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November 2021 Contents
 Welcome to the November 2021 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 | |
 Exceptional Circumstances and recovering costs above fixed recoverable costs - Sean Linley, Carter Burnett Fixed recoverable costs were first introduced in 2010. It was said to be a procedure that would make costs in lower value claims simpler and easier to deal with. Back then the scheme only applied to road traffic accident claims with a value with damages of up to £10,000.00. Fast forward 11 years and we have seen the upper limit increased and fixed costs extended into other areas including... |
 Do not Destroy! Ayannuga & Ors v One Shot Products Ltd [2021] EWHC 2930 (QB) - Rochelle Powell, Temple Garden Chambers This was an application made on behalf of the claimants for orders in relation principally to disclosure against the defendant. The claim was brought against the manufacturer of a drain cleaner on the basis that the drain cleaning product was the cause of death and injury to the claimants. On 23 November 2015 the claimants' solicitors, Leigh Day, wrote to the defendant putting them on notice of these claims. The manager of the defendant company... |
 QOCS and Set Off: Supreme Court ruling in Ho - v- Adelekun [2021] UKSC 43 - Rochelle Powell, Temple Garden Chambers This appeal considered whether Qualified One Way Costs Shifting ('QOCS') could in any way constrain a defendant's liberty to seek, or the court's discretionary power to permit, a set-off between opposing costs orders. Overturning the Court of Appeal decision, the Court held that the setting off of costs against costs is a form of enforcement covered by the QOCS provisions. It was therefore precluded where a defendant's costs exceeded the total of any order for damages and interest in favour of the Claimant... |
 Golizardeh v Sarfraz [2021] EWHC 2814 (Ch): Interpreters, Remote Trials, Fairness & Identifying Language Issues Early - Nicholas Dobbs, Temple Garden Chambers In Golizardeh v Sarfraz, the defendant appealed against an order giving judgment for the claimant in the sum of £200,000, plus interest. The appeal was brought under CPR 52.21(3)(b) on the grounds that the decision of the Judge was unjust because of a serious procedural irregularity, namely that the Judge wrongly refused to allow the use of an interpreter for one of the defendant's witnesses (who requested an interpreter) and, more generally, did not... |
 Elgamal v Westminster City Council [2021] EWHC 2510 (QB): When Exaggeration Does Not Amount To Fundamental Dishonesty - Nicholas Dobbs, Temple Garden Chambers In Elgamal v Westminster City Council, the Defendant appealed a judgment following trial to pay the Claimant £125,321.33 in damages for personal injury. The central issue on appeal concerned the judge's decision that the Claimant had not been fundamentally dishonest in relation to his claim, and accordingly whether the provisions of s 57 of the Criminal Justice and Courts Act 2015 applied. A further issue arose as to the way in which the trial judge had dealt with the costs of the proceedings (the subject of a previous PIBU article published last month)... |
 'Failure to Remove' Claims in the High Court: the Appeals in HXA v Surrey County Council and YXA v Wolverhampton City Council - Paul Stagg, 1 Chancery Lane The trickle of court decisions seeking to apply the decision of the Supreme Court in N v Poole BC [2019] UKSC 25, [2020] AC 780 continues. On November 8th 2021, Stacey J handed down her long-awaited decision [2021] EWHC 2974 (QB) on the appeals from the decisions of Deputy Master Bagot QC in HXA v Surrey CC [2021] EWHC 250 (QB) and Master Dagnall in YXA v Wolverhampton CC [2021] EWHC 1444 (QB). She dismissed the... |
| Clinical Negligence Medicine by Dr Mark Burgin | |
 Understanding the Range of Opinion (RoO) - Dr Mark Burgin Dr. Mark Burgin BM BCh (oxon) MRCGP describes some of the difficulties that experts encounter when trying to describe a range of opinion... |
 What do Litigants in Person (LiPs) want to know from their expert? - Dr Mark Burgin Dr. Mark Burgin BM BCh (oxon) MRCGP describes how an expert spending several hours talking to a Litigant in Person about a case can maintain independence... |
