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November 2013 Contents

Welcome to the November 2013 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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Personal Injury Articles
"Enforcing Compliance": The Stricter Sanctions Regime Post-Jackson - Monika Sobiecki, Pump Court Chambers
Much ink has been spilled on the subject of the Jackson reforms to civil litigation, which came into effect on 1 April 2013. The major focus of attention has been on the dramatically shifting landscape of litigation funding and the introduction of the costs management procedure in multi-track cases. However...
Limiting Costs on Assessment to RTA Protocol Fixed Costs - Matthew Hoe, Jaggards & Taylor Rose Law
On assessment of costs, the court can decide the reasonable and proportionate amount to allow may be no more than fixed costs for the RTA Protocol where the claimant has unreasonably exited that protocol. That was the decision of Master Simons in the recent case of Davies, Ollin and Ollin v Greenway...
Editorial: Challenging Period of Hire - Aidan Ellis, Temple Garden Chambers
Defendant Insurers have long been concerned that the duration of hire in some credit hire cases is unreasonable. But they have often been frustrated in their attempts to challenge the reasonableness of a particular period of hire because the law of mitigation places the burden of proof on the Defendant to establish that the Claimant...
Homes for Haringey v Fari: Committal for Contempt - David Melville QC, 39 Essex Street
On 31st October 2013 after a 5 day hearing, Mr and Mrs Fari were found guilty of contempt of court in their conduct of her personal injury claim. Mr Justice Spencer found to the criminal standard of proof that the Faris had interfered with the due administration of justice and verified false witness statements without an honest belief...
Withdrawal of Part 36 Offers - Ezra Macdonald, Old Square Chambers
The Part 36 regime has, since its introduction, been a significant resource for both claimants and defendants, particularly in personal injury claims. Post-Jackson, however, it has become even more significant for personal injury claims. The increased significance arises because of the relationship between Part 36 and...
Whiplash and the Cost of Living - Shirley Denyer, Shirley Denyer LLP & Knowledge Services Consultant for FOIL
The long-awaited Government proposals on whiplash have now been published. With energy prices and below inflation pay already dominating the political agenda, it appears that whiplash is also now part of the debate with Chris Grayling identifying abuse of the system and its resulting impact on insurance premiums as a cost...
Costs Budgeting: Recent Developments - Christopher Edwards, Old Square Chambers
Costs budgeting is now firmly a part of PI litigation: form 'precedent H' and the first case management (or more properly costs management) hearing are becoming increasingly familiar to practitioners. Costs budgeting was introduced on 1st April 2013 by the amended...
Holiday Claims: Hotel Structure: Local Standards and How These Are Determined - Andrew Spencer, 1 Chancery Lane
The Court of Appeal handed down judgment in the landmark case of Japp v Virgin Holidays [2013] EWCA Civ 1371, dismissing the Defendant's appeal and upholding the first instance finding of liability. This is now the most authoritative decision on local standards for structural features of hotels in holiday claims...
Personal Injury Practices Safe 'At This Stage' - Ian Miller, 1 Chancery Lane
"Will they or won't they?" has been the question for many personal injury lawyers wondering whether their practices were about to disappear into oblivion with the raising of the small claims limit. The question has now been answered: "not at this stage". The government clearly thinks that it would be good to raise it...
Safe Sex: Part 3 - Simon Readhead QC, 1 Chancery Lane
Sex activity is in every sense a personal choice. Ordinarily this truism might not find its way into legal submissions and certainly not submissions by the Solicitor-General of the Commonwealth of Australia. However, ordinarily injuries at work do not arise from a "vigorous" sex session in a motel bedroom.
Detailed Assessment of Costs after Summary Assessment - Thomas Crockett, 1 Chancery Lane
The usual rule in many cases is that costs are summarily assessed by the judge at the conclusion of the trial or hearing. Often, however, proceedings run late and there is not time to give an ex tempore judgment, let alone deal with the issue of costs. Likewise, summary assessment may not be possible where there has been...
CA Suggest No Need for Causation in HRA Claims? - Edward Bishop QC, 1 Chancery Lane
The Court of Appeal has given judgment in Sarjantson v The Chief Constable of Humberside Police [2013] EWCA Civ 1252, an important and interesting decision on the operation of police officers' duties to protect citizens under the Human Rights Act 1998 ("HRA")...
