News Category 2
PI Practitioner, April 2020
16/04/20. Each issue a particular topic is highlighted, citing some of the useful cases and other materials in that area. You can also receive these for free by registering for our PI Brief Update newsletter. Just select "Free Newsletter" from the menu at the top of this page and fill in your email address.
This month we provide resources and updates in relation to courts and hearings during Covid-19.
Readers are referred to the HMCTS daily operational summaries for updates on the courts' activity during this time.
The Civil court listing priorities provides useful guidance on the priorities of the County Courts.
The Coronavirus Act 2020 amends the Courts Act 2003. Section 85A is inserted to give the courts the power to direct that proceedings conducted wholly as video or audio proceedings are to be broadcast to enable members of the public to see and/or hear the proceedings, and for the court to keep a record of the proceedings.
Olivia Rosenstrom
Temple Garden Chambers
Image ©iStockphoto.com/EmiliaU
Case Summary: D v S - Karen Cawood, Spencers Solicitors Limited
13/04/20. Case Name: D v S
Court Name: LEEDS
Accident Date: 11/04/2015
Settlement Date: 24/05/2019
TOTAL GROSS SETTLEMENT: £100,000.00
Background
On the 11th April 2015 the Claimant was driving his motor vehicle along the road between Filey and York. As he proceeded correctly along the road, a motor vehicle being driven by the Defendant and approaching from the opposite direction, crossed over into the Claimant’s path and collided with the Claimant’s vehicle causing it to spin and roll onto its roof. The Defendant was trying to change his radio and this is why he was on the wrong side of the road.
The Claimant was 41 years old at the time of the accident.
The Claimant suffered multiple injuries; L1 and L2 transverse process fractures, pelvic and acetabular fractures, a right radial neck fracture, a right lung contusion, a left shoulder injury, a right knee injury, a head injury with a brief loss of consciousness, lacerations, bruising and soft tissue injuries, along with travel anxiety.
The Claimant underwent open reduction and internal fixation of his complete acetabular fracture and spent a total of 59 days in hospital. For 12 weeks, twice a day, the Claimant required a carer and significant alterations to his home.
The Claimant also underwent an arthroscopy and arthroscopic debridement of the right knee.
It was concluded that the Claimant had been left with discomfort in the lower back which would give a low level of difficulty in the long term. He was also at risk of premature osteoarthritis in the right hip which would require a hip replacement; a 25% chance of a total hip replacement in the 10 years since the accident and a 60% overall lifetime chance.
The Claimant would also experience moderate levels pf pain and discomfort in the future and this would be permanent and he would require lifetime paracetamol and ibuprofen.
The Claimant was disabled as per the Equality Act 2010.
Liability
The Defendant in their Defence admitted liability.
Quantum
The Claimant; 45 years old at the time of settlement, received a global settlement of £100,000.00.
No breakdown was given; however the following is an estimate:
Special damages including future losses £26,000.00
General damages £74,000.00
Solicitors for the Claimant:
Karen Cawood of Spencers Solicitors Limited
Solicitors for the Defendant:
DWF LLP
Image ©iStockphoto.com/bagi1998
Do not stand on ceremony, else time will become the Claimant’s enemy: Durkan -v- Schmidt - James Devenny, Horwich Farrelly
03/04/20. This case relates to an accident that occurred in 2011; the Claimant conducted the claim through the portal process, which at that point had an upper limit of £10,000. Very little progress was made and eventually, proceedings were issued under the Part 8B procedure, and the Claimant applied for a stay of proceedings.
Despite both EUI and Horwich Farrelly's claims handlers chasing the Claimant's Solicitors for updates over the course of the stay, very little information was forthcoming.
In order to break the impasse, it was agreed between the parties to lift the stay and have the claim transferred to part 7 proceedings. Surprisingly, with the proceedings, the Claimant served evidence that strongly indicated that the claim never was suitable for the Part 8B procedure, and no progress had been made for over 4 years.
Horwich Farrelly immediately entered a Defence arguing that the Claimant had abused the process of the Court. No satisfactory response was given to that, so Horwich Farrelly issued an application to have the claim struck out in its entirety.
The matter came before Deputy District Judge White at the Bromley County Court. Although the hearing was listed for 4 hours, Judge White did not take more than a couple of hours to find in favour of the application. She made a finding of fact that the Claimant's Solicitors were in receipt of evidence that suggested the case was worth far more than the upper portal limit, even prior to their application to stay the proceedings, and arguably that application was misleading.
Moreover, Judge White was highly critical that the Claimant had let the proceedings go stale, in that they had not completed some of the most basic steps of litigation, ie. Writing to an employer to obtain earnings information or updated the medical evidence and therefore, the matter should have had a Trial years ago. Although the Claimant's barrister argued that there could still be a fair trial, Judge White rejected that submission, struck the claim out and ordered the Claimant to pay the Defendant's costs amounting to £7,500.
Those costs have now been paid and a complete reserve release has been achieved. The case is a cautionary tale to Claimants who risk invoking draconian sanctions if they let matters drag on without progress. The courts and insurers will not give Claimants a free pass where there is evidence of foul play or procrastination.
