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March 2014 Contents

Welcome to the March 2014 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
RTA Fraud in a Jackson World: the Future of Fraud - Andrew Mckie, Clerksroom
Chapter 10 of 'RTA Allegations of Fraud in a Post-Jackson Era: The Handbook' by Andrew Mckie. It seems, that one of the new emerging frauds which was widely reported in the media towards the end of 2013 is 'flash for cash'. This may involve an innocent motorist being flashed out of a junction by...
Editorial: Mitchell Update - Aidan Ellis, Temple Garden Chambers
Since the Jackson reforms and the Court of Appeal decision in Mitchell, anecdotal evidence suggests that most personal injury lawyers have some horror stories to tell. Whether they relate to cases being struck out for a single day's delay or to unreasonable unless orders, the overwhelming impression has been...
Fraud, Burdens of Proof and Pleadings - Andrew Mckie, Clerksroom
Chapter 7 of 'RTA Allegations of Fraud in a Post-Jackson Era: The Handbook' by Andrew Mckie. Do You Have To Prove Fraud? In the majority of cases, it may be argued that there will be no need to prove fraud, even if there is sufficient evidence in order to plead it. In many cases, the Defendant's insurer will not...
Credit Hire and Storage Fraud - Andrew Mckie, Clerksroom
Chapter 6 of 'RTA Allegations of Fraud in a Post-Jackson Era: The Handbook' by Andrew Mckie. 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...
Costs Budgeting II (The Sequel): No More Horror Stories? - Tom Gibson, Outer Temple Chambers
The High Court has ruled that a costs budget containing the "[Statement of Truth]" error should not be struck out - and indeed that a strike out for this reason would "bring the rules of procedure and the law generally into disrepute" (per Stuart-Smith J in The Governor & Company of the Bank of Ireland...
Pedestrian Road Accidents at the Borderline of Liability - James Rowley QC, Byrom Street Chambers & Crown Office Chambers
We all think we know how to handle liability issues in pedestrian road accident claims. The recent case of Scott & Evans v Griffiths QBD 17.01.14 Lawtel (HHJ Oliver-Jones QC sitting as a Judge of the High Court) provides a number of salutary reminders when operating at the very borderline of primary liability or none.
Claimant Overturns Finding of Contributory Negligence in Court of Appeal - David Boyle, Deans Court Chambers
Having established primary liability at trial, but subject to a finding of contributory negligence of 40%, the Claimant successfully appealed the latter decision, notwithstanding that it involved findings of fact and the exercise of judicial discretion.
A Review of Recent Criminal Injury Compensation Authority (CICA) Cases - Sophie Beesley, Old Square Chambers
Two recent decisions emphasise that for an injury to qualify under the Criminal Injuries Compensation Scheme (CICS), it must be caused by a 'crime of violence'. For an act to be simply criminal or merely irresponsible is not sufficient, no matter how severe the injury.
Independent Facilitators - Bill Braithwaite QC, Head of Exchange Chambers
I start this article with a quote from two cases, one old and one recent, which emphasise the importance of selecting good experts, and using them appropriately: "Regrettably, I was not at all impressed with some of the answers which I received from Mr *. I did not feel he was the wholly unbiased...
Loss of Consortium: A Developing Head of Damage: The Cases Considered - Gordon Exall, Zenith Chambers
The claim for "Intangible Loss". This head of damage for 'intangible' loss - is a common feature in claims brought by children when their mother was killed and has been so since the cases of Regan v Williamson [1976] 1 W.L.E 305 and Mehment v Perry [1977].
Vann & Others v Ocidental-Companhia De Seguros S.A. [2014] EWHC 545 (QB) - Gerard McDermott QC & Jessica Denton
A recent High Court decision illustrating the Court's approach when applying the law of another jurisdiction under the provisions of the Rome II Regulation. The trial was heard at the Royal Courts of Justice on 17th and 18th February 2014. In addition to its importance for cross-border and travel law practitioners...
Simson v London Borough of Islington [2013] EWHC 2527 (QB) - Daniel Tobin, 12 King's Bench Walk
On 19th April 2009 the Claimant tripped over a defect in the carriageway of Hargrave Road, in Archway, North London. The Defendant was the highway authority for Hargrave Road, which was a residential street with residents' parking bays on both sides. There were also a number of shops...
Contractor Duty of Care: Clarification for Occupiers (Yates v National Trust) - Nicholas Thorne, Berrymans Lace Mawer LLP
Claims involving occupiers are seldom straightforward and for that reason, continue to exercise the minds of lawyers and judges alike. In contrast to claims against an employer, where the duty of care is non-delegable, the starting point is to examine whether a duty of care exists. In cases involving the...
