News Category 2
The Decision in Parker v Butler [2016] EWHC 1251: The Applicability of QOCS to Appeals - Craig Fisher, 7 Harrington Street Chambers
17/06/16. Parker v Butler started life as a fairly unremarkable road traffic collision on the M18/M180 roundabout that occurred on 10 April 2013, and fell into that all too common category of cases “who changed lanes”; the Claimant averred that the Defendant came into his lane and into collision, whereas the Defendant averred that the Claimant came into his lane and into collision
The case came to trial and at first instance HHJ Pemberton found both the Claimant and the Defendant to be witnesses who were doing their best to tell the truth and believed the account that they were giving. She criticised the Claimant (or his solicitors) for the lack of any photographs or plans of the junction, and dismissed the claim as the Claimant failed to discharge the burden placed upon him.
The Claimant appealed on a number of grounds and for a number of reasons including grounds which could succinctly be put as:
-
Having considered both drivers as being persons of honesty, failed to actually analyse their evidence and come to a factual conclusion on the question in the case, ie. Who moved lanes;
-
Failing at all to consider the evidence of the Claimant’s wife, who was a passenger within the vehicle; and
-
Failed in suggesting that the Claimant, to discharge the burden placed upon him, should have provided photographs or diagrams of the junction, so as to allow her to come to a conclusion.
On appeal...
Image ©iStockphoto.com/Nikada
PI Practitioner, June 2016
16/06/16. 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.
QOCS protection for appeals
The High Court has held that costs protection for Claimants under QOCS applies to first appeals in personal injury proceedings, clearing up what has previously been an area of some confusion for personal injury practitioners...
Image ©iStockphoto.com/EmiliaU
QOCS: Applies to Appeals? - Thomas Crockett, 1 Chancery Lane
06/06/16. Qualified One-way Costs Shifting: does it apply to appeals? Yes, according to Edis J in Parker v Butler [2016] EWHC 1251 (QB), who held:
3. If (as is likely to be the case here) the claimant's access to justice is dependent on the benefit of QOCS, that access will be significantly reduced if he is exposed to a risk as to the costs of any unsuccessful appeal which he may bring or any successful appeal a defendant may bring against him. ...
4. The power to make enforceable orders for costs is designed to compensate successful parties for their expense in bringing or resisting claims, but it also has an effect of deterring people from bringing or resisting claims unsuccessfully. It is an incentive to resolve disputes and serves a public as well as a private interest. ...
9. CPR 44.13 provides
"(1) This Section applies to proceedings which include a claim for damages –
(a) for personal injuries"
10. The issue is, therefore, whether the appeal is part of the proceedings which include a claim for damages for personal injuries or whether it is separate from them and thus not subject to the regime. If it is separate from the proceedings which culminated in the trial, is it nonetheless a set of proceedings which includes a claim for damages?
17. An appeal by a claimant against the dismissal of his claim for personal injuries is a means of pursuing that claim against the defendant or defendants who succeeded in defeating that claim at trial. There is no difference between the parties or the relief sought as there is between the original claim and the Part 20 claim. Most importantly, to my mind there is no difference between the nature of the claimant at trial and the appellant on appeal. He is the same person, and the QOCS regime exists for his benefit as the best way to protect his access to justice to pursue a personal injury claim. To construe the word "proceedings" as excluding an appeal which was necessary if he were to succeed in establishing the claim which had earlier attracted costs protection would do nothing to serve the purpose of the QOCS regime. ...
Thomas Crockett
1 Chancery Lane
Image ©iStockphoto.com/DNY59
Editorial: Further Reflections on Fundamental Dishonesty - Aidan Ellis, Temple Garden Chambers
27/05/16. It is well known that pursuant to QOWCS, the circumstances in which a Defendant can enforce its costs against an unsuccessful Claimant are limited. One exception applies if the Court concludes that the claim was fundamentally dishonest. But ‘fundamental dishonesty’ can be a difficult concept to pin down. Absent higher court decisions, interesting illustrations of the application of the rule in practice are provided by two recent appeal decisions of HHJ Freedman in Zurich Insurance Plc v Bain (4 June 2015) and Nesham v Sunrich Clothing Ltd (22 April 2016).
In Bain, the Claimant claimed damages for personal injury arising out of a road traffic accident, despite having told the insurance company in a recorded telephone conversation that he was not injured. He also misled the medical expert about previous relevant medical conditions. At first instance, the Court found that the Claimant was not injured in the accident but declined to find that the claim was fundamentally dishonest. On appeal, HHJ Freedman held that the District Judge was wrong: the claim was...
Image ©iStockphoto.com/tap10
Update From North of the Border: Class Actions - Sarah Donaldson, Lauren Pasi & Lewis Clark, Brodies LLP
21/05/16. Many readers will be familiar with the concept of a ‘class action’ thanks to Julia Roberts and John Travolta, and their starring roles in 90s hit films Erin Brockovich and A Civil Action. A class action is one where a large group of claimants have the same complaint, for example, an illness caused by harmful chemicals in the water supply.
Class actions do not yet exist in Scotland, however during this recent period of civil court reform, recommendations from the Scottish Law Commission to introduce this type of procedure to the Scottish Courts are being considered by the Scottish Government.
Class actions may benefit those making claims in respect of faulty products, since these claims quite often have common issues. Courts in other jurisdictions have used this procedure to good effect in cases alleging faulty products, ranging from PIP breast implants to motor vehicles, cosmetics, toys and even McDonald’s coffee cups. One product which has attracted significant group litigation in recent years is metal on metal hip implants.
A warning from doctors that hip implants given to over 12,000 patients in the UK are ‘unacceptably’ prone to failure was recently reported in the news. The metal-on-metal ‘Pinnacle’ hip implant, made by Johnson & Johnson’s prosthetics company DePuy, is the most-used in the world...
Image ©iStockphoto.com/Rike_
More Articles...
- Heneghan v Manchester Ship Canal; Heads I Win, Tails You Lose? - Charles Feeny & Sammy Nanneh, Contributing Editors at Pro-Vide Law
- Case Note: Rai v Ministry of Defence; judgment of 9 May 2016; High Court (QB) Middlesbrough District Registry; HHJ Gargan - Philip Mead, Old Square Chambers
- PI Practitioner, May 2016
- Changes to the Civil Procedure Rules Relating to Costs: April 2016 - Stephane Osborne, MRN Solicitors
![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)
