Extensions of Time in the New (Post-Jackson) World - Robert Vernon, 9 Park Place Chambers

01/06/13. The High Court (in the guise of Edwards-Stuart J sitting in the Technology and Construction Court) has recently provided one of the first insights into the approach to be taken by the courts to applications for relief from sanctions in the post-Jackson era.

Since 1 April 2013, any application for relief from sanctions (made after 1 April 2013) will now be considered by reference to the new CPR 3.9 which provides that:

“(1) On an application for relief from any sanction imposed for a failure to comply with any rule, practice direction or court order, the court will consider all the circumstances of the case, so as to enable it to deal justly with the application, including the need –

1. for litigation to be conducted efficiently and at proportionate cost; and

2. to enforce compliance with rules, practice directions and orders.”

In Venulum Property Investments Limited v Space Architecture Limited [2013] EWHC 1242 (TCC), the Claimant had issued proceedings against ten defendants for losses allegedly suffered in connection with a residential development. The Claimant had known of its potential claim in early 2007 but had not instructed solicitors until September 2012. A Claim Form was issued on 12 November 2012. On 28 February 2013, the Claimant’s solicitors sent a letter of claim (purportedly complying with the Professional Negligence pre-action protocol) to each of the ten defendants.

The Claim Form was served with effect from 12 March 2013 (i.e. the very last day for service). The Particulars of Claim should have been served at the same time but were not. As a result of a mistaken reading of the provisions of CPR 7, the Claimant’s solicitors believed that they had a further 14 days in which to serve the Particulars of Claim.

Two of the ten defendants opposed the Claimant’s subsequent application for an extension of time in which to serve the Particulars of Claim. No doubt they did so because, by that time, any fresh action against those two defendants would have been statute barred and so if the Claimant’s application could be defeated, the claim against the two defendants would be brought to an end.

The point made on behalf of the defendants was that, as a result of the amendments to the CPR, the emphasis on applications such as that made by the Claimant has now shifted so that the court is now required to take a much stronger and less tolerant approach to failures to comply with matters such as time limits.

In considering the application, the court referred to the judgment of the Court of Appeal in Fred Perry v Brands Plaza Trading [2012] EWCA Civ 224 in which Lewison LJ cited (with approval) paragraph 6.5 of the Jackson report:

“... courts at all levels have become too tolerant of delays and non-compliance with orders. In so doing they have lost sight of the damage which the culture of delay and non-compliance is inflicting on the civil justice system. The balance therefore needs to be redressed.”

The Claimant’s application (which only sought an extension of time of a matter of days) was refused. Of particular significance, in the court’s view, were the following factors:

1. The Claimant had delayed for over five years before instructing solicitors and those solicitors had left it until the very last minute to issue and serve the proceedings;

2. The Claimant’s claim against the two defendants was not strong and there was reason to believe that the case against the other eight defendants was as good if not better; and

3. The Claimant was seeking to advance a claim for bad faith which had been pleaded in vague terms.

Edwards-Stuart J concluded his judgment by saying that in all the circumstances, “particularly in light of the stricter approach that must now be taken by the courts towards those who fail to comply with rules following the new changes to the CPR” the application was refused because “enough is now enough”.

One view of the judgment is that it may simply be a reflection of the court (and the particular Judge) taking a stern view of an apparently weak claim not being pursued timeously. However, parties and their representatives cannot safely approach the judgment on that basis. The message must be this: time limits and orders are there to be complied with. Ignore them at your peril!

Robert Vernon, 9 Park Place Chambers

Image ©iStockphoto.com/Sashkinw

Jackson Reforms in Litigaton Procedure and the Competent Medico-Legal Expert - Giles Eyre, 9 Gough Square

30/05/13. The ‘Jackson reforms’ in civil court procedure are in the process of revolutionising the way civil claims are handled. The extension of the online portals to cover virtually all fast track injury claims, fixed recoverable fees rates, the combined effect of costs budgeting and the new rules on proportionality of costs, and the non-recoverability of success fees will force lawyers to take a close look at the economics of presenting an injury claim and how most efficiently to put the claim together. Medical reports remain essential to such a claim, providing, as they do, the foundations of much of the claim.

