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July 2012 Summary

Welcome to the July 2012 issue of PI Brief Update Law Journal. Click the relevant links below to read the articles and take the CPD quiz. Please remember to fill in our quick feedback form after you have finished.


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


Editorial: The Limits of Vicarious Liability - Aidan Ellis, Temple Garden Chambers
Any first year law student could recite that a Defendant may be vicariously liable for torts committed by another if (1) there is a relationship of employer / employee between the Defendant and the tortfeasor and (2) the tort was committed in the course of the tortfeasor’s employment. Much of the colourful caselaw focuses on the second issue and on whether certain acts were a frolic of the employee’s own. In JGE v the Trustees of the Portsmouth Roman Catholic Diocesan Trust [2012] EWCA Civ 918, the Court of Appeal had to address the limits of the first issue: can vicarious liability apply outside a traditional employment relationship.

Personal Injury Articles

Liability of Schools for Extra-Curricular Activities - Tim Kevan
After Mountford, is the tide now receding on schools liability as they are held not responsible for accidents both on Dartmoor and a golf course?

Striking Out Fraudulent Claims at the End of a Trial: The Supreme Court decision in Fairclough Homes Ltd v Summers - Aidan Ellis, Temple Garden Chambers
The increase in the number of fraudulent or dishonestly exaggerated claims has prompted calls from Defendants for the Court to strike out such claims after the end of a trial, including in situations where only part of the claim is dishonest.

MoJ Stage Defaults and Preparation for Stage 3 Hearings - Andrew Mckie, Clerksroom
The protocol for Low Value Personal Injury Claims in Road Traffic Accidents applies to personal injury claims arising out of Road Traffic Claims in England and Wales, on or after 30 April 2010. It applies where the value of the claim is between £1,000 and £10,000. The value of the claim, is based upon the level of general and special damages, but excludes damage to vehicles and credit hire costs. Small claims worth less than £1000 and employers liability or public liability claims fall outside the protocol, as do claims involving complicating factors such as the death of a party or a protected party or a bankrupt claimant.

No Win, No Fee, No Longer? - Julie Carlisle, Henmans LLP
What do we mean when we speak of “No Win, No Fee” agreements for the provision of legal services? It is easy to ask for. You have a problem, you call a solicitor, and you say “I don’t want to have to pay anything for your services; I want you to act for me free of charge. Can you offer me a No win, No Fee?”

Time for Law Commission to Tackle Third Party Insurance Fraud - Laurence Besemer, CEO, FOIL
Imagine that the Clapham omnibus takes a wrong turn and passes along Harley Street (or any one of the many other addresses of medico legal experts in London). The passenger sees a man walk around the corner and cast his crutches aside. The wonders of modern medicine? In fact, more likely, an example of third party insurance fraud, a claimant grossly exaggerating his personal injury claim.

Credit Hire Articles

Kevan and Ellis on Credit Hire, 4th Edition: Chapter Four - Introduction to Enforceability
The next chapters are devoted to the vexed question of whether a particular credit hire agreement is enforceable in the light of various statutory and common law issues, which in particular dictate the form of consumer credit agreements.

Credit Hire and Storage Claims - Fraud and Credibility Concerns - Andrew Mckie, Clerksroom
Credit hire and storage claims are proving some of the most difficult matters for Courts to adjudicate upon. With credit hire and storage fraud on the increase, Claimant and Defendant firms must be alive to this type of fraud and how to spot it. A poorly investigated or prepared hire or storage claim, can cause the Claimant enormous difficulties at Trial or Disposal. This article looks at some of the most common ‘concerns’ with hire and storage claims and how to tackle them.

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

Victims of Terrorism Overseas Put at Par with Victims of Domestic Terrorism - Therese Wallin
The territorial aspect of jurisdiction can have the unintended consequence of leaving victims stranded in a loophole, without compensation. This has very much been the case for those who survived an act of terrorism whilst overseas. Until now, they have not been able to claim financial compensation from the UK, whilst victims of domestic terrorism have.

Medico-Legal Articles, Edited by Dr Hugh Koch

“I’ll Go Back to Work When I Feel Better”: Work as Therapy for Post-Trauma Depression - Dr David Bird & Nicole Hampton
The authors have discerned a pattern in post-trauma victims in that those that remain off work for long periods of time appear to take longer to recover from traumatically-induced psychological problems, and in particular mood disturbance. They also find the psychological symptoms more distressing and debilitating than do people who return to work quickly. This appears to be true irrespective of the reason that the person does not attend work e.g. incapacitated by injury, not in employment or education.

Assessment of Cognitive Impairment Following Road Traffic Accidents - Dr Karen Addy, Clinical Psychologist
Road traffic accidents are a major cause of traumatic brain injury with estimates suggesting 25% of all traumatic brain injuries are sustained in this manner (Westerberg, 2002). However not all road traffic accidents lead to traumatic brain injuries and cognitive impairment following a road traffic accident can be associated with psychological factors such as depression, sleep disturbance, chronic pain etc. In order to assess if a traumatic brain injury is likely a number of medical factors are assessed including...

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

Ten Pointers for a First Mediation - Tim Wallis, Trust Mediation Ltd
Attending a mediation is, for many pi practitioners, a new experience, or at least an occasional one. Here are ten pieces of advice that an experienced litigator, who was also experienced at mediation, might give to a litigator attending his or her first mediation.


Charon QC: The criminal justice system in England & Wales is under siege

BabyBarista: Dirty tricks at court

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