News Category 3
Metal on Metal hips and the Consumer Protection Act 1987 (Part One) - James Bell, Hodge Jones & Allen
25/06/18. Metal on Metal hips (MoMs) were introduced by the four leading orthopaedic prosthetic companies to the hip prosthetic market on a wide scale in the early 2000s.
Stryker, DePuy, Zimmer and Smith and Nephew all produced very similar MoM models as the industry moved to using all metal products after earlier attempts had tried and failed in the 1980s.
The distinguishing feature of these second generation MoM hips was that both the ball and socket of the hip prosthesis were to be made of an alloyed metal, namely cobalt–chrome.
They were marketed to surgeons as an improvement on the Metal on Polythene (MoP) ball and socket joints which had dominated the market during the 1990s.
Interestingly, the “problem” which MoMs sought to fix was the propensity of a MoP ball and socket to shed plastic and metal debris through normal wear on the moving parts. This could then lead to the destruction of the surrounding bone - a process called osteolysis. It was therefore reasonably thought that products utilising harder materials such as cobalt-chrome would reduce the incidence of wear and the need for revision due to excessive debris.
In 2002 a UK database (the National Joint Registry or NJR) of all implanted hips was created. The purpose of the database was to monitor the safety of prosthetic hips after they had been approved for use. The NJR was set up following a recommendation of a Royal College of Surgeons report into the high-profile failure of the 3M Capital Hip. This hip featured a plastic ball and socket joint with a metal stem.
Stem loosening led to 40% of 3M Capital hips failing within five years of implantation. This device failure alone led to the creation of the NJR whose intention was to monitor the early failures of hip and knee devices and attempt to identify similar problems at an early stage – to prevent another 3M situation.
For medico legal purposes a hip is deemed to have “failed” if the patient undergoes...
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CC (widow and dependant of JC (deceased)) v TD [2018] EWHC 1240 (QB) - Paul Sankey, Enable Law
18/06/18. A recent case raises the issue of how dependency under the Fatal Accidents Act 1976 is calculated when the parties had started but not completed divorce proceedings and there was uncertainty over the outcome of that process. It is also interesting for its unusual facts.
Introduction
JC was crossing a dual carriageway on foot on 21st June 2014 when he was struck by a speeding car and killed.
His widow, CC, brought a claim under the Fatal Accidents Act 1976 on behalf of herself and her 3 children, aged 22, 18 and 15.
At the time JC and CC were separated. CC had filed a divorce petition and obtained Decree Nisi. She nevertheless claimed that there would have been a reconciliation and that the marriage would have been saved. Her dependency should therefore be calculated by reference to her husband's present and future income. The Defendant argued that the marriage had been doomed and that divorce was highly probably. Any dependency should therefore be calculated by reference to the maintenance she would have obtained within the divorce proceedings.
The Marriage
The couple had met in 1986. They lived together at various addressed, had 3 children and married in 2004. JC had run a couple of businesses which at times had generated a good income. CC had given up work within the travel industry to help with the businesses. The couple had enjoyed a good standard of living and owned 3 properties...
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Summary of Recent Cases, June 2018
15/06/18. 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
Clay v TUI Ltd [2018] EWCA Civ 1177
The Claimant appealed against an order dismissing his claim for personal injury against TUI Ltd. The Claimant and his family were staying on the second floor of a hotel in Tenerife. They occupied two adjoining rooms. The Claimant and his family became trapped on the opposite balcony when the balcony door became stuck behind them. The family attempted unsuccessfully to attract attention for thirty minutes, after which the Claimant decided to step across from one balcony to the other. In doing so he placed his weight on an ornamental ledge which gave way. The Claimant fell to the ground and sustained skull fractures. The Judge at first instance found that the door lock was defective, which was a breach of local standards. However, he concluded that the Claimant's act of...
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Admitting Primary Liability, Subject to Causation - Andrew Spencer, 1 Chancery Lane
11/06/18. On 23 February 2018, in Worrall v Thomas Cook, DJ Hassall determined the meaning of an admission in a holiday illness case. The Claimant sent a Letter of Claim alleging (among other matters) that the food served to the Claimant under the holiday package was unsafe to consume and not of satisfactory quality. The Defendant replied, making an admission in the following terms:-
"Please note primary liability is admitted subject to proof of actual illness plus any of causation and quantum which may arise”.
The Particulars of Claim pleaded the admission. In the Defence, the Defendant pleaded that the Claimant still had to prove both that she was served, and that she ate, contaminated food.
The Claimant argued that the admission, properly construed, was an admission that the Defendant’s supplier exposed the Claimant to a pathogen.
The Defendant argued the admission meant only that it admitted food hygiene was not of a proper standard at the time of the Claimant’s holiday, and that, prior to the Claimant falling ill, contaminated food was served (although not necessarily to the Claimant).
The judge preferred the Claimant’s submissions. The Claimant’s claim was in contract; and serving contaminated food to the Claimant was a breach of contract, entitling the Claimant to nominal damages, whether or not the Claimant becomes ill. Given this, the rider stating that the admission was subject to causation had to mean that the admission was subject to medical causation being made out.
