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June 2021 Contents
 Welcome to the June 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 | |
 First instance County Court decision disallows medical agency cut of costs claimed in a medical report on the fixed costs regime - Paul Erdunast, Temple Garden Chambers DDJ Akers decided that the markup made by a medical agency on the costs of a medical report was not recoverable. DDJ Akers took the view that the medical agency's costs are already accounted for in the fixed costs regime... |
 The new whiplash reforms: A 7-point whip-around of key changes - Paul Erdunast, Temple Garden Chambers The whiplash reforms came into force on 31 May 2021. They apply to all accidents that occurred on or after this date. They institute a wide-ranging sweep of changes that have the cumulative effect of making whiplash claims much less valuable, both in terms of damages and in relation to costs. It really is a sea-change... |
 Case Report: Breakingbury v Croad, Cardiff County Court, 19 April 2021 - Harry Peto, Temple Garden Chambers The Claimant sought damages from the Defendant arising from her treatment as an NHS patient at a particular dental clinic. The Defendant was the owner of the practice at the time of the allegedly negligent acts (which were carried out at the practice but not by the Defendant personally, the Defendant having retired some years earlier)... |
 Case Report: M (Children: Applications by Email) [2021] EWCA Civ 806 - Harry Peto, Temple Garden Chambers While a family case, this case highlighted the importance of the rules of procedure in instances of cases that are litigated by correspondence... |
 Solicitors win latest PI costs battle, but the war goes on - Ged Courtney, Kain Knight Costs Lawyers Despite the disruptions caused by the Covid-19 pandemic the appetite for claims by former clients against their solicitors continues and those who represent them continue to frame arguments in a manner which continues to evolve. The most recent reported decision comes from Mr Justice Lavender (who also heard the appeal in Belsner v Cam Legal Services Ltd) in Karatysz v SGI Lega [2021] EWHC 1608 (QB)... |
 Noise Immission Level (NIL) Part 3: More complicated features - Jim Hester, Parklane Plowden Chambers This third article in relation to the Noise Immission level (NIL) considers some of the more complicated or arguable features. The first article considered the basics of the NIL. The second article considered how the Coles guidelines use the NIL... |
 R (on the application of Wandsworth Borough Council) v Her Majesty's Senior Coroner for Inner West London - Jim Hester, Parklane Plowden Chambers This Judicial Review case was brought by the claimant council following an inquest. The Inquest had concluded that one of the council's tenants had died as a result of malignant mesothelioma which had been caused by exposure to asbestos in one of the council's properties... |
 Annual audit of top 200 UK law firm websites show most aren't compliant with new Google updates - Sam Borrett, Legmark Legal digital marketing agency founder, Sam Borrett, examines the data from the third annual legal sector review of law firm's website performance and draws out some interesting conclusions from concurrent findings... |
| Clinical Negligence Medicine by Dr Mark Burgin | |
 Family Justice Council: Experts and the Family Justice System: Widening the Pool Webinar - Dr Mark Burgin Dr Mark Burgin BM BCh (oxon) MRCGP comments upon the concerns of family law experts and lawyers in finding a balance between the demand for reports of the highest standard and the supply of skilled experts... |
 Capacity to present evidence, reasonable adjustments and intermediaries - Dr Mark Burgin Dr Mark Burgin BM BCh (oxon) MRCGP considers the impact on all areas of law of solicitors and barristers being side lined by disability arguments... |
May 2021 Contents
 Welcome to the May 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 | |
 PAL (A Child) v Davison, MacPherson & Colburn Ltd T/A Westbourne Motors and Aviva Insurance Ltd [2021] EWHC - Harry Peto, Temple Garden Chambers This was an application for an interim payment made on behalf of the Claimant, a 13-year-old girl who suffered severe brain injury. She already received payments totalling £1,025,000 and seeks a further sum of £2m to enable a property to be purchased and adapted to provide for long-term accommodation needs... |
