News Category 2
Case Report: M v Ghosh - Karen Cawood, Spencers Solicitors
Case Name: M v Ghosh
Accident Date: 03/11/2016
Settlement Date: 15/01/2019
TOTAL GROSS SETTLEMENT: £10000.00
Background
The Claimant was involved in a road traffic accident which caused an exacerbation of neck and back symptoms stemming from another road traffic accident in December 2013.
The Claimant was on her way to a hospital appointment so went to the minor injuries unit whilst she was there. She was advised that her symptoms had been made worse and advised to see her GP.
The accident increased the pain in her neck, back, shoulders, right arm and headaches. The accident also caused numbness to her right hand and fingers.
The Claimant found that her injuries caused problems with her work. The Claimant had started a new job 1 month prior to the accident which involved a lot of driving. The Claimant found that following the accident, she had to stagger her journeys and take lots of breaks. She would also take the train where possible instead of driving. 17 months after the accident, the Claimant's work load increased which consequently flared up the Claimant's symptoms. This also had an impact on the Claimant's university exam. Over the counter medication was not effective. The Claimant was provided with various pieces of equipment to help her manage her job, along with a sit and stand desk, boxes and trolleys.
The Claimant was placed on a Pain management Programme which gave her various techniques to assist with breaking up her tasks to manage work more easily.
The accident made the Claimant feel exhausted daily which then resulted in migraines preventing the Claimant from physically doing her job.
The accident affected the Claimant relationship with her husband, family and friends. She was unable to keep up with household chores, carry out as much gardening as she has prior to the accident and could only carry out small aspects of DIY.
The Claimant also suffered with driving anxiety, particularly at night.
Liability
The Claimant was driving her vehicle on her way to an appointment. Suddenly and without warning the Defendant emerged from a garage, crossed three lanes of traffic and collided with the front offside of the Claimant's vehicle.
Liability for the accident was admitted by the Defendant's insurers.
Quantum
The Claimant sustained injuries to her neck, back, shoulders, right arm and headaches, along with numbness to her hand.
The Claimant engaged in physiotherapy, pain management and work coaching in an attempt to try and carry out normal activities and continue to earn a living.
The medico-legal expert was unable to accurately attribute a percentage of symptoms to each of the accidents but in their opinion confirmed that the physical symptoms are likely to be persistent.
PSLA - £10,000.00
Solicitors for the Claimant: Karen Cawood of Spencers Solicitors Limited
Solicitors for the Defendant: Admiral Insurance
Image ©iStockphoto.com/aceshot
Al-Zahra (PVT) Hospital & Ors v DDM [2019] EWCA Civ 1103 - Ian Meikle, Civitas Law
31/07/19. In this case the Court of Appeal considered whether or not to overturn extensions of time to serve a claim form outside the jurisdiction. In electing to do so, the court drew on and affirmed several previous authorities that provide that the regime is restrictive and sometimes harsh and that the reason for requiring extra time will always be relevant.
The history of the case is long, complex and not particularly relevant to the judgment. Suffice it to say that the relevant tortious acts occurred in Dubai and were known of in mid-2012 and the claim form was issued in mid 2015. At the time of issue the Claimant applied for an extension of time to serve the claim form of a further 11 months, taking the time for service to December 2016. This was granted on the basis that issue of the claim had been protective, leaving much still to be done, and that the RCJ Process Section had opined that service in the UAE might take more than 12 months.
Unfortunately, the Claimant then made a further application for an extension in October 2016 asking for a further six months. The reason given for the need for more time was simply “there have been delays in arranging for service of the documents”. No witness statement was served with the application. This application was allowed without a hearing.
There were then various cross-applications, hearings and appeals, the long and the short of which being that Foskett J upheld the granting of both extensions of time.