Sub-standard medical reports result in damages being wrongly valued, and in time, which will not be remunerated, being wasted by the legal team in interpreting the report and seeking clarification or amendments. The report, as interpreted or understood by the parties’ representatives, will be used to assess the strength and value of a claim, and to negotiate settlement.

The dissatisfaction of the lawyer with the report is extremely unlikely to persuade the court to permit the obtaining of another report and in any event the cost of doing so will not be recovered.

The problem that lawyers (and their clients) face is that many medical reports prepared for civil litigation, whether obtained through a medical reporting agency or direct from a clinician, are not fit for purpose. The failings may vary from the subtle to the gross.

Most training offered to medical experts is concerned with the requirements of the Civil Procedure Rules (CPR). You can therefore expect that most experts understand their basic obligations under the CPR. But an expert has also to understand his/her role in the litigation process and how the medical report is used by lawyers and the court, something which is barely addressed in the CPR. Medical experts are often unaware of their obligation to comply with the GMC guidelines, which include to understand exactly what questions the clinician is being asked to answer and to use language and terminology that will be readily understood by a non-medical audience.

Issues which the expert must, but often does not, address will include such as:

• How long will the present effect and consequences of the injury probably continue?

• What restrictions in activity does the claimant have as a consequence of the accident and what is the likely impact on possible future employment of such restrictions?

• As a result of the injury what is the percentage risk of requiring an operation in a particular number of years from now?

Without this information being provided clearly within the medical report, the lawyer cannot give the claim a proper valuation. The expert who fails to address these issues properly is in breach of the duty to the court to help the court on matters within the expert’s expertise, and in breach of the duty to the client to use reasonable skill and care in providing his/her services in writing a report, as well as in breach of a professional duty.

A competent medico-legal expert must understand the purpose of the medical report, the issues that the lawyer needs addressed, and the language which will convey that. However no general accreditation system exists to guarantee that standard or to give lawyers confidence that an instructed expert is competent in this sense.

Conclusion

Such competent expert opinion is critical for effective, efficient and economic case management of injury claims. A lawyer is entitled, when instructing an expert to report within a claim, to an expert with a proper understanding, not simply of the CPR, but of the requirements of high quality medico-legal work which adds real value to the party’s position in the litigation and which can be used effectively and economically. Sub-standard reports should be rejected by the lawyer. If they are, clinicians will ignore, or will remain ignorant of, the lawyers’ requirements at their peril.

A new and readily accessible e-learning programme which addresses these requirements, Medico-Legal Report Writing in Civil Claims (Core Skills) has been released by Professional Solutions Learning & Development. Awarded the Claims Innovation 2013 Online Innovation of the Year Award, the programme is presented by myself and my co-author of the book Writing Medico-Legal Reports in Civil Claims – an Essential Guide (2011). Successful completion of the programme and the on-line assessment test is certified by the Expert Witness Institute and provide a medico-legal expert with an important mark of competence and provide a lawyer with assurance as to the expert’s understanding and ability, and the value of the medical report.

Giles Eyre
9 Gough Square
London EC4A 3DG

Giles Eyre is co-author of a manual for medico-legal experts and those instructing them, 'Writing Medico-Legal Reports in Civil Claims - an essential guide' (2011) and co-presenter of the e-learning programme ‘Medico-Legal Report Writing in Civil Claims (Core Skills)’ (www.prosols.uk.com). He frequently gives seminars and workshops for medical experts in medico-legal report writing, giving evidence and other medico-legal issues.

Giles is a barrister specialising in personal injury, disease and clinical negligence claims. He is mediator and a member of the CEDR Solve Lead Mediators Panel. He was appointed a Recorder in 2004.

Giles is a contributing editor to ‘Clinical Negligence Claims - A Practical Guide’ (2011) and ‘Asbestos Claims: Law, Practice and Procedure’ (2011), both published by 9 Gough Square.

