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June 2015 Contents

Welcome to the June 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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"Subtle" Brain Injury Claims - Pankaj Madan, Exchange Chambers & 12 King's Bench Walk
This article will give a brief overview, of "Subtle" Traumatic Brain Injury ("STBI"), what it is and how to recognise it and what causes it. We will look at whether this is a Psychiatric or Organic injury or even real. We will then turn to the management of a case involving Subtle Brain Injury and what lawyers can do practically to ensure the best outcome in such a case...
Editorial: Fixed Costs and Applications - Aidan Ellis, Temple Garden Chambers
One of the most restrictive parts of the fixed costs regime relates to interim applications. CPR 45.29H limits the costs usually allowable on an interim application to £250 where the fixed costs regime applies. The Court may only award more than fixed recoverable costs in "exceptional circumstances" (CPR 45.29J)...
Informed Consent in Clinical Negligence Claims: The New Law Explained and the Consequences Considered - John-Paul Swoboda, 12 King's Bench Walk
On 11th March 2015 the Supreme Court handed down its judgment in Montgomery v Lanarkshire Health Board [2015] UKSC 11 which considered how the courts should determine whether a medical professional had fulfilled their duty to provide disclosure of the risks of a medical procedure to a patient (i.e. informed consent)...
How Trivial Does Trivial Have to Be? - Andrew Christon, Keoghs
A general observation in life is that most people will not turn to the courts and the legal system to resolve trivialities. Indeed the legal system itself and specifically the laws of negligence requires there to be proof of actual damage before compensation will be awarded. In the absence of actual damage a negligence claim will be incomplete and fail...
Success Fees in Children's Compensation Claims - Geoffrey Simpson-Scott, Colemans-ctts
The 6th April 2015 update to the CPR makes it much harder to successfully charge the full 25% success fee where we present children. Evidence justifying the percentage deduction needs to be presented at an infant approval hearing. These requirements are...
What Is 'Fundamental Dishonesty' and How Will It Impact on Personal Injury Claims? - Karen Mann, Hodge Jones & Allen
In the Law Society Gazette (20th April 2015 issue) Jonathan Wheeler, the incoming president of the Association of Personal Injury Lawyers (APIL), wrote of his intention to turn the tables on insurers over 'fundamental dishonesty legislation'...
LASPO And The Scales of Justice - Michael Hardacre, Slater and Gordon (UK) LLP
We have reached another milestone in the on-going process of reform of civil litigation costs having just past the second anniversary of implementation of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) which came into force in April 2013...
Pre-Action Protocol for Personal Injury Claims: The Key Changes - Fiona James & Simon Denyer, DWF
A number of civil reforms relevant to the handling of personal injury claims came into force on 6 April 2015 including amendments to the CPR Part 36 rules, the introduction of Medco for the instruction of experts in whiplash claims, and revised protocols in personal injury and clinical negligence.
Changes to the Spanish Baremo System - Matthew Chapman, 1 Chancery Lane
English lawyers familiar with the ECJ decision in Odenbreit and the inroads made into English law by the Rome II Regulation are also likely to have at least a passing acquaintance with the Spanish Baremo Rating System for the Assessment of Damages in personal injury claims. The system applies compulsorily in a road traffic...
A Child's Earning Potential Cannot Be "Written Off": High Court Decision on Earnings Where Claimant Already Had Pre-Existing Problems - Gordon Exall, Zenith Chambers
In Tate -v- Ryder Holdings [2014] EWHC 4256 (QB) Mr Justice Parker considered issues relating to loss of earnings of a young child from a disadvantaged background. He dismissed the argument that a relatively nominal award should be made for future loss of earnings...
Relief from Sanctions / Strike Out: Is it "Worth a Go"? - Thomas Crockett, 1 Chancery Lane
Last month the Commercial Court dealt out a salutary warning to Parties whom are seen to opportunistically attempt to take advantages of defaults by their opponents...
Do Financial Constraints Justify Limitations on the Scope of a Solicitors' Duty? - Sushma MacGeoch & Lucy Murphy, Bond Dickinson LLP
In the arena of personal injury litigation costs constraints have led a number of firms to seek to streamline the case management and handling of the file, particularly in circumstances where a firm acts for a number of claimants who have suffered the same injury. This article considers a recent Court of Appeal judgment of Procter v Raleys...
Section 57 Applications: Are New Powers to Curb Fraudulent Claims Too Draconian? - Dafydd Paxton, Unity Street Chambers
Fraudulent and exaggerated personal injury claims have been a thorny issue for successive governments for a number of years, with the issue progressively gaining greater public attention. Yet despite the hand-wringing and bluster coming from the Westminster bubble, politicians have more often than not simply left the issue to the courts to determine...
Direct Actions Against Foreign Insurers in PI Claims: The Sting in the Tail - Jack Harding, 1 Chancery Lane
Barristers and solicitors practising in the field of personal injury litigation arising from accidents abroad have, for some time, been comforted by the fact that - at least as far as EU member states are concerned - it is relatively easy to identify a direct cause of action (under the relevant local law) against the tortious party's insurer, thereby permitting...
