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May 2015 Contents

Welcome to the May 2015 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
Being Your Own Worst Enemy: The Need to Clearly Disclose Mental Health Issues to an Employer in Stress at Work Claims - Liam Ryan, Ely Place Chambers
Liam Ryan considers the recent case of Easton v B&Q plc. [2015] EWHC 880 (QB) and the impact the Judgemet may have on future stress at work claims, and the guidance that can be gleaned on how to bring, and how to defend such claims...
Can an Insurer Claw Back a Compensation Payment When It Finds New Evidence of Fraud Years Later? - Michael Mulcare, Mayo Wynne Baxter LLP
The Court of Appeal considered this point in March 2015 in the case of Hayward - v- Zurich Insurance Co plc (2015) following an earlier Judgment, which set aside a previous settlement in a personal injury claim. It rejected the insurer's arguments and decided that the original settlement was binding...
Expanding the Arsenal - Richard Paige, Park Square Barristers Chambers
On 12th February 2015 the Criminal Justice and Courts Act 2015 received Royal Assent. Buried in the midst of this legislation are five sections which address issues of significant importance and interest to personal injury lawyers - cases of fundamental dishonesty and inducements. No doubt of greatest interest to those at the coalface of personal injury fraud litigation is section 57...
LHS v First-Tier Tribunal & CICA Judicial Review before Mr Justice Jay, Judgment 21st April 2015 - Adam Farrer, Number 5 Chambers
The sad background to the case is that in 1992 when LHS was 3 years old he suffered a severe brain injury as a result of drinking a quantity of methadone. He was left significantly disabled in terms of his physical, neurological and neuropsychiatric condition. As a result he requires 24-hour care and supervision and will do so for the rest of his life...
Cooper v Royal Berkshire Hospital NHS Foundation Trust: Brain Injury From Post-Natal Seizure & Claimant's Part 36 Offers - John De Bono QC, Serjeants' Inn Chambers
On 13th March 2015 Jeremy Baker J. gave judgment for Christian Cooper, the claimant, in this complex brain injury case. The case is of interest to practitioners with cases where a mother has suffered a seizure or brain injury in the post-partum period...
Catastrophic Injury Schedules, Technology: The Key to Success? - Amanda Yip QC & Will Waldron QC, Exchange Chambers
or too long, schedules were viewed as an afterthought not an essential to success in catastrophic injury cases. Happily, this misconception seems largely to have been consigned to history. However, whether specialist practitioners have fully appreciated the fact that the schedule can be a powerful weapon in the litigation armoury is a matter of debate...
Marley v Rawlings [2014] UKSC 51 and the Court's Approach to Costs - Elaine Bathers, Bolt Burdon Kemp
Last year the Supreme Court made a landmark decision in the case of Marley v Rawlings [2014] UKSC 51 when it decided that a professional indemnity insurer, which was not a party to the action, should be responsible for payment of the majority of the costs incurred by both parties in a wills dispute...
Editorial: The General Election and Personal Injury Litigation - Aidan Ellis, Temple Garden Chambers
By the time that this is published, the unexpected result of the recent general election will have been thoroughly dissected in every newspaper and journal. Since most commentators predicted some form of coalition government, many businesses devoted a lot of energy to pondering what a coalition would mean for diverse topics such as the economy or the United Kingdom's relationship with Europe...
Reacting to Accumulating Knowledge About Asbestos Hazards - Alan Care, Thomson Snell & Passmore
How did the UK and industry react to accumulating knowledge and government guidance and regulations? This article addresses a few areas - asbestos manufacturers, power stations, schools, dockers, dockyards and BT/Post Office...
Judge Adopts "Ogden 7" Approach to Future Loss of Earnings: An Important Issue - Gordon Exall, Zenith Chambers
In Middleton -v- Ipswich Hospital NHS Trust [2015] EWHC 775(QB) HH Judge McKenna (sitting as a High Court Judge) adopted the "Ogden 7" approach to future loss of earnings in the case of a 13 year old child...
QOCS: A Work in Progress - Jayne Doore, Shakespeares Solicitors
Jayne Doore, a senior Member of Shakespeares Solicitors Insurance Team considers the implications of QOCS so far...
Civil Justice Reforms in the Public Sector: Where Are We Now? - Sarah Swan, Hill Dickinson LLP
The civil justice reforms have now had some time to bed in. Two years after implementation, what has the impact been on claims within the public sector and the claims industry overall, and what is likely to happen next? Sarah Swan reviews the emerging picture...