 Costs: Ahmed and Panache Leasing Ltd v Ahmed [2021] EWHC 1021 (Ch) - Harry Peto, Temple Garden Chambers This was a dispute between two brothers, one being the director of the Second Claimant. The Claimants claimed that the Defendant, who used to work for the Second Claimant, misappropriated large sums of money and assets, while the Defendant counterclaimed for 50% of the shares in the Second Claimant. There was a rather involved procedural history... |
 Procedure: First instance County Court decision suggests that low value product liability claims fall within the EL/PL protocol - Paul Erdunast, Temple Garden Chambers X (a Minor) -v- MPL Home & Senza Group Ltd, 17 March 2021, as reported on Civil Litigation Brief - The RTA and EL/PL protocols provide fixed costs regimes as well as specific procedures that apply to claims within their ambit (the main feature of such claims being that they are valued at no more than £25,000). The Claimant in this case argued that product liability claims fall outside the EL/PL Protocol. DJ Vernon sitting at Cardiff disagreed... |
 Fundamentally dishonest claimant committed for contempt of court in circumstances where he falsely claimed that he did not know a so-called independent witness - Paul Erdunast, Temple Garden Chambers AXA Insurance UK PLC v Reid [2021] EWHC 993 (QB) - If you are advising a claimant in a case where there is an allegation of fundamental dishonesty, it is important in general to advise as to the possibility of being committed for contempt of court. However, such advice becomes more urgent if you are aware that a claimant in a factually analogous situation has in fact been committed for contempt. It is, of course... |
| Noise Immission Level (NIL) Part 2: NIL and the Coles Guidelines - Jim Hester, Parklane Plowden Chambers This article considers how the NIL is used within the Coles guidelines. This is the second article in this series in relation to NIL. The first article looked at the basics of the Noise Immission Level (NIL). Prior to the Coles Guidelines being widely adopted individual experts may have had different views as to the NIL needed for a NIHL diagnosis. For example, in the 'Nottinghamshire Textiles' litigation, one view that a NIL 'approaching 100' would be required... |
 Wormald v Ahmed - Part 36 Offers and the Death of a Protected Party - Paul Stagg, 1 Chancery Lane The sudden death of the claimant in a personal injury claim where there are substantial claims for future losses may cause the value of the claim to reduce radically overnight, leaving parties regretting that they made, rejected or accepted offers to settle. The judgment handed down on April 21st 2021 of Ms Clare Ambrose, sitting as a Deputy High Court judge, in Wormald v Ahmed [2021] EWHC 973 (QB) exposes some of the clashes of competing objectives of the CPR that can arise in such a situation... |
| Medico-Legal Articles, Edited by Dr Hugh Koch | |
 Legal Mind Case and Commentary No. 34: Fundamental dishonesty or genuine unreliability? - Koch HCH, Gill I and Wilson S This is the thirty-forth in a series of Case reports and Commentaries from Professor Koch and colleagues. Background and summary: A further clinical negligence case was summarised recently in PIBULJ with comments from Paul Erdunast, Temple Garden Chambers, London. Issues of unreliability and dishonesty were raised by the Court and lessons drawn. Relevant factors and lesson drawn are summarised here and additional commentary from Prof. Koch and colleagues provided... |
 Becoming more virus-resilient: tips on dealing with the COVID-19 coronavirus situation (updated) - Professor Hugh Koch Is it behind us? Oh yes, it is! Oh no, it isn't! 15 months on from the emergence of COVID-19 we are sensing and seeing a lot of recovery - lower infections and, thank goodness, lower death rates from COVID-19-related illness, high rates of vaccinations and some easing of the social and economic lockdown conditions... |
| Clinical Negligence Medicine by Dr Mark Burgin | |
 The MedCo Expert Audit - Dr Mark Burgin Dr Mark Burgin reflects on the audit process for DMEs who are going to accept instructions from unrepresented claimants (UC) and what can be learned... |
