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May 2016 Contents

Welcome to the May 2016 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
Causation Disputes and Interim Payment Applications - Jennifer Danvers, Cloisters
In Sellar-Elliott v Howling [2016] EWHC 443 (QB) permission to appeal against an interim payment order of £100,000 was refused in a clinical negligence case where causation was in dispute. This is an important case for clinical negligence practitioners dealing with such applications prior to exchange of medical evidence...
Case Note: Rai v Ministry of Defence; judgment of 9 May 2016; High Court (QB) Middlesbrough District Registry; HHJ Gargan - Philip Mead, Old Square Chambers
Facts: employer's liability claim. Claimant suffered a head injury during the course of training when kicked by a horse. Accident happened in Alberta, Canada. The training course was conducted by a Canadian third party, under a contract for services governed by Alberta law, such services provided for the benefit of the Defendant...
Evidence and Interim Payment Applications - Edward Bishop QC, 1 Chancery Lane
The High Court has given useful guidance (which serves as a warning) to defendants on their evidential obligations when defending applications for interim payments...
Editorial: Further Reflections on Fundamental Dishonesty - Aidan Ellis, Temple Garden Chambers
It is well known that pursuant to QOWCS, the circumstances in which a Defendant can enforce its costs against an unsuccessful Claimant are limited. One exception applies if the Court concludes that the claim was fundamentally dishonest. But 'fundamental dishonesty' can be a difficult concept to pin down...
Top Tips on How to Avoid Missing a Subtle Brain Injury - Rose Gibson, Simpson Millar LLP
As many law firms engaged in personal injury practice attempt streamline the lower value work, it is still vital that even junior staff are properly trained to spot the potentially more complex cases. This is even more important with subtle brain injury cases, as the signs can be hard to spot...
Compensation for Pleural Plaques - Andrew James, Hodge Jones & Allen LLP
Pleural plaques are the most common manifestation of asbestos exposure and a form of scarring on the lining of the lungs. They appear as grey-white regions of tiny scar like structures on X ray or CT scan. They are benign and require no treatment...
Damages for Abuse - Roderick Abbott, 1 Chancery Lane
The Claimant in KCR v The Scout Association [2016] EWHC 597 (QB) suffered sustained abuse by a Cub Scout Group Leader when a young boy in the 1980s. In 2003 the abuser was convicted of a large number of sexual offences against boys including the Claimant. As might be expected, given recent trends in this area of law, the Defendant admitted that it was vicariously liable for the abuser's actions...
Heneghan v Manchester Ship Canal; Heads I Win, Tails You Lose? - Charles Feeny & Sammy Nanneh, Contributing Editors at Pro-Vide Law
Following the Fairchild decisions, Defendants and insurers feared the extension of the modified test of causation to lung cancer claims. This was a real concern because lung cancer, with its association with smoking, is a far more prevalent condition than mesothelioma...
Lord Justice Jackson Is Right: It's Time to Extend Fixed Costs - Duncan Rutter, President of the Forum of Insurance Lawyers
Costs control in the civil justice system has proved a tough nut to crack. From Lord Evershed's inquiry into English procedural reform in the 1950s, through Lord Woolf's Access to Justice reforms in the 1990s, to Lord Justice Jackson's review of Civil Litigation Costs in 2009, the conclusion has been the same - the litigation process costs too much. The solutions, however, have proved less easy to identify and even harder to apply...
Cost Budgets: Rule Changes - Roderick Abbott, 1 Chancery Lane
Changes to the CPR coming into force today alter the rules relating to cost budgets. In cases with a stated value of over £50,000 all parties except litigants in person will now exchange budgets 21 days before the first case management conference. Parties must then file an agreed "budget discussion report" at least 7 days before the first CMC setting out what is agreed, what not agreed, and brief grounds for the latter. The parties are encouraged, but not required, to use a new precedent ("Precedent R") for the purposes of the budget discussion report...
When a Doctor Cannot Go Back to Work: Examination of the Loss of Earnings Award - Gordon Exall, Zenith Chambers & Hardwicke
There are some important matters considered in the decision of Mr Justice Picken in Dr Sido John -v- Central Manchester and Manchester Children's University Hospitals NHS Foundation Trust [2016] EWHC 407 (QB)...
