegal Apprenticeships Helping Increase Diversity in the Legal Profession - Jane Robson, CEO, National Association of Licensed Paralegals The legal profession is often viewed as being exclusively for the 'elite'. To be fair, there has been a lot of snobbery around the law - both real and perceived - and it is well documented that the traditional legal professions lacked diversity and did not reflect those they were representing. Let's look at the issues and how the changes to apprenticeships will be of value to Personal Injury law practices... |
| Clinical Negligence Medicine by Dr Mark Burgin | |
 How AI is Changing the Legal Landscape - Dr Mark Burgin Dr Mark Burgin explains the different AI technologies available and how they will and are being used to disrupt legal practice. When a legal practice considers whether AI will assist their business it is easy to become overwhelmed. AI is cheaper and has had recent a step change in effectiveness with AI like ChatGPT so it cannot be ignored any more. There are so many different types of AI technologies available, each with their own promise. In this article I describe the main types and what they are good at... |
 How can Lawyers assess Medical Expert's Skills - Dr Mark Burgin 26/05/23. Dr Mark Burgin explains how lawyers can achieve a more comprehensive view of an expert's performance using an open access claimant feedback questionnaire. When lawyers are looking to instruct a medical expert, they will often use experts that they have previous experience of. This is because it is helpful to be familiar with an expert's work style, approach, and areas of expertise. However, it is not always possible to use an expert that the lawyer has worked with before. In these cases, it is important to take steps to get to know the expert and to ensure that they are a good fit for the case... |
April 2023 Contents
 Welcome to the April 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 | |
 Another reminder about the risks of surveillance footage: Mantey v Ministry of Defence [2023] EWHC 761 (KB) - Anisa Kassamali, Temple Garden Chambers Eyre J considered whether or not a former soldier had been fundamentally dishonest in his personal injury claim in light of surveillance footage. The claimant sought damages from the Ministry of Defence (The "MoD") for Non-Freezing Cold Injury ("NFCI") which he said he had suffered because of the MoD's negligence and/or breach of statutory duty. The claimant said that he was suffering sundry continuing disabling symptoms and his medical evidence provided details on this. However, the claim... |
 Inflexibility in Summary Assessment: R (Isah) v Secretary of State for the Home Department [2023] EWCA Civ 268 - Sebastian Bates, Temple Garden Chambers On this appeal, the Court of Appeal addressed 'whether a summary assessment must be undertaken by the judge making the order for summary assessment'. As Asplin LJ explained at [2] - [10], the appeal was brought by Mr Isah against a ruling on costs by Linden J. He had ordered that, if their quantum could not be agreed by Mr Isah and the Secretary of State for the Home Departments, then the costs that he had awarded would be summarily assessed by a Master. Asplin LJ's starting point was... |
 Non-Attendance on the Small Claims Track: Owen v Black Horse Ltd [2023] EWCA Civ 325 - Sebastian Bates, Temple Garden Chambers CPR 27.9 governs '[n]on-attendance of parties at a final hearing' on the small claims track. The question for the Court of Appeal in this case was what CPR 27.9 means by circumstances in which 'a claimant does not attend the hearing'. This question arose because Mr Owen was absent from the trial of his small claim, although his solicitor attended: see [5] - [18]. DDJ Sandcock struck out his claim under CPR 27.9(2) for reasons... |
 Embargoed judgments: InterDigital Technology Corporation & Ors v Lenovo Group Ltd & Ors [2023] EWCA Civ 57 - Anisa Kassamali, Temple Garden Chambers The fear of accidentally breaching an embargo on the disclosure of a draft judgment rests with all practitioners. Some comfort can be taken from the Court of Appeal's decision not to take matters further where such a breach had taken place but had not been deliberate: InterDigital Technology Corporation & Ors v Lenovo Group Ltd & Ors [2023] EWCA Civ 57... |
 Whiplash reform: As settlement times rise, the OIC portal remains far from perfect - Matthew Huggett, president of CILEX In 2021, the Ministry of Justice brought in reforms that increased the small-claims limit for road traffic accidents from £1,000 to £5,000, implemented fixed damages for injuries that last up to two years and asked the insurance industry to set up an online claiming system - the Official Injury Claim Service (OIC). These changes were made amid considerable concern from across the legal profession about the potential for restricting access to justice for those making injury claims... |
