PI Brief Update, August 2018
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PI Brief Update, August 2018
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
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Anthony Johnson & Tim Kevan (editors)
Summary of Recent Cases - Substantive Law
James-Bowen & Ors v Commissioner of Police of the Metropolis [2018] UKSC 40
B, a suspect, brought a claim that he had been injured during arrest by Met Officers against the Commissioner as vicariously liable for the actions of the officers. The Commissioner settled the claim during trial with an admission of liability and an apology. The officers were later acquitted of criminal charges and brought proceedings against the Commissioner for breach of contract, negligence and misfeasance in public office, seeking damages for reputational, economic and psychiatric damage. The Commissioner applied for the claims to be struck out, which was successful in the High Court. The Court of Appeal allowed the officers' appeal on the issue of whether the Commissioner owed a duty of care to them to safeguard their economic and reputational interests. The Commissioner appealed against that finding.
The Supreme Court held as follows. Officers were analogous to employees for the purposes of employment law and particularly the implied duty of trust and confidence. However, the Court had not been referred to any authority for the proposition that an employer owed a duty of care to conduct litigation in a manner that protected them from economic and reputation harm. Whether an employer (and by extension the Commissioner) owed such a duty would have been judged against the Caparo test.
First, the fact a duty of care might give rise to competing interests would often be an important factor weighing against its imposition. The obvious difference between an employer and employee's interests when sued vicariously suggested it was not fair, just and reasonable to impose such a duty of care. It was not realistic to suggest that such a duty could subsist until the conflict between employer and employee arose. In respect of the Commissioner, she had to be able to undertake her public duty unfettered and to be free to act in accordance with it. That duty was inconsistent with her owing a duty of care to protect the reputational interests of her officers when defending litigation based on their conduct.
Second, public policy considerations weighed against imposing a duty. In particular, considerations regarding legal policy and practical conduct of proceedings. Parties should be able to avail themselves of litigation to resolve disputes without fear of incurring liability to third parties. It would also be inconsistent with the policy encouraging settlement of civil claims.
Laws v Williams & Anor [2018] EWHC 1871 (QB)
The Claimant brought a PI claim arising out of a collision between an Audi driven by the Defendant and a Yamaha motorcycle driven by the Claimant on a slip road joining a dual carriageway. The Claimant was behind the Defendant's Audi on the slip road. The Defendant came to halt on the slip road before entering the main road. The Claimant judged that it was safe for him to enter the main road and assumed that the Defendant would do likewise. He accelerated and crashed into the rear of the Audi, landing in the main road and being carried by a lorry that was proceeding along the main carriageway. He sustained significant injuries. The issues to be decided were (1) whether the Defendant was negligent in slowing or stopping her car on the slip road and (2) if so, whether and to what extent the Claimant contributed to the accident. The Claimant submitted that the Defendant caused a hazard in the slip road by stopping. It was negligent not to put on her hazard lights. If the Defendant had accelerated, she would have been able to enter the carriageway in front of the lorry.
The Judge found that the Defendant had little time to assess the traffic as she was on the slip road. She had to decide whether to accelerate into the gap in front of the lorry, or slow down and let it pass. If she had accelerated into the gap she would have caused the lorry to slow down, thereby being responsible for an unsafe maneuver. She was right to slow down and stop on the slip road. The fact the Claimant did not see her brake lights was due to the fact he was not looking ahead but over his shoulder. The actions of the Defendant were those of the reasonably competent driver. A motorcyclist may have made a different decision but that did not render the Defendant negligent. In the circumstances, it was not necessary to consider contributory negligence. However, the Claimant was negligent in failing to keep a safe distance from the vehicle in front and beginning to accelerate before looking ahead of himself. The Claimant would have been liable for 75% contribution in respect of his own actions.
Pook v Rossall School [2018] EWHC 522 (QB)
The Appellant was a pupil at the Defendant school. The Appellant was attending a PE lesson, being hockey on Astroturf pitches some way from the changing rooms. Having got changed, the pupils made their way to the pitches. On the Appellant's case, they were encouraged to run to the pitches. The Appellant decided to race another pupil and cut the corner of the route and running on a grassy and muddy area rather than staying on the tarmac. As she did so she slipped on the grass verge and fell, sustaining a serious fracture. The Judge at first instance found that the Appellant was running and that the Claimant had fallen forwards rather than slipping backwards. The Judge concluded: "in all the circumstances, the Claimant has not satisfied me on the balance of probabilities that she suffered injury as a result of falling backwards having slipped on the muddy verge whilst running and her claim accordingly fails." She further found that the Defendant was not negligent in failing to supervise the pupils on the run as it was on the school estate where vehicle access was limited, and it was no different than, for example, participation in a cross-country race. The Claimant appealed the Judge's findings on liability.
