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.

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Anthony Johnson & Tim Kevan (editors)

Summary of Recent Cases - Substantive Law

Robinson v Chief Constable of West Yorkshire Police [2018] UKSC 4, [2018] 2 WLR 595

In the course of an operation to arrest a suspected drug dealer, a police officer foresaw the possibility of the suspect attempting to escape and requested back-up officers. When the arrest was attempted, the officer had foreseen the possibility of injury to nearby individuals if the suspect attempted to escape but had not in fact noticed the presence of Ms Robinson in the immediate vicinity. As predicted, a struggle did ensue during the arrest, and as a result Ms Robinson was knocked to the floor and injured. Ms Robinson brought an action against the Defendant for her injuries, which the lower courts dismissed on the basis of what had come to be known as the 'blanket immunity' of the police in negligence suits. Importantly, the Court of Appeal assessed Ms Robinson's case through the eyes of the well-known, three-limb Caparo test, holding that it would not be fair, just or reasonable to find that there was a duty of care on the Defendant in this case.

On appeal to the Supreme Court, this decision was overturned. The Justices took the opportunity to explain and clarify the law of negligence and its application to public bodies, including the police. Firstly, the Court clarified that the Caparo test was not necessary in every case: if a duty of care is well established in a particular set of facts, there is no need to turn to the Caparo test, which should be reserved for cases where legal principles do not provide a clear answer. In Ms Robinson's case, it was well established that the police, like any other legal individual, were under a duty to take reasonable care to avoid causing injury to persons where such injury was reasonably foreseeable. The Justices clarified that previous case law, which had come to be interpreted as conferring 'blanket immunity' on the police, had been misinterpreted: such cases were examples of omissions which, without more, cannot give rise to a claim in negligence. The Court was at pains to emphasise that this would be the case whether the defendant was an individual or a public body.



This decision may lead to a great influx of claims against public bodies, now that it is clear that they enjoy no form of immunity simply because of their functions or status. It had previously been thought that most claims would fail on the ground that it would not be fair, just or reasonable to hold a public body liable, given (amongst other things) the resource implications this would have. The decision of Robinson provides a good summary of the case law making up the law of negligence, including the case law concerning public authorities, liability for omissions, and the interplay between those principles, and is well worth a read in full.

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Summary of Recent Cases - Costs

Swain v J C & A Limited (31 January 2018, Senior Courts Costs Office, Master Brown)

In a solicitor-client dispute, the former client sought disclosure of documents in the solicitors' file relating to a low-value personal injuries claim in which they acted for the client. The solicitors deducted £900 from a settlement of £2,800, and then sought an additional £927 in which they claimed for, inter alia, an ATE premium of £198. The client sought schedules to the CFA, the retainer and client care information. The solicitors argued that the client had no proprietary interest in the documents, that his application was disproportionate and that they had complied with the relevant regulations and were entitled to make the deductions.

The Master held that the court had discretion under s68 Solicitors' Act 1974 to order disclosure of the documents, regardless of the client's proprietary rights (or lack thereof). Clients, particularly those bringing low-value PI claims, were unlikely to recognise the need to retain documentation, and were entitled to assume that their solicitors would provide copies of the same if requested. In this case it was appropriate to exercise the discretion in favour of the client as he was at a substantial disadvantage. There were legitimate concerns in respect of proportionality of the application, and there was a public policy reason to restrict applications of this nature in low-value claims. However, those concerns should not override what would otherwise be the correct outcome. There was also a public policy argument in favour of delivery up of the documents, in order to foster a culture of transparency and lead to settlement of claims without further involvement of the court.



Dial Partners LLP & Ors v Eastern Airways International Ltd & Ors (16 January 2018, Senior Courts Costs Office, Master James)

The Claimants entered a DBA with their solicitors under which their solicitors' maximum recoverable costs were 50% of the damages awarded. A week before trial the DBA was replaced by a CFA (about which the Defendants were not informed). A week before trial the claim was settled for £650,000 plus costs to be assessed if not agreed. The Claimant's solicitors sought just over £500,000 in costs (compared with the £250,000 they would have been entitled to under the DBA).

