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November 2016 Contents

 

Welcome to the November 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
FREE BOOK CHAPTER: Single Joint Experts (From 'On Experts: CPR35 for Lawyers and Experts' by David Boyle)
CPR35.7 allows the court to direct that if two or more parties wish to submit expert evidence on a particular issue, that evidence should be given by a single joint expert. The court can decide who that expert should be, or how the identity of that expert should be decided, if the parties cannot agree on who should prepare that report...
FREE BOOK CHAPTER: Costs & Funding (From 'A Practical Approach to Clinical Negligence Post-Jackson' by Geoffrey Simpson-Scott)
Improving results through avoiding ambiguity and adopting a planned approach to managing your caseload is one of the central themes of this book. This chapter considers why it is essential to get the funding options right at the start of the case in order to avoid fundamental cost recovery problems arising at the end of it. In so doing, it is helpful to consider the costs issues which are likely to arise during the case so that you can have the correct sort of evidence on file to either head off the problem(s) or persuasively deal with them as needed...
Qualified One Way Costs Shifting and CPR 36 - Matthew Rose, Clarion Solicitors
Following the introduction of Qualified One Way Costs Shifting (QOCS), parties have begun seeking to find ways to try to recover their costs where they are not, on the face of it, recoverable. One of the methods currently being tried is to make a CPR 36 offer on the basis that beating a CPR 36 offer will entitle the defendant to all of its costs, assessed on the standard basis...
Albert Victor Carder v The University of Exeter (2016) Court Of Appeal - Richard Johnson, Browne Jacobson
The background to the case was that Mr Carder, who was 87 years of age, suffered from asbestosis as a result of exposure to asbestos dust during four periods of employment as an electrician. The exposure period ranged from the 1950s to the 1980s...
FREE BOOK CHAPTER: Introduction to Enforceability (From 'Ellis and Kevan on Credit Hire, 5th Edition' by Aidan Ellis & Tim Kevan)
The next chapters are devoted to the vexed question of whether a particular credit hire agreement is enforceable in the light of various statutory and common law issues, which in particular dictate the form of consumer credit agreements...
FREE BOOK CHAPTER: Liability of the Player to Other Players (From 'A Practical Guide to Personal Injuries in Sport' by Adam Walker & Patricia Leonard)
This chapter considers the liability of the player or competitor to their fellow participants. It deals with general principles of liability in negligence with particular regard to the questions of duty of care and breach of duty, including discussion of the appropriate standard of care. The chapter goes on to consider a number of cases relevant to these questions and the circumstances in which liability has been established in the reported case law and in contrast, where it has not. Other potential heads of liability are then considered in turn, including liability for assault, in contract and in public and private nuisance...
PI Claims for Clients Who Receive Benefits - Philippa Barton, Hodge Jones & Allen
From time to time, personal injury practitioners find they need to pass on interim payments or damages to clients who are receiving benefits. In these cases it is important to consider the effect this will have on a client's entitlement.  If they receive means tested benefits or are likely to in the future, and/or receive social care paid for by social services, a failure to take account of this could mean an individual losing the right to those benefits and care...
How Brexit Could Affect Personal Injury Claims - Nikolai Llewellyn, Hugh James
Many of our clients would be forgiven for being unaware of the sheer amount of EU-based regulations and directives that UK lawyers utilise when assisting clients to pursue personal injury claims. In this article I consider how a 'Brexit' could affect a UK citizen's ability to make a personal injury claim...
Editorial: Consultation on Soft Tissue Injuries in RTAs - Aidan Ellis, Temple Garden Chambers
Earlier this month, the Ministry of Justice announced a consultation process on its long awaited scheme to reduce the burden of whiplash cases. It includes a largely predictable package of measures including reducing or removing compensation for minor soft tissue injuries and increasing the small claims limit. The plan is clearly to eliminate or substantially reduce the incidence or value of "minor" personal injury claims. Apparently, insurers have pledged to pass the anticipated savings onto consumers and so we can all look forward to a £40 reduction in our car insurance premiums as a result. Looking beyond the headlines, readers may be interested in the detail of the proposals...
An Important Judgment for Local Authorities, Other Occupiers and Their Insurers - Perry Hill & Fiona James, DWF LLP
Edwards v London Borough of Sutton, Court of Appeal 12.10.16. In this important judgment for local authorities, other occupiers and their insurers, the Court of Appeal allowed London Borough of Sutton's appeal against a finding of primary liability for its failure to "warn or prohibit the use of a bridge" in a public park after the claimant lost his balance and fell into the stream below, suffering serious spinal injuries...
