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September 2016 Contents

Welcome to the September 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
Personal Injury Claims: An Opportunity for Reflection - Neil Sugarman, President, Association of Personal Injury Lawyers
During 2015 the government made it clear that it was looking closely at personal injury claims, including those involving clinical negligence. In relation to clinical negligence, the government expressed itself concerned about the legal costs associated with what it classed as low value claims...
Carder v The University of Exeter - Aliyah Akram, 12 King's Bench Walk
The Court of Appeal decided that a defendant was liable to compensate a claimant for a 2.3% contribution to his asbestosis in Carder v The University of Exeter [2016] EWCA Civ 790...
Broadhurst v Tan - Patrick McCarthy, Horwich Farrelly
Claimant lawyers across the land rejoiced earlier this year following the Court of Appeal judgment in Broadhurst v Tan (2016) which ruled that assessed costs, rather than fixed costs, apply to cases where a claimant 'beats' a Part 36 offer. However, whilst initially disappointing, as the defendant in the case we've been closely monitoring the impact of the ruling and have observed what appear to be a number of positive benefits for both sides...
'Another Twist in the Yellow Brick Road: Questions and Answers on the Assignment of CFAs Following Azim v Tradewise Limited [2016] EWHC B20 (Costs)' - Christopher McClure, John M Hayes
Christopher McClure, Regional Manager at the Manchester office of The John M Hayes Partnership, discusses in question and answer format the implications of the decision of Master Leonard in Azim v Tradewise Limited [2016] EWHC B20 (Costs)...
Editorial: Sentencing for International Crimes - Aidan Ellis, Temple Garden Chambers
I hope I will be forgiven for an excursion outside the four walls of personal injury law in this month's editorial. The occasion is the conviction of Mr Al Mahdi for the war crime of attacking 10 religious and cultural monuments in Timbuktu. The case attracted media coverage, not only as one of the International Criminal Court's small but growing number of convictions, but also as a rare case in which damaging important cultural property was successfully prosecuted...
Failure to Comply Leads to Dismissal of £60,000 Hire Claim - Mark Holmes, DWF
The Claimant's failure to obtain relief from sanctions after he had failed to comply with an order to give disclosure and serve witness evidence meant that his claim was dismissed. The Claimant had claimed for personal injury and hire charges of over £60,000. The Claimant had initially obtained judgment by default against the First Defendant, although...
Driver Who Supported Phantom Passengers Loses His Claim Under Section 57 - Daniel Holbrook, DWF
A claimant who was awarded his claim for vehicle damage following a road accident, subsequently had his claim dismissed in accordance with Section 57 of the Criminal Justice and Courts Act 2015. The Court found that he had been fundamentally dishonest in supporting the claims of two claimants who had alleged that they had been passengers in his vehicle...
Getting Your Hands on an Undisclosed Expert Report and More - Ian Miller, 1 Chancery Lane
When the other side wants to change expert are you entitled to their original expert's reports and other documentation containing the substance of the expert's opinion? This was the question considered in the case Allen Tod Architecture v Capita Property and Infrastructure Ltd ([2016] EWHC 2171). Unsurprisingly the claimant in that case resisted disclosure on the grounds that the documents and reports sought were privileged...
PI Claim by Tenant: SC Overules CA and Dowding & Reynolds - Ian Miller, 1 Chancery Lane
For years tenants have relied upon Brown v Liverpool Corporation [1969] 3 All ER 1345 when suing landlords for damages for personal injury caused by an accident on external steps or a front path leading to the front door of a house. In that case the Court of Appeal held that the steps were part of the exterior of the dwelling-house...
Claimant Loses QOCS Protection Following Discontinuance of NIHL Claim - Sarah Stutchfield, DWF
It is not uncommon for noise induced hearing loss claims to be issued without medical evidence and we have on a number of occasions successfully applied to have claims struck out for failing to comply with the CPR. In this recent decision not only was the claim struck out, but as this was a post-LASPO case, the claimant automatically lost his QOCS protection...
Fatal Accident Dependency and Cultural Expectations: the Reported Cases - Gordon Exall, Zenith Chambers & Hardwicke
A number of recent cases I have been involved in have highlighted the need for care when dealing with claimants who have specific cultural expectations as to dependency. There are relatively few reported cases on this topic. It is worth looking at them...
Contempt of Court: A Strong Message to the Opportunistic Fraudster - Caroline Sanders, DWF
A personal injury claimant who alleged his wrist injury had been caused by a trip on a raised kerbstone, has been found in contempt of court in respect of his personal injury claim against Surrey County Council and sentenced to a 12 month suspended custodial sentence. The Council, together with DWF, took a firm stance against the claimant when it was revealed that he had admitted to a friend on Facebook that he had been drinking and had in fact merely slipped in icy conditions...
Today's News From the MoJ of Their Future Vision Offers Pointers for Insurers Towards the Swifter and Cheaper Handling of Claims - Simon Denyer, DWF
We have been waiting for news from the new ministerial team at the Ministry of Justice since their appointment in July on the various issues in their in-tray. News of their future vision emerged today, without any surrounding detail. As we look at it, to what extent can see signs from it of likely decisions on the more important issues on which insurers are awaiting news?...
How to Assess Medical Records for Validity of Consent - Dr Mark Burgin
Dr. Mark Burgin BM BCh (oxon) MRCGP explains how generalist experts can find evidence of the consent process in medical records...
Summary of Recent Cases, September 2016
Here is a summary of the recent notable court cases over the past month.
PI Practitioner, September 2016
Each issue a particular topic is highlighted, citing some of the useful cases and other materials in that area.  This month: RTA Protocol Stage 3 Procedure - The Claimant's Evidence
Medico-Legal Articles, Edited by Dr Hugh Koch
Legal Mind Case and Commentary No 10: Who Knows Best? the Judge or the Expert? - Dr Hugh Koch & Dr Jacquie Hetherton, Hugh Koch Associates
The judge weighs the arguments set before him and ensures that pertinent issues have been addressed. He is aided by barristers, lawyers and experts who should have considered all relevant matters, in a logical way. Despite the adversarial and at times selective approach of the two sides, all matters of relevance should be laid before the judge. This case illustrates what can happen when this has not occurred...
Legal Mind Case and Commentary No 8: Change Your Opinion Casually at Your Peril - Dr Hugh Koch & Dr Tracy Thorns
Case: Jones v Kaney (2011) UKSC 13. This case included a psychologist (Kaney) acting as an expert witness in a case of a road traffic victim claiming damages for physical and psychological injuries. Kaney diagnosed PTSD, but during a joint statement discussion in November 2005 she conceded ground significantly both in terms...