 Beyond the Pritchard Criteria: Fitness for Court - Dr Mark Burgin Dr Mark Burgin BM BCh (oxon) MRCGP discusses how understanding the Pritchard Criteria can assist solicitors whose clients are going to court... |
April 2021 Contents
 Welcome to the April 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 | |
 How falling ill with COVID may be a good reason for failure to comply with an unless order: Finvest Holdings Sarl v Lovering [2021] 3 WLUK 579 - Paul Erdunast, Temple Garden Chambers Where a party contracts COVID and is therefore unable to work, that may be a good reason for the failure to comply with an order - even an unless order. Furthermore, there may be no need to obtain a medical report to prove it so long as there is a detailed account in a witness statement signed with a statement of truth... |
 Practitioner's Update: Mustard v Flower & Ors [2021] EWHC 846 (QB) - Harry Peto, Temple Garden Chambers This case arose out of a road traffic accident. One of the Defendants ('the Defendant') applied to amend its Defence to allege fundamental dishonesty ('FD') and that the Claimant consciously or subconsciously was exaggerating her injuries... |
 Costs: Sir Henry Royce Memorial Foundation v Mark Gregory Hardy [2021] EWHC 817 (Ch) - Harry Peto, Temple Garden Chambers The general law is that costs are in the discretion of the court, but if the court makes a costs order, the general rule is that the unsuccessful party in the proceedings pays the costs of the successful party - CPR r.44.2. The Defendant argued that the Claimant failed to succeed on all matters. The Judge held that this did not matter and that the Claimant should receive their costs on account of succeeding on the claim... |
 High Court rejects submission that the objective evidence should be taken as the primary source of reliance compared with witnesses' recollection, even in a road traffic accident from over five years ago: Barrow & Ors v Merrett & Anor [2021] EWHC 792 (QB) - Paul Erdunast, Temple Garden Chambers This case will provide a helpful guide to how a court assesses the evidence in a trial on liability in a road traffic accident where the events happened some time ago. In particular, it demonstrates that the recollection of witnesses will typically be the evidence of primary importance... |
 Noise Immission Level (NIL): Part 1, the Basics - Jim Hester, Parklane Plowden Chambers The basic requirements for a diagnosis of Noise Induced Hearing Loss consist of 2 elements: audiology which is consistent with NIHL and a history of exposure to a sufficient amount of noise. One without the other is not sufficient. The Noise Immersion Level (NIL) is a way of calculating the second part - an individual's overall noise exposure... |
 Abuse of Process: Credit hire brought outside of the MOJ portal: Poku v Abedin - Amrit Atwal, Park Square Barristers 'Your claim is an abuse of process. No, your application is!' This is an appeal in the matter of Poku v Abedin [2020] by the Claimant against a decision by DDJ Omoregie in which a claim for credit hire was struck out on the grounds that the claim was as an abuse of process... |
 Case Summary: H v P - Mary Kay, Spencers Solicitors The Claimant was aged 34 at the time of the accident. The Claimant had parked her car on the driveway outside her home and opened her door to get out of the car. There was a hole in the ground along the edge of the driveway and our client's foot was caught in the hole and she fell landing heavily on her bottom and left arm/ hand resulting in injury and psychological issues... |
 Case Summary:
B v HH - Stephanie Robinson, Spencers Solicitors The Claimant, a pedestrian at the time, entered a field to walk the public footpath with her dogs. The field had inadequate fencing around its perimeter when she was attacked by cows. The Claimant was repeatedly pushed into a stone wall by the cows, forcing her to the ground, whilst also attacking her dogs... |
| Medico-Legal Articles, Edited by Dr Hugh Koch | |
| Becoming more virus-resilient: tips on dealing with the COVID-19 coronavirus situation (updated) - Professor Hugh Koch Many are reporting that as lockdown eases, and our freedom to return bit-by-bit to pre-pandemic routines, they are feeling exhausted. We, of course, know that in 'normal times' our energy and fatigue levels fluctuate and often do so with our prevailing mood and interest in our daily life... |
