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

Wright v Satellite Information Services Limited [2018] EWHC 812 (QB)
In an accident at work claim, the High Court upheld the first instance judge's finding that the claimant was not fundamentally dishonest for the purposes of s.57 of the Criminal Justice and Courts Act 2015. The claimant had pleaded a significant future care claim in excess of £73,000, but only recovered £2,100. Whilst His Honour Judge Pearce accepted that there were "real inconsistencies" in the claimant's case and found that there was no real need for continuing care other than minimal support, the Judge held that the claimant had not been fundamentally dishonest in presenting this aspect of his claim. On appeal, the defendant argued that it was wrong as a matter of law for HHJ Pearce not to find that the claimant had been fundamentally dishonest. Yip J disagreed, holding that the Judge's finding was essentially a finding of fact like any other, and that there was no reason to fault the Judge's approach to, and consideration of, the evidence. The case was distinguished from the recent case of Sinfield, on the grounds that Mr Sinfield had admitted to dishonestly creating invoices, whereas Mr Wright had merely given evidence which did not support the hours recommended by his care expert, which were subsequently incorporated into his Schedule of Loss. Yip J commented that Schedules and Counter-Schedules are of pivotal importance in these cases and should contain sufficient narrative for claimants to understand the facts they are asserting therein, which she said had not been the case for this claimant.



Farah (By His Litigation Friend Mohamad) v Adbullahi and others [2018] EWHC 738 (QB)
Readers of this bulletin will recall the decision of Cameron v Hussain and another [2017] EWCA Civ 366, in which the Court of Appeal held that a claimant could name a "person unknown" as the first defendant driver, enabling claimants to obtain judgments against such persons which would need to be satisfied by road traffic insurers pursuant to s.151 of the Road Traffic 1988 Act. In the case of Farah, the claimant sought to do just that. However, the relevant insurance company argued that Cameron did not apply to the facts of this case, because it had already obtained a declaration that the relevant insurance policy was void ab initio, thereby negating any s.151 liability it may otherwise have held. Master Davison disagreed that Cameron was restricted to cases where there was a s.151 liability in play, and held that the test laid down by the Court of Appeal was whether a judgment against an unknown person may confer a "real benefit" on the claimant. He held that this was satisfied even where there could be no s.151 liability, as not only could the claimant seek to challenge the s.152 declaration obtained by the insurer, but in any event the insurer would nonetheless be responsible to indemnity the claimant in its role as an Article 75 insurer. Accordingly, he held that a restriction of Cameron v Hussain to cases where there was a s.151 liability would be drawing an arbitrary line between cases where there is an alternative method of recovery against an insurance company.

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Summary of Recent Cases - Costs

Corstorphine (A Child by his Litigation Friend Laura Ellis) v Liverpool City Council [2018] EWCA Civ 270
The Claimant suffered personal injuries caused by a defective piece of play equipment. The Claimant entered into a CFA in August 2012, issued his claim in November 2012 and QOCS came into effect on 1 April 2013. The Defendant Local Authority then issued Part 20 claims against the manufacture and supplier of the play equipment. At trial, the Judge dismissed both the primary and Part 20 claims. In respect of costs, the Claimant clearly had a pre-commencement funding agreement within the meaning of r48.2 which encompassed the Part 20 claims because it related to 'the matter that is the subject of the proceedings...'. The Judge concluded the QOCS regime was disapplied and thus ordered the Claimant to pay the costs of the primary claim, the Defendant was to pay the costs of the secondary claim, but those could be added to the costs of the primary claim. The Claimant appealed in respect of the costs order.
The Court of Appeal held that the Part 20 claims were commenced after the QOCS regime came into effect. There was no CFA which applied to these claims. The key issue was the meaning of the phrase 'the matter that is the subject of the proceedings...' within r48.2(1). That meant the underlying dispute. At the time of the QOCS regime coming into force, the Claimant had no expectations in respect of the Part 20 claims. The 'underlying dispute' was thus the claim against the Defendant Local Authority. Therefore the Judge erred and the QOCS regime should have applied to the Part 20 claims. The costs order was varied to exclude the costs of the Part 20 claims.

Ballard v Sussex Partnership NHS Foundation Trust [2018] EWHC 370 (QB)
The Claimant appealed against a costs order made in a personal injury claim. The Defendant had made two Part 36 offers to settle. The Claimant rejected the first offer and made her own Part 36 offer. The Defendant withdrew its first offer and rejected the Claimant's. The Defendant made a second offer which was not accepted. At trial, the Claimant failed to beat either of the Defendant's offers. The Judge at first instance found that the second offer was irrelevant, and the Claimant should pay the Defendant's costs from the date the first offer was withdrawn. The Claimant appealed the finding that the second offer was irrelevant.

