PI Brief Update, January 2019 Welcome to the latest issue of PI Brief Update, a free newsletter, providing you with industry news and case summaries each month. It is written by our team of PI barristers and currently goes out to around 10,000 people, most of whom are lawyers or claims handlers in the personal injury field. You have received this newsletter at newsletter@newslettercollector.com, because you are signed-up to our newsletters via lawbriefpublishjing.com, www.lawbriefupdate.com or www.pibriefupdate.com. Scroll to the end for contact, unsubscribe info etc. If you'd like to advertise or write articles for us then please email us at mail@lawbriefpublishing.com. Anthony Johnson & Tim Kevan (editors) Summary of Recent Cases - Substantive Law Young v (1) Bennett (2) Acromas Insurance Co Ltd [2018] EWHC 3555 (QB) In this case Master McCloud considered the meaning of the words "reasonably secure" in s.2(3) of the Damages Act 1996 (requiring the court to be satisfied that the continuity of a periodical payment will be "reasonably secure" before making a Periodical Payment Order, or "PPO"). The Claimant had been seriously injured in a road traffic accident in England, liability for which had been entered against the First Defendant. The parties had come to an agreement which provided for the First Defendant's insurer, Acromas Insurance Co Ltd ("Acromas"), to make periodic payments to the Claimant. It thus fell to Master McCloud to consider whether to approve the PPO sought by the parties, pursuant to s.2 of the Damages Act 1996. Acromas was an insurer based in Gibraltar but was entitled to offer motor liability insurance in the UK (including, in this case, to the First Defendant) as a "passported-in" firm regulated in another country in the EEA. Under current legislation, although Acromas is regulated by the relevant regulator in Gibraltar rather than by the Prudential Regulation Authority ("PRA") in the UK, the services it provides are protected by the PRA's Financial Services Compensation Scheme ("FSCS"). Any PPOs to which Acromas is subject thus attract enhanced protection under s.4 of the Damages Act 1996 (meaning that if Acromas were to fail, 100% of the PPO would be recoverable by the Claimant from the PRA). All this meant that, as matters stood, the PPO proposed by the parties fell within s.2(4)(b) of the Damages Act 1996, which provides as follows: "For the purpose of subsection (3) the continuity of payment under an order is reasonably secure if-- (a) it is protected by a guarantee given under section 6 of or the Schedule to this Act, (b) it is protected by a scheme under section 213 of the Financial Services and Markets Act 2000 (compensation) (whether or not as modified by section 4 of this Act) (c) the source of payment is a government or health service body." However, Master McCloud considered that her analysis could not simply end there. She had to consider whether the UK's intended exit from the EU on 29 March 2019 might mean that, although the proposed PPO presently fell within s.2(4)(b), it might not do so in the near future (since the rules governing the FSCS might be amended to exclude services offered by "passported-in" companies such as Acromas, and almost certainly would be in the event that the UK left the EU with a transitional or other arrangement in place). The PPO sought could not fall within s.2(4)(a) or (c), since Acromas was not protected by a guarantee under s.6 of the Damages Act 1996, nor was it a government or health service body. Perhaps unsurprisingly, given the speculative nature of the future risk facing the proposed PPO, the Master was satisfied that continuity of payment was "reasonably secure": there was always an inherent risk that future legislation might mean a proposed PPO being considered by the court would not, at some future date, be protected by the FSCS; there was no indication that Acromas was at any risk of financial failure, and if FSCS protection were removed as a result of the Brexit process, the Claimant could return to court to capitalise the value of the periodic payments if he saw fit; and if all else failed the Claimant could look to the MIB to satisfy the judgment entered against Acromas. It is notable that the court held that the mere fact that a proposed PPO fell within s.2(4)(a)-(c) of the Damages Act 1996 at the time of judgment was not necessarily sufficient to satisfy s.2(3), even though the literal interpretation of s.2 is that this would be sufficient. Further, although the Master was considering s.2(3) in the particular context of Brexit, and specifically the fact that the FSCS might no longer avail the Claimant after the UK's now-looming exit date, the factors which led her to conclude that continuity of the periodical payments would be "reasonably secure" are