News Category 3
High Court denies relief from sanctions - Louise Jackson, Browne Jacobson
20/06/20. In the recent case of Magee v Willmott the Defendant successfully appealed a lower court decision to allow the Claimant relief from sanctions to rely upon expert evidence served after the deadline had passed for exchange and not to strike out part of the Claimant’s case which was unsupported by the Claimant’s breach expert and where no case on causation had been pleaded.
The facts
The Claim was initially brought against three Defendants for the alleged delay in diagnosing bowel cancer. The Claim was discontinued against the First Defendant and the Second Defendant. The Second Defendant obtained an Order for wasted costs on the basis that the Claimant had brought the Claim against the Trust without the relevant expert evidence.
The allegations against the remaining Defendant (Appellant) spanned three consultations; two in August 2012 and one in April 2013. Expert evidence was exchanged in July 2019 and upon review, the Appellant noted that the Respondent’s evidence did not appear to support many of the pleaded allegations of breach of duty and that no oncology causation evidence had been served. The Respondent’s solicitor advised that he had made an error and not all of the evidence in his possession had been served and made a late Application seeking permission to rely upon further expert evidence, all of which post-dated the date of exchange of expert evidence. The Appellant issued a cross Application to strike the Claim out making it clear to the Court that the Respondent’s Solicitor’s explanation in respect of the error regarding expert evidence was not accepted. The Trial date was lost as a result of the Claimant’s Application.
The lower Court granted the Application made on behalf of the Claimant (Respondent), which was accepted to be a relief from sanctions Application, despite it being accepted that the breach was serious and there was no good reason for it. The Recorder dismissed the cross Application to strike out the Claim despite the Claimant’s (Respondent’s) advocate accepting that they could not succeed on the April 2013 consultation irrespective of whether permission to rely upon the ‘new’ evidence was allowed as the breach expert did not support the allegations...
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Summary of Recent Cases, June 2020
15/06/20. Here is a summary of the recent notable court cases over the past month. 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.
Summary of Recent Cases - Substantive Law
Morrow v Shrewsbury Rugby Union Football Club Ltd [2020] EWHC 999 (QB)
This case considered the court's discretion to reduce the costs recovered by a successful claimant, where the claim pursued was significantly exaggerated.
The Claimant recovered damages for injuries sustained when he was struck by a rugby post while watching a game of rugby on the Defendant's field. The Claimant applied for all his costs of the action. The Defendant argued that the Claimant's costs should be reduced by one third because the Claimant had pursued his claim in an exaggerated and unrealistic manner.
The claim had been pleaded in excess of 1 million, including nearly £950,000 for future loss of earnings. The Claimant's case was that the accident had rendered him incapable of continuing his role as an independent financial adviser. But for the accident, he would have been promoted within his organisation and his salary would have followed an upward trajectory until retirement at age 65 years. The Defendant's position was that the accident had not impacted upon the Claimant's fitness for work. His pre-existing health issues would have limited his career as a financial adviser in any event. The court found that the Claimant would have retired at age 55 years, and that the contended upward trajectory had not been proven. The Claimant's total damages amounted to just over £285,000, including general damages. The Claimant made a Part 36 offer of £800,000 shortly before trial. The Defendant had made an earlier Part 36 offer of £110,000...
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Brain injury rehabilitation driven to crisis-point by perfect Covid-19 storm
11/06/20. Brain injury rehabilitation has been driven to crisis point by a perfect Covid-19 storm - destroying NHS capacity and devastating third sector funding, according to a new report.
Brain injury charity Calvert Reconnections and barristers Exchange Chambers polled 161 of the UK’s most senior brain injury solicitors.
Analysis of the findings reveals that 89% of brain injury specialists believe rehabilitation standards have dropped as a result of the Covid-19 pandemic, with 92% saying that brain injury rehabilitation is going to be more reliant than ever on the private and charitable sectors moving forward.
Alarmingly, 70% of respondents believe that charities are being forced to cut back on support measures for brain injured patients as a result of financially-related Covid-19 pressures.
While virtual rehabilitation has become commonplace in recent months, there are doubts over its long-term viability, with 63% expressing concerns over its effectiveness.
With social distancing measures likely to remain in place for some months, 91% of respondents anticipate an increase in the use of outdoor activities in the rehabilitation plans for brain injured patients.
