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August 2015 Contents

 

Welcome to the August 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
Two Lessons to be Learnt - Jennifer Haren, Weightmans LLP
So far in 2015 we have seen two decisions which are not only likely to leave a lasting mark on the profession but also a judiciary in no doubt expecting lessons to be learnt. The first was Proctor v Raleys Solicitors [2015] EWCA Civ 400 where the Court of Appeal rejected submissions that financial pressures require solicitors to...
Editorial: Consultation on Court Closures - Aidan Ellis, Temple Garden Chambers
The Ministry of Justice is currently consulting on proposals to close around 90 Courts, including 19 County Courts and other Combined Courts. Following the closure of around 140 Courts in 2010, there are currently 460 operational Courts and Tribunals. Thus roughly one in every five courts could be closed, with a loss of...
Curbing the Excesses: Post Stevens Case Law Round Up - Gary Herring, Horwich Farrelly Solicitors
Almost seven months on from the decision of the Court of Appeal in Stevens v Equity[2015] EWCA Civ 93, and County Court lists remain busy with credit hire disposals requiring the court's determination of the basic hire rate.
Coventry v Lawrence: Old Style Costs Regime Survives Human Rights Challenge - Robert Weir QC, Devereux Chambers
On 23 July 2014, in a judgment in Coventry v Lawrence [2014] UKSC 46 also covering the issue of a landlord's liability for nuisance, Lord Neuberger endorsed the arguability of the defendant's case that its liability to pay the successful party's success fee and ATE premium breached the defendant's Convention rights under article 6 (the right to a fair trial) and Article 1 of the First Protocol, known as...
Erra in Law - Richard Johnson, Browne Jacobson LLP
Following the introduction of Enterprise and Regulatory Reform Act 2013 "ERRA" the new landscape for personal claims post 1st of October 2013 is that such claims are, save for limited exceptions, dependent upon whether the claimant can prove negligence by proving breach of duty and foreseeable risk of injury...
Coventry v Lawrence: Supreme Court Rules That Conditional Fee Agreements Don't Breach Human Rights - Frances Coulson, Moon Beever Solicitors
On 22 July the Supreme Court gave judgment in Coventry v Lawrence. This simple neighbour nuisance case had the misfortune to become a test case for the argument that the recoverability of adverse costs premiums and success fees on CFAs from the opponent amount to a breach of that paying party's Article 6 ECHR (and/or article 1 of the first protocol to the Convention) human rights...
Stress at Work: a Matter of History - Mark Fowles, Browne Jacobson LLP
Over 10 years ago now the Court of Appeal gathered four cases to be heard together with the express intention of providing guidance as to the handling of stress at work cases claims. The fact that they recognised the need was important. It amounted to an acceptance that there was something special about this sort of claim that distinguished it from the ordinary run of employer liability claims. Ten years on despite many initiatives and improved workplace practices...
Preparing Expert Evidence - Geoffrey Simpson-Scott, Colemans-ctts
In Mulholland v Medway NHS Foundation Trust [2015] EWHC 268 (QB), Green J helpfully reiterated a series of principles for the proper assessment of expert evidence on breach of duty at trial. These principles are not new; as he set them out previously in C v North Cumbria University Hospitals NHS Trust [2014] EWHC 61 (QB)...
Moreno v Motor Insurers' Bureau - Matthew Channon
High Court of Justice Queens Bench Division, Mr Justice Gilbart, 17 April 2015, 2015 EWHC 1002 (QB). The claimant was a 25 year old who had sustained serious injuries whilst on holiday in Greece. She was standing on the verge of a road when the car left the road and struck her, causing severe injuries to her legs, requiring amputation. The driver of the vehicle, who was at fault, was uninsured...
Car vs Cyclist: Apportionment of Liabilty - Sophie Mortimer, 1 Chancery Lane
Fenella Sinclair (A protected person by her litigation friend & daughter) v Rachel Joyner [2015] EWHC 1800 (QB). The Claimant was cycling along a rural road. She was in the middle of the road, standing on her pedals. She was not wearing a helmet. The Defendant was driving her car along the same road in the opposite direction. She had just come around a bend when she saw the Claimant...
A Summary of the Key Changes to Part 36 - Brian Booth, John M Hayes
As of 6 April 2015 the Provisions of Part 36 underwent a significant update. This summary attempts to provide a run-down of the key changes from a costs practitioner's perspective...