October 2021 Contents
 Welcome to the October 2021 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 | |
 FREE CHAPTER from 'A Practical Guide to Personal Injury Fixed Costs in Portal and Ex-Portal Cases' by Alexander Mellis Fixed costs in personal injury are supposed to be straight forward, avoid the need for time spent on assessment and control the level of costs payable by Defendants. Whilst it usually secures those aims, there are gaps, lacunas, nuances and specific interpretations which any practitioner - be it solicitor, CILEX, paralegal, counsel or, dare I say, judge - should know... |
 Covey v Harris [2021] EWHC 2211 (QB) - Rochelle Powell, Temple Garden Chambers & Rebecca Henshaw The Defendant was successful in amending his defence to plead a positive case of fundamental dishonesty, as it was both sensible and in keeping with the overriding objective to do so, and had not prejudiced the Claimant... |
 Children and contributory negligence: Khadija Alabady (a minor by her litigation friend Fatima Alabady v Muhammad Ali Akram [2021] EWHC 2467 (QB) - Rochelle Powell, Temple Garden Chambers & Rebecca Henshaw The case concerned the trial of a preliminary issue to determine whether a 9-year-old Claimant was contributorily negligent, and if so, the level of any consequent apportionment... |
 West v Burton [2021] EWCA Civ 1005 - Fixed Costs & Disbursements Payable Under The Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents - Nicholas Dobbs, Temple Garden Chambers The appeal in West v Burton concerned the fixed costs and disbursements payable under the Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents ('the Protocol'). The Court of Appeal framed the issue at the heart of the matter in this way: where a person gives notification of a claim under the Protocol but thereafter dies before its conclusion and... |
 Elgamal v Westminster City Council [2021] EWHC 2510 (QB) - A Decision Considering CPR 36.17 Where There Had Been Exaggeration But Not Fundamental Dishonesty - Nicholas Dobbs, Temple Garden Chambers The judgment in Elgamal v Westminster City Council is likely to be of interest to practitioners for its discussion of the interpretation and application of the law relating to fundamental dishonesty (an update on that will follow shortly). The judgment is also of interest in so far as it addresses the costs consequences in circumstances where... |
 Findings of Fact in Mesothelioma Case - Jim Hester, Parklane Plowden Chambers This is another case where the court (and parties) have had to consider findings of fact in relation to historic events, in this case with respect to a fatal mesothelioma claim. Jackman v Harold Firth [2021] EWHC 1461 (QB) per HHJ Bird, sitting as a Judge of the High Court... |
| Medico-Legal Articles, Edited by Dr Hugh Koch | |
 Legal Mind Case and Commentary No. 36: Levels of Unreliability in Chronic Pain - [Koch HCH, Jansen F, Grace J, Gill I and Huntley F, October 2021] Neil Rose (Legal Futures) reported a case in which a claimant had exaggerated the impact of an injury and its ramifications. The High Court ruled that the judge was right to find that the claimant who exaggerated the effects was not fundamentally dishonest. The issues surrounding exaggeration and unreliability especially in cases where chronic pain is involved are discussed... |
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| Clinical Negligence Medicine by Dr Mark Burgin | |
 Medical Opinions in Housing Disrepair Cases - Dr Mark Burgin Dr. Mark Burgin BM BCh (oxon) MRCGP discusses how a solicitor prepares the evidence for a medical expert writing a report on the effect of damp on health... |
 Proving Mould Related Claims for PI - Dr Mark Burgin Dr. Mark Burgin BM BCh (oxon) MRCGP explains that the medical expert approaches causation in mould related illness by comparison with the approach in RTA cases... |
September 2021 Contents
