News Category 2
Relief from sanctions and the big picture: Roberts v Fresse & Anor. [2018] EWHC 3867 (QB) - Niall Maclean, 12 King's Bench Walk
01/05/19. In March 2014 on a road just outside Dover, Christopher Roberts was involved in a serious accident in which his car was impacted head-on by a vehicle driven by Pascal Fresse. Mr Roberts sustained significant injuries. He was at the time of the accident a paraplegic as a result of an accident that had taken place several years earlier. Mr Fresse was at fault for the 2014 collision, but the nature and extent of its consequences for Mr Roberts is a matter of considerable complexity.
Reflecting that complexity, when Mr Roberts’ claim for damages came to be case managed by Master Thornett in 2018 the court granted permission for extensive expert evidence: nine experts for the Claimant, and twelve for the Defendants. The expert disciplines included neurology, neuropsychology, orthopaedic surgery, spinal cord injuries, life expectancy, care and accommodation.
The Defendants encountered difficulties in complying with the case management timetable for service of their expert evidence. Their legal representative suffered a prolonged period of ill health. He did not arrange appointments for the Claimant to be examined by the Defendants’ experts (save for one, an expert in spinal cord injuries). When a new solicitor took over the file in late 2018, it was realised there was insufficient time for the Claimant to be examined and reports produced prior to the deadline for service. The Claimant was asked to consent to an extension, which was refused. The Defendants made an application for relief from sanctions.
The application was heard on 18 December 2018 by Jason Coppel QC acting as a Deputy Judge of the High Court. The now familiar three-stage exercise set out by the Court of Appeal in Denton v TH White Ltd. [2014] EWCA Civ 906 fell to be considered.
As regards “stage one”, the...
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Was LASPO Part 2 worth the bother? - Qamar Anwar, First4Lawyers
25/04/19. Was part 2 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) worth the bother?
I can guess the reply of most claimant lawyers – and indeed of defendant lawyers – but now the Ministry of Justice (MoJ) has had its say, publishing the long-awaited post-implementation review in January.
It was understandably overshadowed by the review into the drastic impact of part 1 of the Act on legal aid, in part because the MoJ concluded that part 2 “on balance” succeeded in reducing the cost of litigation, discouraging unmeritorious cases and promoting access to justice at proportionate cost.
As a result, the MoJ is not proposing any amendments to the primary legislation, or immediate changes to the underlying rules and regulations, although it identified reform of the damages-based agreement regime and extending qualified one-way costs shifting beyond personal injury (PI) as the areas top of the list to address in the future (with the former sounding more likely than the latter).
The review included a data analysis from Professors Fenn and Rickman – whose work has underpinned much of the civil justice reform of the past 15 years – and this indicated lower base costs and damages, and reductions in the length of proceedings, in PI and clinical negligence cases following LASPO.
The MoJ said: “Based on the evidence received as part of the PIR, the government considers the part 2 reforms to have been successful in achieving the principal aim of reducing the costs of civil litigation.
“The evidence shows that, in a range of personal injury claims (including clinical negligence claims), costs have reduced significantly (c. 8-10%) and early settlement has also improved [by 9%].
“A definitive judgement on the impact on unmeritorious claims cannot be made at this time but the claims volumes data, the changes in financial incentives to CFAs, the test of fundamental dishonesty for QOCS and anecdotal stakeholder feedback suggest there has been an overall decline in unmeritorious claims.
“The government considers that, on balance, the evidence suggests the part 2 reforms have successfully met their objectives.”
Not the most ringing of endorsements, it has to be said, and the review acknowledged the concerns of claimant lawyers that the Act has made it more difficult and challenging to bring some claims. But it did not detail the imbalance many claimant lawyers now see between their clients and defendant insurers.
The Fenn and Rickman research also needs probing some more. Not for the first time, they had some trouble getting hold of data, and they had to discard cases subject to fixed recoverable costs from what they did have.
They were left with just two data sources: one from NHS Resolution and its costs firm of choice Acumension, and another covering non-clinical negligence PI claims over £25,000 provided by Peterborough-based law firm Taylor Rose TTKW, which acts for insurers and other compensators.
Reading between the lines, it appears that the professors were quite tentative in their conclusions – “They urge that evaluations of future aspects of reform in this area would be assisted by better collection of baseline data,” the review noted.
