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Anthony Johnson & Tim Kevan (editors)

Summary of Recent Cases - Substantive Law

Axa Insurance UK PLC v (1) Financial Claims Solutions Ltd (2) Mohammed Aurangzaib (3) Hakim Mohammed Abdul [2018] EWCA Civ 1330
The defendants in this claim had initially obtained default judgment against Axa in respect of road traffic accidents, including substantial sums for alleged credit hire charges. It came to Axa's attention that these claims were fraudulent, at which point Axa sought an injunction to prevent the default judgments from being enforced, and brought Part 20 proceedings for the tort of deceit and unlawful means conspiracy. Axa was successful in those proceedings, and sought exemplary damages against the Part 20 respondents. Whilst Axa was awarded compensatory damages, its claim for exemplary damages was rejected on the basis that the claim did not fall within one of the established categories for which such damages can be awarded, as laid down in the well-known authority of Rookes v Barnard [1964] AC 1129. On appeal, the Court of Appeal reversed this finding and accepted that this was a 'paradigm' case for an award of exemplary damages, being an example of conduct calculated to make a profit which would exceed compensation payable to the claimant. "The respondents' object was to extract large sums from the insurers through fraudulent insurance claims in circumstances where if the fraud was discovered before it succeeded, any compensatory damages would be limited to the costs of investigating the fraud, which would in all probability be a much lesser sum, as proved to be the case".



Roy Sumner v Michael Colborne; Denbighshire County Council; Welsh Ministers [2018] EWCA Civ 1006
The claimant in this case was a cyclist, who brought negligence proceedings against the first defendant following a collision with the latter's car on the A494. The first defendant not only denied negligence, but also brought Part 20 proceedings and the Denbighshire County Council and the Welsh Ministers, arguing that visibility at the relevant junction was severely limited due to vegetation on the land at the junction. The vegetation had previously been identified as requiring maintenance so as to ensure visibility for road users. At first instance, the Part 20 defendants were successful in distinguishing previous case law relating to highway authorities' liability for visibility-obscuring vegetation: they argued that these cases related to vegetation on or over the highway, rather than adjacent to it (as was the case here). This was upheld on appeal, and the Court of Appeal noted that if the duty of care contended for by the first defendant was recognised, it would apply to all owners or occupiers of land adjacent to a junction: the claim did not depend on the relevant highway authority having any form of special status. This could give rise to all sorts of claims against landowners for actions taken on their land, for example erecting a building. The wide-ranging nature of such claim would be both impractical and onerous.

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Summary of Recent Cases - Costs

Malone v Birmingham Community NHS Trust [2018] EWCA Civ
The Claimant brought a clinical negligence claim against the Defendant in respect of a negligent failure to diagnose testicular cancer. The Claimant's solicitors were unsure about who was responsible for the Claimant's healthcare, as he was a prisoner and there was in reach medical care provided. As such, the claim was brought against the MOJ, the in-reach team and the Defendant. The CFA covered, "...all work conducted on your behalf following your instructions ... regarding your claim against Home Office for damages for personal injury...". The Trust accepted liability, the other Defendants were removed, and the prisoner's claim settled. At a detailed costs assessment the Judge held no costs were recovered as the CFA only covered a claim against the Home Office and did not cover the claim against the Trust. The decision was upheld by a Circuit Judge.

The Court of Appeal allowed the Claimant's appeal. The wording of the CFA identified the claim to which the CFA related. The pro forma insertions demonstrated poor quality data input (it contained three mistakes in the above quotation). The CFA therefore required examination of the factual matrix and context rather than close textual analysis. The most natural reading was the at the CFA covered work following from the instructions provided in respect of the claim overall (and not specifically the work done against the Home Office). Had the drafter intended to limit the wording to the claim against the MOJ alone, it was likely that they would have taken considerably more care over the wording. More broadly, the CFA had been entered into pre-action, when the identity of the Defendant was unclear. It was unlikely therefore that the named Defendant was intended to limit the scope of the CFA. Furthermore, it was in the interests of both the solicitor and the client that the CFA should cover the relevant work; there was no commercial reason to limit the scope of the claim to a particular Defendant.


