News Category 2
PI Practitioner, April 2017
16/04/17. 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.
McBride v UK Insurance Ltd and Clayton v EUI Trading Ltd [2017] EWCA Civ 144
Tucked away in the back pages of the Ministry of Justice's consultation document on soft tissue injury claims published last autumn was a call for further evidence on several "further areas of interest" to the government. Top of this list was credit hire, which was alleged (as with minor whiplash claims) to have contributed to an unwelcome rise in consumer premiums. But whatever plans the Lord Chancellor has in mind in the future, it is clear that...
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Criminal Injuries Compensation: Time for Change - Neil Sugarman, Neil Sugarman, President of APIL
10/04/17. The first ever scheme to compensate victims of violent crime in Great Britain was launched in 1964.
It was an ex gratia scheme provided by the government of the day and followed ten years of political lobbying by justice campaigners such as Margaret Fry, who was determined to ensure that innocent victims were properly compensated.
The ex gratia schemes were not perfect. There was no provision for the payment of interest on awards, nor did they make provision for the payment of the cost of legal representation.
Nevertheless, the basis of compensation was common law damages. Consequently, sums running to several million pounds could be awarded in thankfully rare cases such as those involving brain damage. In particular, cases of catastrophic damage through shaking of babies resulted in awards that would cater for lifelong needs without reliance on the state, although there were provisions allowing for the offset of state benefits against heads of loss so as to avoid double recovery.
Everything changed in 1995 with the passing of the Criminal Injuries Compensation Act. There was something of a “false start” when the government was judicially reviewed in an earlier attempt to introduce a non- statutory, tariff based scheme, but it eventually achieved its objective, resulting in the introduction of the first ever tariff based scheme in 1996.
That provided for the possibility of three broad heads of loss. First, a sum awarded according to a tariff or list of injuries. There were some discretions available to the awarding Criminal Injuries Compensation Authority, the successor body to the old Criminal Injuries Compensation Board, enabling a recognition of the degree of severity of injury. However, the sums were fixed.
There was the possibility of an award for loss of earnings or earning capacity with a qualifying period of twenty eight weeks and then a category for Special Expenses, again with a twenty eight week qualifying period, covering broadly care and supervision, equipment, adaptations to accommodation and limited recognition of costs associated with mental health issues. Successor schemes have altered the definitions surrounding individual aspects of Special Expenses and until 2012 it was possible to recover the cost of private medical treatment.
The single most troubling factor was that the 1996 Scheme introduced a “cap” or maximum award of £500,000 for all heads of loss, however they combined and the cap has remained in place at that figure ever since, now twenty one years later.
There has been no uprating, even so as to take account of inflation. That would have taken the figure nearer to £860,000 .The Armed Forces Compensation Scheme, soon likely to be revised following government consultation pays a maximum of £570,000.
In 2012 the Scheme was cut dramatically, removing five lower tariff bands of injury entirely from entitlement to compensation and reducing the next six bands. Under the 1995 Act, the Scheme is laid by Statutory Instrument before a Delegated Legislation Committee. When first placed before the Committee in September 2012 it was withdrawn in the face of clear opposition with the then Parliamentary Under Secretary of State, Helen Grant stating that she would pause for thought.
Exactly the same Scheme was reintroduced to an almost entirely differently constituted committee in November 2012 and passed. Announcing the establishment of a Hardship Fund of £500,000 to provide relief for lower paid workers who no longer qualified for an award Ms Grant said “The government believes it right to focus criminal injuries compensation on victims of more serious crime and for victims with less serious injuries, prompt practical and emotional support is a more suitable response than relatively small amounts of compensation.” No such measures have been introduced.
The Hardship Fund has paid out less than £5000 since then. The cap of £500,000 remains in place by virtue of paragraph 31 of the 2012 Scheme.
Furthermore, there are severe restrictions that have been introduced by the 2012 Scheme. Qualification for an award for loss of earnings or earning capacity is restricted to those in paid work at the time of the incident and who have been in regular work for three years immediately before the incident, with limited exceptions. The weekly loss is limited to the equivalent of statutory sick pay, currently £88.45 per week, as is the weekly sum payable for lost dependency in fatal claims under paragraph 71.
The provisions relating to Special Expenses have also been designed to be more restrictive. In particular, the removal of an award for private medical expenses is devastating to an application involving severe injury, since this used to encompass a wide range of therapies.
These areas, combined with the remaining “cap” make it difficult to see quite how the Scheme is doing more for people with the most serious injuries.
Change is well overdue.
Neil Sugarman
President,
Association of Personal Injury Lawyers
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Payment of the Incorrect Court Fee; Does It Give Rise to a Limitation Defence? (Answer: Almost Certainly Not) - Andrew Roy, 12 King's Bench Walk
05/04/17. Wells v Wood, Lincoln County Court, HHJ Godsmark QC 9 December 2016, 2016 WL 07330089
Introduction
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In the professional negligence case of Lewis v Ward Hadaway [2015] EWHC 3503 (Ch); [2016] 4 W.L.R. 6 several claims were held to be statute barred as a result of underpayment of court fees.