How to Resolve the Tricky Question of The Uncooperative Litigation Friend - Augustus Ullstein QC, Thirty Nine Essex Street
What are solicitors and counsel to do in a case in which they consider that the Litigation Friend is being uncooperative and/or failing to act in the best interests of the protected party? In the vast majority of cases the answer is relatively simple. An application can be made to the Court pursuant to...
Rebecca Coles v David Perfect - Augustus Ullstein QC, Thirty Nine Essex Street
On the 11th May 2008, when she was 14 years of age, Rebecca Coles was being towed on an inflatable ring by a speedboat owned and driven by Mr. Perfect on the river Orwell in Suffolk. Mr. Perfect failed to see a sailing boat in front of him and swerved to avoid a collision. That manoeuvre caused...
Duties to Pregnant Women and New Mothers: The Small Element of Civil Liability for Breach of Statutory Duty That Remains - Gordon Exall, Zenith Chambers
There is one, very small, element of civil liability for breach of statutory duty that remains. Here we look at the action for breach of duties owed to pregnant women and breastfeeding mothers. The exceptions are limited but practitioners need to be aware of them...
Courts Take Robust Approach Post Mitchell - Dr Maggie Bloom, Hardwicke
Another Mitchell decision has been handed down with a robust sanction - this time in a personal injury case. The case, heard in the Central London County Court, was Claim No. 2YL20478 Rahala Khalida (formerly Manna) (Personal Representative of Abdul Manna deceased) v ...
Drafting in Allegations of Fraud Cases, Pre-Action Disclosure Applications and Disclosure - Andrew Mckie, Clerksroom
Chapter 8 of 'RTA Allegations of Fraud in a Post-Jackson Era: The Handbook' by Andrew Mckie. Witness Statements. It is arguable, that the Witness Statement is likely to be the most important document in the entire case for both the Claimant and the Defendant. It may be argued, that an entire case can turn upon...
The New Stricter Approach to Applications for Relief From Sanction Reaches the SCCO - Gary Knight, Harmans
The decision of the Court of Appeal in Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1526 was intended to send out a clear message to the legal profession that applications for relief from sanction would be granted only where (very) good reason for failure to comply with a...
Yates v National Trust - William Norris QC, Thirty Nine Essex Street
Jamie Yates was 22 and was working as a tree surgeon for Joe Jackman - trading as Joe Jackman and Sons - when on 4th December 2009, he fell some 50 feet from a tree and suffered catastrophic injuries. The accident happened in Morden Hall Park, where Mr Jackman had been engaged to carry out various...
Phantom Passengers - Andrew Mckie, Clerksroom
Chapter 5 of 'RTA Allegations of Fraud in a Post-Jackson Era: The Handbook' by Andrew Mckie. Bogus Passenger Allegations: How do they arise? It is a 4pm on a dark December evening. The Claimant has just picked his two young children up from school, who are five and six respectively...
Vicarious Liability for Prisoners at Work: Cox v Ministry of Justice [2014] EWCA Civ 132 - Robert Weir QC, Devereux Chambers
In 1865 hard labour was introduced as a form of punishment over and above the punishment of deprivation of liberty. Its essence was that labour should be unproductive. Over time, penal policy changed and prisoners were put to useful work. This was seen to have a...
Presenting Evidence of Executive Functions Deficit in Court: Why Is Behaviour So Important? - Dr Nicolas Priestley & Dr David Manchester
The executive functions are a range of higher order cognitive abilities that play a fundamental role in successful adaptive living. After brain injury even mild impairments in these abilities can cause significant deficits in personal, social and occupational realms. In this article we consider three issues relevant to the...
Asbestos in Schools: The Need for Urgent Action - Julie Winn, Pattinson & Brewer
The Department for Education (DfE) has launched its policy review on the asbestos management in schools. The consultation closing date is 31st March. The review calls for evidence from all organisations and individuals with an interest in the issue.
Fraud and Costs - Andrew Mckie, Clerksroom
Chapter 9 of 'RTA Allegations of Fraud in a Post-Jackson Era: The Handbook' by Andrew Mckie. A copy of the new costs Matrix for portal cases and fixed costs cases on or after 31 July 2013 is shown below. These tables are reproduced from...
Summary of Recent Cases, March 2014
Here is a summary of the recent notable court cases over the past month.
PI Practitioner, March 2014
Each issue a particular topic is highlighted, citing some of the useful cases and other materials in that area. This month: Extensions of Time
Medico-Legal Articles, Edited by Dr Hugh Koch
Depression and Sleep - Dr Kathryn Newns
Sleep disturbance is an integral feature of depression - hypersomnia , fatigue, poor sleep quality, early morning waking or insomnia are common in people with low mood. It is thought that this is due to problems with central nervous system arousal (Thase, 1998). Research has found, however, that as well as being a feature of depression...