The High Court dismissed the Claimant's appeal. It was correct that schools owed an enhanced duty to those in their case who are vulnerable because they are young. However, that did not mean it was incumbent for the Defendant to reduce the risk to that which was the lowest reasonably practicable. In particular there were extremes where pupils were allowed to run (for example during sports) and those where pupils were normally prohibited (for example running in corridors). The instant case fell somewhere between those two extremes. The Court should be slow in substituting its own judgment for that of the teacher who had knowledge of the school and its environment. The teacher did not recognize any fault on her part and the Judge at first instance had come to the view that she had not been negligent. It is not inherently dangerous for children to run as long as they are careful, and the environment did not pose an enhanced risk. The High Court approved that finding. In respect of causation, the Judge at first instance rejected the Claimant's contention that she had slipped backwards and sustained injury. She had tripped and fallen forward. Thus the Claimant had failed to prove causation. That was a conclusion the trial judge was permitted to come to on the facts. The appeal was dismissed.
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Summary of Recent Cases - Costs
Jeffrey Cartwright v Venduct Engineering Ltd [2018] EWCA Civ 1654
In a case concerning a hearing loss claim brought against six defendants, the Court of Appeal confirmed that a claimant's QOCS protection would apply across all defendants. The fourth, fifth and sixth defendants settled the claim in a Tomlin order, and the claim was discontinued against the first, second and third defendants. Those three defendants therefore sought their costs as against the claimant. The claimant sought to rely on its QOCS protection, arguing that it had not obtained an award against the first to third defendants, and therefore that the costs order could not be enforced. The Court of Appeal affirmed the cost judge's finding that the costs award could be enforced where the source of the claimant's award was another defendant, commenting that otherwise claimants could issue against any number of defendants without the risk of costs liability. However, on the facts of this case the claimant did retain protection against the costs order, as he had not obtained a court order for damages, as the damages provided to him were a settlement by way of a Tomlin order, and thus not caught by the wording of the QOCS provisions in CPR 44.14.
Commissioner of Police of the Metropolis v Andrea Brown [2018] EWHC 2046 (Admin)
The High Court interpreted the application of the QOCS exception in CPR 44.16(2)(b) to so-called "mixed claims", i.e. those containing a personal injury claim as well as a non-personal injury claim. CPR 44.16(2)(b) provides that:
"Orders for costs made against the claimant may be enforced up to the full extent of such orders with the permission of the court, and to the extent that it considers just, where...
(b) a claim is made for the benefit of the claimant other than a claim to which this Section applies."
In this case, the claimant was successful in a claim against two police forces for breach of the Data Protection Act 1998, breach of the Human Rights Act 1998, misfeasance in public office and misuse of private information, on the basis that the police forces had used crime prevention technology to identify her whereabouts for purposes other than crime prevention. The claimant also claimed for personal injury, on the basis that the actions alleged had caused her to develop depression. As a result of the personal injury element of her claim, the judge at first instance found that she had QOCS protection against the defendants. The defendants argued that this case fell within the aforementioned exception set out in CPR 44.16(2)(b).
Mrs Justice Whipple held that with a mixed claim such as the present, it was in the Court's discretion at the end of a case to consider whether costs orders were enforceable and, if so, to what extent. This approach will allow the court to consider the individual facts of the case and ensure a just application of the rule. In reaching this conclusion, Whipple J also held that the QOCS regime should not provide automatic protection for personal injury claimants in order to address broader issues of access to justice, which would be construing the regime beyond its intended purpose.
Mercel Hislop v Laura Perde; Kundan Kaur v Committee (for the time being) of Ramgarhia Board Leicester [2018] EWCA Civ 1726
In two personal injury cases, claimants sought to recover costs above and beyond the fixed costs prescribed by the CPR in relation to the low value road traffic accident protocol and the employer's liability/public liability protocol (i.e. the costs within CPR 45, Section IIIA). In both cases, the defendants had accepted Part 36 offers made by the claimants, though they did so late. The claimants argued that they should therefore recover the additional part 36 costs. This is permitted in situations where the claimant goes on to recover more than their Part 36 offer at trial, following the well-known case of Broadhurst v Tan [2016] EWCA Civ 94 and the subsequent revision of the CPR to insert the Part 36 consequences in CPR 36.29. However, the offers in these cases had been accepted before trial, and therefore did not attract "costs consequences following judgment". Following a settlement before trial, the rules only permit the recovery of fixed costs. The Court of Appeal held that the late acceptance of the Part 36 offers did not change this. The Court noted that a claimant in such circumstances could make an application for additional costs under CPR 45.29J: "If it considers that there are exceptional circumstances making it appropriate to do so, the court will consider a claim for an amount of costs (excluding disbursements) which is greater than the fixed recoverable costs referred to in rules 45.29B to 45.29H."
