News Category 2
PI Practitioner, January 2019
16/01/19. 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 extensions to the limitation period in personal injury claims under s.33 of the Limitation Act 1980.
The courts appear to have become increasingly more liberal in their approach to applications under s.33 in recent years, and the case of David Ellis v (1) Heart of England NHS Foundation Trust (2) University Hospitals Birmingham NHS Foundation Trust (3) Swayam Iyer [2018] EWHC 3505 (Ch) is no exception to that.
The Claimant alleged that each of the three defendants had, on 25 February 2013, negligently caused a delay in diagnosing and/or treating a cerebral abscess, leaving him with epilepsy, cognitive and behavioural dysfunction, and permanent left-sided weakness. The Third Defendant was his GP, whom the Claimant alleged negligently sent him home from the GP surgery, despite the Claimant presenting with acute numbness and weakness of the left leg, and despite the GP having taken bloods which were reported as abnormal within minutes; he suffered a seizure later that day and was taken to hospital. The First Defendant had been responsible for transferring him to a different hospital run by the Second Defendant, and had delayed in doing so; and when he was in the care of the Second Defendant, it had delayed in draining the cerebral abscess.
The Claimant instructed solicitors in October 2013, who sent...
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The complex reasons why a claimant takes legal action - Ali Malsher, Anthony Gold Solicitors
14/01/19. Reading the traditional media, it appears, clinical negligence claimants are motivated by finance only. Yet this doesn’t equate with the experience of those who work in this area of law. The reasons claimants start the legal process are complex but there is a relationship between response of the health provider to adverse events and litigation.
Recently NHS Resolution undertook a survey looking at the behavioural insights into patient motivation. Depressingly almost two thirds of those who responded felt that they had received no explanation as to why an incident had occurred.
Many people do not pursue the complaints procedure but of those that did only about half were actually invited to a meeting to talk about what had happened. In fact the majority of people did not think that the health care provider actually took any actions to investigate and less than a 10th thought that any actions that had been recommended would prevent a recurrence.
These are all statistics which anecdotally would reflect the experience of clinical negligence practitioners. Many people who investigate the possibility of a claim have had no proper investigation of events or explanations of outcomes. They are frustrated by the lack of adequate response on all fronts.
Clearly there are many claimants who simply need to take legal action. They may have ongoing and significant needs or they have suffered substantial losses. They often cannot afford to provide what is needed or the state provision is woefully inadequate. These are the simple practical realities of life.
Others, fewer, are motivated partially as a result of a need for perceived justice but many claimants retain a sense of unease about taking action against the NHS in particular. Few take the decision lightly. At best it is a difficult , distressing process and highly intrusive.
This survey reinforces what claimant lawyers and patient organisations have thought for many years. A poor response at the time of an adverse event, an inadequate complaint procedure and a deficient apology letter are factors which are more likely to lead a claimant to consider litigation.
Some claimants will always need and want to take legal action . However a more empathetic, efficient and open response to individuals who have suffered an adverse event may encourage claimants consider other options. Understanding why claimants choose to take action is important to all solicitors. Although the legal process can be limited in its scope , managing expectations is part of the lawyer’s role and understanding the reason why a claimant decides to take action is often vital to building an effective relationship with the client.
This survey gives an insight into some of the many factors leading to legal action . Many of the responses to the survey were from claimants whose events pre dated the Duty of Candour introduced in November 2014. However it remains to be seen whether this has made a significant difference and those factors identified have not disappeared. Therefore reaction to an adverse event through the whole process remains a fundamental factor in litigation and should be an important consideration for lawyers on both sides.
Ali Malsher
Partner
Anthony Gold Solicitors
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Fundamental dishonesty in occupational disease claims (part 3) - Paul Debney, Weightmans LLP
09/01/19. In this, the last of a series of 3 articles, Paul Debney, Partner and head of disease counter fraud at national firm Weightmans LLP, examines the impact of the suppression of evidence relevant to the causation of a condition.
In the earlier two articles we discussed decisions which establish that fundamental dishonesty can apply not simply to direct lies about breach of duty; for example the provision of hearing protection and training, but further how the failure to disclose a previous claim or earlier knowledge of the existence of a condition can also amount to fundamental dishonesty.