Costs Budgeting: Benefits and Pitfalls - Sue Nash, Litigation Costs Services
The new costs budgeting regime has been described by the current Master of the Rolls as being the key to the Jackson Reforms. Meanwhile, Lord Justice Neuberger when Master of the Rolls stated that: "Excess legal costs has for too long disfigured our civil justice system....
The New Coroner's Rules: A Summary of Key Changes - Anna Midgley, Albion Chambers
In July 2013 the long awaited new Coroner's (Inquests) Rules 2013 and Coroner's (Investigations) Regulations 2013 came into force (of application to any inquest not completed before 25thJuly 2013). As is immediately apparent the new rules divide and expand procedure in relation to the investigative stages and...
The Skills Required to Represent Claimants - Bill Braithwaite QC, Head of Exchange Chambers
Following on from my last blog, it made me wonder what skills are required to represent claimants who have been injured catastrophically? I thought it might be fun to list a few of the skills which I value, and to comment on them...
Punching Inanimate Objects and Common Sense - Ian Clarke, 1 Chancery Lane
In 2010 Lewis Pierce was nine and a half years old and one day was playing at school with his younger brother George; both boys went over to a water fountain and George sprayed Lewis with water. George, seemingly not seeing the funny side then attempted to punch his brother, who being a sensible lad moved out of the way...
Homes for Haringey v Barbara Fari and Piper Fari: A New Era in Fighting Fraud - Jennifer Harris & Mark Dyson, Plexus Law
The fight against insurance fraud took an important step forward when Barbara Fari was sentenced to three months in prison for contempt of court after grossly exaggerating a personal injury claim. Her husband, Piper, also found guilty of contempt for his part in supporting his wife's claim, was sentenced to two...
Smith and Others v Ministry of Defence; Ellis v Ministry of Defence; Allbutt v Ministry of Defence: Judges in the Combat Zone or Policing State Immunity? - Jennifer Lee & Oliver Newman, Pump Court Chambers
The cases involved the death of three soldiers serving in Iraq. Military operations in Iraq covered two distinct phases; 19th March-30th April 2003 major combat operations were undertaken, 1st May-July 2009 major combat operations ceased and were replaced with a period of military occupation. During this...
Causation and Catastrophic Injury: When a Late Report Really Is Too Late - Laura Johnson, 1 Chancery Lane
At 2am on 26 January 2006 Jonathan Boyle was at a bus stop on Grove Road in East London with a friend. They had been out that evening and had been drinking. At the same time a police car was being driven south along the road on the way to deal with a pub fight, although not being driven with lights or siren or in any sort of...
Workplace Safety Shift - Scott Whyte, Watermans Solicitors
The Enterprise and Regulatory Reform Act 2013 came into force on 1st October 2013, and brought with it the most significant shift in civil liability for accidents at work in a generation. Part 5 of the Act is entitled Reduction of Legislative Burdens and includes section 69 which outlines changes to civil liability for breach of...
Summary of Recent Cases, November 2013
Here is a summary of the recent notable court cases over the past month.
PI Practitioner, November 2013
Each issue a particular topic is highlighted, citing some of the useful cases and other materials in that area. This month: Public Authorities and Non-Delegable Duties of Care
Medico-Legal Articles, Edited by Dr Hugh Koch
Post-Traumatic Stress Disorder in People with an Intellectual Disability: Why is it going Undetected? - Dr Victoria Lucas
People with intellectual disabilities are more likely to experience traumatic life events than people without intellectual disabilities (1, 2). They experience more sexual and physical abuse (1, 3-5), emotional abuse (1), life threatening illnesses or injury (6) than people without intellectual disabilities. In addition to this people with intellectual disabilities are thought to be at greater risk of developing Post Traumatic Stress Disorder (PTSD) than...
Expert Witness Articles
Litigants in Person Top the List of Expert Witnesses' Gripes - Mark Solon, Bond Solon
Training organisation Bond Solon takes the pulse at its annual Expert Witness Conference held in London each November. Litigants in person (LIPs) turned out to be the pet hate in this year's Expert Witness Survey, which had 165 respondents. Complaints included not being paid (although solicitors' firms also earn criticism in this area, even if they manage to stay solvent)...