PI Brief Update, October 2017
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
Darrell Baker (A Protected Party by his Litigation Friend Kerry Baker) v British Gas Services and J&L Electrics (Lye) Limited [2017] EWHC 2302 (QB)
The Claimant, an electrician, brought a claim for personal injuries arising out of an electric shock he sustained while repairing a light fitting. As a result of the shock he suffered a cardiac arrest and fell from a height, suffering a severe brain injury. The trial on liability centred on how the defect arose, and therefore if either Defendant was liable. D2 installed the wiring in 2004 and D1 was responsible for its maintenance and inspection (and was the Claimant's employer). The Judge found the ballast in the light fitting was original; the light fitting itself had not been removed; and, there was no likely explanation for the junction box to have been rewired. On the balance of probabilities the Judge was thus satisfied the fault arose at the time of installation. D2 was therefore liable. D1 carried out periodic inspections in 2009 and 2010 and failed to identify the fault. That was negligent, notwithstanding TUPE transfer issues that arose in the intervening period. The Judge found no contributory negligence attached to the Claimant. Although the experts agreed use of a volt stick would have been appropriate in the circumstances, his employers did not require him to use one. Therefore he was not acting in an unreasonable or unsafe manner. It was agreed that if the Judge found that D2 were responsible for the original wiring error, they would bear a greater share of liability. In the circumstances the Judge apportioned liability 25% to D1 and 75% to D2.
Thomas v Hugh James Ford Simey Solicitors [2017] EWCA Civ 1303
Mr Thomas brought a professional negligence claim against his previous solicitors for allegedly settling his claim in respect of Vibration White Finger for an under-value. He argued that he had not received proper advice in respect of special damages (in particular in respect of gratuitous care and assistance received) and so had accepted an offer made in relation to general damages alone. The Recorder at first instance dismissed the claim and found that there was no actionable breach of duty; the solicitors had advised generally in respect of special damages which was enough. The Claimant appealed on the grounds that the solicitors had been in breach by failing to provide an approximate value of the special damages claim, failing to inform him about the availability of interim payments and treating comments regarding evidential difficulties as concluding the special damages claim. The Court of Appeal dismissed the appeal finding that the failures identified did not constitute a breach of duty, as the solicitors' retainer merely required the solicitors to give advice about possible general and special damages claims. That had been done. It was significant that the claim was a low-value one which the solicitors were running as part of a high volume fixed-costs practice. In those circumstances the solicitors could not be criticised for failing to 'go the extra mile'. There had to be a sensible limit on what solicitors could be expected to do in those types of cases.
Jade Michelle Palmer v Portsmouth Hospitals NHS Trust [2017] EWHC 2460 (QB)
Clinical negligence case arising from deprivation of oxygen at birth. The issues were whether a midwife was negligent in not summoning a doctor earlier than she did, and, whether that failure caused the oxygen deprivation. Had a doctor been summoned earlier, they still may not have reached the Claimant in time to prevent it. The Claimant was left with brain damage which caused cerebral palsy. During trial breach of duty was admitted; the Defendant agreed the midwife should have called a doctor when she made the decision to move the mother to the delivery room and noted a pattern of decelerations in the foetal heartbeat. The first on call doctor was called and was in theatre. It took him 16 minutes to reach the delivery room. The Judge found on the balance of probabilities the second on call doctor was not called. Thereafter the Judge considered the Bolitho question of what would have happened if the second doctor had attended. The Judge concluded it would have taken between five and ten minutes for him to reach the delivery room. Thereafter the assisted delivery would have taken some time. In those circumstances, the Judge found that causation was not established; even if the second on call registrar was called the time of delivery would not have been materially different from when it actually took place and the Claimant would still have suffered injury.
XX v Whittington Hospital NHS Trust [2017] EWHC 2318 (QB)
XX sued the Defendant for clinical negligence arising out of a failure to diagnose cervical cancer causing the Claimant to become infertile and suffer significant ongoing bowel and bladder problems. The Claimant sought, amongst others, recovery of damages for surrogacy charges in California (where commercial surrogacy agreements are legal). In the first case of its kind the High Court awarded the Claimant damages for surrogacy costs resulting from the Defendant's negligence. In doing so the Judge declined to follow the dicta of Hale LJ (as she then was) in Briody v St Helens and Knowsley AHA [2001] EWCA Civ 1010. However, the Court declined to award damages on the basis of undertaking the procedure in California. Instead damages were awarded for two procedures undertaken in the UK at £37,000 each. In respect of general damages, the Claimant was awarded £160,000.