The High Court allowed the Claimant's appeal. The second offer was relevant as it had been drawn to the court's attention. It entitled the Defendant to its costs of the trial. However, what of the first offer? The potential relevance of the first offer was derived from r44.2(4)(c) which provided that the court could take into account any admissible offer when considering costs. There was a tension between that provision and r36.17 which provided that a withdrawn Part 36 offer could not have specified costs consequences. It was not right to regard the second offer as irrelevant, in fact it was highly relevant. The wording of the offer had to be construed accordingly. As such, the Claimant was entitled to costs up to the trial, and the Defendant to its costs of the trial itself.



Williams v Secretary of State for Business [2018] EWCA Civ 852
The Claimant brought a NIHL claim against two Defendants. It later dropped the claim against one of the Defendants. The claim against the other Defendant settled before proceedings were issued. The Judge at first instance ruled that the Claimant ought to have commenced the claim under the Pre-Action Protocol for Low-Value PI claims. He therefore held that the Claimant should be entitled only to fixed portal costs under r45.24. However, a second judge found for the Claimant and ruled that he was entitled to an assessment of costs under r47.1.

On appeal, the following was used. The Claimant's solicitors had not used the protocol as, at the time of the Letters Before Action, there were two Defendants and therefore the protocol was inappropriate. The Claimant was prima facie entitled to have its costs assessed on the standard basis pursuant to standard Part 36 provisions. R45.24 dealt with claims that had not been commenced under the Protocol. This assumed proceedings had been issued and judgment obtained. Therefore r45.24 could not apply and the Claimant was not automatically restricted to fixed costs.

However, paragraphs 2.1, 3.1 and 7.59, when read together, comprised a warning to solicitors that, if a claim should have been started under the protocol and was not (and that was unreasonable) then, based on the conduct provisions in Part 44, the Claimant should be restricted to fixed costs that would have been recoverable under the Portal. In a case not governed by r45.24, the Defendant could rely on conduct provisions to attain the same result.

Summary of Recent Cases - Civil Procedure & Evidence

(1) Woodward (2) Addison v Phoenix Healthcare Distribution [2018] EWHC 334 (Ch)
The High Court re-iterated that parties who wish to take advantage of their opponent's mistakes must be mindful of their duty to assist the Court in furthering the overriding objective. In Woodward, the claimants sought to serve the Claim Form on the defendant's solicitor days before the expiry of the deadline for service of the same. Subsequently, and following the expiry of that deadline, the defendant's solicitor informed the claimants that it had not been instructed to accept service. When the claimants asked the Court to either declare that the service had been good, or otherwise validate it, the defendant argued that the Court did not have jurisdiction to hear the claim given that the Claim Form had not been served in time. Master Bowles held that whilst the defendant was permitted to utilise the claimants' mistake and was not under a duty to warn them of their mistake, such conduct was relevant to any subsequent application for a declaration that the service was valid. Following the reasoning in Denton v TH White [2014] EWCA Civ 906, the Master held that relying on technicalities and mistakes to obtain a litigation advantage would count against a party, and in this case the defendant's solicitor's failure to warn the claimants of their mistake breached their duty to help further the overriding objective. Accordingly, the Master granted the claimants' application.

Graham Frank Davy v 01000654 Limited [2018] EWHC 353 (QB)
The main proceedings concerned a claim for negligent financial advice. The defendant sought to strike out the claim, or a grant of summary judgment in its favour, on the basis that the limitation period had expired, as the claimant had knowledge of his potential claim at an earlier date than he asserted. The claimant argued that it was not appropriate for such matters to be determined on the papers without the Court hearing his oral evidence regarding the state of his knowledge at a given date, i.e. without a fuller investigation at trial. However, Judge Russen QC disagreed and held that issues regarding knowledge of the purpose of s.14A of the Limitation Act 1980, or indeed s.32 concerning the concealment of facts, could appropriately be dealt with upon an application for summary judgment.

Re P (A Child) [2018] EWCA Civ 720
In a case concerning care proceedings, the Court of Appeal made some important remarks regarding counsels' notes of judgments and their use when applying to appeal a judgment. The Court acknowledged that it is "often impossible" to obtain a transcript of an oral judgment within the timeframe for lodging an appeal notice. Accordingly, it gave the following guidance: "It is therefore important for advocates attending court on an occasion when judgment is given to do their best to make a full note of the judgment so that, if it is needed, that note can be provided promptly to the Court of Appeal when a notice of appeal is filed". The Court also gave guidance on when a notice to appeal should be issued in circumstances where a party has sought to clarify a judgment: it is reasonable to await the clarification before issuing a notice of appeal, but that is subject to the clarification being provided within a reasonable time. The Court indicated that a reasonable time is unlikely to be more than 4 weeks, after which the party should issue a notice of appeal (which does not in itself prevent the clarification process from proceeding).