Andrew Spencer was counsel for the Claimant.
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FREE BOOK CHAPTER: Fixed Recoverable Costs, Portal Costs and Potential Routes Out of Fixed Costs and the Portal in Highways and Slipping/Tripping Claims - Andrew Mckie, Clerksroom
07/06/18. A free chapter from the fully updated 2018 edition of 'Occupiers, Highways and Defective Premises Claims: A Practical Guide Post-Jackson' by Andrew Mckie.
The first chapter of this book is dedicated to the starting point for most Highways Act 1980 and public liability claims; the Low Value Portal. Post July 2013, almost all highways slipping and tripping claims will start out in the Low Value Portal, and once they exit the Low Value Portal, will be subject to Fixed Recoverable Costs. This arguably makes the running of these claims for many law firms, with portal or fixed costs, challenging since highways and public liability cases can sometimes be complex in fact, and often can be complex in Law.
The aim of this book is to provide the reader with an armoury for dealing with these cases in an economic and efficient way. Ultimately, if the portal costs and/or fixed costs become uneconomical for personal injury firms to run these cases, firms will cease to undertake this type of work, and access to justice for seriously injured clients will be restricted. The following guidance is a summary of the costs rules for dealing with such claims in the Low Value Portal and the costs that are recoverable when dealing with such claims within Fixed Recoverable Costs (FRCs).
Public Liability and Highways Claims – Fixed Costs – Costs for Claims That Exit The Portal after 31 July 2013 – CPR 45
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Fixed costs where a claim no longer continues under the EL/PL Protocol – public liability claims |
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A. If Parties reach a settlement prior to the claimant issuing proceedings under Part 7 |
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Agreed damages |
At least £1,000, but not more than £5,000 |
More than £5,000, but not more than £10,000 |
More than £10,000, but not more than £25,000 |
|
Fixed costs |
The total of—(a) £950; and(b) 17.5% of the damages |
The total of—(a) £1,855; and(b) 10.5% of damages over £5,000 |
The total of—(a) £2,370; and(b) 10% of damages over £10,000 |
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B. If proceedings are issued under Part 7, but the case settles before trial |
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Stage at which case is settled |
On or after the date of issue, but prior to the date of allocation under Part 26 |
On or after the date of allocation under Part 26, but prior to the date of listing |
On or after the date of listing but prior the date of trial |
|
Fixed costs damages |
The total of—(a) £2,450; and(b) 17.5% of the damages |
The total of—(a) £3,065; and(b) 22.5% of the damages |
The total of—(a) £3,790; and(b) 27.5% of the damages |
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C. If the claim is disposed of at trial |
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Fixed costs |
The total of—(a) £3,790;(b) 27.5% of the damages agreed or awarded; and(c) the relevant trial advocacy fee |
Which Claims Do The Portals Apply To?
The Pre-Action Protocol for Low Value Personal Injury Public Liability Claims will apply to most public liability claims up to the value of £25,000 in respect of an accident occurring on or after 31 July 2013 or, in a disease claim, where no letter of claim has been sent to the defendant before 31 July 2013.
Public Liability Portal Costs
CPR 45.16 sets out the relevant fees that are recoverable in the Low Value Portal:-
(1) This Section applies to claims that have been or should have been started under Part 8 in accordance with Practice Direction 8B (‘the Stage 3 Procedure’).
(2) Where a party has not complied with the relevant Protocol rule 45.24 will apply.
‘The relevant Protocol’ means
(b) the Pre-action Protocol for Low Value Personal Injury Claims (Employers’ Liability and Public Liability) Claims ('the EL/PL Protocol)
TABLE 6A
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Fixed costs in relation to the EL/PL Protocol |
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Where the value of the claim for damages is not more than £10,000 |
Where the value of the claim for damages is more than £10,000, but not more than £25,000 |
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Stage 1 fixed costs |
£300 |
Stage 1 fixed costs |
£300 |
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Stage 2 fixed costs |
£600 |
Stage 2 fixed costs |
£1300 |
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Stage 3- Type A fixed costs |
£250 |
Stage 3- Type A fixed costs |
£250 |
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Stage 3- Type B fixed costs |
£250 |
Stage 3- Type B fixed costs |
£250 |
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Stage 3- Type C fixed costs |
£150 |
Stage 3- Type C fixed costs |
£150 |
What about public liability portal disbursements?
CPR 45.19 sets out the relevant disbursements recoverable in the PL portal:-
(1) The court:-
(a) may allow a claim for a disbursement of a type mentioned in paragraphs (2) or (3); but
(b) will not allow a claim for any other type of disbursement.
(2) In a claim to which either the RTA Protocol or EL/PL Protocol applies, the disbursements referred to in paragraph (1) are:-
(a) the cost of obtaining –
(i) medical records;
(ii) a medical report or reports or non-medical expert reports as provided for in the relevant Protocol;
(b) court fees as a result of Part 21 being applicable;
(c) court fees payable where proceedings are started as a result of a limitation period that is about to expire;
(d) court fees in respect of the Stage 3 Procedure; and
(e) any other disbursement that has arisen due to a particular feature of the dispute.