Magill (Executor of the Estate of Colin Magill, Deceased) v Panel Systems (DB) Limited [2017] EWHC 1517 (QB)
The Deceased contracted mesothelioma due to asbestos exposure between 1975 and 1978 while working for the Defendant company. The Deceased had also been awaiting coronary artery bypass surgery at the time of the diagnosis. The Judge held that the Deceased's life expectancy, but for the mesothelioma, would have been 19.5 years. That was the appropriate period for which the FAA damages could be calculated. The Court was not satisfied that the Claimant had lost the benefit of the Deceased's services in any meaningful way as the Claimant's evidence as to the care provided was inconsistent with the Deceased's pre-death behaviour. Further, the claim for the loss of the Deceased's care and attention was dismissed on the basis that was what the bereavement award was intended to cover, so no additional sums were recoverable.
JRM (by his litigation friend TMR) v King's College Hospital Foundation Trust [2017] EWHC 1913 (QB)
The Claimant suffered significant injuries to his spine during an assisted delivery by forceps. He alleged that the doctors were negligent in failing to induce labour earlier when it was noted there was elevated CRP blood test and negligent use of the forceps. The Judge concluded that the Claimant had failed to establish negligence in respect of the first limb of his case. There was debate about the significance and reliability of CRP readings. They were relevant but were only one factor which fed into the clinical decision-making process and should not be afforded significant weight. In respect of the second limb of the Claimant's case, the Judge concluded that the injury occurred at the time of his birth and was consistent with the use of excessive force and traction from instrumental delivery. Had the doctor examined the mother properly, he would have noted the Claimant was in the OL position rather than the OA position. The application of forceps in an incorrect position and the requirement of significant additional force caused the injury. The Claimant was thus successful in establishing liability and judgment was entered accordingly.
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Summary of Recent Cases - Costs
RNB v Newham London Borough Council [2017] EWHC B15 (Costs)
The substantive case settled in January 2017. The most recent costs budget had been agreed in August 2016. During the detailed assessment following settlement, the allowable hourly rate for costs incurred prior to the Costs Management Order was reduced. The Defendant argued that the same reduction should be applied to the remainder of the costs in the costs budget. Deputy Master Campbell in the Senior Courts Costs Office held that a detailed assessment was the only occasion when a paying party had an opportunity to challenge the other side's hourly rates, and accordingly held that that was a good reason to depart from the last approved costs budget, in accordance with CPR 3.18(b). He also held that if he were wrong on the application of the "good reason" test, he would reduce the sums in the same way as they were disproportionate. The High Court has granted permission to appeal on the "good reason" point.
Higgins and Others v (1) ERC Accountants and Business Advisers Limited and (2) Granite Tax Ltd [2017] EWHC 2190 (Ch), [2017] All ER (D) 106 (Sep)
The substantive case alleged negligence and breaches of contract, statutory duty and fiduciary duty. The Defendants argued that the Claimants' solicitors had not properly served the Claim Form. The Claimants sought one of the following Orders, which would have the effect of remedying the defect: that the claim had been validly served; alternative service by an alternative method; dispensation of service; or an extension of time for service. The Second Defendant applied for an Order that the Claim Form and Particulars of Claim be set aside, and a declaration that the Court did not have jurisdiction to try the claim brought (having the effect of requiring the Claimants to begin fresh proceedings, thereby allowing the Defendants to rely on a limitation defence).
The First Defendant made an application for the same Order and declaration, but at the hearing attempted to remain neutral as regards the outcome of the applications. His Honour Judge Pelling QC noted that he had "little doubt" that the First Defendant would want to obtain the benefits if the application were successful, and was attempting to avoid an adverse costs order if the application were unsuccessful. He made it very clear that a party must either maintain or withdraw their application, and the costs consequences will flow accordingly. It is not open to parties to attempt to pin the costs consequence on another party whom they consider to be the 'ringleader'.
R (on the application of (1) Royal Society for the Protection of Birds (2) Friends of the Earth Ltd (3) Client Earth) v (1) Secretary of State for Justice (2) Lord Chancellor & Civil Procedure Rules Committee (Interested Party) [2017] EWHC 2309 (Admin), [2017] All ER (D) 51 (Sep)
Dove J considered the Court's powers to vary costs caps in Aarhus Convention Judicial Review claims under CPR 45.44. Whilst CPR 45.43 caps the parties' liability for costs in the event that they are unsuccessful, the Court has the power to vary these caps. Dove J clarified that the Court will expect any disputes or proposed variations in relation to the costs cap to be raised when the Defendant is acknowledging service, and therefore resolved at the earliest possible stage. Raising the issue at a later stage would be "too late... in the absence of good reason".
Summary of Recent Cases - Civil Procedure
ABC & Anor v Souter & Anor (unreported, 5 October 2017, Queen's Bench Division: Martin Spencer J)
Default Judgment - D1 was convicted of several sexual offences against young people. D2 was a local authority. The Claimants were two of his victims. The Claimants initially obtained default judgment against D1 after he failed to respond to the proceedings. D1 applied to set that judgment aside. The Court dismissed that application on the basis that there was a presumption that D1 was liable based on his criminal conviction. There was nothing provided to the Court to displace that presumption and D1 had been aware of the proceedings for some time. In addition, special measures were granted to the Claimants to give evidence behind a screen and not have any contact with D1 during the trial against the local authority.
