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December 2012 Contents

Welcome to the December 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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Editorial: The End of Claims for Breach of Statutory Duty? - Aidan Ellis, Temple Garden Chambers
One of the surprising features of legislation is that it remains possible for Parliament to enact significant changes whilst attracting very little attention and debate. I doubt the proposed amendment to the Health and Safety at Work Act 1974, contained within a late amendment to the Enterprise and Regulatory Reform Bill, has attracted as much attention in the media as it deserves. For personal injury lawyers, its effect could be genuinely dramatic.

Personal Injury Articles

The RTA Portal, Professor Fenn’s Review and the Extensions - Kate Parker, Civitas Law
The low value RTA Portal was introduced on 30 April 2010 with the aims of reducing costs and improving efficiency in RTA claims valued between £1,000 and £10,000, where liability is admitted. In Portal cases the standard civil court process is replaced with three set stages with fixed recoverable costs for each stage. An electronic portal is also used for the exchange of information.

Let It Snow, Let It Snow, Let It Snow : Personal injury claims arising from slipping on ice and snow - Ruth Johnson, Blake Lapthorn
With December here and snow forecast for this year this article will look at what Highway Authorities, Employers and Occupiers need to bear in mind to avoid slipping claims. It also provides guidance for individuals looking to bring a claim as a result of a slip on snow or ice. Who is responsible for clearing the snow, ice and frost on the ground will depend on who owns the land. For example whether the land is council owned highway, private land or land under the control of an employer.

Every Picture Tells a Story - Jamie Clarke, Hardwicke
Jamie Clarke interviews Tim Zoltie, expert clinical photographer & proprietor of Clinical Photography UK, on the use of photography in Personal Injury and Clinical Negligence Claims.

Get Your House in Order: Pre-Litigation Conduct and Costs Sanctions - Steven Conway, Browne Jacobson
The Court of Appeal has this year fired a shot across the bows with its stark warning in the case of Guntrip v Cheney Coaches Limited [2012] EWCA Civ 392 that the courts had become too tolerant of delays and non-compliance with orders in litigation and with the reminder in Fred Perry v Brands Plaza Trading Limited [2012] EWCA Civ 224 that as of 1 April 2013 CPR 3.9 is likely to be amended so that after that date, litigants who substantially disregard court order or the requirements of the Civil Procedure Rules will receive substantially less indulgence than hereto.

Solicitors’ Liability for Settlement Advice: Langsam v Beachcroft LLP & Ors [2012] EWCA Civ 1230 - Shyam Kapila
This recent Court of Appeal decision lends clarity to two distinct areas of importance for lawyers engaged in the provision of advice in the settlement of negligence actions. Mr Langsam sued Beachcroft for professional negligence in relation to advice given in respect of another negligence claim. After a trial, the judge dismissed the claim, as Beachcroft had relied on the advice of leading counsel, which was not negligent. Mr Langsam appealed and Beachcroft cross-appealed against the order for costs made on the dismissal of their counterclaim for their outstanding fees under a conditional fee arrangement

What Is a ‘Proportionate Indemnity’ Due From an Insured Victim Who Allows an Uninsured Driver to Drive? - Ian Pennock, Parklane Plowden Chambers
Judgment in the important case of Churcill Insurance Company –v- Fitzgerald & Wilkinson Anors [2012] EWCA Civ 1166 has recently been handed down by the C.A. on the 24th August 2012.

10% Increase in General Damages: Clarity Reinstated - Tracy Head, Kennedys
Tracy Head reports on a revision of Simmons v Castle. Lord Justice Jackson made 109 recommendations in his final report as the basis of his fundamental review of the costs of civil litigation. The tenth recommendation in the list was that in personal injuries litigation the level of general damages for pain, suffering and loss of amenity (PSLA) be increased by 10 per cent.

Don’t Erode the Civil Justice System - Dr Victoria Handley, Handley Law
These are worrying times. We face the erosion of the civil justice system, punishment of the victim, restricted access to justice and all to preserve profit. This article sets out the changes and suggests three major factors which show that we must preserve the current state.

