News Category 2
Shooting Admiral Byng - Ian Miller, 1 Chancery Lane
05/12/14. Admiral Byng was held responsible for the loss of Minorca in 1756. He was relieved of his command, court martialled and shot by a firing squad. Voltaire remarked of the decision to shoot him that it was beneficial to kill an Admiral from time to time “pour encourager les autres”. Although Hildyard J. made reference to Admiral Byng in his judgment in the case of Caliendo v Mishcon de Reya [2014] EWHC 3414 he was not prepared metaphorically to shoot the Claimant’s solicitors, DLA Piper LLP, to encourage the rest of us.
DLA were 3½ months late in serving notice on the defendant of the existence of a CFA and an ATE policy in a professional negligence claim. They made an application for relief from sanctions at the time of service of proceedings and admitted that they had no good reason for their failure...
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Platinum Salts Sensitisation/Allergy: No Injury as the Court Follows Pleural Plaques - Alan Care, Thomson Snell & Passmore
02/12/14. The medical profession particularly allergists and immunologists may well be surprised by this recent High Court judgment as Jay J has apparently swept aside medical science or at least an appreciation of allergy. Greenway and others v Johnson Matthey PLC [2014] EWHC (QB) 26 11 2014. In this split trial liability was not in issue and breaches of statutory duty - workplace regulations and COSHH were admitted.
As a specialist ID practitioner in “toxic torts” I have been referred claims by AllergyUK for many years. Will this disappointing judgment be applied by our courts to others who have claims and suffer from allergy? Has the court got this wrong?
From the judgment and medical evidence:
“8. If exposure continues after sensitisation has occurred (as demonstrated by positive skin prick test) then most (but not all) individuals thus exposed will develop physical symptoms relating to one or more of the eyes, nose, chest and skin.”
It is somewhat unclear if any of the five claimants had [any?] symptoms of allergy but were definitely sensitised by platinum salts. The court dismissed the five claimant claims in both tort and contract after having developed platinum salts allergies due to their work. The judgment should be read in full. The claims were treated as analogous to pleural plaques - thus no injury-no tort. Provisional damages were sought. The court’s approach reminds me of molecular damage [tubular proteinuria for example] initially caused to individuals who may later develop serious kidney problems due to their work exposure to cadmium. These claims would presumably also now no longer succeed whereas some years ago were settled by insurers.
Are all pre requisite conditions caused by toxic substance exposure such as bio-markers now to be treated as a non injury in the same way as pleural plaques and asbestos disease?
Image ©iStockphoto.com/AlexRaths
Claimant PI Firms Urged to Keep It Real About The WIP - David Johnston, PI-Solutions
01/12/14. Many claimant personal injury (PI) law firms, particularly smaller firms or departments, are putting a much higher value on their work on progress (WIP) than it’s actually worth and, in some cases, it’s proving to be their downfall warns David Johnstone, managing director at PI-Solutions.
Experience is showing us, there’s a significant difference in vendor and (credible) purchaser expectations when it comes to WIP value. The result is that many firms wishing to exit the market hold out for more money, carry on doing work they have no appetite for and the value of their book starts diminishing. In some cases, where the delay is protracted, they can end up in an insolvent position...
Image ©iStockphoto.com/WendellandCarolyn
Negotiation in Catastrophic Claims - Bill Braithwaite QC, Head of Exchange Chambers
29/11/14. Negotiation in catastrophic injury claims is so interesting; everyone has different styles. Some work for me, and some don’t. I had two settlement meetings recently, close together, which demonstrated the two extremes.
In the first, there was one issue on which both sides had to make a choice, and we made the opposite choice. The difference was that we all knew that any agreement had to be approved by the Court, and that no Court would approve the offer the defendant was making. It all seemed so pointless to me. We pointed out throughout the first four hours of discussion that we could not move on that point, because we could not get court approval for what they were offering, but that seemed to make no difference. Then, after four hours, they changed the form of the offer so that it was in the form we could accept. By then, we had wasted a lot of time, and so failed to reach agreement.
I couldn’t understand the thinking behind the process.
The following day I had the reverse experience; a thoroughly sensible discussion focussing our minds on what mattered, and making settlement easier.
Bill Braithwaite QC
Head of Exchange Chambers
This article was first published at http://billbraithwaite.com/blog/
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The Difference Between Winning and Losing - Bill Braithwaite QC, Head of Exchange Chambers
21/11/14. One of the topics I blog about most is the selection and use of experts in catastrophic injury litigation. The reason is that it is one of the most important topics; good experts help us to win cases, bad ones damage or lose them.
I had a classic example recently. An expert I know well, and have done for a long time. This expert has a good background in brain injury, and I have seen reports prepared by the expert over many years. On this particular occasion, the reports prepared by the expert were all over the place – shambolic in fact – with typos and serious calculation errors. Worst of all, the expert had paid scant attention to the present position, which was important, and had failed to make any reasonable prediction as to the future, which was even more important.
As my solicitor and I agreed, it was as bad as it could be. It’s too late to change the expert, so we will have to go into negotiations knowing that we have a fundamentally weak link.
Bill Braithwaite QC
Head of Exchange Chambers
This article was first published at http://billbraithwaite.com/blog/
Image ©iStockphoto.com/funky-data
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