Image ©iStockphoto.com/DNY59
Covid 19: How Should the Law React?
27/03/20. Dr. Mark Burgin BM BCh (oxon) MRCGP discusses reasonable adjustments to legal processes to allow compliance with Government Policy and Health and Safety.
Legal processes risk spreading the virus in a way that acts counter to the government’s present strategy of suppression such waiting rooms and courts.
With the previous strategy of herd immunity, spread of Covid 19 was to be encouraged so that all non-vulnerable people would get the disease.
The recent mathematical modelling from Imperial College suggested that the deaths would be 250k not 25k and so spread would be based on stop-start.
This makes advice more complex, the courts cannot simply say ‘no over 60s to come to court’ and must give tailored advice for both stop and start phases.
Face to face or video?
Vulnerable claimants and professionals should not be travelling to courts or clinics and should instead be talking with each other on video or telephone (whether in stop or start phase).
For those who are not vulnerable, clinics and courts can carry on as normal in start phases but there should be a gap between individuals both in time (to allow cleaning) and physical distance.
Handwashing in front of clients demonstrates that the professional is taking seriously the threat, although anything that was touched should also be wiped down.
During stop phases all non-essential work should be deferred and essential work should be carried out via video consultation or with minimum spectators on home visit.
Testing professionals for Covid 19
All legal and experts should consider whether the work that they do is essential and whether they can reasonably defer work to the start phases of the outbreak.
Those that work in the criminal courts and family courts, where delay may damage justice, are clearly essential whilst MedCo personal injury cases are clearly not.
At present the only testing available is nose and throat swabs which take 2 days to detect active virus and could be useful to help experts return to work after infection.
An immunity test is being trialled which will show previous infection from Covid 19, when it becomes available will allow restrictions on immune individuals to be lifted.
Corona Virus Anxiety
The current figures for Covid 19 suggest that death rate increases by age so that whilst under 60s have low rates (1 in 200) in the over 80s up to a quarter will die.
Research into the additional deaths due to Austerity found 120k deaths (most were over 60s in care homes) and yearly influenza deaths vary between 1.6k in 2018/19 to 28k in 2014/5.
The ONS total number of deaths in the UK in 2018 was 541,589 (1484 people per day) so that 25k deaths from Covid 19 is equivalent to 17 days of normal deaths.
Deaths caused by overreacting to the emergency (from later Austerity) and failure of herd immunity to protect the most vulnerable need to be considered.
Conclusions
The majority of the population is expected to acquire the infection and become immune, but the first peak will be the worst so urgent action is needed now.
There is a risk that by suppressing the virus with stop-start that more vulnerable people will become exposed as the virus will circulate for longer.
Legal bodies should be proactive in supporting professionals and clients to comply with government policy particularly protecting the vulnerable.
Until population studies find the numbers who have recovered from Covid 19 it will be uncertain whether suppression or herd immunity was the correct approach.
Doctor Mark Burgin, BM BCh (oxon) MRCGP is on the General Practitioner Specialist Register.
Dr. Burgin can be contacted on This email address is being protected from spambots. You need JavaScript enabled to view it. and 0845 331 3304 website drmarkburgin.co.uk
Surveillance of influenza and other respiratory viruses in the UK Winter 2018 to 2019 https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/839350/Surveillance_of_influenza_and_other_respiratory_viruses_in_the_UK_2018_to_2019-FINAL.pdf
Watkins J, Wulaningsih W, Da Zhou C, et al. Effects of health and social care spending constraints on mortality in England: a time trend analysis. BMJ Open 2017;7:e017722. doi:10.1136/ bmjopen-2017-017722
Ferguson Report 9: Impact of non-pharmaceutical interventions (NPIs) to reduce COVID-19 mortality and healthcare demand Imperial College COVID-19 Response Team
https://www.gov.uk/government/publications/covid-19-track-coronavirus-cases
Image ©iStockphoto.com/Naeblys
PI Practitioner, March 2020
16/03/20. Each issue a particular topic is highlighted, citing some of the useful cases and other materials in that area. You can also receive these for free by registering for our PI Brief Update newsletter. Just select "Free Newsletter" from the menu at the top of this page and fill in your email address.
This month's practitioner update considers the court's discretion in off setting interim costs orders in the context of Qualified One-way Costs Shifting ("QOCS").
Michael Faulkner v Secretary of State for Business, Energy & Industrial Strategy [2020] EWHC 296 (QB)
In this case, Turner J had to determine:
1. Whether in a QOCS case, the Defendant may seek to set off a costs order which had been made in its favour, against another costs order made in favour of the Claimant.
2. If so, whether the court can or should exercise its discretion to disallow such a set off.
The Claimant brought a personal injury claim against the Defendant. At a CMC in November 2019, the Defendant was awarded its costs of that hearing, which were assessed at £3,500. The Claimant subsequently discontinued his claim. The Defendant applied to set aside the notice of discontinuance, with the aim of...
Image ©iStockphoto.com/EmiliaU
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