Haddon-Cave LJ, in giving the judgment of the court set out the judgments below and the relevant CPR sections and then, from paras 48-55, set out the applicable authorities. The first is Hashtroodi v Hancock [2004] 1 WLR 3206, in which the following principles were distilled:
-
there is no requirement for there to be a “good” reason to extend service;
-
the discretion should be exercised in accordance with the overriding objective;
-
the court cannot deal with an application to extend time for service without knowing why the same is needed;
-
the stronger the reason for the delay, the more likely the extension;
-
simply having overlooked the need to serve will be a strong reason not to grant an extension;
-
the Woolf reforms intended that time limits not be departed from without good reason;
-
the time limits for issuing and serving are generous; and
-
whether the limitation period has expired is of considerable importance.
The second authority cited was Hoddinott v Persimmon Homes (Wessex) Ltd [2008] 1 WLR 806. The key points discussed therefrom were:
-
the Claimant should know that extending is perilous – even if she/he gets an order it can still be set aside; and
-
the approach to applications before or after the expiry of the time limit is different – applications before time should be considered in light of the fact that the claim is not yet time-barred, whereas applications made after the deadline should not and must be dismissed unless all three conditions in CPR 7.6(3) are satisfied.
Finally, and crucially, the court considered Cecil v Bayat [2011] EWCA Civ 135. Here the key points were:
-
where limitation has expired, it has expired – it matters not whether or not by one day or one year; and
-
the strength of the claim the Claimant will be deprived of may be relevant, but the stronger the claim the more powerful the Defendant’s legitimate limitation defence (which will be voided by the grant of an extension), so that an extension of time should not be granted after the expiry of limitation save in exceptional circumstances.
Haddon-Cave LJ specifically picked out Rix LJ’s approving citation from the judgment of Mummery LJ in Anderton v Clwyd County Council (No.2) [2002] 1 WLR 3174, which stated that the courts “will be entitled to adopt a strict approach, even though the consequences appear to be harsh in individual cases”.
As a result, the court approved the first extension but overturned the second, on two bases. First, that Foskett J had placed undue weight on the Defendant’s lack of reply to the letters written to them by the Claimant. Haddon-Cave LJ found that this should not have affected the Claimant’s preparations. Second, he found that Foskett J had paid insufficient attention to the very significant delays, the lack of satisfactory reasons for the same and the fact that they were attributable to “the failures, inaction and general lack of urgency on the part of the Claimant’s solicitors”.
This decision strongly reiterates previous dicta that applications for extending time are a risky approach and will not generally be granted without good or very good reason. Where limitation has expired the picture becomes very bleak indeed. For those acting for Claimants these applications should in no way be taken for granted.
Ian provides summaries of every Supreme Court and Court of Appeal personal injury decision as they are published at www.injuryappeals.blog.
Image ©iStockphoto.com/DNY59
How to beat the MIB's off-road vehicle defence - Alan Ball, Irwin Mitchell
26/07/19. This article will discuss a recent case (KMX v DPX and MIB [2018]) that myself and Carolyn Heaton, Partner at Irwin Mitchell, alongside our Counsel, Henry Witcomb QC, have successfully resolved against the Motor Insurers’ Bureau (MIB). After over three years of liability being in dispute in August 2018, less than two weeks before trial, the MIB admitted liability in full. This article will discuss the ‘off-road’ vehicle defence used by the MIB and how we overcame this defence.
We represented a young girl who was catastrophically injured when she was crossing a residential road with her father and brother. The Claimant crossed the road and had nearly reached the safety of the pavement when she was collided into by an off-road Yamaha YZ85 motorcycle, ridden by a local youth.
The motorcycle ridden by the First Defendant was uninsured. We therefore submitted a claim against the MIB in accordance with the MIB Uninsured Drivers Agreement 1999. Despite the availability of police and witness evidence no admission of liability, or confirmation that the MIB would deal with the claim, was received.