Extending Limitiation and the Mau Mau Cases - Victoria Beel, Pannone
The right to Justice is a fundamental human right to which it is arguable every person should be entitled irrespective of the lapse of time; but the law is often required to resolve the competing rights of each side in deciding whether a fair trial can be achieved when time has eroded vital evidence. In Civil cases when does the competing right of a potential Claimant outweigh those of a Defendant? Are the courts exhibiting a continuing trend in extending the circumstances in which a case may be brought outside of the primary limitation period?

Re Illegality and Credit Hire - Andrew Christon, Browne Jacobson LLP
Smyly Agheampong is the name now associated with illegality and credit hire after his credit hire claim brought the whole illegality and ex turpi into the credit hire world back in 2008.

Can costs-only proceedings be brought against the defendant’s insurer? - Matthew Hoe, Jaggards
That was the question in Watkins v AXA Insurance UK Plc (Manchester County Court, 14th September 2012, unreported). The answer given by His Honour Judge Bird was ‘no’. This will be a point of general interest to many solicitors and costs practitioners, not least as adopting correct procedure can save incurring unrecoverable costs.

The Welfare Reform Act 2012: Universal Credit and Personal Independence Payments - Dick Petrie, Frenkel Topping Ltd
As many of you will be aware, the Welfare Reform Bill (as amended significantly by the House of Lords) has now received Royal Assent and been enacted as the Welfare Reform Act 2012 (‘the Act’). Despite its dilution, this will still arguably lead to the most fundamental reform of the welfare state since its post-war introduction. The resultant changes to welfare benefit entitlement will affect your clients who claim means-tested benefits...

Periodical Payments - Daniela Fusi, Simpson & Marwick
Periodical payments are a contemporary issue in light of the consultation currently being carried out by the Ministry of Justice on how to calculate an appropriate discount rate to determine multipliers for future loss. The consultation arises as a result of concerns that the current discount rate of 2.5%, set in 2001, does not in fact reflect the level of return a prudent investor could expect to achieve in the current economic climate.

We Need to Talk About Katie - Michael Lemmy & Matthew Snarr, 9 St John Street
This article considers the impact of Katie Ward -v- Allies and Morrison Architects [2012] EWCA Civ 1287 on the litigation landscape regarding loss of earnings awards by reason of moderate or subtle injuries.

Examining the Case of Alcock -v- Chief Constable of South Yorkshire (1991) - John van der Luit-Drummond
One of the most important and contentious psychiatric injury cases in recent history sprang up as a result of the events at Hillsborough on 15th April 1989. Twenty-three years on there remains questions as to whether or not the right decision was arrived at and whether or not the law on psychiatric injury should be changed. In the aftermath of the events on that terrible day a number of claimants sought to bring claims for...

Accidents at Work: Case Update - David Armstrong, Brodies
In this last year or so, we have seen a number of significant decisions in the Scottish and English Courts concerning the interpretation of the various Workplace Regulations. It is interesting that, despite the fact that these regulations have now been around for many years, some of its main provisions are still open to varying interpretations depending upon the Court considering the case.

Sporting Injuries, Schools and Guidelines - Rupert Beloff, No5 Chambers
Schools have a clear duty of care to pupils who undertake sporting activities under their auspices. A breach of such duty may arise where there has been a failure to provide adequate instruction. In the case of Gannon v Rotherham Metropolitan Borough Council a claim succeeded where a schoolboy broke his neck when diving from a starting block at the shallow end of a swimming pool on the basis that his PE teacher had not shown him how to correctly effect such a dive. In that case the schoolboy’s claim also succeeded against the Amateur Swimming Federation for failing to issue appropriate warnings of relevant dangers to instructors.

Obligations of Claimant Law Firms to Help in Preventing Fraud - Jason Peto, Parabis Risk Solutions
Everyone connected with the insurance industry has an interest in combating fraud. The increasing media focus illustrates that fraud, and its knock-on impact on insurers and consumers alike, is today’s big challenge. While some measures to tackle fraud may take a while to come into effect, others are already in our gift. They would be simple but welcome first steps and claimant lawyers hold the key.

Portal and Fixed Fees: the Consequences? - Julie Carlisle, Henmans LLP
Paul Evans of AXA tweeted recently in support of the government’s proposals for reduced portal and fixed fees ‘Stripping out lawyers….obscene profits for whiplash claim will lead to lower premiums - good news for honest drivers’.