Expert Evidence in Road Traffic Cases - Ian Miller, 1 Chancery Lane
Is the evidence of an expert in cycling safety reasonably required in a personal injury claim arising out of an accident which the claimant alleges was caused by the highway authority's breach of duty (in respect of maintenance, layout etc)? At a Case Management conference in the case of Allen v Cornwall Council [2015] EWHC 1461...
High Costs Cases; Are You Making the Most Out of the Ccfs Scheme? - Leanne Davies, John M Hayes
Once it comes to light that a care matter is going to exceed costs of £25,000, it is time to register it as High Costs. Previously, the only option would be to prepare a fully costed hourly rates case plan which would need updating and negotiating with the Legal Aid Agency on a regular basis. Now, it is important to consider whether one of the CCFS (previously Events) case plan models would be...
Court of Appeal Overturns 'Michelin Man' Pay-Out Decision - Charles Bagot, Hardwicke
It had been 10 years since a secondary victim claim had reached the Court of Appeal when the important case of Taylor v A.Novo(UK) Ltd [2014] QB 150 was decided, in March 2013. By contrast, the last six months have seen a series of key decisions illustrating the approach first-instance Courts will take in the light of Taylor, namely...
Brownlie v Four Seasons Holdings Inc [2015] EWCA Civ 665 - Matthew Chapman, 1 Chancery Lane
On 3 July 2015 the Court of Appeal handed down judgment in Brownlie v Four Seasons Holdings Inc [2015] EWCA Civ 665: a fatal road traffic accident and personal injury claim arising out of an "off-package" excursion contract performed in Egypt. In largely dismissing the Defendant's appeal against the Order of...
Loss of Earnings in the Case of a Child Injured at Birth: An Example From the High Court - Gordon Exall, Zenith Chambers
It is always worthwhile looking at the way a trial judge has awarded damages for loss of earnings. This assists greatly in advising clients as to the likely approach at trial. In Robshaw -v- United Lincolnshire Hospitals NHS Trust [2015] EWHC 923 (QB) Mr Justice Foskett awarded damages for loss of earnings to a 12 year old boy who had been seriously injured at birth.
Can the Court Consider Hourly Rates in the Budgeting Process? - Mark Banyard, John M Hayes
Earlier this year, Warby J gave judgement in the case of Yeo v Times Newspapers Ltd [2015] EWHC 209 (QB). This was a decision primarily on whether the Claimant's plea of malice should be struck out but, because the application for strike-out was made whilst the budgeting process remained live, it afforded an opportunity for Warby J to provide some guidance as to the latter in a reported authority...
Secondary Victims: a Race Between the Claimant and the Ambulance? - Brenna Conroy, Hardwicke
It is hard to escape the notion that the rise in the number of secondary victim claims in recent years owes its success to the amorphous concept of 'proximity'. The test of proximity itself is well established: a secondary victim claimant can only establish a claim in law as a result of witnessing an event or its immediate aftermath. Establishing proximity does not pose much of a problem if the claimant has...
Contribution, Limitation and the Athens Convention - Ian Miller, 1 Chancery Lane
In South West Strategic Health Authority v Bay Island Voyages [2015] EWCA Civ 708 the Court of Appeal considered the scope of the Athens Convention and the nature of the time-bar in Article 16. In coming to its decision, the Court also considered sections 5(1) and 5(2) of the Carriage by Air Act 1961...
Fatal Accidents and Clinical Negligence: Recent Developments and Timely Warnings - Gordon Exall, Zenith Chambers
Fatal accident litigation can give rise to very specific problems in the context of clinical negligence. All fatal accidents always throw up their own unique problems. Recent cases have demonstrated a number of particular areas of concern for all practitioners, but particularly those instructed where medical negligence has caused, or hastened, death.
Scrutiny of Medical Evidence & Physiotherapy Charges in Low-Value PI Cases - Thomas Crockett, 1 Chancery Lane
I recently acted for an insurer in a routine low value personal injury case (to which QOCS applied) which had an unusual twist...
Summary of Recent Cases, August 2015
Here is a summary of the recent notable court cases over the past month.
PI Practitioner, August 2015
Each issue a particular topic is highlighted, citing some of the useful cases and other materials in that area.  This month: withdrawal of an admission made under CPR Pt 14