Court proceedings were served on the First Defendant and the MIB as Second Defendant. No defence was filed by the First Defendant. The MIB served its defence and denied liability on two grounds. The first was that the First Defendant was not negligent. Based on the police report, CCTV footage, witness evidence and accident reconstruction evidence obtained the First Defendant’s negligence was beyond question. This article will not cover the negligence of the First Defendant, but instead how we overcame the second ground of the MIB’s Defence.
The second argument adopted by the MIB was that the MIB did not have to satisfy judgment against the First Defendant due to the type of motorcycle ridden by the First Defendant. It was argued that it was an ‘off-road’ motorcycle and therefore not classed as a motor vehicle in accordance with section 185 of the Road Traffic Act 1988. Consequently it was asserted that its use by the First Defendant did not give rise to a ‘relevant liability’ as defined in clause one of the Uninsured Drivers Agreement 1999 (UDA). In accordance with the UDA the MIB would only be responsible if a judgment is obtained against a Defendant who was required by Part VI of the Road Traffic Act 1988 to be insured against liability (and that judgment remains unsatisfied).
Section 185 of the Road Traffic Act 1988 defines a motor vehicle as follows:
“motor vehicle” means , subject to section 20 of the Chronically Sick and Disabled Persons Act 1970 (which makes special provision about invalid carriages, within the meaning of that Act), a mechanically propelled vehicle intended or adapted for use on roads”
The words ‘intended or adapted for use on roads’ were significant in our case and were a key part of the MIB’s defence in arguing that the motorcycle ridden by the First Defendant was not classed as a motor vehicle. The MIB averred that because it was an ‘off-road’ motorcycle intended and manufactured for dirt track and competition use, it was not intended or adapted for road use. The MIB detailed that the motorcycle ridden by the First Defendant did not have a speedometer, number plate, or battery, and that the tyres were moulded with the wording ‘Not for highway use’, in addition to various other reasons to support its defence...
Image ©iStockphoto.com/creepers888
Editorial: Handing Down Judgment - Aidan Ellis, Temple Garden Chambers
25/07/19. Two of my hearings recently overran, with the result that judgment was reserved and a further hearing was listed for judgment to be handed down. The subsequent progression of the cases was rather different. In the first, the Judge prepared a written judgment which was sent to the parties in advance of the return date. As a result, the parties were able to agree the costs consequences and hence avoid the need to incur the cost of attending the further hearing. In the second, the hearing was listed some months after the trial (after taking into account dates to avoid), the parties had to attend in order for the Judge to read out a short oral decision and then deal with the costs consequences.
Reflecting on these contrasting experiences, it is respectfully suggested that the preparation and advance circulation of a written judgment in these circumstances has significant advantages. First, from a costs perspective, the parties (particularly the paying party) may well prefer to have the opportunity to avoid the cost of attending a further hearing for the handing down of judgment. With advance sight of the Judgment, in many cases sensible litigants will be able to agree the consequential costs orders (there will of course be exceptions where, for instance, one party wishes to take conduct points). More prosaically, the fixed costs regime applicable to fast track cases makes no allowance for the costs of a second hearing to hand down judgment. Second, judgment is often reserved because the factual and legal issues are sufficiently complicated that the Court has not been able to resolve them in the allotted time. In those circumstances, the preparation of a written Judgment is helpful to the parties because it allows an early opportunity to consider whether any appeal points arise.
It is, of course, appreciated that the burden of preparing a written Judgment will add work to an already overburdened judiciary. It may be, however, that the negative effect of this additional burden is outweighed by the potential to save court time (by taking away the need for an additional hearing) in addition to the clear advantages to the parties identified above.
Aidan Ellis
Temple Garden Chambers
Image ©iStockphoto.com/prizela_ning
Scanning the horizon (and other sea-faring clichés) - Jonathan Wheeler, Managing Partner, Bolt Burdon Kemp
17/07/19. I recently presented my firm’s business plan to all our staff. As managing partner of the good ship Bolt Burdon Kemp, a practice which exclusively represents seriously injured claimants, it is very much part of my job to scan the horizon for threats and opportunities, and lead everyone through choppy waters. My analysis attracted a lot of attention! So what will PI practice look like in the next year or so?