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| Clinical Negligence Medicine by Dr Mark Burgin | |
 MedCo CPD training programme for experts - Dr Mark Burgin Dr. Mark Burgin BM BCh (oxon) MRCGP reviews some of MedCo's CPD offerings for 2021 to 2022 and comments on the interesting and sometimes surprising conclusions... |
 Managing High and Low Performing Experts - Dr Mark Burgin Dr Mark Burgin considers how to present data on performance in a way that improves performance of the expert at whatever level... |
March 2021 Contents
 Welcome to the March 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 | |
 'Unconvincing and unreliable' witnesses vs dishonest ones: relevant factors and lessons to learn for litigation - Paul Erdunast, Temple Garden Chambers Brint v Barking, Havering and Redbridge University Hospitals NHS Trust [2021] EWHC 290 (QB). There are cases where an unconvincing and unreliable witness is not dishonest. That much is not news; it is obvious. The point of this piece is to give tips to Defendant litigators who want to prove fundamental dishonesty in a case where the Claimant's evidence has serious inconsistencies. That said... |
 FREE CHAPTER from 'A Practical Guide to Psychiatric Claims in Personal Injury - 2nd Edition' by Liam Ryan The law relating to claims for psychiatric injury is complex, varied, and hard to grapple with and can often appear labyrinthian. This is a practical guide for dealing with personal injury claims involving psychiatric injuries and is aimed to assist both the newcomer and the experienced practitioner alike... |
 Practitioner's Update: Butters & Anor v Hayes [2021] EWCA Civ 252 - Harry Peto, Temple Garden Chambers Does the non-payment of a court fee mean time continues to run for limitation purposes in respect of a new claim within existing proceedings? In Jackson LJ's view, it does not... |
 Costs: Junejo v New Vision TV Ltd [2021] EWHC 449 (QB) - Harry Peto, Temple Garden Chambers The Defendant sought an order striking out the Claimant's libel claim pursuant to CPR 3.4(2)(c). the libel claim arises from statements broadcast by the Defendant to the effect that the Claimant, a successful businessperson, was guilty of fraud, theft and money laundering... |
 Setting aside default judgment in the High Court requires promptness even after the application has been made - Paul Erdunast, Temple Garden Chambers The Lord Chancellor (as Successor to the Legal Services Commission) v Halberstadt-Twum (t/a Cleveland Solicitors) & Anor [2021] EWHC 413. Unlike the County Court, the High Court requires steps to be taken in order to obtain a hearing beyond simply making an application. This fact becomes important when you are seeking to set aside default judgment, as the claimants found out in this case... |
 Calculating 3-years - Jim Hester, Parklane Plowden Chambers A narrow point that occasionally arises is how '3-years' is calculated for the purposes of limitation. In accident cases or in disease cases, for example, where a diagnosis is given on a known date, there will be a precise date when the cause of action accrues and so the limitation clock starts to run... |
 Case Summary: P v C - Steven Barke, Spencers Solicitors The claimant was involved in a road traffic accident when he was travelling home from work. As he proceeded through a junction, the defendant negligently pulled out of a side road hitting the claimant's vehicle on the passenger side.The impact caused the claimant's vehicle to roll three times and land upside down... |
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| Medico-Legal Articles, Edited by Dr Hugh Koch | |
 Judge's opinion of Expert: Partiality and arrogance - Koch HCH, Jansen F, Stockton C and Huntley F This is the thirty-third in a series of Case reports and Commentaries from Professor Koch and colleagues. Another fascinating civil claim case described by Gordon Exall, Barrister, Kings Chambers in which there were robust criticisms of the claimant instructed expert, and a final concluding statement that stated... |
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| Clinical Negligence Medicine by Dr Mark Burgin | |
 Medical Uncertainty: Supervision in General Practice - Dr Mark Burgin Dr. Mark Burgin BM BCh (oxon) MRCGP discusses how the range of opinion around supervision of clinical staff by GPs can change the outcome of a CN case... |