Gempride Ltd v Bamrah & Anor [2018] EWCA Civ 1367
The Defendant in a PI claim which had been settled appealed against a master's order disallowing profit costs sought on behalf of the Claimant, a solicitor whose firm had acted for her. The Claimant signed a CFA with her firm which specified an hourly rate of £232 and thereafter £280. After the claim was settled, the Claimant's firm instructed costs draftsmen to prepare a bill of costs. The draftsmen claimed £280 throughout the entire claim, which the Claimant certified as accurate. The Defendant offered £241ph throughout. The Defendant asked for information about other funding methods. The Claimant stated BTE funding had not been available. That was correct, however this was because the BTE the Claimant did have access to did not permit her to instruct her own firm. The Master found the Claimant had certified a misleading bill of costs and had given untrue information in respect of funding. On appeal, the Judge held that the Claimant was not responsible for errors made by the draftsmen and that she had not acted dishonestly.

On appeal, the Court held that solicitors remained responsible for the conduct of anyone to whom they subcontracted work, especially where the subcontractor was not a legal representative (CPR r44.11). Mistake, error of judgment or negligence were not unreasonable or improper conduct. To be unreasonable or improper, a legal representative's conduct had to breach the representative's duty to the court, but it did not have to breach any formal professional rule or be dishonest. Where a r44.11 application was made, the applicant had the burden of proof. The order had to be proportionate to the misconduct. The Judge had erred in considering that, if the Defendant did not prove that the Claimant had intended to mislead, it could not show that she intended to mislead when making representations. The conduct did not require dishonesty. Further, the Judge had failed to consider the legal relationship between the firm and the costs draftsmen. The firm were authorized litigators, the draftsmen were not. Accordingly, the Judge had erred in finding that the Claimant could not be liable for the draftsmen's conduct. The Claimant's conduct had been unreasonable and/or improper in certifying that the hourly rate in the bill of costs was accurate. When she received the offer of £241 throughout, she should have realized that the offer was more than she had been contractually obliged to pay the firm. Her acceptance of that offer was incapable of sensible explanation. Her conduct in allowing the bill to be submitted with a rate that exceeded the contractual rate had at least been reckless. The Judge had further erred in proceeding on the basis that, where a litigant had BTE funding but chose not to use it, it could properly be said that the BTE insurance was not available. Where alternative funding was available but not taken up, that raised the issue of whether it was reasonable to fund the litigation with an alternative means and incur additional liabilities. The Defendant had inevitably been misled. The Court of Appeal made an order under r44.11. An order disallowing all profit costs above the litigant in person rate would be disproportionate. Half those costs would be allowed.



Tuson v Murphy [2018] EWCA Civ 1461
T developed OCD following a liability-admitted accident. She gave up her job as a teacher and issued proceedings. The claim was initially valued at £1.5m on the basis the Claimant would be unable to work again. She obtained a franchise in a playgroup organization and ran workshops for a year. She serves a witness statement, a schedule and obtained a psychiatric report, none of which mentioned her further employment. The Defendant's solicitors made a Part 36 offer in the sum of c. £350,000. The Claimant accepted the offer shortly after the relevant period expired. The Defendant was ordered to pay the Claimant's costs up to the point that she began to mislead the Defendant about her disability. Thereafter the Claimant was to pay the Defendant's costs. The Claimant accepted liability for the Defendant's costs but alleged this should have been from the date of expiry of the relevant period, and not from a retrospective date. That penalty was unjust and disproportionate.