The Government continues its relentless implementation of reform which will further attack our clients’ right to damages and the recovery of their costs. Brexit – deal or no deal – will clearly have some impact, although exactly how is actually very unclear. Charting a course through such change is a real challenge and only the most sea-worthy practices will emerge unscathed.
Attacks on our clients’ damages
The Government continues to promise that by April 2020, a tariff scheme for low value traffic accidents will be introduced courtesy of the Civil Liability Act. Law firms specialising in such cases will either need to cut their cloth in the way that they run these claims to make them pay, or abandon the market altogether. A great opportunity for the unregulated sector of paid McKenzie friends and claims management companies, but I fear for claimants and predict worse outcomes for them. Some law firms may raise their sights to more serious, complex work.
At the opposite end, the Lord Chancellor is to make a decision on the discount rate by 6th August 2019. It is predicted that the rate will be increased to 0-1% and if this comes to pass seriously injured claimants will be forced to invest damages in riskier stocks or else be under compensated for their long term needs.
Attacks on our clients’ costs
Fixed fees for low value (up to £25,000) clinical negligence and noise induced hearing loss claims are on the cards, and the Government has recently consulted in raising the fast track limit for “intermediate claims” up to £100,000. Law firms will have to start modelling the proposed costs matrices to ascertain how and if they can continue to be profitable in running such cases, or moving into areas which appear to be exempt – such as child abuse claims and contested clinical negligence work. As this only requires rule change, not primary legislation, solicitors could see these changes coming in fairly swiftly.
Coping with reform
Some firms have already become croppers - Seth Lovis & Co ceased trading in March and Nesbit Law Group LLP crashed out with high debts in July last year. The Law Society Gazette reported recently that creditors of Bolton firm Asons are owed £26.5m. All this news makes banks twitchy and reluctant to extend credit lines to the firms remaining in the market. Borrowing vast sums of money to prop up a failing law firm has never made good business sense, and it also prevents firms staying nimble enough to cope with change: you need to be more speed boat than oil tanker to stay the course.
Change breeds innovation: Representing the interests of the vast majority of accident victims at the lower value end of the market will require larger economies of scale, slicker use of technology, reliance on lesser skilled and cheaper staff, or the unbundling of services. There is no doubt that there will be a continued need for law firms to represent accident victims; accidents will continue to happen and people need compensation to cope with the changes their injuries have made to their lives, who would otherwise be marginalised and forced to fend for themselves in a system heavily weighted against them.
Getting ‘niche’
Without the economies of scale of some larger law firms, to stay in the market others need to ‘get niche’, and that is certainly the direction we have chosen at Bolt Burdon Kemp. We have so far managed to stay at least one step ahead of the reforms. Some time ago we re-focussed our business on the most seriously injured. This allows us to provide the full service to our clients that we want to provide, without cutting corners for the sake of proportionality.
It is a truism that the amount of cash needed to finance a personal injury department (or a whole personal injury firm) is eye watering. The cost of investing in marketing to attract the clients you want to represent, and in employing great staff to service the needs of those clients is immense. Then you have to fund your clients’ cases (and their disbursements), only getting paid at the end of the case (and only if you win). This means that there are immense barriers to entry into the serious injury market, and for those firms that are already operating successfully within it, this is good news. It is certainly my intention that the good ship BBK will steady its course and sail on, and not end up beached on the sand bank of reform.
Jonathan Wheeler
Managing Partner, Bolt Burdon Kemp
www.boltburdonkemp.co.uk
Image ©iStockphoto.com/airn
![Appeal judge rules that credit hire company has no costs liability following a finding of fundamental dishonesty in personal injury case: RSA v. Fastrack Solutions Limited [2023] 4 WLUK 92 - David Bowden, Erimus Chambers](/content/images/resized/images/stories/carkeys_72_72.jpg)
