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October 2014 Contents

Welcome to the October 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
Recent Developments in Asbestos Litigation - Niall Maclean, 12 King's Bench Walk
Asbestos-related illnesses continue to be litigated controversially, with no apparent let-up in the number of new claims and the complexity of the issues they generate. In this article I hope to give a flavour of some of the most important developments in this area over the past year or so...
Part 36 and PI Claims: Truth and Myths - John-Paul Swoboda, 12 King's Bench Walk
Part 36 was brought into existence to encourage settlement between the parties. However it can sometimes feel that as opposed to encouraging settlement Part 36 has imported an additional layer of complexity into proceedings. This article will consider some essentials truths about part 36 and some myths about part 36.
Awarding Aggravated Damages in Sexual Abuse Claims - Helen Nugent, No 18 Chambers
With the ongoing process of Operation Yewtree and the decision of the Yorkshire Police last month to commission an independent investigation into its handling of the Rotherham child exploitation scandal, reports of historic sexual abuse have a continued and wide reaching presence in the national headlines.
Editorial: No Information - Aidan Ellis, Temple Garden Chambers
In claims arising from road traffic accidents, where the Insurer has concerns about the claim presented, it is becoming increasingly difficult to advise the Claimant about the merits of their claim pre-action. The reason is that Insurers commonly send a letter repudiating the claim but not setting out...
RTA Protocol: Late Final Payments Are Not a Ticket to Greater Costs - Matthew Hoe, Jaggards & Taylor Rose Law
Can a claimant tear up the agreement and issue Part 7 proceedings for the damages if the defendant fails to pay damages and/or costs within 10 days of a settlement at Stage 2 of the RTA or EL/PL Protocol? That was the issue before the court in Coggon v Irvine...
Limitation: Did Curiosity Kill the Cat? - Luke Andrew Menary, Barrister, Liverpool Civil Law
Considering the impact of Collins v The Secretary of State for Business Innovation and Skills [2014]...
Vnuk: End of the Road? - Nicholas Bevan, Solicitor, Mediator, Consultant and Trainer
On 4th September the Court of Justice of the European Union (CJEU) delivered what is arguably its most important ruling to date on the scope of compulsory third party motor insurance (TPMI). The decision in Damijan Vnuk v Zavarovalnica Triglav d.d., [2014] CJEU Case C-162/13 is a 'game-changer'...
Top Five Tips for... Video Surveillance - Sarah Venn, Hardwick
Watch all of the surveillance. As Barabara Fari discovered, surveillance evidence can be powerful and turn a case upside down. However, both sides need to carefully and methodically review surveillance evidence before drawing conclusions about its impact on a claim. Surveillance companies typically adopt the "Match of the Day" approach...
QOCs and Tour Operators: Further Thoughts - Matthew Chapman, 1 Chancery Lane
This Note is a further rumination on Frances McClenaghan's recent post about the Court of Appeal's very recent decision in Wagenaar. It considers the tactical implications (for Tour Operators) of the QOCs rules (in respect of Part 20 recovery claims against local suppliers).
Adjusting the Ogden Reduction Factors to Reflect a Spectrum of Disability - Jack Harding, 1 Chancery Lane
In the context of a claim for future loss of earnings, for a number of years the Courts have been grappling with the thorny issue of when it is appropriate to adjust the reduction factors (RF) in Ogden tables A to D (contingencies other than mortality) to reflect the particular circumstances of the claimant and the...
Jackson Takes Stock - Flora Wood, Ashfords Solicitors
In a keynote speech on 30 September 2014, Lord Jackson reminded us of his vision for the future. Whilst the Rule Committee has introduced new fixed costs rules for fast track personal injury cases (amending CPR Part 45), effective from 1 April 2013, these fixed costs are lower than...
Does Fatal Accident Legislation Treat Gay Men and Gay Women Differently? - Gordon Exall, Zenith Chambers
As currently drafted the Fatal Accidents Act 1976 could treat gay men and gay women differently. Here I look at the reason why and examine the possible solution.
The Less Advantageous Part 36 Offer: Costs Consequence Following Variation - James Manning, Chartered Legal Executive, Plexus Law
What are the cost consequences of accepting a Part 36 offer where, after the relevant period under r 36.2(2)(c) had expired, an offeror varied the terms of the offer under r 36.3(6) to make it less advantageous? This issue was considered in Burrett v. Mencap Limited [2014].
Live in Carers: Always Explore the Alternatives - Bill Braithwaite QC, Head of Exchange Chambers
Several years ago, there was a trend for insurers to suggest that people who had been catastrophically injured could be looked after by "live-in carers". It became a term with a specific meaning, namely the equivalent of a housekeeper. The carer would work 24 hours a day, sleeping normally at night in the patient's home...
Loss of Services Claim for "Housewife" Is Not a Nominal Loss - Gordon Exall, Zenith Chambers
I looked at the case of Knauer -v- Ministry of Defence [2014] EWHC 2553 (QB) earlier. However one significant aspect of the case justifies close examination. The judge put a clear and definite value on the loss to a widower caused by the death of his wife who were in a "traditional" relationship where she did all the housework...
Unacceptable Behaviour From Experts - Bill Braithwaite QC, Head of Exchange Chambers
I saw a client recently who had visited quite a lot of medico-legal experts. He has sustained a serious brain injury, as well as many other serious injuries. He was accompanied by a member of his family; she seems to me to be an extremely sensible and nice person. According to her, the consultation with the expert (a doctor) was "horrible"...
Is There a Fourth Way to Assess Future Loss of Earnings? - Geoff Owen, Greenwoods Solicitors
Once upon a time there was the Smith v Manchester award. If the claimant returned to work but with a disability which put him at a substantial and not speculative or fanciful disadvantage on the open labour market, he would receive an award, often linked to so many...
Pressure by Insurers to Settle - Bill Braithwaite QC, Head of Exchange Chambers
There's a real tension, I think, between finishing a catastrophic injury claim quickly, and getting the right result. Insurers seem to me to be pushing hard in many cases to have early meetings, to become involved in rehabilitation, and they use that process to pave the way for early settlement discussions...
Summary of Recent Cases, October 2014
Here is a summary of the recent notable court cases over the past month.
PI Practitioner, October 2014
Each issue a particular topic is highlighted, citing some of the useful cases and other materials in that area.  This month: Ogden Tables A to D: The Use of Adjusted Reduction Factors.
Medico-Legal Articles, Edited by Dr Hugh Koch
How to Verify Details of What Claimants Tell Us - Dr Hugh Koch and Dr Caroline Formby
Review of Article: Exploiting liars' verbal strategies by examining the verifiability of details - Nahari G, Vrij A and Fisher R P - Legal and Criminological Psychology (2014) 19, 227-239
Expert Witness Articles
Switching Experts - Chris Pamplin, Editor of the UK Register of Expert Witnesses
Chris Pamplin looks at what can be done when your expert's opinion changes. In these days of austerity and with a cost-conscious judiciary, less leeway is likely to be given to parties in matters of procedure, including late applications relating to expert evidence...