The Court of Appeal held that CPR 36.15(5) required the court to order that the Claimant be awarded costs up to the expiry of the relevant period. In considering whether that order would be unjust, the court had to take into account all the circumstances of the case. One of those was the information available to the parties at the time when the Part 36 offer was made. The Claimant's attempt to run a playgroup did not constitute evidence that her disability was invented. The case was not a 'gross exaggeration' one. However, the issue was patently material to the contention that the Claimant was incapable of work. She had clearly withheld that information. The Court considered the threshold for 'injustice' in the context of Part 36 consequences. Decisions were fact sensitive. However, costs were not always a matter of discretion. It was important to distinguish between cases where the facts known to the Defendant did not change significantly during the period before the delay acceptance, and those where the Defendant's assessment of the value of the case at the time the offer was made was undermined by subsequent events. In the first type of case it was highly unlikely to be unjust to apply the default costs rule. In the instant case, the Judge's exercise of discretion was flawed; the Defendant was ordered to pay the Claimant's costs up the expiry of the relevant period. The offer had been made with knowledge of the Claimant's material non-disclosure.

Summary of Recent Cases - Civil Procedure & Evidence

Jean Edwards v Hugh James Ford Simey (A Firm) [2018] EWCA Civ 1299
The claimant (acting for her deceased father's estate) brought a claim against the defendant solicitors who had advised her father in respect of his vibration white finger claim. This claim had proceeded under the tariff-based compensation scheme for miners, which has been the subject of various professional negligence claims as of late. A finding of negligence on the part of the defendant was not challenged on appeal. Instead, the defendant challenged the Court's method of quantifying the loss sustained as a result of the settlement taking place when it did, and asked the Court to consider subsequent medical evidence. By contrast, the claimant argued that the loss should be valued as at the date of settlement, when that medical evidence would not have been available, and therefore invited the Court not to have regard to it. After a helpful walk through the authorities on the point, the Court of Appeal held that the normal course of litigation in such cases must be to have regard to the evidence that would have been available as at the time of the professional negligence, unless there is a "significant or serious scale to the consequences of the supervening event", which would permit the fresh evidence to be adduced and relied upon. Lord Justice Underhill drew a helpful analogy with evidence which would enable a party to overturn an award of damages on the basis of a post-trial event or information.

Industry News

Clyde & Co uses Section 57 to defeat exaggerated injury claim...
Lord Keen pledges to hold insurers to account over whiplash savings...
Cash for crash scam run out of single garage nets 158 prosecutions...
Top holiday sickness firm among 27 facing SRA probe amid claims 'the bubble has burst'...
RAC says not-at-fault motorists are paying the price for collisions....
Government renews bid to make directors personally liable for nuisance calls...
'Victory for product innovation' as High Court rejects group hip implant claim...
Gardener first to be charged with 'using mobile phone while on lawn-mower'...
Self-driving Uber car which killed a pedestrian detected the woman but decided to ignore her...
MCM says holiday sickness claims activity 'much reduced'...

