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August 2022 Contents

Welcome to the August 2022 issue of PI Brief Update Law Journal. Click the relevant links below to read the articles.


Note that there are no new monthly CPD quizzes since the SRA and the BSB have both updated their CPD schemes to eliminate this requirement. Reading PIBULJ articles can still help to meet your CPD needs. For further details see our CPD Information page.


Personal Injury Articles
The Executor of an Estate Can Apply for Provisional Damages: Power v Hastie & Co Ltd [2022] EWHC 1927 (QB) - Anisa Kassamali, Temple Garden Chambers
Provisional damages can be awarded where a claimant's prognosis is uncertain. By way of a provisional damages order ('PDO', a claimant is effectively given the right to return to court to apply for further damages if he or she suffers serious deterioration in the future as a result of the original injury. The applicant in Power v Hastie & Co Ltd [2022] EWHC 1927 (QB) (22 July 2022) asked the High Court to consider whether that right survives a claimant's death. Put differently, can the estate...
Damages Based Agreements Are Not Enforceable Against a Non-Counterclaiming Defendant: Candey Ltd v Tonstate Group Ltd & Ors [2022] Ewca Civ 936 - Grace Corby, Temple Garden Chambers
The appeal raised the novel question of whether it is lawful for a party against whom a claim is made (i.e. the defendant to a claim or counterclaim) to enter into an agreement that, if he succeeds in defending that claim in whole or in part, he will pay his legal representatives a percentage of the money or the value of the assets that he has resisted having to pay or transfer to his opponent. The Court of Appeal determined such Damages Based Agreements could not be...
A Reminder of the 'Generous Ambit' Of Potential Responses to Applications for Extensions of Time for Service of A Claim Form: ST v Bai (SA) [2022] EWCA Civ 1037 - Sebastian Bates, Temple Garden Chambers
19/08/22. The Court of Appeal has in ST v BAI (SA) [2022] EWCA Civ 1037 considered the approach to be taken to applications under CPR 7.6(2) for an extension of time in which to serve a claim form. ST alleged that she had been s--ually assaulted on a ferry operated by BAI (SA). Her claim was subject to a limitation period of two years...
How (Not) to Consider Permission to Appeal and Applications to Re-Open Appeals: UCP Plc v Nectrus Ltd [2022] EWCA Civ 949 - Sebastian Bates, Temple Garden Chambers
In UCP plc v Nectrus Ltd [2022] EWCA Civ 949, the Court of Appeal addressed 'the circumstances in which judges should accede to an application to recuse themselves, and the process adopted in the Court of Appeal when parties apply to set aside permission to appeal and, separately, to re-open the final refusal of permission to appeal under CPR Part 52.30'...
Medico-Legal Articles, Edited by Dr Hugh Koch
Legal Mind Case and Commentary No. 38: The Importance of being an independent expert - [Koch HCH, Jansen F, Grundy L and Robertson C, August 2022]
This is the thirty-eighth in a series of Case reports and Commentaries from Professor Koch and colleagues. The recent case of Andrews and others v. Kronospan Ltd (2022) EWHC 479 involved the Senior Master prohibiting the claimant from relying upon their experts' evidence (Deal N, 2022), due to his 'inability to act in accordance with his obligation'...
Clinical Negligence Medicine by Dr Mark Burgin
How to write a personal injury template - Dr Mark Burgin
Dr. Mark Burgin BM BCh (oxon) MRCGP explains why every expert should write their own personal injury template. In my role as an independent auditor of medical expert reports I am asked whether I consider any of the report writing software (RWS) to be the best. My answer is that each have advantages and disadvantages but the expert should avoid...
What should an expert put into the Past Medical History section of a PI report? - Dr Mark Burgin
Dr. Mark Burgin BM BCh (oxon) MRCGP discusses the relevance of previous injuries, MSK symptoms and psychological problems. Most people with aches and pains and stress do not attend their doctors to discuss their problems, many consider (rightly) that they are a normal part of life. 'At any given time 15% to 20% of adults will report having back pain and 10% to 20% will report neck pain symptoms'...

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