of wider application. For example, the nature and degree of the risk that the proposed PPO might fall out of s.2(4) will be important - here, it was a speculative risk that the ambit of the FSCS might change, but a court might see matters differently if there was clear evidence that a guarantee under s.6 of the Damages Act 1996 was intended to be revoked. Further, fall-back options will be important - for example, the possibility of proceeding against the MIB, which will doubtless be an option in many cases where a PPO is being considered. XX v Whittington Hospital NHS Trust [2018] EWCA Civ 2832 In this case, a negligent delay in diagnosing the Claimant (a woman) with cervical cancer had both deprived her of the opportunity to have fertility-saving treatment, and left her with permanent bladder, bowel and vaginal dysfunction. It had been her ambition to have at least four children, and she sought to recover the costs of entering into commercial surrogacy arrangements in California (where commercial surrogacy was legal), or the expenses associated with entering into voluntary surrogacy arrangements in the UK (where voluntary surrogacy was legal, but commercial surrogacy was not), to enable her to have four children (up to two of whom could be conceived using her own cryopreserved eggs, and at least two of whom would need to be conceived using donor eggs). Following Briody v St Helens and Knowsley AHA (Claim for Damages and Costs) [2001] EWCA Civ 1010, the judge at first instance refused to award the costs of entering into commercial surrogacy arrangements in California, thus limiting the Claimant's options to voluntary surrogacy in the UK, on the basis that it would be contrary to public policy to award damages to enable the Claimant to do something that would be illegal if done here. He further refused to award the expenses of conceiving four children, limiting the award to the expenses associated with conceiving the two children that could be produced from the Claimant's own eggs, on the basis that the loss suffered by her was the inability to have "her" child, not "a" child and the use of donor eggs would therefore not be restorative of that loss: Briody v St Helens and Knowsley AHA (Claim for Damages and Costs) applied. The Court of Appeal rejected the trial judge's reasoning on both counts, holding that Briody v St Helens and Knowsley AHA (Claim for Damages and Costs) no longer represented the law. The costs of commercial surrogacy arrangements in California were recoverable, since it was not contrary to any UK statute: s.2 of the Surrogacy Arrangements Act 1985 was aimed at criminalising for-profit surrogacy businesses, in that it prohibited the brokering of commercial surrogacy arrangements; it was not aimed at criminalising would-be parents or surrogates, even if they did one of the acts specific in s.2(1); in any event, s.2 did not have extra-territorial effect and it could not be said that it was illegal for a British citizen to enter into a commercial surrogacy arrangement abroad, even for the purposes of rearing a family in the UK. Further, considering the underlying purpose of the Surrogacy Arrangements Act 1985, which was now fairly limited, the Claimant's proposal could not be said to be contrary to public morals. Societal views on the acceptability of paying a surrogate parent had moved on, so there was nothing sufficient to justify refusing the award sought on grounds of public policy. As to the costs of entering into surrogacy arrangements (whether commercial or voluntary) for four children as opposed to two, these were also recoverable. The distinction between surrogacy using the Claimant's own egg, and using a donor egg, was wrong and artificial. The loss to the Claimant was not limited to the loss of being able to carry and give birth to children that were genetically hers, it was also the loss of the opportunity to raise the family she had intended to raise. The award of damages could not restore her completely to her pre-tort position (in most serious cases of personal injury, no award of damages could); but it could place her "as nearly as may be" in that position, by enabling her to raise the number of children she had wished to (even though she could no longer personally carry and give birth to her children, or be genetically related to all of them). It is to be noted that the reasonableness or otherwise of the Claimant wishing to raise four children (as opposed to some lesser number) was not argued by the Defendant, and the Court of Appeal declined to comment on it. Half Price for Barristers, Experts, Academics, etc If you are a barrister (in independent practise), a single user expert, an academic, an independent consultant, or other self-employed single user then did you know that you can get an annual