News Category 3
Risk Management: Avoiding Professional Negligence Claims in the New Litigation Landscape - Peter Causton, Member of Law Society Civil Justice Committee, Mediator and Deputy District Judge
06/06/14. There have always been claims against lawyers by disgruntled clients for the loss of opportunity to bring or pursue a personal injury claim, but with the introduction of the cost cutting Jackson Reforms and fixed fees, there are ever more ways in which errors, omissions and misjudgements can occur, leading to claims. The personal injury market is being decimated and as a result experienced lawyers are leaving the field and less experienced paralegals are managing large caseloads.
The pursuit of professional negligence claims has been described by one lawyer as a form of “cannibalism”, with more fees to be earned pursuing a professional negligence claim than the original personal injury claim. However, this should be tempered by the difficulties in obtaining funding to pursue professional negligence claims, in respect of which there are no QOCS to cushion the blow of adverse costs orders.
The main issue that leads to claims is that the client in a personal injury claim is often...
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Removing the Shackles? - Bill Braithwaite QC, Head of Exchange Chambers
05/06/14. Yet another procedural decision today, but an interesting one. In a road traffic accident, the defendant in his defence denied liability and included the words "the Claimant caused the collision". The Defence did not include an explicit claim for contributory negligence, although it was obvious that it was critical of the claimant’s driving, referring to his losing control because of travelling too fast.
The defendant appealed against a decision by a district judge refusing him permission to amend his Defence in order to plead contributory negligence more fully. The defendant had applied to do so at the beginning of the trial, but permission was refused. Judgment was entered against F on a full liability basis. The district judge refused the application to amend on the ground that it should have been made in writing and supported by evidence, but did remark, foolishly not properly in the course of his or her judgment, that the defendant’s liability would have been reduced by one third had contributory negligence been pleaded.
The defendant’s appeal was heard by a retired High Court judge – not one of the specially allocated judges who have been hearing these procedural appeals. Is it too cynical to suggest that retirement has removed the shackles from the judge’s ability to do the right thing?
The judge said in terms that discipline should not be imposed for its own sake. The district judge had been told by the defendant’s counsel why the application was being made late, and there would have been nothing to gain by putting that in a witness statement. “The district judge had done his best to apply the relevant principles in the recent authorities to F's case, but in attending to the detail he had overlooked the overall picture. Insofar as he had balanced the potential prejudice to G against that to F, the exercise had yielded the wrong outcome. Justice and fairness required that the amendment should have been allowed so that the real dispute between the parties could be judged. There was no prejudice to G, no need for an adjournment, or for further delay or extra cost. The court was able to deal with the issues of causation, including those relevant to contribution on the appointed trial date.”
Bill Braithwaite QC
Head of Exchange Chambers
This article was first published at http://billbraithwaite.com/blog/
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Chartwell Estate Agents and the Mitchell decision - Lisa Dobie, 1 Chancery Lane
04/06/14. Having delivered and attended several post Mitchell case updates, one recent decision that surprised and interested me (in the context of other post Mitchell decisions) was Chartwell Estate Agents Ltd v (1) Fergies Properties SA and Another [2014] EWHC 438. This decision was appealed and the Court of Appeal’s decision appeared on Lawtel.
So why did I find the first instance decision surprising? We know from Mitchell and subsequent case law that a) if a party is in breach of a rule, order or practice direction and that breach is more than trivial and b) there is no good explanation for it, then the chances of obtaining relief from sanctions were looking rather slim. Not impossible, but slim.
The background to Chartwell’s application was as follows:
The underlying dispute concerned non-payment of £450,000 of commission which was alleged to be due;
The non-compliance related to service of witness statements and the cross over between relief from sanctions and CPR 32.10.
Both parties had failed to comply with the direction for service of witness statements;
Notably, the Claimant alleged that they could not comply with the direction because they were...
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Causation, Reliance... and Loft Hatches - Andrew Spencer, 1 Chanery Lane
01/06/14. The recent Court of Appeal case of Morcom v Biddick [2014] EWCA Civ 182 raises very interesting questions about duties of care, causation and reliance.
Mr Morcom is a skilled tradesman with extensive experience in the building trade. Mr Biddick (now deceased) was an 80 year old family friend of Mr Morcom’s. On 4th December 2010 Mr Morcom attended Mr Biddick’s house to fit loft insulation to the top side of the loft hatch.
Mr Morcom accepted that he was in a position to risk-assess the task and Mr Biddick was not. Mr Morcom was happy to fix the insulation from inside the loft, although he recognised the hatch could not take his weight and there was a risk of falling if he overstretched.
The hatch door was held closed by a latch which could be opened and closed from the floor below, using a pole. Mr Biddick suggested that the latch might come loose through vibration. This would not have occurred to Mr Morcom had Mr Biddick not mentioned it.
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Setting the Discount Rate: Time to Depart From Wells? - Peter Walmsley, Clyde & Co LLP
27/05/14. The overriding principle of damages for personal injuries is restitution, putting the claimant back in the position he/she would have been absent the tort, so far as is financially possible. The claimant is to be provided with 100% compensation, no more, no less.
The reality, however, is that this is never going to be achieved. Calculation of awards for future losses is an imprecise science. It is impossible to know what precise losses claimants will incur, both in terms of expenditure and life expectancy, at the date of trial or settlement. Furthermore, the artificial concept of the discount rate is then applied to adjust this already imprecise capitalisation of the claimant's loss to allow for the fact that the claimant will invest that award and see returns on their investment, over and above inflation. The exact returns the claimant will obtain on investment of their damages, assuming they invest their damages, is not open to calculation and depends on the individual investment strategy, which is likely to change with advice to reflect the best investment practice at any particular moment given the state of the financial market. Therefore, whilst the discount rate needs to be set so as to be as accurate as possible, complete accuracy is...
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More Articles...
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- Public Liability and Highways Claims Post-Jackson: The Portals - Andrew Mckie, Clerksroom
- Public Liability and Highways Claims Post-Jackson: Part 36 and Litigation Tactics - Andrew Mckie, Clerksroom
- Employers' Liability Insurance: More Risk of Personal Liability for Directors in Scotland - Will McIntosh & Fiona Beal, Brodies 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)