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Lewis has generated no small amount of enthusiasm on the defendant side and anxiety on the claimant side. These reactions have proved misplaced.
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Subsequent reported attempts to deploy Lewis have not been successful. The most recent of these, Wells v Wood, makes clear that the scope for its application in personal injury cases is vanishingly small.
Lewis
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In this case the claimants (as in their solicitors) delivered the claim forms to the court just before the expiration of the limitation period. However, they deliberately understated the value on the claim forms in order to defer paying the full court fee (which, had they decided not to serve, would never have been paid). They subsequently amended shortly before service to reflect the claims’ true value, paying the appropriate fee at that later time.
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Mr John Male QC held that, although this conduct constituted an abuse of process, it would be disproportionate to strike the claims out on that basis. This was notwithstanding that the same solicitors had been subject to heavy criticism by other judges in earlier cases for precisely the same practice.
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However, the same discreditable behaviour led to...
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Court of Appeal in Sharp v Leeds CC Decides Fixed Costs 'plainly apply to the costs of a PAD application' in Ex-Protocol Cases - Marcus Coates-Walker, St John's Chambers
03/04/17. In the case of Sharp v Leeds City Council [2017] EWCA Civ 33 the Court of Appeal (COA) determined a “short but important point” in relation to pre-action disclosure (PAD) application costs, which are ordinarily governed by the general rule and exceptions in CPR 46.1(2) and (3).
The Issue: Does the fixed costs regime in Section IIIA of Part 45 for claims which started, but no longer continue, under the EL / PL Protocol apply to the costs of a PAD application under Section 52 of the County Courts Act 1984 in connection with such a claim?
The Facts: Miss Sharp (C) tripped on a footpath and injured her wrist. She brought a claim against Leeds City Council (D) through the Portal under the EL / PL Protocol. The claim ceased to continue within the EL / PL Protocol and thereafter fell within the PI Protocol. D failed to give pre-action disclosure and C made a PAD application. By the time of the hearing at Wakefield County Court, D had given the necessary disclosure, but DJ Heppell awarded C the costs of the PAD application and summarily assessed them at £1,250. On appeal Judge Saffman concluded that the fixed costs regime applied, with the result that payable costs were reduced to £305.
The COA decision: LJ Briggs (with whom LJ Jackson and LJ Irwin agreed) held that the fixed costs regime “plainly applies to the costs of a PAD application” in cases which started, but no longer continue under the Protocol. He stated that the starting point in these cases is to limit the recovery of costs to the fixed rates, subject only to a very small category of clearly stated exceptions. He continued: “To recognise implied exceptions in relation to such claim-related activity and expenditure would be destructive of the clear purpose of the fixed costs regime, which is to pursue the elusive objective of proportionality in the conduct of the small or relatively modest types of claim to which that regime currently applies”.
During what were described as “excellent and well-focussed” submissions, there were four areas of battle...
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An Update From North of the Border: Pursuers’ Offers Arrive in Scotland on 3 April 2017 - Douglas McGregor, Brodies LLP
30/03/17. Parties litigating regularly in England & Wales will be very familiar with the ability of both claimants and defendants to seek to protect their respective positions by use of a Part 36 offer. A change in the Scottish rules of court will introduce “pursuers’ offers” from 3 April. What will that mean for defenders and insurers in Scottish claims?
The current position
In Scotland, a defender is already able to lodge a formal offer, known as a tender, at any stage in a court action. The tender offers to settle the claim for a given sum of money together with expenses. If the offer is not accepted and the pursuer gets an award from the court equal to or lower than the sum offered then the defender is entitled to seek an award of expenses (costs) against the pursuer from the date the offer was made. Until now no similar system has existed allowing pursuers to make this kind of formal offer.
Introduction of pursuers’ offers
The position will change on 3 April 2017. From that date pursuers in court proceedings both in the Court of Session and in higher value proceedings in the sheriff court (where the sum sued for is over £5,000) will be able to make a “pursuer’s offer”. As a result, both pursuers and defenders will be able to make formal judicial offers in the court proceedings in an attempt to protect their respective positions and encourage settlement.
A pursuer’s offer will be lodged with the court in a formal document. It will offer to accept a definite sum inclusive of interest, plus expenses, to settle the claim. A defender must then choose whether or not to accept the offer, similar to a claimant Part 36 offer in England & Wales.
Pursuers are likely to seek to take advantage of the new rules following their introduction at the beginning of April, so it is worth considering the detail...
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More Articles...
- Court of Appeal Holds That Defendants May Owe a Duty to Safeguard Their Employees’ Reputations When Conducting Litigation - Andrew Warnock QC, 1 Chancery Lane
- PI Practitioner, March 2017
- Late Acceptance of Part 36 Offers: Do Fixed Costs Apply? - Tom Collins, 1 Chancery Lane
- What Are The Wrong Times To Mediate On A Case - Justin Patten, Human Law
![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)