subscription to PIBULJ.COM for half of the standard rate? That means for you the cost is just £149+vat per year for full membership of the UK's leading online personal injury journal, giving you access to the latest news and important case opinions from leading personal injury barristers and solicitors, monthly CPD tests, video masterclasses, online book chapters, and a huge archive of content stretching back over 9 years. So what are you waiting for? Click below for more information or to sign-up now. Summary of Recent Cases - Costs NJE v PTE [2018] EWHC 3570 (QB) This claim arose from a road traffic accident where the Claimant had sustained a serious brain injury. He entered into a CFA in August 2012 with his solicitors, which therefore predated the coming into force of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. At the time of entering into the CFA agreement, the Defendant had admitted liability. Quantum was disputed on the basis that there was a difference between the medical experts and the Defendant argued that given that the Claimant had had four previous head injuries, this injury made little difference in any event. The CFA provided for a 25% success fee if the claim settled more than three months before trial and a 100% success fee if it settled within three months of the trial. The claim settled 2.5 months before trial. At the costs assessment, it was conceded by the Claimant's solicitors that they could not justify a 100% success fee and instead, they sought 67%. The District Judge assessed the success fee at 65%. The appeal was heard by Mr Justice Martin Spencer and Master Leonard (sitting as an assessor). On appeal, the Defendant argued that the risks had not been properly analysed, relying on C v W [2008] EWCA Civ 1459. The Claimant argued that the substantial uplift was justified given the risk in establishing causation. It was held that following C v W, a 100% success fee could never be justified where liability had been admitted and there had been no Part 36 offer. It was noted that there were essentially two fundamental risks which had to be borne in mind: 1. The risk arising from the timing of a Part 36 offer; and 2. The risk of rejecting that offer and failing to better it at trial. It was stated at paragraph 37 that: "It seems to me that if a solicitor could show that he had at least attempted to make a judgment of those matters and had devised his success fee accordingly, a District Judge would be slow to say that the solicitor had got it wrong and that the success fee should not be allowed." Mr Justice Martin Spencer concluded that the decision of the District Judge was plainly wrong and must be overturned. He considered that the District Judge made no attempt to analyse the risks which should reasonably have been taken into account when the success fee was agreed. He concluded that 20% was the appropriate success fee which was then reduced to 12.5% by the then provisions of CPR 45.19. Summary of Recent Cases - Civil Procedure & Evidence The New York Laser Clinic v Naturastudios (Extempore judgment, 21/12/2018) In this case, the Claimant alleged that it had bought laser hair removal machines following nine statements made by the Defendant which were either untrue or negligently made. The Claimant alleged that the machines did not work and as a result that they had suffered loss. The claim was initially brought in tort on the basis of negligent misstatement. A matter of weeks before the trial date, the Claimant brought a very late application to amend its particulars of claim to change the cause of action to a claim for breach of warranty. It also sought to increase its claim for damages from £400,000 to £4.3 million. The Claimant argued that it was merely recharacterizing its case and that it would not have its case dealt with justly if the amendments were not permitted. The Defendant resisted the application to amend on the basis that the application was made very late and would delay the resolution of the matter. It was also argued that it would be potentially unfair to permit the amendment as the Defendant would have wanted to inspect its machines in light of the new cause of action and this was no longer possible as they were out of service. The amendment was allowed. It was held that if the Claimant was not permitted to make the amendments, it would be seriously prejudiced and that was not outweighed by any prejudice that the Defendant might suffer. In relation to the Defendant's argument that it could no longer inspect the machines, it was held that the state of the machines had always been in issue and that the defence put forward would not have been different had the claim been initially pleaded in terms of the amended particulars of claim. Wirsol Energy Ltd v Toucan Energy Holdings (Extempore