PIBULJ
24 September 2006 - PI Practitioner
STAGED ATE PREMIUMS APPROVED BY COURT OF APPEAL
Rogers v. Merthyr Tydfil County Borough Council [2006] EWCA Civ 1134
In principle, there is no difference between a staged CFA success fee and a staged ATE premium. An insurer is exposed to risks which rise as the trial approaches, and an unsuccessful defendant pays more if a case goes to trial. This encourages defendants to consider the merits of their cases very carefully as the trial approaches, and is entirely consistent with the principles of the CPR.
If the court decided it was necessary to incur a staged ATE premium, it would be judged proportionate. Necessity might very well be decided on the basis of availability in the market for ATE insurance, because the insurance market was integral to the provision of access to justice.
Comparisons should not be drawn between the price of a single-stage premium and that of the final stage of a multi-stage premium. Further, a party who has taken out a multi-stage premium should inform his opponent that he has done so, and set out the ‘trigger moments’ which cause the premium to increase.
PUWER REG 5(1) – NO GENERAL GUIDANCE POSSIBLE
Reid v. PRP Architects [2006] EWCA Civ 1119
The claimant sought damages from her employer for personal injury she suffered when a lift door closed on her hand. The lift was in the same building as the defendant’s premises, but formed part of a common area, and the claimant was injured when she was leaving work for the day. The judge at first instance found that the lift was an item of work equipment within the meaning of the Regulations.
This was upheld on appeal. It might be appropriate to consider a spatial or geographical restriction on when equipment was used ‘at work;’ it may also be appropriate to consider the employer’s degree of control over the equipment. However, it would be wrong in this case to draw the line at the point the claimant left her office.
Further, it would only be an exceptional case in which a judge could lay down general guidance on circumstances which could give rise to claims under r.5(1), because there were so many different ways in which such a breach could occur. Any guidance would be restricted to the particular facts of the case involved..
30 January 2008 - PI Practitioner
Farley v. Buckley [2007] EWCA Civ 403
The claimant was overtaking a lorry on a major road. The lorry was turning left into a side-road, from which the defendant was emerging at 5 to 8 mph, without edging forward bit by bit, that is, ’nose-poking.’ The claimant was found to have been driving at 30 mph, and the trial judge described the manoeuvre as reckless. The judge dismissed the claim.
29 July 2009 - Civil Procedure
Digicel v. Cable&Wireless, ChD, 17/6/09
Morgan J. held that statements that referred to the fact that a party had sought legal advice, but made no reference whatsoever to the content of the legal advice received, did not in themselves give rise to an implied waiver of legal privilege in that advice. Although the privileged material may have been of relevance to a Court’s fact-finding exercise, relevance was not in itself sufficient to give rise to an implied waiver of privilege. Fairness was not a touchstone from which the Court could determine whether or not there had been a waiver.
Service Not Valid Where Claimant Failed to Communicate that Service Would be by Fax
Brown v. Innovatorone QBD, 19/6/09
Andrew Smith J. held that where CPR 6.3 provides for service of a claim form by fax, the mere fact that a Claimant’s solicitor has received correspondence from a Defendant’s solicitor on writing paper setting out their fax number does not mean that a claim form can be validly served by sending it to that fax number. The situation would only be different if the Claimant had been told by the Defendant that their solicitors should be served under CPR 6.7. Although the Defendant had suffered no prejudice as a result of the proceedings being served upon their solicitors rather than upon them personally, the mere absence of prejudice was not sufficient to make an order to permit service by an alternative method pursuant to CPR 6.15.
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Editorial: A Summary of Summary AssessmentPersonal Injury Articles
Kim Ali v. The City of Bradford Metropolitan District Council[2010] EWCA Civ 1282 Or when is a nuisance not a nuisance! - Daniel Tobin, 12 King’s Bench Walk
A footpath ran between Dick Lane and New Street in Laisterdyke, Bradford. It was a footpath which satisfied the definition of a ‘highway maintainable at public expense’ for the purposes of the Highways Act 1980 (‘the 1980 Act’). The footpath was narrow and contained several stone steps...
Failing to mitigate recovery: the hurdles facing Defendants - Oliver Rudd, 12 King’s Bench Walk
This article serves as a review on the basics of mitigation in cases where Claimants are accused of failing to aver themselves of medical treatment which it is alleged would have expedited or improved recovery. Though relatively settled law following the Privy Council decision of Geest plc v Lansiquot [2002] 1 WLR 3111, this issue continues to cause confusion, particularly in relation to disposal hearings.
Ogden 6: Are the Tables in Tatters? - Brent McDonald, Old Square Chambers
One of the more recent cases which considered Ogden VI was Clarke v Maltby [2010] EWHC 1201 (QB). On 25 September 2004 Mrs Clarke was a front seat passenger in a car being driven by Mr Maltby. Mrs Clarke suffered a head injury in the accident. The central issue for Owen J to determine was the degree to which this injury would affect Mrs Clarke’s functional capacity as a solicitor.
Fatal Accident Claim: Failure of Oak Tree Branch, Micklewright v Surrey CC - Angus Piper, 1 Chancery Lane
Trees are an increasing source of litigation, whether as a result of root encroachment (which may affect the foundations of houses, paths or roads and lead to property damage and/or "tripper" injury claims), or as a result of falling branches as in the claim the subject of this article.
Medico-Legal Articles, Edited by Dr Hugh Koch
Are lawyers losing their memories? - Dr Hugh Koch
Are you ever concerned about forgetting things? The following "memory events" are probably normal...
Mediation & ADR Articles, Edited by Tim Wallis, Trust Mediation Ltd
Mediation or a Joint Settlement Meeting? Negotiation patterns when negotiating and mediating personal injury claims - Tim Wallis, Trust Mediation Ltd
It soon becomes clear to the most junior lawyer that there is no single figure that is the correct figure for a case, be that a full liability valuation or a settlement figure taking into account a discount for risk. Everyone knows there is a bracket...
ADR, Complement not Substitute - Barry Turner, University of Lincoln
The concept of alternative dispute resolution is as old as the civil litigation process itself and solutions to even the most knotty of disputes can often be seen to be best pursued without recourse to the courts. Civil litigation is well known to be costly, stressful and often a long drawn out and tedious process, many of those experiencing it as parties mention how, even though they were represented by lawyers, it "took over their lives"...
Charon QC
Charon QC, December 2010
Snow...
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