And even if the figures are accurate, is a reduction in costs of no more than 10% what the MoJ was really after? While 10% across the piece (of non-fixed-costs cases) no doubt adds up to a significant sum, have we seen it reflected in lower insurance premiums? Does it make up for the prejudice suffered by vulnerable people such as children and protected parties, as well as the cost of change across the industry?
The impact of the Civil Liability Act on claimants is likely to be much more severe. The cost of litigation will no doubt fall further. But at what cost to justice?
By Qamar Anwar, Managing Director, First4Lawyers
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Fraudulent claims; are England and Scotland moving in different directions? - Kate Donachie, Brodies LLP
24/04/19. In a time of significant change to the civil litigation system, the approach to fraudulent exaggeration of insurance claims is diverging North and South of the border. This combination of developments may lead to a perfect storm for fraudulent claims in Scotland.
In England and Wales, the treatment of fraudulent cases is set out in statute; in Scotland the courts are bound to interpret and apply the common law. Recent cases put the consequences of those different approaches into sharp focus.
In England and Wales, section 57 of the Criminal Justice and Courts Act 2015 requires the courts to dismiss in its entirety, any claim in which the claimant is held to have acted with “fundamental dishonesty”. In LOCOG v Sinfield [2018] EWHC 51 (QB) it was concluded that fundamental dishonesty was established if the dishonesty “substantially affected the presentation of its case… in a way which adversely affected the defendant in a significant way.” This approach was applied in Pinkus v Direct Line [2018] EWHC 1671 (QB) where, although the judge accepted that there had been some injury; the entire claim was dismissed because the claimant’s significant exaggeration rendered him...
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PI Practitioner, April 2019
16/04/19. 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 consider the case of Peter Matthew & 5 others v (1) Barrie Sedman (2) Thomas William Hallam (3) Peter James Roberts [2019] EWCA Civ 475 which concerned limitation periods. The claim concerned an allegation that former trustees had failed to make a claim under a scheme of arrangement by midnight on the last day for submitting claims. The fundamental question was: did the relevant cause of action arise at midnight, or just after the midnight deadline expired and therefore during the next day?
At first instance, the Judge held that when a cause of action was...
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Autonomous Vehicles May Be Motoring Towards the UK, but Who Is Liable if They Crash Along the Way? - Paul Fretwell, George Ide LLP
15/04/19. Now that the Automated and Electric Vehicles (AEV) Act is enshrined in law, will the government deliver ‘automatic’ compensation for injured victims of driverless cars? According to recent media reports, fully driverless cars are expected to take part in advanced trials on Britain’s roads by the end of 2019 under government plans to scrap a previous requirement for a dedicated safety driver.
Recently there have been a number of tragic accidents in the USA involving autonomous vehicles. Last March a pedestrian was killed in Arizona by a vehicle in self- drive mode. In the same month a car on ‘autopilot’ slammed into a crash-barrier in California, killing the driver who had taken his hands off the wheel for only six seconds. In 2016, another ‘autopilot’ failed to detect a large truck crossing the highway and a driver was killed as a result. Last year in the UK a driver was banned from driving after being caught moving to the passenger seat while on ‘autopilot’.
The AEV Act is intended to make motor insurance companies strictly liable to pay compensation for injuries and losses arising from accidents caused by autonomous vehicles driving themselves on the UK’s public roads. If technological faults are found to have caused the crash, the insurers will have to pay out to the injured victims and will then have to pursue the vehicle manufacturers for financial redress. In theory, this should make it easy for innocent injured victims to receive compensation – but how will things work out in practice?
My concern is focussed around a government statement from Baroness Sugg confirming the AEV Act’s ‘strict liability’ is not intended to cover level three automation, which requires the presence in a vehicle of a fall-back driver who is ready to take control when required and who is capable of responding quickly to a system alert. Such a grey area leaves plenty of potential room for costly and protracted legal argument over culpability between insurers, manufacturers, service garages, drivers, and lawyers – potentially at the expense of seriously-injured road accident victims.
It seems there are many twists and turns in the road ahead for autonomous vehicles. Hopefully there will be no more tragedies along the way, and the promise of automatic compensation for automated failure will eventually be delivered.
For more information on accident and injury law, or for support and advice with a compensation claim, contact the George Ide team on 01243 786668 or email us at This email address is being protected from spambots. You need JavaScript enabled to view it. .
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![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)
