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November 2012 Contents

Welcome to the November 2012 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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Editorial: Completion of Credit Hire Book - Aidan Ellis, Temple Garden Chambers
Last weekend I put the finishing touches to the closing chapters of the new edition of Kevan and Ellis on Credit Hire. The finished book should be available online through this website shortly...

Personal Injury Articles

Practical Periodical Payments - Bill Braithwaite QC, Head of Exchange Chambers
Since 2005, courts have had the power to make periodical payments orders, but some of the complications are only slowly coming to the surface. Here are a few practical points.

Contempt of Court and the new CPR Part 81 - Andrew Granville Stafford, 4 King's Bench Walk
The new Part 81 of the CPR, which came in to effect on 1 October 2012, sets out the procedure to be applied in contempt of court proceedings. The old rules were to be found, confusingly, in three different places: Order 52 of the Rules of the Supreme Court (in Annex 1 to the CPR) and Orders 29 and 34 of the County Court Rules (Annex 2). Part 81 now brings those rules under one roof. Whilst essentially this is a re-codification exercise, Part 81 does contain some minor departures from the old procedure.

Have the Victims of Jimmy Savile a Route to Damages From the Hospitals Involved? - Colm Nugent, Hardwicke
As the Department of Health awaits the outcome of the investigations into Jimmy Savile’s activities at Stoke Mandeville, Broadmoor and Leeds General Infirmary, the findings will have consequence for future civil actions. Pending the investigations there have been (unsubstantiated) reports that Nurses in at least one hospital were aware that Jimmy Savile was not dispensing just Lucozade and bonhomie.

Workplace Accidents: Changes Afoot? - Robert Dickason, Outer Temple Chambers
It may come as a surprise to many readers to learn that civil liability for breaches of statutory duty in the workplace may well be about to disappear altogether. By an amendment slipped quietly into the Enterprise and Regulatory Reform Bill during its third reading in the House of Commons, subsection 47(2) of the Health and Safety at Work Act 1974 is to be amended to read...

Bringing Proceedings in Time - Andrew Roy, 12 King’s Bench Walk
It is a truth almost universally acknowledge amongst personal injury practitioners that to avoid a potential limitation defence proceedings must be brought with the relevant period (in most cases 3 years from the date of the accrual of the cause of action or date of knowledge, whichever is later). This has always been a slightly tricky area, but strong anecdotal evidence suggests that it is causing increasing angst as court resources become more stretched and bulk issue centres and the like become more frequent. The days of being able to walk up to the counter of the local court and have the claim form issued there and then are long gone in most areas.

RTA Fraud: Guilty by Association? Not So Says the Court of Appeal - John-Paul Swoboda, 12 King’s Bench Walk
On 23 October 2012 the Court of Appeal gave judgement in Basharat Hussain v Adil Hussain v AVIVA UK Insurance Ltd [2012] EWCA Civ 1367. The Court of Appeal considered the following premise, could ‘strong inferences’ be drawn against a Claimant involved in an RTA on the basis of a finding that the Defendant was a sophisticated fraudster.

The Regulation of Medical Devices in Europe: Pips and Hips - Dr Peter Feldschreiber, 4 New Square
There are currently high profile public heath concerns regarding the regulation and safety monitoring of medical devices on the market throughout Europe. In particular defects identified with metal on metal hip replacements concerning systemic release of highly toxic heavy metal ions and the relatively high incidence of rupture and release of potentially toxic filling material in breast implants have raised great concerns as to the fitness for purpose of the European legislation regulating the whole spectrum of implantable medical devices. This paper will review the current status of two of the major safety issues with devices and discuss the current regulatory legislation from the perspective of its deficiencies in guarding against the eventuation of foreseeable risks with devices already classified under the legislation as ‘high risk’.

Vicarious Liability: Are We Moving Away From Lister v Hesley Hall Ltd [2002] 1 AC 215? - Sarah Prager, 1 Chancery Lane
The workplace can be a dangerous place. Sarah Prager discusses two recent Court of Appeal cases on vicarious liability, and examines how they have been applied in the County Court.

An Unexpected Bill to Pay: Non-Party Costs Orders and Claims Management Companies - David Sawtell, 4 King's Bench Walk
Claims management and credit hire companies are often portrayed in a dim light; who better, then, to foot the bill for litigation pursuant to a non-party costs order? Despite (or perhaps even because) of such obvious temptations to the defendant insurance industry, the case law has leaned hard against draconian or procedurally deficient applications. If you are considering launching such an application, beware the heffalump traps.

The Discount Rate: Ministry of Justice Consultation Paper - Andrew Sands & Nick Leech, Nestor Partnership
A sign of movement in the discount rate saga took the form of a Consultation Paper, inviting those with an interest in personal injury claims to respond by 23rd October 2012. The executive summary to the lengthy paper accepts that, on the current methodology, there is a risk that the present rate may now be too high. Andrew Sands and Nick Leech, specialist financial advisers at Nestor Partnership, analyse the dual approach that the Consultation appears to be taking.

Case Report: £11 Million Lump Sum Settlement - Bill Braithwaite QC, Head of Exchange Chambers
Claimant aged 25. Settlement for £11 million lump sum. Use of American experts. Institutional or home care. One or two support workers needed. Life expectancy. Discount rate for US resident. Defendant’s refusal to offer periodical payments – “currency risk too high”. Defendant’s refusal to index link to an American index.