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| Clinical Negligence Medicine by Dr Mark Burgin | |
 What does the King's Bench Guide say to Litigants in Person? - Dr Mark Burgin Dr Mark Burgin explains what experts who are instructed by LiPs need to know about the advice from the King's Bench. The King's Bench Guide has been referred to in a recent case where a LiP was told that they should have read the relevant sections. Experts who wish to accept instructions from LiPs may need to explain this Guide. Helping LiPs follow the correct procedures is part of the expert's duty to the court under CPR1.1... |
 Privacy and dysfunction in a 1984 type World - Dr Mark Burgin Dr. Mark Burgin BM BCh (oxon) MRCGP explains that little progress has been made to manage the dysfunction that is caused by denying individuals a private life. The social media giants have done more to restrict the public's ability to live their life in peace away from the constant gaze of others than any other actor. Governments have largely been complacent in responding to the threats posed by the loss of a private life focusing on data security rather than control of data... |
March 2023 Contents
 Welcome to the March 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 | |
 Secretary of State for the Home Department Fails to Strike Out Negligence Claim - Grace Corby, Temple Garden Chambers In Aruchanga v Secretary of State for the Home Department [2023] EWHC 282 (KB) the Claimant sought damages for breach of a common law duty of care by the Defendant for failing to supply him with confirmation of his refugee status. As a result, he suffered loss of benefits, which caused him personal injury in the form of exacerbating pre-existing post-traumatic stress disorder ('PTSD'). The Claimant also brought other claims for breach of... |
 FREE CHAPTER from 'A Practical Guide to Cross-Border Clinical Negligence Claims' by Dominique Smith This book provides practical guidance to practitioners handling cross-border clinical negligence claims, covering issues including jurisdiction and applicable law, deaths abroad and inquests, applicable standards, expert evidence, and different types of claim... |
 Non-party costs orders against solicitors where a CFA is in place - Anisa Kassamali, Temple Garden Chambers PME v The Scout Association [2023] EWHC 158 (Senior Courts Costs Office) considered an application for a non-party costs order ('NCPO') against a claimant's solicitors, where the claimant was protected by QOCS. The claimant's claim for personal injury was settled by way of the defendant's Part 36 offer of £29,500 on 22 August 2017. The claimant served a schedule of costs in August 2017. The defendant offered to... |
 When Is Permission to Appeal Required in Cases of Contempt? - Sebastian Bates, Temple Garden Chambers In Deutsche Bank AG v Sebastian Holdings Ltd [2023] EWCA Civ 191, the Court of Appeal addressed what Andrews LJ described at [127] of her concurring judgment as 'the topic of permission to appeal in cases of committal for contempt'. Males LJ recorded at [1] - [3] of his leading judgment that the appellant, Mr Vik, had been found guilty of contempt of court by an order. By a later order, he had been committed to prison for a period to be conditionally suspended. Males LJ acknowledged that... |
 Vulnerable Witness Being Provided With Cross-Examination Questions in Advance Created an Unlevel Playing Field - Grace Corby, Temple Garden Chambers GKE V BRETT NIGEL TRAVERS GUNNING [2023] EWHC 332 (KB). The Claimant received work/life coaching sessions from the Defendant through her work and then paid privately for counselling/therapy for her mental health and lifestyle issues. The Defendant was a member of the British Association of Counselling and Psychotherapy (BACP) and a qualified counsellor and provided the well-being coaching and later private... |
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| Personal Injury Articles | |
 Assessing Capacity for Litigation - Dr Mark Burgin Dr Mark Burgin explains how a disability analyst approaches MCA testing and the 4 steps of understand, retain, weigh and communicate their decision. All people are capable of some tasks and lack capacity for others. In disability the key question is whether reasonable adjustments will allow the person to regain or develop capacity in a specific area. The expert must test the person in... |
 Assessing Children with Behaviour Problems for the Family Court - Dr Mark Burgin Dr. Mark Burgin BM BCh (oxon) MRCGP explains the difficulties in determining the origins of behaviour problems in children from troubled families. Many children in troubled families have a diagnosis of behaviour problems but it can be difficult for the court to differentiate between a family that is stressed because of the child or vice versa. The behaviour problems can be so severe that... |
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... |
![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)
