News Category 2
Part 36 and PI Claims: Truth and Myths - John-Paul Swoboda, 12 King’s Bench Walk
16/10/14. Part 36 was brought into existence to encourage settlement between the parties. However it can sometimes feel that as opposed to encouraging settlement Part 36 has imported an additional layer of complexity into proceedings. This two-part article will consider some essentials truths about part 36 and some myths about part 36.
The truths - Part 36 offers, Part 36 acceptance and withdrawal
Given Part 36 is a code and not a contract the common law doctrines of offer and acceptance do not apply. In other words to benefit from the code you have to be within it, which in turn means complying with the codes requirements.
The basic mandatory requirements for part 36 offers are as follows:
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The offer must be in writing (CPR36.2(2)(a))
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The offer must state on its face that it is intended to have the consequences of of Part 36 (CPR 36.2(2)(b))
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The offer must specify a period of not less than...
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Live in Carers: Always Explore the Alternatives - Bill Braithwaite QC, Head of Exchange Chambers
11/10/14. Several years ago, there was a trend for insurers to suggest that people who had been catastrophically injured could be looked after by “live-in carers”. It became a term with a specific meaning, namely the equivalent of a housekeeper. The carer would work 24 hours a day, sleeping normally at night in the patient’s home, and would do that for up to a month, when another carer would take over. It was usually half the price of employing carers on an hourly rate, either directly or through an agency. Defendants ran that argument for some years, with comparatively little success, and gradually the idea vanished.
It is reappearing now, though, and most people involved in catastrophic brain or spine injury don’t remember the concept from its previous life. There are some circumstances where it can be a good system, but they are limited. As a rule of thumb, though, it only works if the patient is easy to manage. That is rarely the case following catastrophic injury.
One of the tricks that some insurers use is to give the appearance of helping, by sending in an immediate needs assessor, theoretically to see what the injured person needs, and then to arrange whatever is necessary. Sometimes, though, what they arrange is live-in care. As it is so much better than what is provided by the State, many people are grateful to have someone to help, not realising that what the insurer is doing is setting the scene for negotiations in which they point to the existing system of care, and argue that it is working well. Many people (and this includes some lawyers and experts, sadly) don’t know how limiting live-in care can be in the wrong circumstances, and so don’t know that they should explore the alternatives.
Bill Braithwaite QC
Head of Exchange Chambers
This article was first published at http://billbraithwaite.com/blog/
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Adjusting the Ogden Reduction Factors to Reflect a Spectrum of Disability - Jack Harding, 1 Chancery Lane
08/10/14. In the context of a claim for future loss of earnings, for a number of years the Courts have been grappling with the thorny issue of when it is appropriate to adjust the reduction factors (RF) in Ogden tables A to D (contingencies other than mortality) to reflect the particular circumstances of the claimant and the relative severity, or modesty, of their disability.
Dr Victoria Wass, one of the actuarial experts who played a pivotal role in creating the tables, has been critical of previous attempts by the court to depart from the figures in the tables. In an article in 2013 she wrote that:
"RFs (reduction factors) provide the best available measure of the employment prospects for a typical member of each group. They are accurate as a measure of the group average but they are not likely to be accurate for any individual within that group. Imprecision is an inevitable consequence of scheduled damages. The alternative is an...
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Limitation: Did Curiosity Kill the Cat? - Luke Andrew Menary, Barrister, Liverpool Civil Law
03/10/10. Considering the impact of Collins v The Secretary of State for Business Innovation and Skills [2014]. While working at London Docks between 1947 and 1967, the claimant assisted in unloading cargoes of asbestos. In early 2002 he became unwell, and shortly thereafter was diagnosed as suffering from inoperable lung cancer. He consulted with his doctor on numerous further occasions, happily made a good recovery, and was discharged fully in 2008.
An advertisement in the Daily Mail, relating to various industrial diseases, prompted the claimant to instruct a solicitor in 2009. His claim was issued in the High Court in 2012.
The Court of Appeal, upholding the decision of the High Court, found that whilst the claimant did not have actual knowledge of the possible link between the lung cancer and his exposure to asbestos, he should have asked his doctor as to the cause of his cancer by around mid-2003. Had he asked, it would be inconceivable that his doctor would not have mentioned asbestos exposure as a possible cause. The claimant was therefore deemed to have constructive knowledge of the link by mid-2003, which meant the three-year limitation period expired in mid-2006. His claim was therefore time-barred, and the Court...
Image cc flickr.com/photos/aigle_dore/6672148713/ 03/10/10
Pressure by Insurers to Settle - Bill Braithwaite QC, Head of Exchange Chambers
27/09/14. There’s a real tension, I think, between finishing a catastrophic injury claim quickly, and getting the right result. Insurers seem to me to be pushing hard in many cases to have early meetings, to become involved in rehabilitation, and they use that process to pave the way for early settlement discussions. Nothing wrong with that, but the problem it creates for claimants is that they can be put under huge pressure. The insurer dangles a large sum of money under the claimant’s nose, and he or she may find it difficult to resist. That is particularly so when the lawyers are telling the claimant and family that they should wait a year or two, or more, in order to see how independent the claimant can become.
An additional problem is that you can't avoid the pressure on the claimant by warning them in advance. I had an interesting experience recently; I warned the family that this pressure would arise, and precisely how the insurance company representative would try to manoeuvre them into a difficult situation, but they allowed it to happen, and accepted far less than I thought they would get.
Bill Braithwaite QC
Head of Exchange Chambers
This article was first published at http://billbraithwaite.com/blog/
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More Articles...
- Damages for Pain and Suffering Prior to Death and Reduction of Life Expectancy: Important Court of Appeal Decision - Gordon Exall, Zenith Chambers
- Why Insurers Are Keen on Early Settlement Meetings! - Bill Braithwaite QC, Head of Exchange Chambers
- From Eeles to Haynes: Interim Payments, Periodical Payments, and Accommodation Needs - Angus McCullough QC & Jessica Elliott, 1 Crown Office Row
- PI Practitioner, September 2014
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