 Online Clinical Negligence Conferences - Dr Mark Burgin Dr. Mark Burgin BM BCh (oxon) MRCGP reviews the limits and advantages of Online Clinical Negligence Conferences and makes predictions of the future... |
February 2021 Contents
 Welcome to the February 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 | |
 Hacking Part 36 offers by waiting a day after the relevant period, accepting the offer, and then disputing costs: Pallett v MGN Ltd [2021] EWHC 76 (CH) - Paul Erdunast, Temple Garden Chambers If Part 36 offeree has a good argument as to why it should not pay the costs of a certain period, then Part 36 seemingly has what computer experts might call a 'hack' or 'exploit' in its rules to allow such costs to be disputed. This happened in Pallett v MGN. The judge accepted the legitimacy of the Defendant's tactics. On its facts, he did... |
 FREE CHAPTER from 'Fundamental Dishonesty and QOCS in Personal Injury Proceedings: Law and Practice' by Jake Rowley Dishonest claims and dishonest claimants (or at least allegedly dishonest claims and claimants) are by no means a novel phenomenon in personal injury claims; nor is the insurance industry's desire to identify and expose such claims and such individuals... |
 Practitioner's Update: Kumar v Hellard [2021] EWHC 181 (Ch) - Harry Peto, Temple Garden Chambers This case concerned an appeal against a bankruptcy order made against the appellant in the County Court. The respondent was an insolvency practitioner in his capacity as the liquidator of Highfield Distribution (UK) Ltd. The basis for the appeal was that, on material before the District Judge, a real question had been raised as to the appellant's litigation capacity... |
 Update to CPR 36.5 coming in April 2021 pressure on Part 36 offerees - Paul Erdunast, Temple Garden Chambers On 6 April 2021, the usual yearly amendments will be made to the CPR as per The Civil Procedure (Amendment) Rules 2021. These include a particularly interesting new rule regarding Part 36 offers. The rule allows the offeror to make a provision relating to the accrual of interest on the Part 36 offer if it is accepted after the relevant period expires. It further states that if no such provision is made, the Part 36 offer will be deemed to include all interest up to the date of acceptance... |
 Pinnegar v Kellogg and ICI - Jim Hester, Parklane Plowden Chambers This case is the latest in a series where the issue as to the reliability and credibility of historic witness evidence has been raised. I have written about similar cases of Bannister v Freemans and Smith v Secretary of State for Transport in previous articles... |
 Case Summary: E v I
- Karen Cawood, Spencers Solicitors The file was a stress at work claim. An appointment had been made for the claimant to see a Probation Service User. During the appointment the gentleman in question was verbally aggressive and threatening. He began swearing and shouting and suddenly jumped and threatened to smash the room up by picking up the chair he had been sat on... |
 Traffic accident victim receives £1 million in damages - Andy Shaw, Higgs & Sons A Stockport woman who suffered serious injuries in a road traffic accident has received more than £1 million in damages after a six-year legal battle. The lady sustained complex fractures of her hip and ankle - as well as multiple rib fractures - in the accident in 2014 and has since suffered significant mobility issues and been forced to use crutches... |
 Case Summary: B v T - Karen Cawood, Spencers Solicitors The claimant was driving round a blind bend and slowed down. As she approached the bend, she saw the defendant coming towards her and slowed her vehicle down to a stop. The defendant failed to stop and crashed into the claimant head on... |
| Clinical Negligence Medicine by Dr Mark Burgin | |
 Finding A Forensic Medical Records Expert (FMRE) - Dr Mark Burgin Dr. Mark Burgin BM BCh (oxon) MRCGP explains how finding a FMRE will help a lawyer reach the next level in their clinical negligence practice... |
 Why Managers and Doctors Struggle to Communicate - Dr Mark Burgin Dr. Mark Burgin BM BCh (oxon) MRCGP explains how the two main professional groups at the heart of the NHS have not learned to speak a common language... |
![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)
