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Articles

August 2016 Contents

Welcome to the August 2016 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.

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Personal Injury Articles, August 2016
FREE BOOK CHAPTER: Low Velocity Impacts: An Update 2016 (Chapter One from 'RTA Allegations of Fraud in a Post-Jackson Era: The Handbook, 2nd Edition' by Andrew Mckie & Ian Skeate)
A low velocity impact is commonly defined as a road traffic collision where it is alleged by the Defendant's insurer that the impact is unlikely to have caused injury to the Claimant, due to the low speed of the impact, and/or, that there was sufficient occupant displacement within the vehicle, in order to have caused injury to the Claimant...
Fighting Fraud - Ian Miller, 1 Chancery Lane
Judgment in the case of Da Costa v Sargaco [2016] EWCA Civ 764 was handed down recently and represents the latest round of the struggle between claimants bringing claims for injury or damage arising out of road traffic accidents and defendant insurers alleging that claims are fraudulent. The case deals with the cogency of evidence required to establish an allegation of fraud, with the inferences which can be drawn from evidence and with the exclusion of a claimant from court whilst the other is giving evidence...
Editorial: Should Claims Be Struck Out for Errors in Completing the CNF? - Aidan Ellis, Temple Garden Chambers
We all know that low value road traffic, employer's liability and public liability claims should be initiated by completing the relevant Claims Notification Form. But what impact should mistakes in completing the Claim Notification Form have on the developing litigation?...
Key Issues Which Arise in Cycling Claims - Kate Sweeney, Stephensons Solicitors LLP
As someone who 12 months ago started cycling a daily 9 km commute to work (and back) in an effort to improve fitness and avoid traffic congestion, I have experienced first hand the thrills and terrors that almost 2 million Britons experience, as we become an ever increasing cycling obsessed nation...
The EU Divided, but Not as We Know It - Jack Harding, 1 Chancery Lane
The events of past weeks have brought into sharp focus the seemingly different attitudes held by a majority of the UK population compared to other EU member states. The result, whilst at present uncertain, may well be a full uncoupling of the UK legal system from European law. It is interesting to note, therefore, that even though EU law has for many years moved towards a harmonisation of legal principles across the legal systems of its constitutent members, significant differences have remained. This is ably demonstrated by the recent high court decision in Committeri v Club Medieterranee SA (2016) EWHC 1510...
Fixed Recoverable Costs-Settling at the Court Door - Jasmine Murphy, Hardwicke
The case of Dos Santos Medes v Hochtief (UK) Constructions Ltd dealt with the issue of fixed recoverable costs (FRC) under the Civil Procedures Rules (CPR) in a claim brought under the Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents (RTA Protocol). Jasmine Murphy examines the case and its potential implications...
What Price Parenthood? - Chris Thorne, Clarke Willmott LLP
Chris Thorne, Partner at Clarke Willmott with a special interest in infertility and IVF issues, explores the shortcomings in the law relating to the inability to have a family as a result of the negligence of others...
QOCS: The Strike Out and Fundamental Dishonesty Exceptions in Action - Rebecca Jones, Hardwicke
There are still relatively few findings of fundamental dishonesty being made by Courts. Despite the fact that this is obviously an important exception to the QOCS regime, the fundamental dishonesty threshold is proving a difficult hurdle for Defendants to meet. This article explores a recent finding of fundamental dishonesty and the lessons that can be learned by Claimants and Defendants in such cases...
The Law Relating to Fatal Accidents: An Introduction - Gordon Exall, Zenith Chambers & Hardwicke
When a person is killed a claim can be brought on behalf of his estate or on behalf of their dependants. The person or persons who bring the action are called the 'claimant' or 'claimants' (if more than one person brings the action)...
Inquests and Fatal Accidents - Rose Gibson, Simpson Millar LLP
As most practitioners in this area will know, often as a lawyer, it is hard to advise a client on the potential prospects until the outcome of the criminal proceedings and/or the inquest is known, as key evidence is usually withheld in the interests of justice...
Assessing the Cost of ATE Premiums - Thomas Crockett, 1 Chancery Lane
If anyone needs a reminded why the costs landscape for personal injury litigators has changed so dramatically they may not need look much further than the judgment of the Designated Civil Judge of the County Court at London, HHJ Walden-Smith, sitting with DJ Letham as assessor in the costs case of Banks v London Borough of Hillingdon, which has been commented upon in the legal press...
Dust-Clouds and Dustbins: Should There Be a Regularity Requirement for Dust Exposure When Defining 'Substantial' Under Section 63 (1) Factories Act 1961? - Charles Feeny & Sammy Nanneh, Contributing Editors at Pro-Vide Law
In cases where an employee is exposed to asbestos, a claim may be brought under the common law as well as pursuant to duties owed by the employer under various regulations and legislation. One example of such legislation is s.63 (1) Factories Act 1961, which provides that...
Inadequate Bundles: A Costly Mistake - Ian Miller, 1 Chancery Lane
The July edition of Civil Procedure News reports a case in which a claimant's bundles were inadequate, two applications were adjourned and the claimant was ordered to pay the costs of producing properly prepared bundles and the costs thrown away as a result of the adjournment...
What May Explain Persistent Symptoms Following a Mild Head Injury? - Dr Linda Monaci, Consultant Clinical Neuropsychologist and Chartered Clinical Psychologist
A road traffic accident or other traumatic event which involves a head injury may cause a brain injury, which can cause cognitive, emotional and physical symptoms. The severity of the brain injury is usually graded as mild, moderate or severe and this can help provide accurate information to the individual affected and their families, as well implement the correct rehabilitation intervention...
Summary of Recent Cases, August 2016
Here is a summary of the recent notable court cases over the past month.
PI Practitioner, August 2016
Each issue a particular topic is highlighted, citing some of the useful cases and other materials in that area.  This month: Costs Budgets: Changes Introduced in April 2016
An Update from North of the Border, Edited by John Wilson & Lauren Pasi, Brodies LLP
The Compulsory Pre-Action Protocol, Arriving 28 November 2016 - Gemma Nicholson & Peter Demick, Brodies LLP
Civil courts reform, arising from the Gill Review, has brought substantial change to the way in which personal injury (PI) litigation is conducted in Scotland. As our colleague, Ciaran Dougherty envisaged last year yet more change is to follow. This time for non-litigated PI claims. From 28 November 2016, for the first time, a compulsory framework will apply to the negotiation of PI claims in Scotland...
Medico-Legal Articles, Edited by Dr Hugh Koch
Legal Mind Case and Commentary No 9: Dishonesty: Where is the Line? - Dr Hugh Koch & Dr Jon Willows
Case: Churchill Care Insurance v Kelly (2006). EWHC.IP(QB), Aspects of a bona fide personal injury claim can be prone to exaggeration or magnification to increase the overall award. The implication for experts to highlight unreliability or even untruthfulness is discussed below. This is the ninth in a series of case reports and commentaries from Dr Koch and his colleagues and follows an earlier analysis...