Are Alternative Business Structures the Way to Avoid the Referral Fee Ban? - Stuart Bushell, Managing Director, SIFA
The SRA’s controversial ban on referral fees in personal injury cases, which was foreshadowed by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), is due to come into force in April 2013, and the regulator’s latest consultation on the subject is due to end on 18 December. With changes to the SRA Code of Conduct due to come before the SRA Board on 23 January, many firms of solicitors are looking to set up Alternative Business Structures (ABSs) as a means of avoiding the most deleterious consequences of the ban. However, the usefulness of this route is fraught with questions to which no answer appears to be available.

Proportionality and Costs Budgeting - Paul Bracewell, Costs Lawyer, ACILEx
At the time of writing, the proposals for Fixed Costs for claims with a value of up to £25,000.00 have just been announced. The figures make depressing reading for any Claimant lawyers and for Costs Lawyers. Whatever happens, it would appear that all of Lord Justice Jackson`s reforms will be brought in from 1st April 2013 despite arguments that the Portal cannot be extended to cover Employers Liability and Public Liability claims in time. Can it only be a few weeks ago that fixed costs were not going to happen?

Jackson Implementation, the 10% Uplift: Simmons -v- Castle - Greg Cox, Colemans-ctts
By the time this article is published, most followers of the Jackson reforms will know that on 10th October the Court of Appeal clarified some of the issues arising from the 10% uplift in damages by handing down its second judgment in Simmons –v- Castle [2012] EWCA Civ 1288.

The BTE Myth Exploded? - Michael Williamson, Williamsons Solicitors
As the Government faces mounting criticism of its attack on the current civil justice funding regime, it will be interesting to see whether ministers continue to point to the existence and “potential” of before-the-event insurance (BTE). Emulation of what is held up as the German paradigm has long been advocated in the UK. In recent times it has been offered as the panacea by some of the architects of the present destruction of established funding models.

Your Prison Cell Awaits - Carl Waring, Solicitor
Occasionally, at the end of a criminal trial, when a prison sentence has been handed down, the Judge will defer the start of the sentence for a couple of weeks to allow the Defendant to get his personal affairs in order. I remember that happening to a solicitors clerk in a practice not far from where I was brought up in the North West of England who along with others in the practice had been sentenced to a couple of years for 'Green Form' fraud. I recall thinking how awful that must be - being allowed to walk out of the court room to go home, knowing that you had a 2 year sentence waiting to start in 2 weeks time.

The Trust-Ed Conference 2012 - Julie Carlise, Henmans LLP
Trust-ed is a charity providing educational services to children and young people with acquired brain injuries, and I was lucky enough to be able to attend their 2012 conference at Silverstone Race course, sponsored by Freeth Cartwright LLP. I say lucky, as this was an opportunity to hear both medical professionals and families living with brain injury explain and describe, in easy to understand terms, both the complex workings of the brain and the very real effects of traumatic injury to it. No lawyers spoke at this event!

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

PI Practitioner, December 2012
Each issue a particular topic is highlighted, citing some of the useful cases and other materials in that area. This month: The Consumer Insurance (Disclosure and Representations) Act 2012.

Credit Hire Articles

Kevan and Ellis on Credit Hire, 4th Edition: Chapter Eight - Miscellaneous
The purpose of this chapter is to address additional heads of claim which the practitioner will frequently encounter in dealing with credit hire claims, including claims for interest on credit hire charges and claims for engineer’s fees. Further, the chapter concludes with a section summarising the law on champerty, which was the Insurers’ first big challenge to the credit hire industry but which is now only of historical interest.

Health & Safety Articles

Sudden Infant Death: Was the Cot Design at Fault? - Dr Ron Somers, University of Adelaide
Can you trust the coroner’s investigators to correctly implicate the cot design in cases of ‘sleep accident’ or sudden infant death? Probably not, because there may have been a hidden mechanism at work, one which has only recently been quantified. So how do you know whether this mechanism was involved? There is a simple test that you can perform on the cot mattress (or any other sleep surface).

Medico-Legal Articles, Edited by Dr Hugh Koch

How to Assess Credibility in the Courtroom? - Dr Ben Goodall, Dr Hugh Koch & Poppy Gould
Review of publication by Porter S & Brinke L.T (2009). Dangerous Decisions: A theoretical framework for understanding how judges assess credibility in the courtroom.

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