The preliminary issue was determined in favour of the Claimants. The Court held that the funding arrangement change did not offend the Kellar principle (Kellar v Williams [2004] UKPC 30). This applied where cases where a costs agreement was amended after judgment. Here the funding arrangement had been changed before settlement. As far as the Claimants were concerned the case may have been fought to trial. The outcome could not have been predicted simply because the Defendants had made a Part 36 offer. They negotiated for another two weeks before settling the case at a substantially higher sum on the eve of trial. The change from DBA to CFA was a reasonable one, and the Claimants were correct that there was no requirement to inform the Defendants (since the agreement was a post-LASPO CFA). There was no attempt to add a large, retrospective success fee. Instead this was an attempt to avoid a cap which would otherwise have left the Claimants' solicitors unable to claim a figure close to what the case cost to run.


Corstorphine (A child by his litigation friend Laura Ellis) v Liverpool City Council [2018] EWCA Civ 270

The appellant suffered a serious personal injury on a defective tyre swing. The respondent brought Part 20 claims against the manufacturer and supplier of the tyre swing. They were joined to the action and the primary and Part 20 claims were tried together. The Judge dismissed both claims. The appellant had entered into a CFA in August 2012. The Judge concluded the QOCS regime was dis-applied pursuant to CPR r44.17 and ordered the appellant to pay the costs of the primary claim. He held that the second and third Defendants' costs should be paid by the local authority but that the respondent could add them to the costs of the primary claim.

The Court of Appeal held, in relation to QOCS, that the purpose of the regime was to protect PI claimants from adverse costs orders. However, the transitional provisions did not apply where the Claimant had entered into a pre-commencement funding arrangement, which the August 2012 CFA was. In respect of the costs of the Part 20 claims, these applied to claims which had come into being after the QOCS regime. There was no pre-commencement funding arrangement in respect of these claims. The key issue was the meaning of the phrase 'the matter that is the subject of the proceedings in which the costs order is to be made' within CPR r48.2. That meant the underlying dispute. At the time of entering into the PCFA, the only matter which was the subject of the proceedings was the claim against the local authority. Therefore, QOCS should apply to the claims made against the second and third Defendants. As a consequence, the appellant was entitled to costs protection against adverse costs orders in respect of those claims. The Judge's decisions to add those costs to those which were enforceable by the local authority was set aside.

Summary of Recent Cases - Civil Procedure & Evidence

Barton v Wright Hassall LLP [2018] UKSC 12, [2018] All ER (D) 109 (Feb)

The Claimant had previously instructed the Defendant law firm in negligence proceedings against another set of solicitors. In May 2007, the Defendant came off record as acting for the Claimant. In 2013, toward the end of the relevant limitation period, the Claimant sued the Defendant firm for negligence in its handling of his previous proceedings. The Claimant's Claim Form was issued, which he chose to serve on the Defendant personally. Although he had corresponded with the Defendant's legal representatives, he did not attempt to serve the Claim Form upon them until the last day of the four-month validity period. On that day, he attempted to serve the Claim Form by e-mail. However, the Defendant's legal representatives had not indicated in writing that they accepted service by e-mail, which meant that the Claimant had failed to validly effect service.

The Claimant applied to the Court for: (1) an extension of the four-month validity period; and (2) an order that the e-mailing of the Claim Form be treated as good service. Those applications were rejected at first instance. The Claimant appealed the first application, namely the extension of time. This was rejected by the Court of Appeal, and also by the Supreme Court. The majority of the Supreme Court made it clear that the rules surrounding service by e-mail are important, as Claim Forms start an important process and require immediate attention from sufficiently qualified people. Given the volume of e-mails solicitors' offices receive, there is a risk that such service would not receive the attention it required. It was for this reason that the written consent of the other party was required. The Court explained that it was aware of the difficulties that litigants in person face, but nonetheless held that it was reasonable for someone taking a significant procedural step to find out what the rules are and to comply with them, as the rules were drafted in clear language and were available easily on the internet. This decision represents another firm stance on procedural compliance.


