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September 2012 Summary

Welcome to the September 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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LAW JOURNAL

Editorial: Can Motor Insurers Improve Cooperation? - Aidan Ellis, Temple Garden Chambers
I was recently asked to speak at the Insurance Post Claims Club about the High Court decision in Coles v Hetherton on the Royal and Sun Alliance repairs charges cases. It was a daunting brief, not least because representatives of both parties formed part of the audience. I hope that I navigated the issues without causing too much offence.

Personal Injury Articles

Relief from sanctions: the trend every litigator needs to know about - Sarah Prager, 1 Chancery Lane
Sarah Prager discusses a growing trend for judges in the higher and lower courts to refuse to grant relief from sanctions; and asks where we go from here.

Abuse of Process - Michael Brace, Civitas Law
With an ever increasing focus on claimant abuse of the claims process, Michael Brace, Barrister at Civitas Law analyses the power to strike out fraudulent claims at trial.

Fair Compensation? - Steven Weddle, Hardwicke
Until the Lord Chancellor started to fix the discount rate for calculating future loss multipliers the Courts did their best to provide a "real" rate by looking at reality. In so doing they were trying their best to provide fair and proper compensation...

Loss of No Claims Bonus - Aidan Ellis, Temple Garden Chambers
By far the most common thing that clients in road traffic accident cases say at court is “hasn’t this taken a long time”. I suspect that not much can be done to address this concern. Despite reforms intended to speed up the process especially in low value cases, litigation inevitably longer than many expect. But I wonder whether more could be done to address the second most common concern that clients raise in road traffic accident cases: “what about my no claims bonus?” Many individuals find that by the time they get to court, they have already had to pay a higher annual insurance premium as a result of the ongoing claim. This cost is often as significant to the individual as the insurance excess, but in my experience loss of no claims bonus is seldom included in a claim for special damages. Should it be?

NZ Supreme Court Rethinks Compensation for Failed Sterilisation, What can Britain Learn? - Therese Wallin
In a recent ruling, the Supreme Court of New Zealand has overturned a Court of Appeal judgment, and ruled that victims of failed sterilisation, due to medical negligence, are entitled to seek compensation from the Accident Compensation Corporation. This is the body responsible for implementing the Accident Compensation Act 2001. This post contrasts the legal approach taken in New Zealand with that of the England and considers potential insights to the latter.

Will the Court allow an insurer to make a profit on vehicle repair costs? - Flora Wood, Partner, Ashfords Solicitors
The 13 actions that combined in the recent Royal and Sun Alliance Test Cases (Coles, Wood-head, Crother v Heatherton, Guy, Thomas) answered the question: can an insurer make a profit on vehicle repair costs? Given the Court's usually harsh view of unnecessary and frivolous costs, the somewhat surprising answer at present is yes, they can.

Patrick Joseph Hannon v Hillingdon Homes Ltd (2012): Liability for Defective Premises - Flora Wood, Partner, Ashfords Solicitors
In the recent case of Patrick Joseph Hannon v Hillingdon Homes Ltd the High Court found in favour of the Claimant in respect of the serious injury to his ankle he sustained after falling on an open sided staircase that had no banister.

JGE v The Trustees of the Portsmouth Roman Catholic Diocesan Trust (2012): Vicarious Liability - Flora Wood, Partner, Ashfords Solicitors
In the recent case of JGE v The Trustees of the Portsmouth Roman Catholic Diocesan Trust, the Court of Appeal affirmed the High Court's conclusion that the Bishop of Portsmouth (repre-sented by the Roman Catholic Diocese) was vicariously responsible for the wrongdoings of a priest assigned to a children's home. Both courts held the Diocese liable for the priest's actions, even though he was not technically an employee.

Blair-Ford v CRS Adventures Ltd (2012): Duty of Care Not Breached by Tragic, Freak Accident - Flora Wood, Partner, Ashfords Solicitors
As previous articles have warned, it is essential for an employer or organiser to undertake a risk assessment when they put on an event. But what would happen if a risk assessment is carried out, but during the event, the way that an exercise is conducted is modified? That was the question that the High Court had to address in the recent case of Blair-Ford v CRS Adventures Ltd.

Three strikes, you’re still in? What Fairclough Homes Ltd v Summers [2012] UKSC 26 tells us about fraud - David Sawtell, 4 King's Bench Walk
The significance of Fairclough Homes Ltd v Summers [2012] UKSC 26 lies not in the decision that the Supreme Court reached but in the approach to abuse of process that it approved. At the end of a trial, where it is possible to make a fair award of damages in favour of a claimant, it is deeply unlikely that the court will strike out the entire claim as an abuse of process. Viewed on its own facts, then, the progress from Ul Haq v Shah [2009] EWCA Civ 542, where it was said that it was not possible to strike out a claim in this way, is glacial. Instead, it is the encouragement that the Supreme Court gave to litigants faced with other scenarios that will affect personal injury practice.

