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March 2012 Summary

NEWSLETTER

Industry News
Summary of Recent Cases - Substantive Law
Summary of Recent Cases - Costs
Summary of Recent Cases - Civil Procedure
PI Practitioner

LAW JOURNAL

Editorial: Getting to the Heart of Limitation - Aidan Ellis, Temple Garden Chambers
In Ministry for Defence v AB [2012] UKSC 9, the Supreme Court had to grapple with the meaning of the provisions relating to the claimant’s ‘date of knowledge’ in section 14 of the Limitation Act 1980. A remarkable feature of AB is that different speeches in the Supreme Court plumped for three different dates as the relevant date of knowledge. Regardless of the result reached, the level of disagreement can only highlight the difficulty of applying section 14.

Personal Injury Articles

Liability of Schools: Two New Judgments - Tim Kevan
If you’ve got any cases involving children, then heads-up for two new cases which have handed down in the last few days involving respectively the delegability of the duty of care and vicarious liability.

Strict Liability Under the Animals Act: a Resume - David Wicks, Pump Court Chambers
In Goldsmith v Patchcott, the Court of Appeal (Longmore, Rimer and Jackson LJJ) considered once again the provisions of the Animals Act 1971. The claimant suffered severe facial injuries when the horse she was riding bucked and reared, throwing her to the ground. She brought a claim against the keeper under the 1971 Act. The trial judge held that, although the requirements of section 2(2) of the Act had been made out on the evidence, the keeper was entitled to rely on the statutory defence under section 5(2) of the Act. That decision was upheld on appeal.

Limits of Indemnity - Nick Yates, FOIL
Standard limits of indemnity are too low. One of the risks against which a small business or homeowner often insures is liability for accidental injuries. That is the unlikely but foreseeable risk that a member of the public will be seriously injured either in the home or in and around business premises.

The Marsh Review - FOIL Clinical Negligence Sector Focus Team
FOIL was pleased to see the long awaited publication of the NHS Litigation Authority (“NHSLA”) Industry Report and Department of Health Response. This review conducted by Marsh, a leading insurance broker and risk advisor, was commissioned consequent to the Department of Health’s wholesale review of Arms Length Bodies (ALB).

Credit Hire Articles

Kevan and Ellis on Credit Hire, 4th Edition: Introduction
The death of credit hire litigation has been predicted rather often. After each new higher court case, there is a tendency to imagine that all issues have been conclusively resolved, facilitating the negotiated settlement of the majority of cases. And yet credit hire litigation continues. Indeed it prospers, to the concern of many County Court Judges. It is no exaggeration to say that credit hire cases, often on similar issues in low value cases, come before the courts every day. Partly, this is due to the relentless tide of new statutory instruments affecting consumer credit. Partly, it is simply because many of the issues that arise turn on the facts of individual cases.

Kevan and Ellis on Credit Hire, 4th Edition: Chapter One - Rates
“the major protection for the defendant and his insurers is that the claimant can only recover the ‘spot’ or market rate of hire”. So spoke the Court of Appeal in Copley v Lawn in considering the proper scope of mitigation of loss in credit hire cases. It remains open to argument whether the Court of Appeal was correct to regard the protection of the spot or market rates as limiting the scope for traditional mitigation arguments. But far less contentious was the Court’s identification of spot rates as the major issue in current credit hire cases. With the reduction in the number of cases challenging the enforceability of hire agreements (at least under the Consumer Credit Acts), and the unpredictability of mitigation arguments, the focus has definitely shifted to arguments about the applicable daily rate of hire. It is no exaggeration to say that in recent years credit hire cases have been fought in the County Courts every day, often in circumstances where the applicable daily rate is the only real point of contention.

Recent developments in the world of Credit Hire - Mark Ashley, Pump Court Chambers
Pattni v First Leicester Buses Ltd [2011] EWCA Civ 1384. The issue in this appeal was the Claimant’s entitlement to interest on credit hire charges for the period between the end of the hire of the replacement car and the date of the judgment finalising the claim.

Local Authority Liability, Edited by Daniel Tobin, 12 King’s Bench Walk

Patrick J Cusack v. London Borough of Harrow [2011] Ewca Civ 1514 - Daniel Tobin, 12 King’s Bench Walk
This case looks at the situation which can arise when a highway authority is desirous of blocking up a private access to the highway without exposing itself to the liability to pay compensation under Section 66(8) of the Highways Act 1980. It involves consideration of potentially overlapping powers in the 1980 Act, and the compatibility of Section 80 of the Act with Article 1 of the First Protocol to the Human Rights Act 1998.

PI Travel Law, Edited by Katherine Deal, 3 Hare Court

Reduced Mobility, Reduced Remedies? Stott v Thomas Cook [2012] EWCA Civ 66 - Sara Ibrahim, 3 Hare Court
In the conjoined appeal of Hook v British Airways Plc and Stott v Thomas Cook Operators Ltd [2012] EWCA Civ 66 (reported on Lawtel on 7 February 2012), the Court of Appeal determined whether there was a private law cause of action for injury to feelings under Regulation (EC) No 1107/2006 (‘the EC Disability Regulation’) and the Civil Aviation (Access to Air Travel for Disabled Persons and Persons with Reduced Mobility) Regulations 2007 S1 2007/1895 (‘the UK Disability Regulations’).

Medico-Legal Articles, Edited by Dr Hugh Koch

Is this a flashback I see before me? Why 'Flashback' is a much misused term - Keiron Reay & Lousie De Haro
Following a traumatic event individuals demonstrate a range of responses and symptoms. These range from some temporary and mild general anxiety and arousal symptoms up to longer term and disabling Post Traumatic Stress Disorder. The latter is a term that has become known in lay society and it is not uncommon for people to label themselves with this disorder - or for GPs or even mental health professionals to do so - in the absence of the necessary type and severity of symptoms.

Mediation & ADR Articles, Edited by Tim Wallis, Trust Mediation Ltd

Cost Sanctions and ADR in Personal Injury Claims - Tim Wallis, Trust Mediation Ltd
Strange though it may seem, a recent dilapidations claim in the Technology and Construction Court may be of importance to the conduct of personal injury claims in relation to ADR and mediation. The key point of the case, so far as this article is concerned, is the court’s approach to cost sanctions when a party ignores, or fails to deal competently with, an offer to mediate.

Extras

Charon QC: Without the Convention on Human Rights: our human rights depend on what our government says they are

Babybarista: Anti-avoidance rules