News Category 3
Accommodation; Discount or Dilemma? - Trevor Ward, Fletchers Solicitors
25/10/18. Will the likely change in the discount rate for personal injury losses affect the way in which the Courts deal with the calculation of accommodation claims in serious personal injury cases?
Roberts v Johnstone( 1989) has been a problem for quite some time and not necessarily because of the recent change to the discount rate in March 2017. The current negative discount rate means that the normal Roberts v Johnstone calculation becomes unworkable; it leads to a calculated nil or negative figure for the injured party’s claim for the capital cost of the purchase contribution to the required property. Courts have recently commented on how inappropriate the calculation is ( see JR v Sheffield Teaching Hospitals 2017 and Manna v Central Manchester Teaching Hospital 2017).
The problem has always been the conflict between the payment by the tortfeasor for an asset that is likely to increase in value ( not always ) and therefore create a windfall for the injured party during his/her lifetime ( or more likely his/her estate on their death ) and a calculation of some description that is related to an index that allows for the future increase in value to be sufficiently moderated so as to provide compensation in the form of the required property but which neither under of over compensates the Claimant .Practically the answer has been for the Claimant...
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When can a Claimant be allowed a Second Bite at a Cherry? - Aidan Ellis, Temple Garden Chambers
23/10/18. Following the Jackson reforms, the renewed emphasis on efficiency and compliance with rules, practice directions and orders led to an increased number of claims being struck out. Those technical knockouts, however, would provide only temporary relief to defendants, if claimants could simply issue a second set of proceedings. In such circumstances, is a second set of proceedings vulnerable to strike out as an abuse of process or is it permissible to take a second bite of the cherry.
In Davies v Carillion Energy Services, the High Court was faced with just such a situation. The first action was struck out when the Claimant failed to comply with an unless order requiring him to particularise his claim. The failure was, on one view more culpable than an ordinary litigation mistake because the Claimant had responded to the unless order with a witness statement insisting that contrary to the order it was unnecessary for him to repeat what was already adequately set out in his Particulars of Claim. No application was made for relief from sanctions. The Claimant issued a second set of proceedings, which the Defendant sought to strike out as an abuse of process.
The High Court, on appeal, reviewed the authorities and concluded that where the first action was struck out as an abuse of process, the second action should be struck out save in “very unusual circumstances”. Where the first action was not struck out as an abuse of process, the Court may strike out the second action as an abuse of process but in the exercise of its discretion must consider the reasons for the original strike out. The second action is only likely to be abusive if the conduct of the first action was “inexcusable”. As a result of the Jackson reforms, more conduct may be regarded as “inexcusable” than under the old regime. However, a single breach of an unless order in the first action is not, of itself, a reason to conclude that the second action is abusive. On the facts, the second action was allowed to proceed.
Whilst this decision highlights the difficulty that claimants rightly face in launching a second action after a first action has been struck out as abusive, it also suggests that in the many other cases in which an action has been struck out for procedural reasons, a second action is likely to be allowed to proceed. Many Claimants may thus feel emboldened to launch second sets of proceedings; in personal injury claims even limitation is not necessarily a barrier, since the second proceedings may be accompanied by an application to disapply the primary limitation period.
It might be suggested that this outcome is inconsistent with the Jackson reforms. The reforms emphasised the need to comply with rules, orders and practice directions. The ultimate sanction for failing to comply is strike out. But, the sting is rather drawn from a strike out, if Claimants can simply re-issue a fresh set of proceedings (in personal injury cases, depending on the precise basis of the strike out, the Defendant may not even have the benefit of an enforceable costs order). More pressingly, the impact on Court resources and other cases would tend towards discouraging second actions; where the Courts are already stretched, it may be difficult to justify the allocation of resources to a second action where the first has failed for procedural reasons. For the moment, however, the decision in Davies suggests that Claimants should give serious consideration to launching fresh proceedings if struck out for failing to comply with directions.