Court of Appeal Confirms How BHR Should Be Calculated in Credit Hire Claims - Shirley Denyer, Shirley Denyer LLP
In the case of Stevens v Equity [2015] EWCA Civ 93 the Court of Appeal has rejected the argument that in a case of replacement vehicle hire by a pecunious claimant the court should find a credit hire charge reasonable if the claimant can show a local Basic Hire Rate (BHR) at the same or a higher rate...
New Law: Fundamental Dishonesty in Pi Claims - Ian Miller, 1 Chancery Lane
The government brought into force last month a new law preventing claimants from recovering damages for personal injury when they have been fundamentally dishonest, unless it would cause substantial injustice...
Loss of Earnings: Serious Injury and the "Lost Years": High Court Case Considered - Gordon Exall, Zenith Chambers
The question of whether a child claimant can receive earnings for the "lost years" when their life expectancy is reduced is a difficult one. It was considered by Mrs Justice Elizabeth Laing DBE in Totham -v- King's College NHS Foundation Trust [2015] EWHC 97 (QB). At the moment the law on this issue is highly unsatisfactory...
Changes to Funding for Judicial Review Cases - Vicky Kane, John M Hayes
Following the successful challenge to the implementation of conditional funding in judicial review cases by the Civil Legal Aid (Remuneration) (Amendment) (No 3) Regulations 2014 in R (Ben Hoare Bell and Others) v Lord Chancellor [2015] EWHC 523 (Admin) the High Court ordered that the amendment regulations be quashed...
Funding, Costs and Fatal Accident Claims: Some Particular Points to Watch - Gordon Exall, Zenith Chambers
Here we look at some particular points relating to the funding of fatal accidents. These matters are considered in more detail in the 3rd edition of Fatal Accident Litigation...
Costs Budgeting: Reforms on Their Way - Ian Miller, 1 Chancery Lane
Jackson L.J. delivered a speech on costs budgeting. For many of us engaged in CCMCs who encounter inconsistency, courts overwhelmed by the volume of hearings, unnecessary costs incurred and often the thinly disguised frustration of judges with the process, his conclusion that 'costs management works', may come as a surprise. His proposals for reform, including fixed costs in some multi-track cases, may not...
Insurers' Test of NIHL Categorisation Fell on Deaf Ears - Philip Morris, John M Hayes
For many years until 2012 noise induced hearing loss (NIHL) cases were accepted by defendant insurers as being categorised as a disease falling within Section V of the Civil Procedure Rules (CPR) Part 45. Thus in respect of matters funded by way of a CFA signed before 1 April 2013, NIHL cases attracted a success fee of 62.5%, that percentage having been negotiated early in 2005...
Calling Time on the Compensation Culture - Peter Allchorne, DAC Beachcroft
Under the pre-Jackson regime, the frequency and cost of whiplash claims spiralled out of control, creating a 'feeding frenzy' for claims management companies and lawyers alike. Out of kilter with the rest of the continent, this has resulted in the UK claiming the unenviable title of 'whiplash capital of Europe'. More significantly, higher claims payments have rendered...
Fatal Accident Dependency: Chance of Reconciliation Gives Rise to 80% of Damages - Gordon Exall, Zenith Chambers
The judgment of HHH Judge Coe (sitting as a High Court judge) in Hayes -v- South East Coast Ambulance Service NHS Foundation Trust [2015] EWHC 18 (QB) highlights an important aspect of fatal accident damages...
Frequently Asked Questions on How to Assess Children - Dr Mark Burgin
Doctor Mark Burgin, BM BCh (oxon) MRCGP Diploma in Child Health answers frequently asked questions on how to assess children following a road traffic accident and in other circumstances...
Insurers' Proposals for Further Reform to the PI Sector - Ian Miller, 1 Chancery Lane
The Association of British Insurers' website recently set out its top 10 insurance and savings priorities for the next parliamentary session. The most striking of these for personal injury lawyers is the proposal for "Modernising the civil justice system to get compensation to claimants rather than lawyers."...
Summary of Recent Cases, May 2015
Here is a summary of the recent notable court cases over the past month.
PI Practitioner, May 2015
Each issue a particular topic is highlighted, citing some of the useful cases and other materials in that area.  This month: A brief summary of the changes to Part 36 which came into effect on 1 April 2015