 Welcome to the September 2021 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 realistic and common-sense approach. A reminder of the principles relating to the assessment of damages under section 3 FAA: Paramount Shopfitting Company Ltd v Rix [2021] EWCA Civ 1172 - Rochelle Powell, Temple Garden Chambers This was an appeal against the order of Cavanagh J, whereby he ordered that the respondent, the widow of Martin Rix ('Mrs Rix'), had suffered a loss of financial dependency. It was the appellant's case that Mrs Rix had no financial dependency claim because the family business had been profitable since the death of Mr Rix... |
 Child pedestrians and contributory negligence - David Knifton QC, Exchange Chambers In the latest contribution to the issue of child contributory negligence, HHJ Bird (sitting as a Judge of the High Court) concluded that a 9 year-old girl, struck by a car whilst crossing a carriageway at night, was not guilty of contributory negligence. The case of Alabady v Akram [2021] EWHC 2467 (QB) raises a number of important issues in this area of the law... |
 Axnoller Events Ltd -v- Brake [2021] EWHC 2362 (Ch) - Nicholas Dobbs, Temple Garden Chambers HHJ Matthews (sitting as a Judge of the High Court) carried out a summary assessment of the costs of an application dealing with various issues that had arisen in the proceedings. Of particular interest, the Court was asked to consider whether the charging rates for London solicitors were appropriate for this case... |
 A costly error: the failure to file a schedule in Mahandru v Nielson [2021] EWHC 2297 (QB) - Rochelle Powell, Temple Garden Chambers This was an appeal brought by the claimant in the underlying action, Mr Rajeve Mahandru, against an order of Ms Recorder Frost, by which she refused his application for an interim injunction requiring the defendant, Dr Ejiro Nielson, to readmit the claimant to the property where he had been living before he was admitted to hospital... |
 Sheard -v- Cao Tri Do [2021] EWHC 2166 (QB) - Nicholas Dobbs, Temple Garden Chambers This case provides an instructive example of the difficulties in negligence claims of resolving conflict between witness evidence and contemporaneous medical notes, especially when memories of crucial conversations have faded... |
 Cost Budgeting in the Asbestos List - Jim Hester, Parklane Plowden Chambers This Judgment was given extempore during a CMC. However, the Master decided that given that it involves the common issue of cost budgeting within the Asbestos List, it was set into print. It has been distributed more widely than otherwise would be the case. The Judgment states that approach contained has the approval of the Asbestos Masters... |
| Clinical Negligence Medicine by Dr Mark Burgin | |
 Not Happy with Report: what are the claimant's options? - Dr Mark Burgin Dr Mark Burgin BM BCh (oxon) MRCGP reveals the secrets to effectively challenging a reluctant expert and obtaining a fairer report... |
 How To Understand The Solicitor's Instructions To The Medical Expert - Dr Mark Burgin Dr Mark Burgin BM BCh (oxon) MRCGP explains how to identify difficulties in instructions and offers approaches to resolving them... preview http://www.pibulj.com/content/law-journal-summaries/news-category-4/5370-how-to-understand-the-solicitor-s-instructions-to-the-medical-expert-dr-mark-burgin |
August 2021 Contents
 Welcome to the August 2021 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 | |
 Dishonest claim or dishonest claimant? The correct application of section 57: Michael v Hurford Ltd (t/a Rainbow) [2021] EWHC 2318 (QB) - Rochelle Powell, Temple Garden Chambers The Claimant brought a successful claim for damages for personal injury arising out of a road traffic accident. However, it appeared that certain elements of the claim were pursued inaccurately on the claimant's behalf. The Defendant appealed on the grounds that the Recorder had been wrong not to make a finding of fundamental dishonesty... |
 Third-Party Disclosure in Asbestos case - Jim Hester, Parklane Plowden Chambers This Judgment concerned an appeal from the Claimant's unsuccessful Third Party disclosure Application: Sparkes (as personal representative of Pauline Sparkes, deceased) v London Pension Funds Authority and Leigh Academies Trust [2021] EWHC 1265 (QB), per Murray J. Neither Defendants nor the third party appeared at the Appeal hearing... |