judgment, 06/12/2018) In this matter, Waksman J held that a Claimant was entitled to its costs leading up to the withdrawal of a summary judgment application as it had been reasonable to make the application on the basis of the original three grounds of defence, before they were withdrawn and replaced with a new defence. In terms of the chronology of this case, on 16 October 2018 the Defendant withdrew its existing three grounds of defence and raised a new defence. On 26 November 2018 the Claimant withdrew its summary judgment application. It was held that the question to consider was, whether the summary judgment application should ever have been made. Waksman J concluded that the original summary judgment application was reasonably made and as such, the Claimant was entitled to its costs up to and including 16 October 2018. Thereafter, costs were reserved. PI Practitioner - each issue a particular topic is highlighted, citing some of the useful cases and other materials in that area. This month we consider extensions to the limitation period in personal injury claims under s.33 of the Limitation Act 1980. The courts appear to have become increasingly more liberal in their approach to applications under s.33 in recent years, and the case of David Ellis v (1) Heart of England NHS Foundation Trust (2) University Hospitals Birmingham NHS Foundation Trust (3) Swayam Iyer [2018] EWHC 3505 (Ch) is no exception to that. The Claimant alleged that each of the three defendants had, on 25 February 2013, negligently caused a delay in diagnosing and/or treating a cerebral abscess, leaving him with epilepsy, cognitive and behavioural dysfunction, and permanent left-sided weakness. The Third Defendant was his GP, whom the Claimant alleged negligently sent him home from the GP surgery, despite the Claimant presenting with acute numbness and weakness of the left leg, and despite the GP having taken bloods which were reported as abnormal within minutes; he suffered a seizure later that day and was taken to hospital. The First Defendant had been responsible for transferring him to a different hospital run by the Second Defendant, and had delayed in doing so; and when he was in the care of the Second Defendant, it had delayed in draining the cerebral abscess. The Claimant instructed solicitors in October 2013, who sent letters before claim to all three defendants in May 2015. In due course, all the parties agreed to extend limitation to 27 June 2016, but the Claimant then obtained an expert report which did not support the claim against the Third Defendant, and he indicated that that claim would not be pursued. Thereafter, the First and Second Defendants (but not the Third Defendant) agreed a further extension of time, to 27 January 2017. Shortly before that deadline expired, the Claimant obtained a further medical report which concluded that the Third Defendant had been negligent, and he issued against all three defendants. In consequence, his claim against the Third Defendant was seven months out of time. HHJ McKenna rejected the GP's argument that the court should consider s.33 applications in the light of Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1537, Denton v TH White Ltd [2014] EWCA Civ 906, and their progeny. S.33 was a freestanding and unfettered discretion, and it was to be exercised in accordance with the principles set out in Chief Constable of Greater Manchester v Carroll [2017] EWCA Civ 1992. Applying those principles, it was just and equitable to allow the Claimant's claim against the GP to proceed. First, the prejudice to the Third Defendant appeared to be limited: he had been made aware that the Claimant was unhappy about his treatment as early as March 2013, and he had been formally notified of the claim in May 2015, which had enabled him to notify the Medical Protection Society, record his recollections, and instruct solicitors well within the limitation period; further, he agreed to an extension of the limitation period which indicated that he did not consider an extension would prejudice his ability to defend the claim at that stage; and he had sent a letter of response in March 2016 (after primary limitation expired) giving a full response to the Claimant's allegations. Second, the seven-month delay in issuing the proceedings was borne out of the Claimant's failure to negotiate a further extension of the limitation period with the Third Defendant, which was understandable given the state of the expert evidence at that time. And third, if the claimant could not pursue his claim against the GP, the prejudice to him would be profound, since he would lose the opportunity to pursue a potentially significant claim against the Third Defendant and would be left with only a potential claim against his legal advisers for loss of