Industry News

MCM says holiday sickness claims activity 'much reduced'...
Opposition raise serious doubts about Civil Liability Bill...
Justice minister uncompromising on whiplash reforms and says more fixed costs are on the way...
Travel sickness claims to be subject to fixed costs...
MP says cyclists and motorcyclists should be exempt from whiplash reforms...
Insurers pledge to pass on Civil Liability Bill savings...
BMW top engineer says self-driving Uber fatal accident was 'inevitable' due to lack of required tech...
Pressure on government to go further with PI cold-calling ban...
PI market will shrink to just a dozen firms says legal investor...
Insurance industry to fund personal injury portal...

Can a claim be made for becoming sensitised to an industrial chemical despite being asymptomatic? - Simon Anderson, Park Square Barristers, Leeds Can a claimant found a claim for personal injury for having been sensitised to an industrial chemical through exposure to it, despite being asymptomatic? Yes, according the unanimous decision of the Supreme Court (Lady Black giving the sole judgment) in Dryden and others v Johnson Matthey Plc [2018] UKSC 18...	Countdown to GDPR - Aidan Ellis, Temple Garden Chambers There is no doubting the hot topic this Spring. In all of my last visits to Court, the conversation in the robing room has turned at some stage to issues surrounding compliance with the GDPR. Nor is the concern limited to lawyers...
It's a Fair Cop: Supreme Court Reviews Duty of Care (and a Foot Note on the Worboys Case) - Patrick West, St John's Chambers Robinson v Chief Constable of West Yorkshire [2018] UKSC 4 SC (Lady Hale PSC, Lord Mance DPSC, Lord Reed JSC, Lord Hughes JSC, Lord Hodge JSC) 08/02/2018...	Some Practical Aspects of Chronic Pain - Pankaj Madan, 12KBW & Exchange Chambers What is Chronic Pain Disorder? 'Pain is an unpleasant sensory and emotional experience associated with actual or potential tissue damage, or described in terms of such damage' International Association for the Study of Pain...
Part 36 v Part 45: Which is Winning Round 2? - Ella Davis,1 Chancery Lane The cost consequences on judgment of a Claimant beating a Part 36 offer in a fixed recoverable cost case have been tolerably clear since the Court of Appeal's decision in Broadhurst v Tan [2016] EWCA Civ 94. In a nutshell, rule 36.14(A) (now rule 36.21) prevailed over rule 45.29(B)...	Does 'fundamental dishonesty' need to be explicitly pleaded and/or put to a claimant in cross-examination? - Max Wilson, 1 Chancery Lane These questions have been answered in the recent Court of Appeal decision, Lorna Howlett & Justin Howlett v Penelope Davies & Ageas Insurance Limited [2017] EWCA Civ 1696...
CFA Assignment: The End of the Yellow Brick Road? - Christopher McClure, John M Hayes By way of recital from our first article in this series on CFA assignment, the reader will recall that Budana v The Leeds Teaching Hospitals NHS Trust concerns, in brief, the following facts...	Incurred Costs: A Fixed or Moveable Feast? - Marc Banyard, John M Hayes Technical costs specialist Marc Banyard explores the thorny issue of the treatment of costs incurred between the date of an initial costs budget and the date on which an updated costs budget has been prepared and asks whether the same fall as 'incurred costs' for the purpose of the updated budget or remain as future costs...
Summary of Recent Cases, April 2018 Here is a summary of the recent notable court cases over the past month...	PI Practitioner, April 2018 Each issue a particular topic is highlighted, citing some of the useful cases and other materials in that area. This month: Update on the Civil Liability Bill...
Medico-Legal Articles, Edited by Dr Hugh Koch
Legal Mind Case and Commentary No 17: The Joint Statement: Concise, Impartial and Key - Professor Hugh Koch, Dr Eleanor Sorrell, Dr Luisa Fernandez-Ford Case: 23.02.18 - David John Saunders v. Central Manchester University Hospitals NHS Foundation Trust (2018) EWHC343 (QB)...
Clinical Negligence Medicine by Dr Mark Burgin
Short Notes on Immunisation 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 immunisation...	Short Notes on Cirrhosis 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 liver cirrhosis...
Short Notes on Back Pain 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 back pain...

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.