 What Has Been the Impact of the Pandemic on Paralegals? - Amanda Hamilton, NALP Within the legal profession it has long been regarded that paralegals are the support staff to solicitors, since many are graduates who are seeking to become solicitors at the end of day. Arguably, they accept the role of paralegal within the firm to gain experience and with the hope that eventually they will be offered that very important training contract. Unfortunately, evidence indicates that... |
 Unreasonable non-use of the Portal means fixed costs apply: Harford v Music Store Professional UK/DV247 Ltd [2021] EWHC B17 (Costs). - Rochelle Powell, Temple Garden Chambers The Claimant brought a claim for damages against his employer following an accident at work. He was initially diagnosed with a potential inguinal hernia. Subsequent investigations revealed that he had also sustained two lumber sacral prolapsed discs in his spine. A letter of claim was sent on his behalf stating that the claim was not suitable for the Portal... |
 A reply must be consistent with the pleadings: R5 Capital Ltd v Mitheridge Capital Management LLP [2021] EWHC 2316 (Ch) - Rochelle Powell, Temple Garden Chambers The Defendant applied for security for costs and an order to strike out aspects of the Claimant's statements of case. Both applications were successful. In relation to the pleadings, the Defendant argued that parts of the Reply were incompatible with the claimant's pleaded case. Deputy Master Raeburn agreed, highlighting that the rules require a reply to be consistent with an earlier statement of case... |
 Failure to Remove Claims and Section 20 Accommodation: YXA v Wolverhampton City Council - Paul Stagg, 1 Chancery Lane Since the beginning of the year, three decisions have been handed down in favour of defendants in relation to how the decision in N v Poole BC [2019] UKSC 25, [2020] AC 780 affects claims in negligence against social services. The decision of Deputy Master Bagot QC in HXA v Surrey CC [2021] EWHC 250 (QB) was the first, and was discussed in an article that I wrote and circulated in February when the decision was handed down... |
 Increases in hourly rates amount to 'special circumstances': Raydens Ltd v Cole [2021] EWHC B14 (Costs) - Rochelle Powell, Temple Garden Chambers The Claimant solicitors acted for the Defendant in matrimonial proceedings between 2013 and 2018. The proceedings concluded, in the course of an ancillary relief hearing with an order which incorporated agreed terms of settlement. The order provided required the Defendant's ex-husband to pay to the Defendant a lump sum of £800,000. Of that sum £290,000 was to be applied in the first instance to clearing the Defendant's incurred costs... |
 How Two Law Firms Have Adapted to the PI Reforms - Brian Rogers, Access Legal From 31 May this year, the personal injury claims process changed for people who suffer from what is categorised as low-value injuries in road traffic accidents or RTAs. Essentially, the changes have impacted the amount of compensation claimants can receive and it means RTA cases valued up to £5,000 will now be treated as small claims. In theory, claimants are now less likely to seek legal representation as they will have to pay for their legal costs out of reduced damages... |
| Clinical Negligence Medicine by Dr Mark Burgin | |
 Fitness for Court: The Medical Examination - Dr Mark Burgin Dr. Mark Burgin BM BCh (oxon) MRCGP explains that the basis of a medical examination assessing the fitness for court is disability... |
 How the Seven Principles of Public Life Conflict with a Doctor's Duties - Dr Mark Burgin Dr. Mark Burgin BM BCh (oxon) MRCGP considers how expectations about public figures cause perverse behaviour and make them ineffective in their work... |
July 2021 Contents
 Welcome to the July 2021 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, July 2021 | |
 R (The Good Law Project) v The Secretary of State for Health and Social Care [2021] EWHC 1782 (TCC) - Harry Peto, Temple Garden Chambers This was a claim for judicial review in which the Claimant sought to challenge the lawfulness of the Defendant's decisions to award contracts for the supply of personal protective equipment to the Interested Party, Pharmaceuticals Direct Ltd... |
