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December 2015 Contents

Welcome to the December 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
Edwards v Kumarasamy: Landlords Tripped Up - Andrew Brookes, Anthony Gold
The Court of Appeal in Edwards v Kumarasamy has extended the liability of landlords who own flats in blocks, even where the common parts are owned by a third party...
Editorial: Autumn Statement - Aidan Ellis, Temple Garden Chambers
Two potentially dramatic announcements were buried within the Chancellor's recent Autumn statement. Under the heading 'lower household bills', the Chancellor announced an end to the right to cash compensation for minor whiplash injuries...
QOCS and Strike Out - Rebecca Jones, Hardwicke
There are many areas of the QOCS regime where the approach of the courts remains uncertain in the absence of detailed guidance in the CPR. We have seen reported cases regarding the fundamental dishonesty exception to QOCS but guidance regarding the strike out exception remains thin on the ground. This article covers some of the more recent developments in the realm of QOCS and strike out.
APIL's Response to The Chancellor's Autumn Statement
George Osborne said yesterday that the government will consult on ending the right to cash compensation for minor whiplash injuries. In response, Jonathan Wheeler, the president of APIL said...
Late Switch of Surgeon: Can This Invalidate Consent? Jones v Royal Devon and Exeter NHS Foundation Trust - James Counsell, Outer Temple Chambers
James Counsell reports on a successful claim based on lack of consent, in which a patient was told, only on the day of the operation, that her spinal surgery was not to be performed by the expected clinician.
Court of Appeal Highlights the Importance of Not Imposing an Unrealistic Duty of Care on Motorists - Peter Blake, DWF
In a judgment unanimously upholding the first instance decision, the Court of Appeal provides a useful reminder of the importance of not imposing an unrealistic level of duty on motorists and demonstrates that expert evidence will not necessarily be determinative when high quality lay evidence is adduced...
CPR 35.1: When Is Expert Evidence 'Reasonably Required'? Part 1 - Tom Collins, 1 Chancery Lane
Expert evidence is often talked of in terms of parties' 'rights', i.e. to a fair trial or for equality of arms. In the field of PI and Clinical Negligence, it is taken for granted that except in the clearest of cases, the Court will admit (often gratefully) expert opinion on condition and prognosis as well as liability and causation. However two recent...
No Assignment of CFAs, Says the County Court - Geoffrey Weddell, 1 Chancery Lane
If a claimant is pursuing a personal injuries claim funded by a CFA, and the solicitors' firm goes into administration, can the CFA be assigned to a new firm? No, says the County Court at Liverpool. In Jones v Spiral Healthcare (unreported)...
Prima Facie 'Fraudulent' Costs Claims Not to Be Struck Out Without Trial - Alex Bagnall, Just Costs Solicitors
The Court of Appeal has dealt with the question of how Courts should handle with allegations of the fraudulent misclaiming of costs where there is strong prima facie evidence in support of the allegations.
Fixed Fees in Clinical Negligence Cases - Nina Ali, Jones & Allen
With the consultation on fixed fees in clinical negligence cases now delayed until early 2016, Nina Ali, partner at Hodge Jones & Allen, urges the Government to reconsider...
Predictably Unpredictable: Fatal Claims in Scotland Remain Inconsistent and Uncertain - Andrew Lothian, DWF
It had been thought that Currie v Esure (2014) might operate as benchmark for awards in fatal cases in Scotland. That hope for clarity has however been set back by yet another fatal award which has introduced further uncertainty...
Loss of Earnings and Disability in the Labour Market for Injuries Arising as a Result of Sexual Abuse - Gordon Exall, Zenith Chambers & Hardwicke
In BDA -v- Domenico Quirino [2015] EWHC 2974 (QB) His Honour Judge Wood considered the issue of loss of earnings in the case of a victim of sexual abuse.
The 2015 Rehabilitation Code: Case Managers now required to adhere to NICE Guidelines - Daniel Clegg, DWF
At the end of September the IUA/ABI working party completed its review of the 2007 Rehabilitation Code of Best Practice by publishing the updated Code. In this article Daniel Clegg looks at the changes made to the part of the Code governing moderate, severe and catastrophic injuries and the newly introduced Guide for Case Managers...
Practice, Procedure and Fair Proceedings in the Coroner's Court: Wilson -v- HM Senior Coroner for Birmingham and Solihull - Gordon Exall, Zenith Chambers & Hardwicke
In Wilson -v- HM Senior Coroner for Birmingham and Solihull [2015] ewhc 2561 (Admin) l the Divisional Court rejected an application for judicial review of a Coroner's narrative verdict...
The English Claimant and the French Uninsured Tortfeasor: Claims Against the MIB - Matthew Chapman, 1 Chancery Lane
Marshall & Pickard v MIB & Others [2015] EWHC 3421 (QB). These claims arose out of a road traffic accident in the municipality of Thiais, France on 19 August 2012.
Stroke Caused by Beauty Facial Case Settles - Kiril Waite, 1 Chancery Lane
Claims against negligent beauticians and the like are not altogether uncommon. The injuries tend to be dermatological in nature consequent of some allergic reaction to an untested product. But who would have thought it possible, let alone likely, for someone to suffer a stroke as a result of a beauty facial treatment?
PI Practitioner, December 2015
Each issue a particular topic is highlighted, citing some of the useful cases and other materials in that area.  This month: Apportioning liability between motorists and pedestrians in road traffic accidents.
Summary of Recent Cases, December 2015
Here is a summary of the recent notable court cases over the past month.
An Update from North of the Border, Edited by David Stihler, Brodies LLP
Scottish Costs Reforms: Round up of Recent Scottish Decisions - Peter Demick, Brodies LLP
The year 2015 has seen significant developments in the Scottish litigation landscape, particularly flowing from the significant court reforms covered closely in our previous updates. However, it isn't just the court reforms that will determine the course of Scottish litigation in 2016.
Medico-Legal Articles, Edited by Dr Hugh Koch
Post-Traumatic Embitterment: A Future 'Disorder'? - Dr Hugh Koch, Dr Karen Shannon, Dr Tom Boyd, Hugh Koch Associates LLP
In addition to experiencing anxiety and depression after a traumatic event, one very common undiagnosed or unrecognised symptom is anger, because the individual rightly or wrongly perceive that they have or had been treated badly (e.g. by the other driver or their employer), are not...