Minera Las Bambas SA and another v Glencore Queensland Ltd and others [2018] EWHC 286 (Comm), [2018] All ER (D) 149 (Feb)

The substantive dispute between the Claimants and the Defendants concerned obligations under a share purchase agreement. In accordance with the same agreement, the Defendants had partially controlled separate litigious proceedings commenced by the First Claimant in Peru. As a result, in the English proceedings the Defendants claimed that certain documents attracted litigation privilege and that they therefore were not obliged to allow the Claimants to inspect them. Moulder J dismissed this submission, holding that in the Peruvian proceedings the Defendants were not a party to those proceedings, but merely exercised some control over them. By contrast, the First Claimant was a party to the proceedings, and therefore any litigation privilege would in fact be in favour of the First Claimant, rather than the Defendants. This case reiterates that litigation privilege is only available to parties of litigation or anticipated litigation, not to those who are somehow otherwise involved, or anticipate being involved, in that litigation.


Shepherd v Collect Investments Ltd [2018] EWCA Civ 162, [2018] All ER (D) 63 (Feb)

Collect Investments Limited ('the Company') owned industrial land and brought trespass proceedings against Mr Shepherd, following the latter's failure to comply with a notice to quit. The Company claimed damages for its lost rental income, which its Particulars of Claims set out as being £12,000 per annum. Subsequently, the Company served an expert report on Mr Shepherd, which quantified the loss of rental income at the higher rate of £78,000 per annum. Mr Shepherd put questions to that expert, and also requested (and received) an extension of time for service of his own expert report, although that report did not materialise. However, throughout all this, the Company did not amend its Particulars of Claim. The Judge found in favour of the Company at trial, awarding it damages based on the expert report. Mr Shepherd appealed the quantum awarded. In considering whether the Company could claim the increased loss of rental income figures without amending its Particulars of Claim, the Court of Appeal noted that Mr Shepherd could not be said to be surprised by the expert evidence or the increased quantum claimed. On that basis, it held that it was reasonable for the first instance Judge to exercise his case management powers in allowing the claim to proceed in full, and without the amendment of the Particulars of Claim. This may come as a surprise to many practitioners who are used to seeing the appellate courts apply the strictures of the CPR.

Industry News

Insurance industry to fund personal injury portal...
Hundreds of firms at risk from PI reform...
Shampoo is almost as bad for health as car exhaust fumes...
Claimant who underwent unnecessary operations to boost £1million injuries claim withdraws in face of fundamental dishonesty plea...
Personal injury awards stay outside financial assessments...
Regulator cracks down on unauthorised holiday sickness CMCs...
Cost legacy of decades-old NHS blunders begins to rise...
Travellers being encouraged to fake illness, says ABTA...
PI competition intensifies as firms look to survive upcoming reforms...
APIL says compulsory ADR would be costly...