Lachaux v (1) Independent Print Limited (2) Evening Standard Limited [2017] EWCA Civ 1327
Confidential Documents - Civil Procedure. The Court of Appeal upheld the granting of an injunction sought by the Claimant to prevent the use of a document protected by legal professional privilege which had been obtained by his wife. The Defendants argued that the document demonstrated the Claimant had lied in his witness statement and the public interest in the truth justified the removal of legal professional privilege. The Court of Appeal held there was no basis in interfering with the Judge's discretion in choosing to grant relief. The document was subject to LPP and was not created to further a fraudulent purpose as it predated the witness statement by over four years. In those circumstances the Judge was entitled to grant an injunction restricting the use of the material.
Briggs v CEF Holdings (unreported, 13 July 2017, Court of Appeal: Gross LJ, Asplin J)
The general rules under Part 36 of acceptance of a Pt 36 offer could not be displaced merely because prognosis at the time of offer was uncertain. The fact the Claimant delayed in accepting the offer because of that was not a reason to displace the usual position, and the District Judge had been wrong to conclude it had. A Judge considering whether to impose Part 36 consequences should not conduct a microscopic examination of the litigation. Part 36 offers were made against the risks of litigation in the usual way. The Appeal Court was unable to find any reason why it would be unjust to impose the usual costs consequences on the Claimant.
PI Practitioner - each issue a particular topic is highlighted, citing some of the useful cases and other materials in that area.
Review of the Discount Rate and Changes Going Forward
Personal injury practitioners acting for both Claimants and Defendants have spent a great deal of 2017 keeping a keen eye on the Discount Rate, following its dramatic fall from 2.5% to -0.75% in February 2017.
Draft legislation published on 7 September 2017 has proposed that the Discount Rate will be set by reference to an assumption that personal injury claimants have an investment risk profile of "low risk", rather than the current assumption of a "very low risk" profile. The Ministry of Justice has said that whilst it is difficult to provide an estimate, a Discount Rate based on this assumption would currently be in the region of 0-1%.
The proposals also stipulate that the Lord Chancellor must review the Discount Rate within 3 years of the last review, thereby giving the Lord Chancellor the power to review the rate more regularly than those 3 years. The draft legislation states that "it is for the Lord Chancellor to decide" when the next review is to be started, and that the Lord Chancellor will continue to set the rate in consultation with an independent expert panel (other than for the initial review, when the Lord Chancellor will make the decision with advice from the Government Actuary and the Treasury).
Industry News
London mayor seeks power to ban wood-burning stoves...
Third hand smoke (eg smoky smelling clothes and furniture) causes brain and liver damage...
Government kills latest attempt to ban cold calls...
Government to look at extending dangerous driving offence to cyclists...
CMR withdraws licence of holiday sickness CMC which encouraged claimants to fabricate evidence...
Every extra patient on a nurse's caseload increases death risks...
Proposed whiplash claims reforms will disadvantage most vulnerable as BTE and ATE costs will rise...
'Fat-cat insurers are lining their pockets'...
Mixed reactions as Jackson review scales back from suggesting fixed costs for all claims up to £250,000...
Government's 'hypocritical' fossil fuel car ban dismissed as 'smokescreen' to dump key pollution policies...