When is a Protected Party Not a Protected Party? Never... for Now - Robert Vernon, 9 Park Place Chambers
Rule 21.10(1) of the Civil Procedure Rules provides that “Where a claim is made – (a) by or on behalf of a ... protected party; or (b) against a ... protected party, no settlement, compromise or payment ... and no acceptance of money paid into court shall be valid, so far as it relates to the claim by, on behalf of or against the ... protected party, without the approval of the court.”

Cerebral Palsy Cases: An Introduction - Sally Leonards, Partner, JMW Solicitors LLP
A cerebral palsy case is usually one of the most challenging, high value and rewarding claims a clinical negligence lawyer will have in their caseload. Hugely complex in their nature, there are often many issues to resolve, particularly when determining how the cerebral palsy was caused, as well as a wealth of expert evidence to obtain. It is also vital for lawyers to grasp the sensitive nature of these claims and the array of emotions experienced by parents who may have been told their child will never walk or talk.

The APIL Business Conference 2012, Looking to The Future - Julie Carlisle, Henmans LLP
With only 6 months to go until April 2013, the APIL Business Conference in October 2012 was a chance to reassess, regroup and reassure with a strong note of optimism sounding amongst the cacophony of general gloom surrounding the industry.

Pension Loss as a Head of Damage: No Longer to be “TBA”? - Dick Petrie, Frenkel Topping Ltd
The historical situation that has existed for PI Claimant lawyers is that Pension Loss, as a head of damage in Schedules, has only applied to those claimants who have been in pensionable employment, mainly final salary schemes, and where the injury suffered has interfered with the pension that would otherwise have been received at retirement.

Summary of Recent Cases, November 2012
Here is a summary of the recent notable court cases over the past month.

PI Practitioner, November 2012
Each issue a particular topic is highlighted, citing some of the useful cases and other materials in that area.

Credit Hire Articles

Kevan and Ellis on Credit Hire, 4th Edition: Chapter Seven - Other Enforceability Issues (Updated)
In this chapter, we address other issues related to enforceability which may arise in relation to credit hire agreements whether by statute or at common law. These are: the Distance Selling Regulations; the concept of Unfair Relationships; the Unfair Terms in Consumer Contracts Regulations 1999; issues arising from signature of...

PI Travel Law, Edited by Katherine Deal, 3 Hare Court

Regulation 261/2004 is Now Boarding: Planes, Delays and Compensation - Richard Campbell, 3 Hare Court
Having been at the mercy of hurricanes and ash clouds, it would seem that the woes of European airlines are set to continue as a result of the recent judgment of the Court of Justice of the European Union in Joined Cases C-581/10 Nelson and Others v Deutsche Lufthansa and C-629/10 TUI Travel and Others v Civil Aviation Authority.

Health & Safety Articles

Paradigm Shift: Accident Prevention Becomes the Leading Priority for Public Health - Errol Taylor, RoSPA
For many years, those working to prevent unintentional (or ‘accidental’) injuries have faced an ongoing battle for public, private and voluntary sector resources because the number of deaths caused by accidents was simply not high enough compared to the “big killers” such as cancer, cardiovascular disease and respiratory disease...

Medico-Legal Articles, Edited by Dr Hugh Koch

CBT for Chronic Neuropathic Pain - Dr Kathryn Newns, Ben Goodall & Frank Beesley
There is extensive literature and research evidence supporting the use of Cognitive Behavioural Therapy (CBT) in chronic pain cases. In particular it is felt that treatment of depression can help the patient with neuropathic pain to fully enlist in pain management and rehabilitation (Leo, 2006).

Expert Witness Articles

Expert Witnesses: Preparing for Trial - Tom Gibson, Outer Temple Chambers
Expert evidence is important in nearly all personal injury cases. This article highlights three points to remember on expert witnesses, especially as a case progresses towards trial. All three points are of general application to all personal injury claims although specific examples relating to travel law gastric illness claims are considered here.

Lord Justice Goldring Speech on Expert Witness Evidence - Mark Solon, Bond Solon
The expert witness role has been put under a microscope by the government and the judiciary over the past decade, with increasing intensity. Speaking at Bond Solon’s annual expert witness conference in November, Senior Presiding Judge for England and Wales Lord Justice Goldring gave his judicial perspective and a valuable glimpse into the future direction of expert witness work.

Mediation & ADR Articles, Edited by Tim Wallis, Trust Mediation Ltd

Mediation or Negotiation - Steve Hancox, ADR Group Accredited Civil & Commercial Mediator
Steve Hancox reports on the recent decision in ADS Aerospace Ltd v EMS Global Tracking Ltd and considers the difference between mediation and without prejudice negotiations.

Marketing for Solicitors

Marketing Your Practice: IPA Diversity and Advertising Spend Reports - Jenny Cotton, Mortons Marketing
What is the size of this diversity opportunity? The UK’s black and ethnic minority population (BME) spends £300 billion pa, the mixed race group is the fastest growing, the average British Indian man is now on a higher income than his white British counterpart and in total the BME represent some 12% of the total population. Does your practice recognise these trends?