Personal Injury Articles
FREE BOOK CHAPTER: An Introduction to Housing Disrepair and Cavity Wall Claims (from 'A Practical Guide to Running Housing Disrepair and Cavity Wall Claims, 2nd Edition' by Andrew Mckie & Ian Skeate) The Small Claims Track change for personal injury cases is likely to come into effect in October 2019. This book looks at other areas personal injury practitioners have begun to focus in, including housing disrepair and cavity wall claims, which may not be subject to fixed costs / small claims track costs.	Valid Consent: The Role of the Medical Expert - Paul Sankey, Enable Law What is the medical expert's role in reporting on consent to treatment? With the change in the law following Montgomery v Lanarkshire Health Board in 2015 that role has also changed...
Ivor Cook v Swansea City Council 2017 - Joanne Pruden, Browne Jaconson LLP In the case of Ivor Cook v Swansea City Council 2017 the Claimant slipped on ice in an unmanned car park owned and operated by a Local Authority which had not been gritted...	FREE BOOK CHAPTER: Introduction to the Jackson Report 2017 and CMC Regulation: A Summary of the Changes A free online chapter from 'A Practical Guide to the 2018 Jackson Personal Injury and Costs Reforms' by Andrew Mckie. 2018/2019 is going to be a huge year for the Personal Injury world (yet again)! Changes are aloft in all different areas of Regulation. A ban on cold calling for claims companies, the movement of claims management companies towards FCA Regulation and more fixed costs for personal injury claims. This book is designed to be a comprehensive guide to take practitioners through all the changes in a clear and easily digestible way...
FREE BOOK SAMPLE: The Nature of Consent (from 'A Guide to Consent in Clinical Negligence Post-Montgomery' by Lauren Sutherland QC) For many years, the law in the UK on consent was singularly out of step with other Commonwealth jurisdictions. Now the recent decision of the Supreme Court in the case of Montgomery v Lanarkshire Health Board has clarified the position in the UK and firmly recognised the rights of the patient in this area of the law...	Divisibility of Psychiatric Injury - Charley Turton, 12 King's Bench Walk The vexed question of the divisibility of psychiatric injury has recently been revisited by the Court of Appeal in BAE Systems (Operations) Ltd v M Konczak [2017] EWCA Civ 1188, an employment case of wide importance and application...
Serving Food That Might Cause Adverse Reactions - Gabrielle Broomhead, Ashfords LLP It is important for anyone serving food to the public to know what the food contains as some ingredients can cause adverse reactions. This may be because a customer is allergic or has a food intolerance. Allergens in food can cause severe reactions, including death to those with acute allergies. Food intolerances on the other hand generally have minor symptoms...	Editorial: Budget Discussion Reports - Aidan Ellis, Temple Garden Chambers I have recently had a number of costs and case management hearings in which the late filing of a budget discussion report by one party or the other, or a failure to engage in negotiations, has been largely excused by the Courts. It is suggested that that approach may be too lenient and that, to enforce compliance with orders and rules, some sanction should be imposed as a matter of course where a budget discussion report is filed late...
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!
Case Comment on Hassell v Hillingdon Hospitals NHS Foundation Trust [2018] EWHC 164 (QB) - Lucile Taylor The claim arose out of the C5/6 decompression and disc replacement operation performed by the Defendant, a spinal orthopaedic surgeon, on the Claimant, who was, at the time, working full time as a head of years 7, 8 and 9 at a local secondary school...	Mrs Rhonda Stewart (New Rohonda White) v Lewisham and Greenwhich NHS Trust [2017] EWCA Civ 2091 - Andrew Wilson, Park Square Barristers In a case where the claimant alleges breaches of an employer's duties under the Management of Health and Safety at Work Regulations 1999, of the Manual Handling Regulations 1992 and of its common law duty of care, in relation to an injury caused by lifting an object, the Claimant must first prove that there was a real risk of injury before deciding whether there was any breach of duty...
Defective Pavement Trip Leads to £6m Compensation - Daniel Slade, Express Solicitors This case, won by Express Solicitors, illustrates several points including: issues surrounding consanguineous marriages in personal injury claims, claims for housing following the settlement of JR V Sheffield, invasive medico-legal testing, the disastrous effects of recumbence on rehabilitation...	High Court Decision Will Affect All London Pedestrians and Bus Drivers - Daniel Slade, Express Solicitors This case, run by Manchester-based personal injury law firm Express Solicitors, saw the High Court hand down an important decision that will affect all pedestrian Londoners and London bus drivers, and has proved how important is for lawyers not to overlook the secondary effects of drivers' negligence...
PI Practitioner, February 2018 Each issue a particular topic is highlighted, citing some of the useful cases and other materials in that area. This month: The Shifting Shape of Privilege...	Summary of Recent Cases, February 2018 Here is a summary of the recent notable court cases over the past month...
Medico-Legal Articles, Edited by Dr Hugh Koch
Legal Mind Case and Commentary No 16: Fundamental Dishonesty: Honest Claimants Have Nothing to Worry About - Professor Hugh Koch, Dr Jenny Bowe, Dr Rachel Strachan & Dr Samantha Day Case: London Organising Committee for the Olympic and Paralympic Games (in liquidation) v. Sinfield. A ruling was given that a volunteer injured at the 2012 Olympics was dishonest in exaggerating the costs of gardening help required following the accident. He stated that the fact that the greater part of the claim may have been genuine was 'neither here nor there'...
Clinical Negligence Medicine by Dr Mark Burgin
Short Notes on Suspected Abuse in Children 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 suspected abuse in children...	Short Notes on Sepsis 2018 - Dr Mark Burgin Dr Mark Burgin BM BCh (oxon) MRCGP considers the elements that should be included in a primer for clinical negligence and coroner cases involving sepsis... preview http://www.pibulj.com/content/law-journal-summaries/news-category-4/4462-short-notes-on-sepsis-2018-dr-mark-burgin

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.