Court of Appeal to Decide Whether the Simmons v Castle 10% Uplift Applies in the Employment Tribunal - Susan Thompson & Claire Holland, Magrath LLP
Damages for personal injury can be claimed as part of compensation for discrimination in the employment tribunal and normally feature in the context of psychiatric injury. Any compensation for personal injury, however, should only reflect the degree to which the discrimination has caused or contributed to the psychiatric injury...
Panagaki v Minetta SA General Insurances - Katherine Deal, 3 Hare Court
Panagaki v Minetta SA General Insurances: Judgment 14 May 2015, reported Lawtel 15 May 2015. In March 2014 the Claimant, then aged 22, sustained catastrophic injuries in a road accident in Greece when the taxi in which she was travelling overturned. She had been born in Greece to a British mother and a Greek father. She held dual nationality and used a British passport...
Here Be Dragons! Fundamental Dishonesty in Personal Injury Claims - Paul Spiteri, Hugh James
In days of yore, there was a man called Summers who verily injured himself in the course of his employment and sued his employers, Fairclough Homes.  Summers sought redress of more than £800,000 of the realm. However, Fairclough's insurers, suspicious of the claim, had him watched and proved he had massively exaggerated his plight...
Exemplary Damages: Credit Hire, Fraud and QOCS - Patrick West, St John's Chambers
Patrick West looks at the latest cases and explores the future of the law's oldest way of punishing wrong-doers...
Ostriches & Owls: s14(3) of the Limitation Act 1980 - Simon Anderson, Park Square Barristers
To what extent are claimants expected to express curiosity about the cause of their illness for the purposes of s.14(3) Limitation Act 1980? Simon Anderson examines this important question...
Vicarious Liability for Workplace Violence - Jonathan Mitchell, Ropewalk Chambers
On Thursday 5th February the Court of Appeal handed down its judgement in the case of Graham v Commercial Bodyworks Ltd [2015] EWCA Civ 47. Mr Graham was very badly burned when a colleague, who had been one of his best friends and who had obtained the job with the defendant employer for him, sprayed or threw...
Noise Induced Hearing Loss Claims: a Disease or an Injury? Dalton v BT Considered - Sarah Page-Croft, R Costings
A large number of Claimants have brought claims against their employers, or former employers, following exposure to excessive levels of noise at work, which they allege have caused them noise induced hearing loss ("NIHL")...
Fundamental Dishonesty: Exceptions to QOCS and Dismissal of Genuine Claims - Paul Brandish, Horwich Farrelly
Paul Brandish, Partner at Horwich Farrelly, comments that the courts have shown a real willingness to withdraw QOCS protection and considers "fundamental dishonesty" in the context of the CJCA 2015...
Two Wheels Good, Four Wheels Bad? - Stuart Gist, Clarke Willmott LLP
it's not that simple, concludes Stuart Gist of Clarke Willmott LLP, as he gets back to basics on the law as it relates to cyclists.
Loss of Earnings of a Self-Employed Female Photographer: A High Court Case Considered - Gordon Exall, Zenith Chambers
One of the aims of this blog is to highlight the various approaches that the courts take to claims for loss of earnings. In Tait -v- Gloucestershire Hospitals NHS Foundation Trust [2015] EWHC 848(QB) HH Judge McKenna considered a claim for loss of earnings for a 34 year old self employed photographer...
Greasing the Wheels of Fraud - Paul Wainwright, Browne Jacobson LLP
Lance Armstrong may feel hard done by. After all, he was one of many, and cheating was rife. But as the one who took the accolades, the applause and the celebrity lifestyle, should he be given the chances to undo what has been done, and reduce his lifetime ban?
Update on Driverless Car Trials and Code of Practice - Ruth Graham, BLM
On 11th February 2015 the government launched a regulatory review giving the green light for driverless car testing in the UK, and launched driverless car projects in four British locations. The car trials are being operated by a consortia of stakeholders which includes insurers, software engineers, vehicle manufacturers, university researchers, and local councils...
Summary of Recent Cases, June 2015
Here is a summary of the recent notable court cases over the past month.
PI Practitioner, June 2015
Each issue a particular topic is highlighted, citing some of the useful cases and other materials in that area.  This month: Employers' liability insurance and insurers' equitable rights of contribution
Medico-Legal Articles, Edited by Dr Hugh Koch
Medical Negligence: Psychological Perspectives on Why People Pursue Litigation - Dr Karen Addy
There is a common perception that the UK has become an increasingly more litigious society and the government is exploring ways to reduce the number of claims. Whilst there is a perception that there has been an increase in compensation claims the number of actual claims for damages due to a medical accident or negligence has increased slowly and whilst the government has focused upon the financial impact of compensation claims little attention seems to have been given as to why people decide to pursue litigation...