Similarly, deliberately suppressing alternate, potentially causative, non occupational exposure can also be fundamentally dishonest. In the case of Christopher Evans v Blackheath Engineering & Ors (unreported) it was alleged that occupational noise exposure with our client and 4 other employers had caused NIHL. The claimant denied any non occupational noise exposure in his medical report, in response to specific Part 18 questions and in his initial witness statement. Contrary to those assertions the claimant was a guitar player in a heavy metal band and therefore likely had significant non occupational noise exposure.
It was only after...
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Editorial: Trial Bundles - Aidan Ellis, Temple Garden Chambers
20/12/18. Instead of my usual December ‘review of the year’, I will end 2018 with some thoughts about trial bundles. I have had a significant number of trials this month (not all effective), and in many of them issues have arisen (or could have arisen) about the state of the trial bundle. It may therefore be helpful to offer some comments borne from experience of using trial bundles in practice.
First, if there is any dispute about the admissibility of a document, the party challenging the document should not allow it to be included in the agreed bundle. There are at least two reasons for that. First, if the document is in the bundle, the Judge may well have come across it in his pre-reading. Second, if a document is included in an agreed bundle, that document becomes admissible unless the court orders otherwise or the challenging party has given written notice of their objection (see the Practice Direction to Part 32). The act of agreeing to a document’s inclusion in the bundle thus makes it harder to object to the document at the hearing.
Second, it is unhelpful to include multiple copies of the same document. I have had trials where the medical report appears in the bundle four times: behind the Particulars of Claim; annexed to an application; annexed to the Claimant’s statement and in the section for the medical evidence. This wastes preparation time and has the potential to cause confusion at the hearing.
Third, it is worth putting some thought into what documents actually need to be in the bundle. Clearly, anything on which the witnesses will be cross-examined should go in. But documents are often included which are very unlikely to be relevant. For instance, it is not uncommon to find the parties’ directions questionnaires, which have ordinarily ceased to have any relevance by the time that a case gets to trial. Moreover, I wonder whether it is necessary to include Claimant’s complete medical records in the bundle. Of course, there should be cross-examination on relevant records but it ought to be possible to identify in advance which records are likely to be relevant. In a soft tissue injury case, the Court doesn’t need to review childhood ailments and vaccinations for an adult Claimant. On many occasions, the records contain something personal or potentially embarrassing which has no relevance whatsoever to the injury in issue in the proceedings.
It may be rare for mistakes in the preparation of the bundle to affect the outcome of trial. But it can happen. At the very least, in my experience a poorly prepared bundle irritates the tribunal, which can affect the case in a variety of ways including in case management decisions and costs.
Aidan Ellis
Temple Garden Chambers
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PI Practitioner, December 2018
16/12/18. 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 issue focuses on applications for permission to bring in additional fields of medical evidence, and specifically the case of Sharron Denise Hall v Derby Teaching Hospitals NHS Foundation Trust [2018] EWHC 3276 (QB), which provides a stark illustration of 'how not to do it'.
It is suggested that the following practical points of importance emerge from the judgment:
(1) Exercise caution before presumptively instructing the relevant expert, before the application has been heard. Implicit in the judgment is a recognition of the fact that just because an expert report has been obtained, a grant of permission is not necessarily more likely to be obtained. Further, if the expert is presumptively instructed and permission is then refused, it will not only be very costly, but it may also be hard to unwind the consequences of the instruction (for example in this case, the other experts had all been asked to comment on the evidence of the new expert in their reports).
(2) Claimant practitioners should be mindful of the fact that, if the further evidence is sought because it is hoped that it will contain a specific conclusion that will bolster the claimant's case, there is an inherent risk that the conclusion may not be forthcoming. If so, the evidence is unlikely to add anything and is therefore bound to be refused, in which case the whole exercise will have been little more than an expensive fishing expedition.
(3) Where possible, parties should endeavour to agree a common approach, short of seeking formal Part 35 permission, to accommodate the potential need for further expert opinion on specific points. If that can be achieved, many of the risks and costs identified above could be...
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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)