chance. The outcome in David Ellis v (1) Heart of England NHS Foundation Trust (2) University Hospitals Birmingham NHS Foundation Trust (3) Swayam Iyer is, as ever, fact-sensitive, however HHJ McKenna's rejection of the Third Defendant's reliance on the caselaw on relief from sanctions should be noted. Defendants routinely argue, in s.33 applications, that the Denton three-stage test ought to be applied by analogy (often with a heavy emphasis on the reasons for the delay in issuing the claim); and even where the court's attention is not specifically drawn to the caselaw on relief from sanctions, submissions are frequently structured around or heavily influenced by the three-stage test. David Ellis v (1) Heart of England NHS Foundation Trust (2) University Hospitals Birmingham NHS Foundation Trust (3) Swayam Iyer joins a growing number of cases disapproving of that approach, and making clear that the s.33 discretion is a free-standing and unfettered one, focused principally on the balance of prejudice rather than any culpability attaching to either side. Industry News Court rejects claimant's plea to silence life expectancy expert... Casualties from crashes caused by slow drivers increase... Skin creams can lead to fire deaths... LASPO review publication delayed again to early 2019... MoJ reveals 20% annual fall in personal injury claims... Crash-for-cash trio sentenced... Top judge calls for ABS transparency amid 'commercialisation' of personal injury... Landmark jail sentence for man who stole client data for CMCs... Motorists with poor vision still driving despite expert advice... Clock change causes increase in road accidents... PIBU Law Journal Summaries, November 2018 Personal Injury Articles, December 2018 | Where Paternal Depression Meets Secondary Victim Claims - Chantelle Bacchus, Bolt Burdon Kemp When we talk about post-natal depression, we often think of mothers. This is a fair assumption and 1 in 5 women develop mental health problems during pregnancy or in the first year after childbirth. However, now we know that dads suffer from post-natal depression too... | Note on the Supreme Court Judgment in Darnley - Jeremy Pendlebury, 7BR The Supreme Court, per the judgment of Lord Lloyd-Jones (with whom Lady Hale and Lords, Reed, Kerr and Hodge all agreed), allowed the appeal by Michael Darnley from the dismissal by the Court of Appeal of his appeal from the dismissal of his claim by the trial judge. Mr. Darnley will now recover damages for the devastating brain damage... | Cavanagh v Witley Parish Council [2018] EWCA Civ 2232 - Peter Wake, Weightmans LLP In a recent decision which contains some salutary learning points for defendants, the Court of Appeal has found the defendant local authority to be liable to the claimant for a tree that fell onto the highway and collided with the bus he was driving... | Cauda Equina Syndrome - Sandra De Souza, Anthony Gold Solicitors Cauda Equina Syndrome (CES) is a serious condition which occurs when the nerves in the spinal canal have been damaged. These nerves control the bladder, bowel, genitals and movement of legs. Symptoms of CES include loss of sensation and pain in one or both legs, numbness and a deterioration or loss of bowel and/or bladder control... | | Editorial: Trial Bundles - Aidan Ellis, Temple Garden Chambers Instead of my usual December 'review of the year', I will end 2018 with some thoughts about trial bundles. I have had a significant number of trials this month (not all effective), and in many of them issues have arisen (or could have arisen) about the state of the trial bundle... | Review of Highway Code Due for 2019 - Charles Heppenstall, Weightmans LLP On the 18th October 2018 the Ministry of Transport announced a proposed update of the Highway Code, to further codify driving practices intended to protect cyclists and pedestrians. This follows the publication in September of the DoT's highway casualty statistics for 2017. Although these revealed... | | An Introduction to Cooling - Flora Midgley, Bolt Burdon Kemp The NHS uses controlled cooling to treat newborn babies who suffer brain injuries following a deprivation of oxygen during birth/labour. I am a solicitor at Bolt Burdon Kemp in the Child Brain Injury team, I specialise in compensation claims for children who have suffered brain injuries - as many of our clients suffer these injuries at birth, often because of... | Summary of Recent Cases, December 2018 Here is a summary of the recent notable court cases over the past month... | CPD Information Reading PIBULJ articles can help to meet the CPD requirements for solicitors, barristers and others. For further details see our CPD Information page. | One Month Trial If you haven't subscribed yet there's no need to miss out. You can join for one month for just £1. Access the trial now! |
