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November 2015 Contents

Welcome to the November 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
The Risks of a Fixed-Costs Regime for Clinical Negligence Cases - Catherine Dixon, Law Society Chief Executive
Risk is defined as, 'a situation involving exposure to danger'. In 2012 a study was published by Sir Bruce Keogh, the medical director of the NHS in England, highlighting the increased risk of death for patients admitted to hospital at weekends compared to a Wednesday. Keogh then published a report calling on the NHS to adopt 10 standards to improve the quality of care available at weekends...
Gemma Purser v Robert Hibbs & Anor [2015] EWHC 1792 (QB) - Gary Knight, Harmans
Consideration of the wording between "old" and "new" Part 36 requirements when offer accepted out of time...
Brian Kite v The Phoenix Pub Group: Addressing the Opportunistic Use of QOCS - Theo Barclay, Hailsham Chambers
In this county court decision, a district judge made it clear that claimants who intend to bend the qualified one-way costs shifting (QOCS) rules to gain tactical advantage will be offered short shrift by the courts. This decision is a good illustration of the increasing tendency of district judges to tackle opportunistic conduct by court users robustly...
Overhanging Trees: Liability, Prevention and Defence of Claims - Gabriel Fay, DWF
This year we have seen two major incidents of roofs being torn from buses where the vehicle has collided with trees overhanging the carriageway.  The first was in February this year on the Kingsway, London where four people were injured and more recently, in August four people were taken to hospital after an incident in Bloomsbury, London...
Some Early Indications of Fundamental Dishonesty Interpretations: Nama v Elite Courier Company [2014], and a Comment on Facebook Evidence - Judy Dawson, Park Square Barristers
Judy Dawson of Park Square Barristers Fraud Team, based in Yorkshire discusses the loss of QOWCS protection in fundamental dishonesty cases, with a commentary of the ongoing and evolving use of Facebook Evidence...
"All Experts Are Equal...": A Twelve Step Programme for Good Experts - Will Waldron QC, Exchange Chambers
In a recent article looking at the role and duties of experts, and the ways in which some have fallen foul of them, I quoted from Janet Smith LJ in the case of Uren when she said: "When an expert witness makes a bad point, it damages his authority and his opinion on other potentially better points is undermined"...
Part 36 Offers: Whether Genuine Attempt to Settle - Andrew Cousins, DWF
When Part 36 was reformed in April, one of the amendments was aimed at addressing "cynical Part 36 offers". The court always had to consider a number of factors when deciding whether it is unjust to award the additional benefits under Part 36 but a new factor was introduced in CPR 36.17(5)(e)...
Editorial: Reflections on Costs Management - Aidan Ellis, Temple Garden Chambers
Now that costs budgeting has been a feature of civil litigation, at least on the multi-track, for some time, it ought to be possible to offer some considered assessment on the merits of the budgeting process. That it remains difficult to offer such an assessment is largely because the approach to budgeting remains inconsistent. It begins before the hearing...
Loss of Future Earnings and Disability - Andrew Spencer, 1 Chancery Lane
A claimant is "disabled" for the purposes of Tables A - D of the Ogden Tables when s/he has an illness or disability which has or is expected to last for a year or more (or a progressive illness); which "substantially limits" the claimant's ability to carry out normal day-to-day activities; and which affects the kind or amount of paid work s/he can do...
Edward Bishop QC Considers Obstacles in Claims for Psychiatric Damage - Ian Miller, 1 Chancery Lane
In Speirs v St George's Healthcare NHS Trust (Unreported, December 2014) a mother claimed damages for psychiatric injury which she said had arisen as a result of the shock of seeing one of her daughters who had been seriously damaged during an instrumental 'ventouse' birth. The judge dismissed the mother's claim on the grounds that she had not suffered a psychiatric injury as a result of...
Fixed Recoverable Costs Can Apply to Multi-Track Cases - Judy Dawson, Park Square Barristers
The new fixed recoverable costs regime has been widely trumpeted as being exclusive to the fast track, indeed many Defendant insurance practitioners have been wary of pleading fraud, in case it results in a move to the multi-track and therefore an increase in costs. An important appeal judgment by...
Gamsby v Rowland - Mark Holmes, DWF
Mark Holmes takes us through his case of Gamsby v Rowland, where the judge made a finding of fundamental dishonesty, even though fraud was not pleaded against the Claimant...
Fixed Costs in RTA, EL and PL Multi Track Claims - Ian Miller, 1 Chancery Lane
A claim which starts under the RTA protocol but proceeds on the multi track remains subject to the fixed recoverable costs regime. So held HHJ David Grant in the case of Qader v Esure (Unreported, 15th October 2015). The case concerned a claim for damages for personal injury arising out of an RTA...
Time to Motor on With Reform - Matthew Channon
Matthew Channon presents an analysis of the UK laws on motor insurance which seem to be non-compliant with European Law, and suggests some potential reforms...
Loss of Earnings and the Self-Employed: Some Key Issues - Gordon Exall, Zenith Chambers & Hardwicke Chambers
Here I want to look at some of the issues that face the self-employed claimant when claiming loss of earnings. We also look at some of the key cases in relation to "loss of chance" in relation to the self-employed...
Test for Striking Out Before Trial - Thomas Crockett, 1 Chancery Lane
The Court of Appeal recently held in Alpha Rocks Solicitors v Alade [2015] EWCA Civ 685 held that the court should exercise caution in the early stages of a case in striking out the entirety of a claim on the grounds that a part had been improperly or even fraudulently exaggerated...
RTA Hearings - Peter Harthan, 7 Harrington Street
Let's assume; i) There was a collision about which a correct description can be given; ii) Both drivers have different accounts of the same collision; iii) The accounts given by each party cannot both be correct...
Loss of Earnings: The Badly Injured Child and Pension Loss - Gordon Exall, Zenith Chambers & Hardwicke Chambers
We have looked before at the approach that judges take when assessing loss of earnings in cases of badly injured young children. This issue was considered in the judgment of...
Summary of Recent Cases, November 2015
Here is a summary of the recent notable court cases over the past month.
PI Practitioner, November 2015
Each issue a particular topic is highlighted, citing some of the useful cases and other materials in that area.  This month: Contributory Negligence in Road Traffic Accidents Involving Pedestrians
An Update from North of the Border, Edited by David Stihler, Brodies LLP
Compulsory Volunteers: Will the Scottish Pre-Action Protocol Become Mandatory? - Ciaran Dougherty, Brodies LLP
Previous updates from North of the Border demonstrate that Scotland's PI claim landscape is undergoing significant change. Court reforms and a review of the costs regime have scrutinised various parts of the claims process. That includes the pre-litigation stage where unlike...
Medico-Legal Articles, Edited by Dr Hugh Koch
Imagery and Likelihood Cognitive Bias in Pain Review - Michael Horwood & Hugh Koch
Lawyers and experts come into contact with many claimants who complain of pain, both acute and chronic. This article reviews preliminary work on how claimants manager their 'images' of various things including pain and pain suffering...