Image ©iStockphoto.com/mediaphotos

May 2013 Contents

Welcome to the May 2013 issue of PI Brief Update Law Journal. Click the relevant links below to read the articles and take the CPD quiz. Please remember to fill in our quick feedback form after you have finished. CPD Quiz The quiz is designed to meet the CPD requirements of the SRA and provides 1.5 hours accredited distance learning. Law Brief Publishing Ltd is registered with the Solicitors Regulation Authority for England and Wales, ref EGB/LBPL. The CPD is also valid for cILEX (formerly ILEX) members and for members of the Chartered Insurance Institute (CII). Please check with the relevant organisation for full details of their CPD rules. Take the CPD Quiz    Feedback Form    CPD Information
Personal Injury Articles
Pi in the New Era - Deborah Evans, APIL Chief Executive Certainly, personal injury lawyers are no strangers to commercial thinking. What with managing 'no win no fee' business models, competitive advertising, portals and fixed fees, and risk assessments, the average PI lawyer has had to evolve at speed over recent years. Over the last month we have witnessed the start of the most fundamental shift in personal injury law and practice this century.	Children, Car Seats, Parental Responsibility and the Law - Laura Johnson, 1 Chancery Lane Choosing car seats is an agonising and expensive process for parents. Group 0? Group 0+? Straight to a Group 2 or via Group1? Rearward facing to age 4 or forward facing from age 1? It is confusing, stressful and wrapped up with heavy societal pressure to be a "good parent".
AC v. Devon CC [2013] EWCA Civ 418 - Daniel Tobin & Angela Frost, 12 King's Bench Walk The eagerly awaited decision of the Court of Appeal in the case of AC v Devon (reported as Devon CC v. TR) was handed down on 30th April 2013.	Fatal Accidents: Does the Cohabitee Legislation Breach Human Rights Law? (Swift v SS Justice) - Tom Gibson, Outer Temple Chambers Does the statutory 2-year minimum cohabitation requirement for cohabitees (as opposed to married couples) to bring claims as 'dependants' under the Fatal Accidents Act 1976 breach human rights law? No, said the Court of Appeal in Swift v Secretary of State for Justice [2013] EWCA Civ 193.
The Continuing Plight of the Secondary Victim: An Analysis of the Law Relating to "Nervous Shock" in 2013 - Simon Allen, Slater & Gordon Lawyers There will always be risk. As Lord Justice Jackson stated: "It is not the function of the law to eliminate every iota of risk." The law does, however, believe that it must impose limitations on those who can claim damages.	Res Ipsa Loquitur: Is Latin Back in Fashion? - Sarah Prager, 1 Chancery Lane Sarah Prager discusses the changing fortunes of the use of the doctrine expressed in the Latin tag res ipsa loquitur, and asks if the doctrine is enjoying a resurgence.
Smith v Fordyce and Quinn Insurance [2013] EWCA Civ 320 - Dr Nicholas Braslavsky QC, Kings Chambers C was the front seat passenger of a motor vehicle being driven by D1. The vehicle skidded on a bend on minor country road in Devon. D1 lost control and the vehicle struck the gatepost of a house with force. C suffered a head injury...	Court of Appeal Re-Asserts Hillsborough Cases Limiting Secondary Victim Claims - Charles Bagot, Hardwicke In the first Court of Appeal case on secondary victims for 10 years, in Taylor v. A. Novo (UK) Ltd [2013] EWCA Civ 194, the Court of Appeal has re-visited the Hillsborough cases concerning secondary victims of psychiatric injury and re-affirmed...
Personal Responsibility, Unfortunate Accidents and the Liability of Occupiers - Laura Johnson, 1 Chancery Lane Criminal lawyers are often asked how they can bring themselves to defend people who they know are guilty. Actually, I am asked that not infrequently too... But the more common dinner party accusation aimed at civil common law lawyers is: "Pft! Nanny state! People can sue for anything nowadays! Don't people have to take some responsibility for themselves?" I have two responses to this...	Editorial: Minor Soft Tissue Injuries - Aidan Ellis, Temple Garden Chambers Most personal injury practitioners will be very familiar with the brackets set out in the JC Guidelines for short lived soft tissue injuries. The 11th edition provides for three brackets for minor neck injuries, with increasing value depending on the duration of symptoms...