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| PI Practitioner, December 2018 Each issue a particular topic is highlighted, citing some of the useful cases and other materials in that area. This month's issue focuses on applications for permission to bring in additional fields of medical evidence, and specifically the case of Sharron Denise Hall v Derby Teaching Hospitals NHS Foundation Trust [2018] EWHC 3276 (QB), which provides a stark illustration of 'how not to do it'... | | Medico-Legal Articles, Edited by Dr Hugh Koch | Legal Mind Case and Commentary No 20 - Assessing Distress Post-Cyber Breaches [Koch HCH, Laraway A, Pelser C & Lamswood S 2018] This is the twentieth in a series of Case reports and Commentaries from Dr Koch and colleagues. A recent case involving data breaches is summarised below and debated... | Clinical Negligence Medicine by Dr Mark Burgin | Artificial Intelligence and the Professions 2018 - Dr Mark Burgin Dr Mark Burgin BM BCh (oxon) MRCGP explains how the recent advances in AI such as convolutional neural nets will change the everyday work of the professional... | Medical Legal Experts Working in Prisons 2018 - Dr Mark Burgin Dr Mark Burgin BM BCh (oxon) MRCGP explains the pitfalls that can occur when performing a Prison Visit for medical legal purposes and the problems arising from increasingly restricted availability of private areas for examinations... | An Introduction to Expert Report Writing 2018 - Dr Mark Burgin Dr Mark Burgin BM BCh (oxon) MRCGP considers the generic skill of report writing from the point of view of an agency providing training to the new expert... | Book Reviews | 'Tough Choices' by Daniel Sokol - Reviewed by Aidan O'Brien Tough Choices is a fascinating collection of case studies and vignettes, drawn from Daniel Sokol's experience on the front line of medical ethics and law... | PIBULJ.TV - masterclasses from the experts Episode 6: 'Masterclass on Litigating Employers' Liability Claims After the Enterprise Act' Andrew Roy, 12 King's Bench Walk A one hour practical guide on litigating employers' liability claims after the Enterprise Act. Includes: the likely effects of s69, circumventing or mitigating the effects of s69, conventional common law principles, enhanced common law duties, direct application of European legislation, Francovich actions, other duties, practical considerations. | Episode 5: 'RTA Personal Injury: a 2015 Update - What Is Happening to PI in 2015?' Andrew Mckie, Clerksroom Andrew Mckie from Clerksroom presents a 35 minute guide to the latest developments in RTA personal injury claims. Covers fundamental dishonesty, inducements in PI cases, CUE for claimants, pre-medical offers, MedCo, and further problems. |
Get Your Message Heard by 10,000 Readers | Do you offer a product or service to lawyers? Now you can place your ad in this newsletter and be seen by around 10,000 UK based PI lawyers and other personal industry professionals. Contact us now: mail@lawbriefpublishing.com or 0844 5 873 283 | Expert Witness Corner We have special advertising rates for expert witnesses. To advertise in this section, please email mail@lawbriefpublishing.com for more details or telephone 08445 UPDATE (08445 873 283). Clinical Psychology Prof Hugh Koch Adults & children, all PI, employment & sport, nationwide www.cv.hughkoch.com & www.hughkochassociates.co.uk. Psychiatry Dr Gaius Davies Emeritus Consultant Psychiatrist, King's College, Bethlem Royal and Maudsley Hospitals. Reports for PTSD and other stress related disorders and general psychiatric problems. Email: gaius.davies@btopenworld.com. Tel: 020 8650 8764. The Authors | Harriet Wakeman, Temple Garden Chambers Harriet is developing a broad civil and public law practice, including personal injury, health and safety, credit hire and employment law. Harriet acts in both an advisory and representative capacity. HarrietWakeman@tgchambers.com |
| Juliet Wells, Temple Garden Chambers Juliet is developing a practice in Chambers’ core areas, with an emphasis on personal injury, health and safety, employment law, public law and extradition. She regularly appears in the County Court in applications, CMCs, small claims and fast track trials, and appeals, and is building a busy paper-based practice. JulietWells@tgchambers.com |
| Tim Kevan, www.timkevan.com Tim Kevan is a co-founder of Law Brief Publishing. He practised as a barrister for ten years at 1 Temple Gardens (now Temple Garden Chambers) specialising in PI, credit hire and civil fraud. During that time he wrote or co-wrote ten law books. He has since written two legal comedy novels for Bloomsbury Publishing based on the BabyBarista blog which has featured on both The Times and Guardian online. |
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