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December 2016 Contents

Welcome to the December 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 SAMPLE: Rates (From 'Ellis and Kevan on Credit Hire - 5th Edition' by Aidan Ellis & Tim Kevan)
Disputes over the rate of hire reflect a fundamental dispute between the insurance and credit hire industries. Insurers have long complained that credit hire rates cost substantially more than the equivalent market rates. But the method of determining the 'equivalent' market rate has always been controversial. Moreover, credit hire companies argue that...
There Are More Ways than One to Skin a Cat - Chris Booth Forbes Solicitors
A finding of fundamental dishonesty is not the only way to have QOCS dis-applied. CPR 44.15 is lesser known and is often overlooked in favour of CPR 44.16, however it provides defendants with another line of attack to dis-apply QOCS. Chris Booth, Partner at Forbes solicitors, looks at the lessons from a recent case where CPR 44.15 was successfully utilised...
Jackson's Children: Recoverability of Success Fees in Child Claimant Cases - Jake Rowley, Farrar's Building
With the implementation of the Jackson Reforms came a complete overhaul of the status and recoverability of success fees and ATE premiums. Gone were the days of presenting a bill at the Defendant's door for payment and instead, in its place was transplanted a new regime pursuant to which solicitors acting for claimants were to look to their own clients for repayment of those sums. Child claimant's, for whom special protective provisions exist in CPR Part 21, were no exception...
Editorial: Looking Ahead to 2017 - Aidan Ellis, Temple Garden Chambers
As 2016 draws to a close, it feels more difficult than ever to make predictions for the year ahead. Politically, a period of uncertainty beckons. Although we know that Brexit negotiations will start next year, it seems wholly futile to try to guess what kind of deal might result. It is also too early to contemplate...
FREE BOOK CHAPTER: Understanding the Brain (From 'A Practical Guide to Subtle Brain Injury Claims' by Pankaj Madan)
As an area of medicine, perhaps less than 5% of all there is to be known is in fact, known about the brain, how it operates and how it controls us and how it can deteriorate. Without this understanding brain injury is one of the most difficult areas of personal injury law...
The Many-Headed Hydra of Fraud - Catherine Burt & Kate Abraham, DAC Beachcroft
Organised crime gangs, illegal and unethical practices in the claims industry, and a persistent compensation culture are all combining to create a costly problem for insurers that is to the ultimate detriment of policyholders...
FREE BOOK CHAPTER: Personal Injury Trusts: Overview and Preliminary Considerations (From 'A Practical Guide to Personal Injury Trusts' by Alan Robinson)
Personal injury trusts were originally created as a response to the capital rule in means tested social security benefits. Put simply, this rule denies certain means tested benefits to those with capital in excess of a certain amount. This then creates a problem for the existing benefit claimant who receives a sum of capital, in that he or she will on the face of it be immediately deprived of access to his or her benefits...
The Portal, Fixed Costs and Claims on the Multi-Track - Andrew Spencer, 1 Chancery Lane
Since the coming into force of the fixed costs regimes for road traffic accident, employer's liability, and public liability, it has been unclear whether fixed costs apply to a claim properly started in the Portal, but which ends up being allocated to the Multi-Track - for example because the case develops such that the case value exceeds £25,000...
Occupiers Liability and Highways Claims Converge - Jack Harding, 1 Chancery Lane
In Edwards v London Borough of Sutton (2016) EWCA Civ 1005 McCombe LJ expressed the view that "not every accident (even if it has serious consequences) has to have been the fault of another; and an occupier is not an insurer against injuries sustained on his premises". That case involved a catastrophic injury caused by the claimant falling from a bridge...
Re-opening an RTA settlement: Case Overview - Emma Melia, Spencers Solicitors
The Claimant was involved in a road traffic accident on 6th May 2012 and suffered injuries to his chest, ribs, thigh and lower back as a result of the accident. The Claimant was 48 years of age at the time and worked as a self employed floor layer...
FREE BOOK CHAPTER: What is ADR? (From 'A Practical Guide to Alternative Dispute Resolution in Personal Injury Claims: Getting the Most Out of ADR Post-Jackson' by Peter Causton, Nichola Evans, James Arrowsmith)
ADR means Alternative Dispute Resolution. This is a term with a very wide definition and covers any form of dispute resolution, other than through Court process. Strictly speaking the term "alternative" may be something of a misnomer. Most forms of ADR are used hand in glove with either litigation or arbitration.ADR comes in a range of forms, as summarized below. Most of these forms of ADR are discussed in further detail later on in the book...
Qader v Esure: A Practical Guide to the Application of Fixed Costs and Associated Arguments - Matthew Hoe, Taylor Rose TTKW
There has already been much commentary on Qader v Esure [2016] EWCA Civ 1109. The judgment is remarkable for re-writing an unambiguous rule. The results it generates are inconsistent. This note does not analyse those features, but is instead a purely practical guide...
Bird v Acorn Group Ltd [2016] EWCA Civ 1096: Recent Decision Offers Clarity On A 'Short But Important Point' - Andrew Cullen, Barrister
The Court of Appeal decision in Bird v Acorn Group Ltd [2016] EWCA Civ 1096 centered on the question of whether a 10-minute disposal hearing amounted to listing the claim for trial when determining the level of fixed costs recoverable under CPR r.45.29E, Table 6D part B...
Unsticking the Stuck Clinical Negligence Case - Dr Mark Burgin
Dr Mark Burgin BM BCh (oxon) MRCGP explains how generalist expertise can unlock the most resistant cases of clinical negligence in secondary care...
Supreme Court Clarifies Applicable Law for Accidents Abroad Involving Uninsured Drivers - Sara-Jane Eaton, DWF LLP
Unfortunately, road traffic accidents whilst abroad on holiday or on business are an all too common occurrence. Even more problematic are claims caused by untraced or uninsured drivers...
'Reforming the Soft Tissue Injury ('Whiplash') Claims Process': Access To Justice Thrown Out of the Window - Andrew Cullen, Barrister
The Government's Consultation Paper, 'Reforming the Soft Tissue Injury ('whiplash') Claims Process', has sent seismic waves across the PI world, waves which will reverberate for years to come. In the forward to the Government's Consultation Paper, Lord Keen of Elie QC, opines that...
The Fall of Clinical Negligence - Dr Mark Burgin
Dr. Mark Burgin BM BCh (oxon) MRCGP explains how the rise of clinical negligence in the UK will lead to a fall in the numbers of medical mistakes...
Summary of Recent Cases, December 2016
Here is a summary of the recent notable court cases over the past month...
PI Practitioner, December 2016
Each issue a particular topic is highlighted, citing some of the useful cases and other materials in that area. This month: Disposal hearings and fixed costs...
Book Reviews
Book review: 'Legal Mind: Contemporary Issues in Psychological Injury and Law by Dr Hugh Koch' - Editorial
This book is a detailed guide to some of the issues which can arise in relation to expert evidence with respect to psychological injury claims. It examines first diagnosis, treatment and prognosis and then moves on to...