Reflections of a Reluctant Claimant - David Locke, Hill Dickinson LLP
Prior to the publication of the Jackson reform proposals, the debate amongst the stakeholders descended often to hyperbole. The lobbyists withdrew to increasingly entrenched positions, although all claimed the moral high-ground. To each other, the claimant and defendant representatives became fairy-tale monsters, either heartless insurers dragging claims out needlessly, or greedy solicitors running up disproportionate bills, milking a system that perpetuates fraudulent claims.

Rebuttal of 'Litigation culture making Britain less safe' - Julie Carlisle, Henmans LLP
A response by Julie Carlisle to an article published in The Independent on 10th September 2012 entitled, "'Litigation culture' is making Britain less safe, says report".

Not black & white - Richard Scorer, head of serious injury, Pannone LLP
Richard Scorer explains that grey areas still exist at the boundaries of vicarious liability. In JGE v The Trustees of the Portsmouth Roman Catholic Diocesan Trust [2012] EWCA Civ 938, the Court of Appeal upheld a first instance decision making the Catholic Church (or rather its constituent dioceses and orders) vicariously liable for its priests who commit child abuse.

Summary of Recent Cases, September 2012
Here is a summary of the recent notable court cases over the past month.

PI Practitioner, September 2012
Each issue a particular topic is highlighted, citing some of the useful cases and other materials in that area. This month: Costs consequences of fraudulent or exaggerated claims

Credit Hire Articles

Kevan and Ellis on Credit Hire, 4th Edition: Chapter Six - Cancellation of Contracts Made at a Consumer’s Home or Place of Work Regulations 2008
The Cancellation of Contracts made in a Consumer's Home or Place of Work Regulations 2008 ("the Cancellation Regulations") came into force on 1 October 2008. They give further effect to the Doorstep Selling Directive, and were enabled by the Consumers, Estate Agents and Redress Act 2007. In short they provide that, where the Regulations apply, the trader must give to the consumer a notice of their right to cancel the agreement. If this cancellation notice is not given, the Regulations provide that the agreement "shall not enforceable against the consumer".

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

Update on Gastric Illness Claims - Andrew Young, 3 Hare Court
In a recent landmark decision at first instance, a trial judge decided that the law imposes strict liability on tour operators in respect of food poisoning claims brought by purchasers of all-inclusive package holidays.

Rome II: Mystery Solved - Jasmine Murphy, Hardwicke
It has been said that the wheels of justice turn slowly, but it has only taken 4 years since EC Regulation No 864/2007 (Rome II) was published for the debate about when the national courts should start applying it to finally be settled. Mrs Justice Slade hearing Homawoo v GMF Assurances SA in the High Court took action to obtain clarity by referring questions to the Court of Justice of the European Union. In November 2011 the ECJ gave a ruling in the case of Homawoo.

Medico-Legal Articles, Edited by Dr Hugh Koch

Autonotes in Dental Records - Mike Hill, Trinity Chambers
Autonotes are common in dental records. They can be everything from a computer-generated sentence inserted by pressing a shortcut key, to whole accounts of the treatment carried out. In themselves there is nothing wrong with autonotes but they do threaten to damage the dentist’s greatest advantage in a negligence claim: the sanctity of contemporaneous records.

Symptom Validity (Effort) Testing in Clinical Neuropsychology - Dr Tracey Ryan-Morgan, Talis Consulting Limited
Effort testing became central to neuropsychological assessments due to the proven inability of the experienced clinician to detect individuals exerting sub-optimal effort (McCarter, Walton, Brooks & Powell, 2009). A range of taxonomies have developed over time in relation to the concept of “effort”:

Who is who in Mental Health? - Dr Kim Whitaker & Dr Gerrard Burrell-Hodgson
There a numerous experts or clinicians working in the field of mental health, and there can be confusion within the legal profession about which expert to instruct in particular cases. Below is information about the relevant experts to assist in making instructions.

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

Got A Multi-Party Claim That You Would Like To Settle? - Tim Wallis, Trust Mediation Ltd
As an experienced litigator and mediator I am convinced that mediation really comes into its own in multi-party claims. I have been involved in many multi-party mediations over the years. These have ranged from routine personal injury claims involving more than two parties to a series of Civil Justice Council/Ministry of Justice sponsored mediations of industry agreements relating to personal injury costs, success fees and the like. It could also be said that the character of my work as independent Chairman of RTA Portal Co and the ABI GTA Technical Committee on credit hire, is in the manner of a long running mediation. Here are a few thoughts on why I find that mediation works so well in the multi-party environment and some of the additional issues that fall to be considered.

Extras

Charon QC: Postcard from The Staterooms – the last from Battersea-on-Thames

BabyBarista: Doomsday for lawyers