 Fear and anguish shortly before instantaneous death: Chouza v Martins & Ors [2021] EWHC 1669 (QB) - Paul Erdunast, Temple Garden Chambers Fear and anguish shortly before instantaneous death is capable of compensation in PSLA damages in a fatal accident case - but where that period of fear and anguish was short, the figure was £500. Mr Rodriguez, the deceased, was unfortunately killed by an articulated goods vehicle which drove on the wrong side of the road, into the car in which he was a passenger. It was more likely than not, the medical expert concluded, that the death would have been instantaneous... |
 Smith v The Royal Bank of Scotland [2021] EWCA Civ 977 - Harry Peto, Temple Garden Chambers The Defendant sought permission to appeal in a second appeal in relation to a PPI case. The case had been allocated to the small claims track. Permission to appeal was granted, but subject to a condition that the Defendant pay the Claimant's costs of the appeal. This condition was on the ground that the Claimant was an individual with a small claim who was defending a second appeal, whereas the Defendant was a large corporation. The Defendant applied to set aside that condition... |
 Whether there is a draft defence will, in certain circumstances, be a highly relevant factor in whether there is a real prospect of success on an application to set aside default judgment: Alli-Balogun v On the Beach Limited [2021] EWHC 1702 (QB) - Paul Erdunast, Temple Garden Chambers The Claimant, an eight year old child at the time of the accident, suffered catastrophic brain injuries when she drowned in a swimming pool in Spain on the watch of a lifeguard. The fifth defendant ("the Defendant"), the insurer of the company the lifeguard worked for, applied to set aside the default judgment obtained against it on 20 December 2019... |
 The fight against section 57 fundamental dishonesty: Ed Ford (aka Edward Leonard Batey) v Lilachall Limited - Cristina Parla, Roythornes Solicitors I recently acted for a client in connection with his personal injury claim which arose as a result of a slipping accident on private property. The facts of the case are relatively straightforward, but the approach adopted by the defendant caused significant delays. The claim took over 5 years to resolve and had to go before the court for determination on liability and quantum... |
 PI: One of the top six growth areas for paralegals as we come out of lockdown - Amanda Hamilton, Chief Executive, National Association of Licensed Paralegals (NALP) Fortunately, we are now seeing a slow recovery from lockdown, but we have yet to see the serious after-effects, mental, physical, economical and legal, on individuals and businesses. Only time will give us this information... |
 Balls v Reeve & Thurlow: limitation and causation: Asbestosis - Jim Hester, Parklane Plowden Chambers In this Asbestosis case, both limitation and causation were in dispute. The Judgment appears in full at Balls v Reeve and Thurlow [2021] EWHC 751 (QB). The claim was heard by David Pittaway QC, sitting as a Deputy Judge of the High Court... |
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| Medico-Legal Articles, Edited by Dr Hugh Koch | |
 Legal Mind Case and Commentary No. 35: A reasonable expert, please? - Koch HCH, Aldridge M, Grace J and Jansen F, July 2021 This is the thirty-fifth in a series of Case reports and Commentaries from Professor Koch and colleagues. The pros and cons of requiring a medical expert to attend a hearing for a Fast Track case is debated and illustrates the importance of meeting CPR requirements... |
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| Clinical Negligence Medicine by Dr Mark Burgin | |
 Disrupting the Law - Dr Mark Burgin Dr Mark Burgin BM BCh (oxon) MRCGP takes a wry look at how the latest developments in AI technology could be used to create a cheaper, quicker and better legal system... |
 M'Naghten rules and civil cases - Dr Mark Burgin Dr Mark Burgin BM BCh (oxon) MRCGP discusses how the M'Naghten rules which are for criminal cases shine a light upon areas of injustice in civil cases particularly clinical negligence... |
![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)