'Knowledge' for Limitation Purposes: Is It Sufficient for a Claimant to Believe the Surgeons Had Resected Too Much Acromion When in Fact They Had Completely Detached the Deltoid Muscle? - Simon Wheatley, 7 Bedford Row The definition of knowledge for the purposes of sections 11 and 14 of the Limitation Act 1980 is a subject which has generated a generous amount of legal scholarship. One only has to think of...	Jones (by Caldwell) (Respondent) v First Tier Tribunal (Respondent) and Criminal Injuries Compensation Authority (Appellant) [2013] UKSC 19 - Arti Shah, Pattinson & Brewer On 18th January 2005 Gareth Jones was going about his everyday job driving a gritter lorry along the A282, a six-lane carriageway which links Dartford Crossing bridge and tunnel...
Cockbill v Riley: Youthful Exuberance and the Test of Foreseeability - Frances McClenaghan, 1 Chancery Lane I turned 29 recently. As I reminisced about the days when hangovers were a mild inconvenience to be overcome within a matter of hours, my attention was drawn to a recent case arising out of an end-of-GCSE party, a paddling pool and an attempted bellyflop that went tragically wrong.	Res Ipsa Loquitur and Clinical Negligence Following Thomas v. Curley [2013] EWCA Civ 117 - Richard Baker, 7 Bedford Row I would think that most clinical negligence practitioners have from time to time met a client who underwent an apparently routine operation under general anaesthetic albeit with disastrous consequences. We look to the consequences of that operation...
"In Loco Parentis": the Liability of Schools When Disaster Strikes - Laura Johnson, 1 Chancery Lane School trip season is approaching again now that the summer term has begun and, as usual, I reflect on the current state of the law. It distresses me when it is said that the law is making it impossible for schools to give the next generation the same opportunities we had...	Why Accommodation Is So Important - Bill Braithwaite QC, Head of Exchange Chambers Accommodation is fundamentally important following a catastrophic injury. It impacts in many different ways, for example change of locality, so that the injured person does not get bullied or harassed because of their disability.
CA Decision in Highways Claim TR v Devon CC [2013] EWCA Civ 418 - Angus Piper, 1 Chancery Lane The unanimous judgment of the CA was given by presiding judge Lord Justice Lloyd. Sir Stanley Burnton and Lord Hughes of Ombersley (who has been elevated to the Supreme Court bench since the appeal hearing took place) completed the bench, and the CA partially overturned the decision of Mrs Justice Slade (reported at [2012] EWHC 796 QB).	Does the Multi-Track Code Represent Reality? - Bill Braithwaite QC, Head of Exchange Chambers I've been re-reading the Multi-Track Code recently, for the umpteenth time, for an article I'm writing about resolving major personal injury claims with recourse to the courts. I've always wondered whether the fine words in the Code represent reality, and I'm not sure that they do.
Life After LASPO for Legal Expense Insurance: an Overview From an Underwriters Perspective - David Pipkin, Temple Legal Protection Ltd The LASPO effect will hit the Legal Expense industry hard and underwriters have been working hard to come up with products which address the needs of consumers and allow lawyers to continue to offer security to their clients for the significant risks of litigation which remain after April 2013.	Whatever Next for the PI Claimant? - Julie Carlisle, Boyes Turner So, here we are, post 1 April and still feeling around in the dark. New clients are being told that the daytime TV promise of "You get to keep 100% of your compensation" no longer necessarily applies, and the cost of ATE insurance premiums is being carefully explained. The world hasn't ended and we lick our wounds and press on. Sadly of course, the worst is yet to come as...
Summary of Recent Cases, May 2013 Here is a summary of the recent notable court cases over the past month.	PI Practitioner, May 2013 Each issue a particular topic is highlighted, citing some of the useful cases and other materials in that area. This month: Exemplary Damages
Medico-Legal Articles, Edited by Dr Hugh Koch
Detecting Deception: Is It the Feeling or the Words or Just Chance? - Hugh Koch, Ben Goodall and Jon Willows Two recent studies continue the thorny debate about how to increase proficiency in detecting deception in either civil or criminal litigation contexts. Peace and Sinclair (2012), psychologists in Canada, speculated and confirmed that when judging "emotional reports"...
Expert Witness Articles
How Are Expert Witnesses Responding to the New Focus on Time and Money? - Mark Solon, Bond Solon Measures to cut costs are at the heart of the changes to the Civil Procedure Rules (CPR) which came into effect on 1 April 2013 as a result of Lord Justice Jackson's 2010 report into civil litigation costs.