Closing the Door on Strict Liability: A New Erra of Realism in Workplace Claims - Steven Conway, Keystone Law
With the passing of section 69 of the Enterprise and Regulatory Reform Act 2013 ("ERRA"), limitation will soon expire of most pre-Act cases, removing strict liability for breach of statutory duty. In this article, Steven Conway insurance litigation lawyer at Keystone Law examines the recent decision in Katie Cruz v Chief Constable of Lancashire [2016] EWCA Civ 402 and why it hopefully signals the dawn of a new age for workplace claims...
Changes to the Civil Procedure Rules Relating to Costs: April 2016 - Stephane Osborne, MRN Solicitors
As is often the case these days another Civil Procedure Rule update has brought another change to the rules concerning costs. The statutory instrument containing the amendments to the Civil Procedure Rules has been confirmed and the update contains amendments to both the Practice Directions (PD) in respect of costs management and budgeting and the procedure of detailed assessment are to be changed...
Paying the (Full) Price? Underpaid Fees and Limitation Periods - Simon Murray, 1 Chancery Lane
If you pay less than the appropriate fee when issuing your claim before the expiry of the limitation period is your claim in time? Or do you pay the price by being statute barred?...
Cognitive Underperformance in Neuropsychological Testing / Medico-Legal Cases and How to Address It - Dr Linda Monaci, Consultant Clinical Neuropsychologist and Chartered Clinical Psychologist
Neuropsychological testing is employed in medico-legal cases to assist in assessing the extent, and validity, of claimants' symptoms. There are occasions when a patient's clinical presentation during neuropsychological testing is inconsistent with the expectations of his/her abilities based on their clinical history, behavioural observations and/or established medical knowledge of the condition in question. This phenomenon is called cognitive underperformance...
Knauer: Supreme Court Allows Appeal: Multiplier Runs From Date of Trial - Gordon Exall, Zenith Chambers & Hardwicke
The Supreme Court gave judgment in Knauer -v- Ministry [2016] UKSC 9. The court allowed the appeal. The multiplier in a fatal accident case now runs from the date of trial/assessment and not the date of death. This means that fatal accident awards will now be higher. There is a greater incentive on defendants to settle cases earlier...
Claims of Alleged Fraud Not Exempt From Denton - Ella Davis, 1 Chancery Lane
"The court cannot ignore that insurers are professional litigants, who can properly be held responsible for any blatant disregard of their own commercial interests." - Gentry v Miller & Anor [2016] EWCA Civ 141 at 34. Such was the warning sent to insurers by the Court of Appeal earlier this month in allowing a Claimant's appeal against a decision to set aside default judgment in what the Defendant's insurer alleged was a fraudulent claim...
Summary of Recent Cases, May 2016
Here is a summary of the recent notable court cases over the past month.
PI Practitioner, April 2016
Each issue a particular topic is highlighted, citing some of the useful cases and other materials in that area.  This month: Amendments to Statements of Case (Pt 17)
An Update from North of the Border, Edited by John Wilson & Lauren Pasi, Brodies LLP
Update From North of the Border: Class Actions - Sarah Donaldson, Lauren Pasi & Lewis Clark, Brodies LLP
Many readers will be familiar with the concept of a 'class action' thanks to Julia Roberts and John Travolta, and their starring roles in 90s hit films Erin Brockovich and A Civil Action. A class action is one where a large group of claimants have the same complaint, for example, an illness caused by harmful chemicals in the water supply...
Medico-Legal Articles, Edited by Dr Hugh Koch
Legal Mind Case and Commentary No.2: Material Contribution and the 'but for' Test - Dr Hugh Koch and Dr Karen Addy
EWCA Civ 883 was a tort law case which concerns the problematic question of factual causation, and the interplay of the "but for" test and its relaxation through a "material increase in risk" test. The case involved Miss Bailey who developed medical complications following treatment for suspected gallstones. Initially she was admitted to the Royal Hospital Haslar (a hospital for civilian NHS patients, but also used and run by the Ministry of Defence) however her... sheet preview http://www.pibulj.com/content/law-journal-summaries/news-category-4/3684-legal-mind-case-and-commentary-no-2-material-contribution-and-the-but-for-test-dr-hugh-koch-and-dr-karen-addy
Legal Mind Case and Commentary No.3: Preparing Expert Evidence: Reasonableness and Logicality - Dr Hugh Koch and Dr Caroline Formby
Lawyers and experts alike need to ensure expert evidence fully meets the request of CPR. Issues of reasonableness and logicality are discussed below... sheet preview http://www.pibulj.com/content/law-journal-summaries/news-category-4/3689-legal-mind-case-and-commentary-no-3-preparing-expert-evidence-reasonableness-and-logicality-dr-hugh-koch-and-dr-caroline-formby