Counsel’s Advice on Quantum/Liability
Additional advice on the value of the claim
45.23B
Where:-
(a) the value of the claim for damages is more than £10,000;
(b) an additional advice has been obtained from a specialist solicitor or from counsel;
(c) that advice is reasonably required to value the claim,
the fixed costs may include an additional amount equivalent to the Stage 3 Type C fixed costs. This is £150.
It is therefore important to note:-
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Counsel’s advice on liability/causation will not be recoverable as a disbursement, under normal circumstances.
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It will be important to look early to other courses of funding if advice is required on LEI/ATE/BTE cover. An indemnity will be required.
What Disbursements Are Recoverable Under Fixed Recoverable Costs For PL Claims?
45.29I sets out the relevant disbursements that are recoverable under FRCs for claims that start in the portal and then fall out:-
(1) The court:-
(a) may allow a claim for a disbursement of a type men tioned in paragraphs (2) or (3); but
(b) will not allow a claim for any other type of disbursement.
(2) In a claim started under either the RTA Protocol or the EL/PL Protocol, the disbursements referred to in paragraph (1) are:-
(a) the cost of obtaining medical records and expert medical reports as provided for in the relevant Protocol;
(b) the cost of any non-medical expert reports as provided for in the relevant Protocol;
(c) the cost of any advice from a specialist solicitor or counsel as provided for in the relevant Protocol;
(d) court fees;
(e) any expert’s fee for attending the trial where the court has given permission for the expert to attend;
(f) expenses which a party or witness has reasonably incurred in travelling to and from a hearing or in staying away from home for the purposes of attending a hearing;
(g) a sum not exceeding the amount specified in Practice Dir ection 45 for any loss of earnings or loss of leave by a party or witness due to attending a hearing or to staying away from home for the purpose of attending a hearing; and
(h) any other disbursement reasonably incurred due to a particular feature of the dispute.
Fixed Costs – is there a way out?
Under 45.29J, the Court can order an amount greater than fixed recoverable costs:-
(1) If it considers that there are exceptional circumstances making it appropriate to do so , the court will consider a claim for an amount of costs (excluding disbursements) which is greater than the fixed recoverable costs referred to in rules 45.29B to 45.29H.
(2) If the court considers such a claim to be appropriate, it may:-
(a) summarily assess the costs; or
(b) make an order for the costs to be subject to detailed assessment.
(3) If the court does not consider the claim to be appropriate, it will make an order:-
(a) if the claim is made by the claimant, for the fixed recoverable costs; or
(b) if the claim is made by the defendant, for a sum which has regard to, but which does not exceed the fixed recoverable costs, and any permitted disbursements only.
However, standard highways and/ or Public Liability cases are unlikely to be exceptional.
CPR 45.29k, sets out what happens if there is a failure to achieve an amount greater than fixed recoverable costs.
Failure to achieve costs greater than fixed recoverable costs
45.29K
(1) This rule applies where:-
(a) costs are assessed in accordance with rule 45.29J(2); and
(b) the court assesses the costs (excluding any VAT) as being an amount which is in a sum less than 20% greater than the amount of the fixed recoverable costs.
(2) The court will make an order for the party who made the claim to be paid the lesser of:-
(a) the fixed recoverable costs; and
(b) the assessed costs.
Conclusions
It is clear that the introduction of Fixed Recoverable Costs will make this work unattractive to some firms. However, if one looks at the fees for progressing such claims to trial, these are still attractive and not hugely disproportionate to the fees that would have been recovered under the pre-Jacksoncosts regime. CFA uplifts and ATE premiums have now been abolished post April 2013, which means that in a post-Jacksonera, the base fee is that all that will be recovered.
However, if firms pick and choose the cases to run to trial carefully and obtain early disclosure from the defendant, it will still be possible to make a reasonable profit on these cases for PI firms and more importantly give clients with serious injuries access to justice. Most PI firms post April 2013 operate a CFA agreement with the lay client where they receive some of the damages under the CFA, and this, combined with fixed recoverable costs, can make these claims economic to run. The aim of the subsequent chapters is to look at the new CPR rules concerning Part 36, interim applications and QOCS post July 2013, to offer practical advice as to how highways and slipping and tripping claims can be vetted, investigated and then issued quickly within fixed costs and under Solicitor Conditional Fee Agreements. It is clear that the pre-Jackson days of running claims to trial in the hope that they may settle are now gone, given that under Fixed Costs, the incentive for the defendant to settle, formerly the CFA uplift have now disappeared for post July 2013 cases. Jackson has changed the litigation landscape but if one adopts suitable litigation tactics, it is still possible to run an efficient firm dealing with highways, slipping and tripping cases. The following chapters will show you how, and with a particular focus on vetting cases at the outset and spotting the winners from the potential losing cases quickly and efficiently. There is still a vibrant market for law firms wishing to undertake these types of cases, and potential opportunities under Jackson for firms to undertake this type of work and deal with it as a specialism.
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