Bill Braithwaite QC, Head of Exchange Chambers and Trustee at Calvert Reconnections said:
“Covid-19 has driven brain injury rehabilitation to crisis point.
“The NHS is overwhelmed and charities are under severe financial pressure. It is the perfect storm.
“While virtual rehabilitation has plugged the gap, it is not a long-term solution.
“Moving forward, and taking into account Covid-19 considerations such as social distancing, everything points towards brain injury rehabilitation being at its most effective when traditional clinical therapies are combined with physical activity in the outdoors. There is considerable support from medical research for the notion that outdoor activity is beneficial to brain injury rehabilitation.”
Said Femke van Schelven, Specialist Neurological Physiotherapist at Calvert Reconnections:
“It is clear that the NHS has had to massively reconfigure services to manage the Covid-19 pandemic.
“We now need to prepare for the incoming tidal wave of need for rehabilitation as we recover from this pandemic - both for those that have had their rehabilitation affected by an over stretched NHS, and for those whose condition has deteriorated during self-isolation and lock down.”
In other research findings, just over a quarter (26%) of brain injury solicitors said that the other side have used Covid-19 as a tactic to stall the litigation process - despite best practice guidance suggesting the parties take a consensual approach.
Added Bill Braithwaite QC:
“While it’s encouraging that the majority of lawyers are following the best practice guidelines, it’s disgraceful that others are using Covid-19 as a stalling tactic.”
The report is the second research project Calvert Reconnections and Exchange Chambers have commissioned this year. An earlier, pre Covid-19 study, found that the recovery prospects of brain injured patients are being jeopardised by a chronic lack of resources. 71% of 164 brain injury solicitors said that the NHS is unable to provide effective support for brain injured patients while 97% pointed to a lack of residential-based brain injury rehabilitation units in the UK.
Image: public domain from https://pixabay.com/en/neurons-brain-cells-brain-structure-440660/
Electronic signatures and the importance of knowing your expert - Simon Ross, Exchange Chambers
17/05/20. On 3rd March 2020, Robert Buckland, the incumbent Lord Chancellor and Secretary of State for Justice, confirmed that electronic signatures are permissible and legally valid if used in commercial and consumer documents. This declaration followed a Law Commission report, published in September last year, that looked at the electronic execution of documents, including deeds.
As the legal profession moves further into the digital age, this news brought to mind an incident that had occurred at a Joint Settlement Meeting; one that highlights the importance of knowing your experts and exploring all crucial issues in conference at an early stage.
The JSM
The details of the claim itself are not important to the story. It will suffice to say that I was representing a claimant at a JSM held prior to the date for delivery of joint statements from the experts. Upon my arrival, my opponent greeted me with news that a joint statement had arrived from one of the key pairs of experts. I was taken by surprise by this development as was my Instructing Solicitor. I requested a copy and, following a cursory glance, it appeared entirely unremarkable and bore the digitally reproduced signatures of both experts.
However, after reading it carefully, keen to learn how this piece of evidence might affect the day’s negotiations...
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Summary of Recent Cases, May 2020
15/05/20. Here is a summary of the recent notable court cases over the past month. 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.
Summary of Recent Cases - Substantive Law
Warsama v London Fire Brigade [2020] EWHC 718 (QB)
This recent High Court Case considered liability and contributory negligence in relation to an accident which occurred when an emergency vehicle on call collided with a pedestrian who stepped into the road whilst under the influence of drugs and alcohol.
The Claimant sustained serious injuries when the nearside wing mirror of a moving fire appliance struck her head whilst she was in the carriageway of Commercial Road, London. The fire appliance was responding to an emergency call out, and had its siren and flashing lights activated. The Claimant walked from the pavement, across a bus lane, onto the carriageway and into the path of the fire appliance. The Claimant accepted some responsibility for the incident. Thus, the court had to determine whether the driver of the fire appliance was negligent and, if so, the extent of the Claimant's contributory negligence.
The Claimant contended that the driver...
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- Summary of Recent Cases, April 2020
- Andrea Brown v Comissioner of Police of the Metropolis & Others [2019] EWCA Civ 1724: The Court of Appeal addressed the application of QOCS in 'mixed' claims - Ian Meikle, Civitas Law
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