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April 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: Failing to Attend Trial - Aidan Ellis, Temple Garden Chambers
This month I have been plagued by an unusual number of cases in which the claimant has failed to attend court on the day of trial. The result of many of these absences is that the case is struck out. Where a claim is struck out because the claimant fails to attend trial, he or she can apply for the case to be reinstated. But the court may only grant such an application if the claimant can show that (1) he acted “promptly” when he became aware of the strike out and (2) that there was a “good reason” for failing to attend trial and (3) that he has a “reasonable prospect of success” at trial (CPR 39.3(5)). As set out below, claimants should not be under the illusion that this test is easily satisfied.

Personal Injury Articles

Costs in Infant Settlements - Tim Kevan
The Court of Appeal has taken a restrictive approach to costs in infant settlements both where the value is less than £1,000 and also in relation to counsel’s fees. In Dockerill and Healey v Tullett and other cases [EWCA] Civ 184, all of the appeals involved claims by minors (by their litigation friends) to recover the costs of proceedings brought by them under CPR 21.10(2) for the approval of the compromise of their claims for damages for personal injuries.

Expert Statistical Evidence on Life Expectancy: Cooper v McGann - Tom Gibson, Pupil Barrister, Outer Temple Chambers
Should expert statistical evidence on life expectancy be allowed – in addition to expert clinical evidence – in high-value personal injury claims? The recent Queen’s Bench Masters case of Cooper v McGann (24 February 2012, Master Kay QC) highlights the difficulties that parties face in gaining permission to rely on such evidence.

Don’t worry; be happy - Helen Tinkler, BPP & Central Law Training
We live in anxious times. The press tell us that we are all anxiety-obsessed. We worry if something happens; we worry if it doesn’t happen and we worry if we have nothing to worry about. Couple this with over-active imaginations elasticising health and safety legislation and the law in general stretching to more and more situations which might, worryingly, give rise to an accident and you have the health and safety obsession of recent times.

Harmonising Expert Testimony - Barry Turner, University of Lincoln
A major symposium conducted on the 16th and 17th March has just completed its recomendation for a Europe wide regulation of expert witnesses. The recommendations will now go to the European Commission for drafting into regulations

Credit Hire Articles

Kevan and Ellis on Credit Hire, 4th Edition: Chapter Two - Impecuniosity
In this chapter, we will consider the analysis of impecuniosity in the leading case of Lagden v O’Connor, with particular emphasis on the definition of impecuniosity and the practical implications of this issue.

Common Courtesy - Jason Prosser, Credit Hire Advocacy Services
One issue which periodically comes before the courts in credit hire cases is that of the availability, to the claimant, of a courtesy vehicle. The traditional courtesy car is one offered by a repairer to his customers, free of charge, in order to attract their custom. In the credit hire context, however, the issue more often arises when the claimant has the possibility of obtaining a replacement vehicle as a benefit under his motor insurance policy or in association with it.

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

When is a travel agent more than an agent? - Katherine Deal, 3 Hare Court
Few personal injury practitioners will not have come across the Package Travel, Package Holiday and Package Tours Regulations 1992 at some point. As readers will know, all (or virtually all) tour operators incorporate them more or less word for word into their booking conditions, and if they do not, their provisions will be implied into every package holiday contract. They have the effect of ensuring that a holiday maker injured, killed or falling ill in the course of a package can sue the other party to his holiday contract directly in the English courts under English law for injuries arising from the negligent provision of services or accommodation which were part of the package. In effect caught by a modified form of vicarious liability, the tour operator cannot escape liability merely on the basis that those services were provided by a foreign supplier.

Medico-Legal Articles, Edited by Dr Hugh Koch

An update on the DSM-5 - Katie Newns & Hugh Koch
Since our article in May 2010 (Newns, Thorne & Koch, 2010) there has been some fierce debate around the proposed DSM-5. The British Psychological Society (BPS) have submitted a concerned response, and the American Psychological Association (APA), the American Counselling Association, and a group of professionals from Barcelona have all drawn up petitions to encourage the APS to rethink the new DSM.

Helping the helpers, the hidden problem of Secondary Traumatisation - Dr Kim Whitaker
An often hidden aspect of traumatic exposure can be the impact on those workers who help trauma and disaster victims. These people include psychologists and other mental health professionals, but also the emergency workers, and members of the legal profession. Secondary traumatisation is a condition not often discussed, the symptoms are similar to PTSD, i.e., re-experiencing images of the traumas of the person receiving aid, avoidance of reminders of this material, numbing in affect and function, and persistent arousal.

Marketing for Solicitors

Marketing your Practice - Social Media: Social or anti-social? Public and/or private benefits? - Jenny Cotton, Mortons Marketing
The digital privacy debate is by no means over, the more users of social media learn of the media owners’ use of their data the more the debate deepens and for some concern grows. Private individuals, brands, organisations and regulators all have views. Social media are changing and so are their users’ attitudes and behaviours. Recent reporting on social media has been increased by the Facebook planned restructuring. Is it just social media which challenges individuals’ privacy? What about the new Cookie Consent laws which come into force from 29 May 2012? Is your practice ready? Do your practice contacts want to exchange their privacy for improved free social media services? Does your practice want to lose control of messages?

Press Advertising and Your Personal Injury Practice - Mike Massen, Gartons Solicitors
Press advertising, if used effectively, can be a vital part of your businesses overall marketing strategy. However most print advertising does not work, the adverts are badly written, have no point of interest and have no call to action. The following article sets out the key points to make press advertising work for you and your practice.

Extras

Babybarista: With prejudice