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November 2014 Contents

Welcome to the November 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
FREE CHAPTER: 'RTA Personal Injury Claims Post Jackson: A Practical Guide' by Andrew Mckie
A free chapter from the new book 'RTA Personal Injury Claims Post Jackson: A Practical Guide' by Andrew Mckie, A clear but comprehensive guide to road traffic accident personal injury claims. Covers issues in relation to RTA claims dealing with such issues as the portal, fixed costs, liability, indemnity, vicarious liability, causation, litigation tactics, investigating quantum, vehicle related damages and head of special damages, commonly found in RTA cases and in particular focuses on the day-to-day issues in practice, one encounters with such cases.
Editorial: Oral Applications for Relief from Sanctions - Aidan Ellis, Temple Garden Chambers
Despite the best intentions of the Court of Appeal, the repercussions of Mitchell, Denton and the redrafting of CPR 3.9 continue to dominate recent High Court decisions. One interesting recent skirmish revolved around the procedural requirements for an application for relief from sanctions.
A Fundamentally Wrong Decision - Steven Akerman, Brian Barr Solicitors
One of the reasons that drove the Jackson Reforms was the alleged rampant fraud in the personal injury sector. Accident 'victims' (as some would have you believe) saw whiplash claims as easy money. As there is no definitive test to prove that a whiplash injury has been sustained...
McDaniel & Co v Clarke (QBD Mr Justice Hickinbottom, 15th October 2014) - Rupert Cohen, Hardwicke
The judgment of Mr Justice Hickinbottom provided a salutary reminder to solicitors of the need to ensure that in their initial discussion with a potential client they advise and explore with the client other sources of funding litigation...
Williams & Mesothelioma Recent Cases - Alan Care, Thomson Snell & Passmore
Each case must be judged on its own facts. But the judgment in Williams v Birmingham University has clearly taken on a life of its own and been applied, given its facts, perhaps too readily by our courts. A review of recent mesothelioma judgments [since 2007] is examined and discussed...
Injured Aeroplane Passengers and the Montreal Convention - Aidan Ellis, Temple Garden Chambers
With a number of claims management companies promoting the possibility of claiming in negligence against airlines for injuries sustained inflight, it is worth sketching out some of the boundaries limiting claims for such injuries as laid down by the Convention for the Unification of...
Mesothelioma and the New Era of Low Dose Asbestos - Alan Care, Thomson Snell & Passmore
This is the era of low dose mesothelioma claims. Some higher dose worker claims will continue to arise but the number of claimants will continue to fall over the next couple of years and are reducing as I write this article. One simple fact is the aging exposed population of heavily exposed workers...
Mother of Fatal Car Crash Victim Receives Large 'Secondary Victim' Payout - Tim Driver, Michael Lewin Solicitors
The limitations placed on secondary victims hoping to claim compensation were put to the test earlier this year when Martha Young, a child development officer, was awarded over £230,000.00 in compensation after happening across the scene of the car accident which killed her son...
Coventry and the Incompatability of Jackson/LASPO - Steven Akerman, Brian Barr Solicitors
There were many fears permeating the legal profession in the run up to the implementation of the Jackson reforms. Hence, the race to sign up as many clients under the old regime - with recoverable success fees and ATE premiums - before J-day. After all, there was no...
Developments in Fundamental Dishonesty - Martyn Griffiths, Hardwicke
Personal injury practitioners will be aware of the significance of a finding of fundamental dishonesty in the context of Qualified One-Way Costs Shifting ("QoCs") following the implementation of the Jackson reforms...
Part 36 and PI Claims: Truth and Myths Part II - 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 is the 2nd part of this article consider some essential...
Can Incidents of Medical Negligence Be Reduced if NHS Trusts Shared More Data and Information on Medical Errors? - Jeanette Whyman, Wright Hassall
It would be a truth universally acknowledged among sensible people that the sharing of information on best practice, and the identification of meaningful trends gleaned from data, can only be a bonus for all organisations regardless of operation...
Part 36: All Change Please - Gemma Witherington, Hardwicke
Just when you thought you had got to grips with the updated Part 36 rules and post Jackson benefits, the Civil Procedure Rule Committee announced it was considering reforms to Part 36...
Changes to PD 21 of the CPR From 1st October 2014 - Thomas Crockett, 1 Chancery Lane
From 1st October 2014 there will be two important changes to the Practice Direction to Part 21 of the CPR which affect the preparation and conduct of settlement approval hearings.
Is a "Disposal Hearing" a "Final Hearing" - Paul Stanton
On a superficial level, the answer seems to be a fairly simple "Yes"! However, in the world of litigation, the obvious may not always be that obvious after all.......! The case of Taylor v Bunter came before DJ Doyle on the 18th September 2014. The crux of the dispute was which band of...
Loss of Earnings: the "Ogden Approach" in Practice: Two Cases Examined - Gordon Exall, Zenith Chambers
Several years ago the notes to the Actuarial Tables set out a more "scientific" means of assessing damages for future loss of earnings. In essence this is done by using the difference between the multipliers in relation to...
The Difference Between Winning and Losing - Bill Braithwaite QC, Head of Exchange Chambers
One of the topics I blog about most is the selection and use of experts in catastrophic injury litigation. The reason is that it is one of the most important topics; good experts help us to win cases, bad ones damage or lose them.
Schedules, Counter Schedules and the Gadget Generation - Simon Readhead QC, 1 Chancery Lane
No self-respecting Schedule of Loss is now complete without a hefty claim for "Assistive Technology" items. The response in most Counter Schedules is that the Claimant is likely to have possessed all or some of the items being claimed in...
Disability in the Labour Market: Another Example Where the Actuarial Tables Could Not Be Used - Gordon Exall, Zenith Chambers
It is interesting to look at an example of an award for disability in the labour market being used in practice. In the Northern Irish case of Hazlett -v- Robinson [2014] NIQB 17 Gillen J contains a succinct review of the relevant case law...
Fast Paced Change in Catastrophic Brain Injury Litigation - Bill Braithwaite QC, Head of Exchange Chambers
Over the years, management of catastrophic brain injury has become increasingly specialised for lawyers, and it is interesting to see how some litigators have failed to keep up with the changes...
Summary of Recent Cases, November 2014
Here is a summary of the recent notable court cases over the past month.
PI Practitioner, November 2014
Each issue a particular topic is highlighted, citing some of the useful cases and other materials in that area. This month: CPR 31.16
Medico-Legal Articles, Edited by Dr Hugh Koch
Challenges for 2015 for Experts - Hugh Koch and Hayley McCann
Review of 'Psychological Assessment of Symptom and Performance Validity, Response Bias and Malingering'. Bush S S, Heilbronner R L and Ruff RM. Psychology Injury and Law (2014) 7; 197 - 205