FREE BOOK CHAPTER: Fixed Recoverable Costs, Portal Costs and Potential Routes Out of Fixed Costs and the Portal in Highways and Slipping/Tripping Claims - Andrew Mckie, Clerksroom A free chapter from the fully updated 2018 edition of 'Occupiers, Highways and Defective Premises Claims: A Practical Guide Post-Jackson' by Andrew Mckie. The first chapter of this book is dedicated to the starting point for most Highways Act 1980 and public liability claims; the Low Value Portal...	Metal on Metal hips and the Consumer Protection Act 1987 (Part One) - James Bell, Hodge Jones & Allen Metal on Metal hips (MoMs) were introduced by the four leading orthopaedic prosthetic companies to the hip prosthetic market on a wide scale in the early 2000s. Stryker, DePuy, Zimmer and Smith and Nephew all produced very similar MoM models as the industry moved to using all metal products after earlier attempts had tried and failed in the 1980s...
CC (widow and dependant of JC (deceased)) v TD [2018] EWHC 1240 (QB) - Paul Sankey, Enable Law A recent case raises the issue of how dependency under the Fatal Accidents Act 1976 is calculated when the parties had started but not completed divorce proceedings and there was uncertainty over the outcome of that process. It is also interesting for its unusual facts...	FREE BOOK SAMPLE from 'A Practical Guide to Wrongful Conception, Wrongful Birth and Wrongful Life Claims' by Rebecca Greenstreet This book provides an overview and analysis of the law in relation to wrongful life, wrongful conception and wrongful birth claims. After reading this book you will: Understand how to establish whether there is a cause of action in your cases in these areas. Have an in-depth understanding of the relevant case law, including...
Fake Holiday Sickness Claims in Court - Miles Hepworth, FOIL & DWF After several summers of facing gastric illness claims in the courts, this summer is set to be an altogether quieter one for insurance lawyers defending gastric illness claims. ABTA's Stop Sickness Scams campaign together with the robust approach taken by some of the larger tour operators, the focus of the Ministry of Justice alongside the wider industry interest has been remarkably successful in a relatively short space of time in discouraging holidaymakers from making fraudulent claims...	Medical Experts Learning to Live with Medco 2018 - Dr Mark Burgin Dr Mark Burgin considers the main challenges facing Medco dealing with medical experts and suggests possible solutions from the point of view of a medical expert...
Admitting Primary Liability, Subject to Causation - Andrew Spencer, 1 Chancery Lane On 23 February 2018, in Worrall v Thomas Cook, DJ Hassall determined the meaning of an admission in a holiday illness case. The Claimant sent a Letter of Claim alleging (among other matters) that the food served to the Claimant under the holiday package was unsafe to consume and not of satisfactory quality. The Defendant replied, making an admission in the following term...	Why Becoming a Paralegal Is the Best Way to Build a Career in Personal Injury Law - Amanda Hamilton, NALP For law graduates looking to enter the personal injury sector, the only true viable pathway currently is to qualify as a paralegal. Why? There are several reasons. Firstly, taking the conventional route is time consuming and costly: going to university to read law costs £9k per annum...
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!
Elite Sport and Stress at Work - Simon Trigger & Tim Ransley, 1 Chancery Lane A few years back I pursued a claim on behalf of a lovely lady who was on the receiving end of the most consistent bullying I have seen. Her male dominated employer had allowed the bullying to go on unchecked to such an extent that she was openly taunted about her looks in the office. It was no surprise that after a period of trying to internalise the bullying, she suffered from a pretty significant mental illness...	Summary of Recent Cases, June 2018 Here is a summary of the recent notable court cases over the past month...
PI Practitioner, June 2018 Each issue a particular topic is highlighted, citing some of the useful cases and other materials in that area. This month: The Progress of the Civil Liability Bill...
Clinical Negligence Medicine by Dr Mark Burgin
Multiple Jeopardy in Medicine 2018 - Dr Mark Burgin Dr Mark Burgin BM BCh (oxon) MRCGP discusses how overlapping regulatory systems are creating a perverse incentive on the quality of medical care... preview http://www.pibulj.com/content/law-journal-summaries/news-category-2/4569-multiple-jeopardy-in-medicine-2018-dr-mark-burgin	Short Notes on Chronic Disease Management 2018 - Dr Mark Burgin Dr Mark Burgin BM BCh (oxon) MRCGP considers the elements that should be included in a primer for clinical negligence cases involving chronic disease management...

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.

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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.

Daniel Laking (2015), Temple Garden Chambers Daniel is developing a practice in all of Chambers’ core areas and regularly appears in the County Court on applications, fast track trials and small claims hearings. He is also available to draft advice, pleadings and schedules. He is currently instructed as a junior junior counsel to the Grenfell Tower Inquiry. DanielLaking@tgchambers.com

Scarlett Milligan (2015), Temple Garden Chambers Scarlett has extensive experience in small claims hearings, fast track trials, and interim hearings, with a particular focus on personal injury, credit hire, insurance fraud, and costs. She is currently instructed as a junior counsel to the Grenfell Tower Inquiry. ScarlettMilligan@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.