Aidan Ellis
Temple Garden Chambers
Image: public domain
Duce v Worcestershire Acute Hospitals NHS Trust [2018] PIQR P18: The implications for Chester v Afshar - Michael Patrick, Hailsham Chambers
19/10/18. 1. Consider the traditional medical consent scenario: a doctor, in breach of duty, fails to advise her patient of a material risk of a given treatment. The treatment proceeds, the risk materialises causing injury, and the patient seeks compensation. There are three logical causation possibilities. But for the failure to properly advise:
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The patient would still have had the same treatment at the same time (“Category 1”);
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The patient would have had the same treatment but at a later time (“Category 2”); or
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The patient would never have had the treatment at all (“Category 3).
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Category 3 claims succeed on conventional principles. In Chester v Afshar, the House of Lords held by a bare majority that the instant Category 2 claim before it succeeded as well, even though the subsequent risk of injury would have been identical. In a dissenting judgment, Lord Bingham complained that the majority’s reasoning apparently permitted recovery in Category 1 claims as well:
“But [on the approach of the majority]the claimant would presumably succeed even in a case … where it is found on the balance of probabilities that the claimant would have consented to the operation even if properly advised” (Chester, [9]).
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In Duce v Worcestershire Acute Hospitals NHS Trust [2018] PIQR P18, the claimant, Gail Duce, tested this proposition. In her case, the trial judge had found that, even with the additional advice for which she contended, she would have proceeded with surgery at the same time nevertheless. However, citing Chester v Afshar, Mrs Duce argued that causation was established nevertheless...
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Book Review - 'Tough Choices: Stories from the front line of medical ethics' by Daniel Sokol (Book Guild, 2018)
16/10/18. “In a world in which the rights of patients and accountability of the medical profession appear to be on the rise this is a timely, fascinating and thought-provoking book covering numerous issues which might arise in the life of a medical practitioner. The author, barrister and medical ethicist Daniel Sokol, has produced a book which is both entertaining and well-written and above all reflects the need for clear thinking at often the most difficult of times. It is also refreshing to find that whether you agree or disagree with the conclusions, the author is prepared not just to set out the potential issues but also to offer an opinion as to their resolution. It is a book that I would imagine could be of interest not just to medics and lawyers but to all those who come into contact with the medical profession or have an interest in health or social policy. Highly recommended.”
Tim Kevan, Law Brief Publishing and author of ‘Law and Disorder’ (Bloomsbury Publishing)
Summary of Recent Cases, October 2018
15/10/18. 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
(1) LXA (2) BXL v (1) Cynthia Willcox (As personal representative of the estate of Edward Willcox, Deceased) (2) Cynthia Willcox [2018] EWHC 2256 (QB)
In (1) LXA (2) BXL v (1) Cynthia Willcox (As personal representative of the estate of Edward Willcox, Deceased) (2) Cynthia Willcox [2018] EWHC 2256 (QB), issues of questioning by the court in the absence of a party, s.33 of the Limitation Act 1980 and the valuation of damages in a historical child sexual abuse case were considered.
In this case, a brother and sister brought a claim for personal injury and other losses against their adoptive parents. The Claimants had been sexually abused by their adoptive parents in the 1970s. They had both sustained long-term psychiatric injuries. The Claimants had been adopted in the early 1970s when aged approximately 5 or 6 years old. In 2015, their father (First Defendant) was found guilty of indecent assault, indecency with a male child and child cruelty whilst the Claimants were at their home. Their mother (Second Defendant) was found guilty of child cruelty against the Claimants. The First Defendant died in 2017 and the proceedings continued against his estate. The Second Defendant did not attend the hearing, indicating instead that...
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More Articles...
- Kids will be kids: What is the extent of the duty owed by schools to their pupils? - Lauren Seagart, Queen Square Chambers
- The importance of NICE guidance in a clinical negligence claim regarding the diagnosis and management of pre-eclampsia - Sam Holden & Gemma Dunn, Clyde & Co
- Deborah Tilsley v Derbyshire Community Health Services - Andrea Ribchester-Hodgson & Sarah Wright, Spencers Solicitors
- Pleadings and fundamental dishonesty: Howlett affirmed as film director’s compensation claim is dismissed - Jeff Turton, Weightmans LLP
![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)