PIBU Law Journal Summaries, September 2017
| Personal Injury Articles |  Frank Perry v Raleys Solicitors - Elizabeth Jones, Parklane Plowden Chambers
The Claimant was a miner who many years ago brought a claim, supported by medical evidence, for VWF (Vibration White Finger). In the current action the Claimant was pursuing his former solicitor for professional negligence in failing to advise him about making a claim for services (which were similar to claims for care and assistance)... |  Claim under MIB's Untraced Drivers Scheme subject to Qualified One Way Costs Shifting - Malcolm Johnson, BL Claims
In Howe v Motor Insurers' Bureau [2017] EWCA Civ 932, Mr Howe was driving a lorry in France on the 30 March 2007 when a wheel detached from a lorry in front of him. The resulting accident left him paraplegic. Neither the other vehicle nor its driver was ever traced. He submitted a claim to the Motor Insurers Bureau and to its French equivalent, but after a time he was told by the French MIB that his claim was out of time. Consequently, he issued proceedings against the British MIB directly... |  W v Sanofi Pasteur MSD, European Court of Justice, Judgment 21st June 2017 - Peter Todd, Hodge Jones & Allen
This judgment of the ECJ recently caused an outcry in certain sections of the media - it was claimed the ECJ had "opened the floodgates for spurious vaccination claims". But what is the legal significance of this decision? |  Misuse of Forceps Caused Severe Disability: Serious Criticisms of the Defence Run - Paul Sankey, Enable Law
In a recent birth injury case (JRM v Kings College Hospital Foundation Trust [2017] EWHC 1913 (QB)) arising from the misuse of forceps, the claimant established liability. The trial judge was very critical of the management of the case by the Defendant... |  |  Review of Civil Litigation Costs: Supplementary Report Fixed Recoverable Costs - Liam Ryan, 7 Bedford Row
Following on from his overhaul of Civil Litigation in April 2013, Jackson LJ has returned, to in his own word "finish the job" when dealing with the costing of Civil Litigation in England and Wales. The report which seeks to do this entitled the "Review of Civil Litigation Costs: Supplemental Report Fixed Recoverable Costs" (herein referred to as the Report) and was published on the 21st July 2017 and whilst not containing whole sale changes to the law, does propose to make several significant changes, evolutions and in some cases perhaps unwelcome developments into the field of the provision of legal services in England and Wales... |  Fire Safety - Laura Guntrip, Lester Aldridge
The danger presented by fire is well known but people may be surprised by just how many fires actually take place and, in particular, how many occur in care homes... |  The Rise and Rise of Profile Validity Testing in Neuropsychology - Dr Tim Hull, Consultant Clinical Neuropsychologist, Clinical Director, NPP Psychology, and Independent Practice
Neuropsychological assessment has been with us for a long time. It has many clinical uses, but it has come particularly to the fore in medico legal reporting. A Neurologist or a Psychiatrist may carry out brief tests of cognitive functioning but a neuropsychological assessment will produce a far more detailed analysis of an injured person's cognitive impairment and will relate that to any damage they may have to their brain... |  The Divisibility of Psychiatric Injury and Taking the Stress Out of Apportionment - Jack Harding, 1 Chancery Lane
Over the past 9 years personal injury practitioners who have litigated occupational stress claims will have had to grapple with an apparent inconsistency in the case law regarding how to approach the divisibility of psychiatric injury... |  |  Is the Criminal Injuries Compensation Scheme Fit for Purpose? - Caroline Kelly, Thorntons Law LLP
I wrote earlier this year in the Journal of the Law Society Of Scotland about the sad case of Criminal Injuries Compensation Authority v First Tier Tribunal (Social Entitlement Chamber) and Y [2017] EWCA Civ 39 and the purpose of the Criminal Injuries Compensation Scheme ('the Scheme') (http://www.journalonline.co.uk/Magazine/62-4/1023117.aspx). The Scheme has been in the papers recently for a number of reasons over the last month or so and that raises the question for me as to whether the Scheme is fit for purpose in its current state... |  Indemnity Costs in Fixed Cost Case - Jonathan Flattery, Express Solicitors
Liability was denied and proceedings were issued 28th January 2016. Value was pleaded up to £5,000 so fixed costs applied. Defendant's Defence 22/4/16 denied and alleged the claim pleaded was 'dishonest'. Defendant stated that there was 'no likelihood that the Claimant was confused regarding the incident and where he was struck, the Defendant contends that the factual basis on which the claim made is dishonest... | CPD Information
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|  What Are The Responsibilities of Volunteer Marshals? - Mike Kemp, Thorntons
News that the British Cycling Federation, an official and a marshal face criminal proceedings for the death of a spectator in the a Mountain Biking event in North Wales has raised the issue of the duties and responsibilities of volunteer marshals in such events... |  CICA and False Claims: A Rock and a Hard Place? - Caroline Kelly, Thorntons
The Criminal Injuries Compensation Authority (CICA) has been in the press on a number of occasions recently about compensation paid out to abuse victims in cases where the allegations have later been exposed as false... |  Summary of Recent Cases, September 2017
Here is a summary of the recent notable court cases over the past month... |  PI Practitioner, September 2017
Each issue a particular topic is highlighted, citing some of the useful cases and other materials in that area. This month: SRA warning to solicitors involved in holiday sickness claims... | | An Update from North of the Border, Edited by Kate Donachie, Brodies LLP |  Scotland's Specialised Personal Injury Court Continues to Develop Its Personality - Catriona Hepburn, Brodies
The All-Scotland Personal Injury Court (ASPIC) was created in September 2015. Recently its Sheriffs have been taking opportunities to express what they believe the fundamental principles of the court should be... | | Clinical Negligence Medicine by Dr Mark Burgin |  Short Notes on Acute Chest Pain 2017 - 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 Acute Chest Pain... |  Short Notes on Depression 2017 - 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 Depression... |  Short Notes on Congenital Abnormalities 2017 - 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 congenital abnormalities... |
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. |
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The Authors
 | 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. |
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