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17 December 2008 Summary


Industry News
Summary of Recent Cases - Substantive Law
Summary of Recent Cases - Costs
Summary of Recent Cases - Civil Procedure



Personal Injury Articles

Credit Hire and Contra Preferentum - Aidan Ellis, 1 Temple Gardens
When arguing about the construction of a contractual term in credit hire cases, it should always be borne in mind by Defendants that they may potentially be able to preface their submissions by stating that if there is any doubt or ambiguity as to construction, the construction most preferable to the consumer, i.e. the Claimant, rather than the credit hire company should apply. In other words the contra preferentum rule should be applied. See Houghton v Trafalgar Insurance [1954] 1 QB 247.

Litigants in person bending the rules to buy more time: Serrano - Alejandra Hormaeche, Tanfield Chambers
Practitioners acting against litigants in person are often faced with the costly dilemma of having to investigate, and respond to, unmeritorious claims that are so poorly presented they require additional case management by the court than would ordinarily be necessary. Serrano v Dan-Goor Limited & Others [2008] EWHC 2323 (QB) (MacDuff J) is a case in point, and involved an appeal by a litigant in person against a judge’s decision to strike out four claims due to her failure to comply with an unless order.

Provisional Damages in Spinal Cases: Davies v Bradshaw and another [2008] EWHC 740 (QB) - William Latimer-Sayer, Cloisters
In April 2008 Mr Justice Wilkie handed down judgment in a quantum only trial involving a claimant who had suffered a spinal cord contusion at C5 and C6 as a result of a road traffic accident. The Claimant suffered from incomplete tetraplegia with brown-sequard syndrome and central cord syndrome. She was able to walk unaided for relatively short distances but for longer distances used a wheelchair...

The Home Owner, the Unguarded Hole and the Inadvertent Visitor – Whose Fault Is It Anyway? - Daniel Tobin, 12 King’s Bench Walk
John Lough v. The Intruder Detention and Surveillance Fire & Security Limited & Robert Fulton [2008] EWCA Civ 1009

Foul play and off-the-ball incidents: vicarious liability of sport’s clubs for the actions of their players in the wake of Gravil v Caroll & Ors - Lionel Stride, 1 Temple Gardens
The recent Court of Appeal decision in Gravil v Caroll (1) and Redruth Rugby Football Club (2) [2008] EWCA Civ 689; [2008] ICR 1222 drives a stake through any notion that a sports club holding only semi-professional players under contract can avoid liability for the violent conduct of their contracted players, even when the incident occurs ‘off-the-ball’ and the game is no longer in play. Given the broad ramifications of this decision for semi-professional sport, the following passages analyse the case in greater detail.

Employers’ Liability Policy "trigger" Litigation - Tabitha Nice, Stewarts solicitors
Durham -v- BAI (Run Off) Limited (In Scheme of Arrangement) ("Lead Case 1"), Fleming & Eddleston -v- Independent Insurance Company Limited (In Provisional Liquidation) ("Lead Case 2"), Edwards -v- Excess Insurance Company Limited ("Lead Case 3"), Thomas Bates & Son Limited -v- BAI (Run Off) Limited (In Scheme of Arrangement) ("Lead Case 4"), Akzo Nobel UK Limited & Amec PLC -v- Excess Insurance Company Limited ("Lead Case 5"), Municipal Mutual Insurance Limited -v- Zurich Insurance Company and Others ("Lead Case 6")

Assisted Suicide and the Right to Respect for Private and Family Life - Chipo Mwale, Birmingham City University
This article considers the recent case of R (on the application of Debbie Purdy) v Director of Public Prosecutions, and Society for the Protection of Unborn Children [2008] EWHC 2565 (QB), handed down on 29 October 2008

PI Travel Law, Edited by Katherine Deal, 3 Hare Court

Section 75 of The Consumer Credit Act 1974: A Very Helpful Remedy - Clara Johnson, 3 Hare Court
The recent insolvencies of XL Leisure Group, K&S Travel, Zoom Airlines and others, with more predicted to go bust before Christmas, left thousands of holidaymakers stranded abroad and many more out of pocket for a holiday already paid for but no longer going ahead. Many package holiday customers will be protected if they have taken care to book with tour operators who hold an Air Travel Organiser’s License (‘ATOL’). Those who are not have little or no prospect of recovering the contract price from the airline or tour operator. What recourse do those customers have to recover their losses?

Mediation & ADR Articles, Edited by Justin Patten, Human Law

Mediating Personal Injury Claims: Tips and Traps from 30 personal injury cases mediated in 2008 - Tim Wallis, Trust Mediation Ltd
90% of the first 30 personal injury mediations dealt with by Trust Mediation this year settled on the day or shortly afterwards. The success rate is higher than many would have expected, especially those who took the view that mediation had little to offer in this area. On reflection, however, these results are perhaps not unusual given that in these mediations the mediators, as well as the party’s representatives, are all experienced personal injury practitioners. Here are some tips and traps for personal injury lawyers arising from the experience gained from some of these 30 cases.

Marketing for Solicitors

Marketing your Practice: Market Audit. Where do we Want to Be? Where are we Now? - Jenny Cotton, Mortons Marketing
These questions apply to every size and complexity of practice. The answers help to frame the actions required to achieve the future aims. Everyone involved both within and external to the organisation will be helped when these are clear. In any organisation of more than one there will be some differences of view, which at the extreme can be confusing to colleagues and customers, clients and suppliers. Regular self checks and the communication of the agreed next steps are basic tools to ensure a consistent approach. Competitive comparisons and the fresh insight of external reviewers will each offer further benefits, at further investment of time and money.

Charon QC

Charon QC, December 2008
We move a step closer to becoming a more civilised nation…