Court of Appeal Judgment in Bird v Acorn Group - Matthew Hoe, Taylor Rose TTKW
The Court of Appeal has handed down judgment in Bird v Acorn Group. Thousands of cases that were stayed for the appeal can now be resolved. The appeal was resolved in favour of the claimants. The appeal concerned the long-running dispute about the applicable fixed costs formula for claims that settle ahead of a disposal hearing. The specific circumstances are...
Finding Other People's Hands in Your Pockets: Fox & Ors. v McLoughlin & LV= - James Pinder, DWF LLP
The bringing of contempt proceedings is a useful tool in an insurer's armoury and can prove to be a strong deterrent against those who attempt to bring fraudulent personal injury claims, especially those who are serial claimers. DWF Partner, James Pinder takes a brief look at how the threat of contempt proceedings in this case, in which he acted for LV= was enough to convince a group of individuals, who had dishonesty sought damages for personal injury to pay LV= £25,000 in damages and costs...
Calculating Loss of a Chance in Delayed Cancer Diagnosis - Dr Mark Burgin
Dr Mark Burgin BM BCh (oxon) MRCGP explains how life expectancy calculations can reduce the number of negative condition and prognosis reports...
Con-text: Hepburn v Jabreen and Royal and Sun Alliance Insurance Plc - Colin Vickers, DWF LLP
A Claimant who saw her claim for personal injury and other losses struck out, also lost the protection afforded to her under QOCS on the basis that her conduct had obstructed the just disposal of proceedings and had abused the Court's process. In an attempt to bolster her claim, the Claimant had disclosed what she claimed was...
Kill the Conversation, Not an Innocent Person - Laura Reaney, Spencers Solicitors
This is one subject that I can honestly say makes me feel very angry. I drive on our roads everyday and have done for many years now. Each time I do, I see at least one driver using a mobile phone whilst behind the wheel. Over the years, this practice has increased dramatically, probably due to the fact we now use our mobile phones much more than we ever used to, in particular for the internet and social media. This is despite the introduction of criminal sanctions for those caught doing it...
Enforcement of a Foreign Judgment: High Court Upholds Public Policy Defence - Helen Coates, DWF
Helen Coates, who acted for the successful appellant in Laserpoint Ltd v Prime Minister of Malta & Others, looks at this rare example of the High Court in England upholding the public policy defence to prevent enforcement of a judgment of a court in another EU member state...
E v Moorwood Equine - Sarah Wright & Emma Melia, Spencers Solicitors
The Claimant 'E', aged 35 at the time of the accident, was injured after falling from a horse. E had attended 40-50 riding lessons over a 2 year period but was a still novice rider with little riding confidence. E had never been taught how to gallop...
McShane is Such a Shame! - Paul Stanton
On 28th June 2016, DJ Peake gave an (unreported) decision in the case of McShane v Lincoln, which may have wide ranging consequences. A self-employed agent, who was not a solicitor, represented the Claimant at the MoJ Stage 3 hearing-arguing that he was an "exempt person" performing a reserved legal activity under the Legal Services Act 2007. The District Judge had to determine...
Summary of Recent Cases, November 2016
Here is a summary of the recent notable court cases over the past month...
PI Practitioner, November 2016
Each issue a particular topic is highlighted, citing some of the useful cases and other materials in that area.  This month: Fatal accident multipliers...
An Update from North of the Border, Edited by John Wilson & Lauren Pasi, Brodies LLP
Quantification of Damages in High Value Cases: A Scottish Strategy - Charlotte Edgar, Brodies LLP
Jill Clark v Greater Glasgow Health Board [2016] CSOH 126 concerns a young woman who suffered a catastrophic brain injury at birth. She alleged there had been negligent mismanagement of her mother's labour on the part of the doctors and midwives involved in her mother's care. Decree of absolvitor was pronounced by Lord Stewart, however he prepared a note to assist parties on the quantification of damages, if the case had been successful...
Medico-Legal Articles, Edited by Dr Hugh Koch
Legal Mind Case and Commentary No 11: Material Contribution: Little or Large? - Dr Hugh Koch & Dr Chrissie Robertson, Hugh Koch Associates
In a recent paper by Hardwicke (2016), a Judicial Committee of the Privy Council judgement was described which is potentially highly persuasive. The original case involved a man Mr. W who complained of abdominal pain. Following a delay in investigating his appendix ruptured and he developed complications...