Gempride Ltd v (1) Jagrit Bamrah (2) Lawlords of London Ltd [2018] EWCA Civ 1367
The Court of Appeal held that solicitors were responsible for the conduct of costs draftsmen who were engaged as subcontractors. Accordingly, they would be responsible for any unreasonable or improper conduct. In this case, the cost draftsman had drafted a bill of costs claiming a £280 hourly rate, which the claimant had approved as accurate. The claimant in fact had in fact entered into a CFA setting a basic hourly rate of £232. Furthermore, the claimant had indicated that she did not hold a before the event insurance policy: she did have one, but had chosen not to use it as it did not permit her to instruct herself as a sole practitioner. The Court held that there had been no dishonesty or intention to deceive on the claimant's part, but that the defendant had been misled by the bill of costs, and that this conduct fell within of unreasonable or improper conduct for the purpose of CPR 44.11 (Court's powers in relation to costs). The claimant was bound by the acts of the cost draftsman as her agent, and as a solicitor subcontracting work. The subcontractor was not a legal representative and did not owe an independent duty to the Court. As a result, the Court held that the claimant would only be able to recover half of her profit costs, and that the remaining half would be disallowed. The case is a stark reminder of the need to scrutinise bills of costs before signing a statement of truth, as legal representatives will ultimately remain liable for their content.
Summary of Recent Cases - Civil Procedure & Evidence
Hertel & Anor v Saunders & Anor [2018] EWCA Civ 1831
The Claimants brought a claim seeking a declaration that there was partnership or joint venture between C1 and D1. The Defendants denied such a partnership existed. The Claimants served a draft amended Claim Form proposing a new claim that there had been agreement between C1 and D1 in respect of some specific matters. The Defendants replied indicating they would not oppose an application to amend. The Defendant subsequently sent an offer of settlement entitled 'Part 36 offer' denying the originally-pleaded claim but consenting to the declaration sought in the proposed amended Claim Form. The Claimants accepted the offer. The Master found the costs outcome was governed by CPR r36.10(2). The Defendants were entitled to their costs of the abandoned claim down to the date of acceptance. On appeal, the Judge found that the Defendants offer had not been a Part 36 offer as the offer related to the proposed amendment to which the settlement related was not "a claim or part of the claim or an issue which arose in the claim" under r36.5(1)(d), so r36.10(2) could not apply. The Defendants were the successful part and were entitled to their costs. The Claimants appealed, on the basis that r36.7(1) provided a Part 36 offer could be made before the commencement of proceedings when the word 'claim' could not be defined reference to the pleadings. As such, it should not be strictly defined by referring to the pleadings after issue, either.
The Court of Appeal decided as follows. The position before proceedings commenced was different to after. Post-issue there were a range of procedural rules which applied, including setting out the case in pleadings. It would be wrong to construe the rules in such a way as to ignore the certainty and clarity the rules provided. In civil proceedings, claims and their constituent parts could only be defined by reference to the pleadings. A new claim which had been intimated but was not part of the pleadings was not caught by r36.5(1)(d), the fact the new claim was intimated by way of proposed amendment made no difference.
Broughal v Walsh Brothers Builders & Anor [2018] EWCA Civ 1610
The Appellant appealed a decision upholding an order refusing him relief from sanctions and thus assessing his PI claim at nil. The Judge considered the application on the papers and refused permission on the grounds that there was no prospect of success nor any other compelling reason why the appeal should be heard. The Appellant was later granted permission to appeal when renewing the application orally before a different Judge. The substantive appeal subsequently came before the same Judge who had refused permission on the papers. The appellant applied for her to recuse herself on the ground of apparent bias. That application was refused; the Judge finding that no fair-minded and informed observer would take the view that her previous involvement would create a real possibility of bias and that there were no other judges available to hear the appeal. After hearing the appeal, the Judge found there were no grounds for interfering with the first instance decision and it was dismissed. The Claimant appealed the recusal decision.
The Court of Appeal reaffirmed the right of litigants to have their cases heard before an impartial and unbiased tribunal. Consideration of administrative convenience was irrelevant to the administration of justice. In considering the 'fair-minded observer' test, the Court had to adopt a critical view of the degree to which a judge's training and professional objectivity would operate. The mere fact a judge earlier in the same case had commented adversely on a party or witness would not without more found a sustainable objection on grounds of bias. The involvement of the Judge at the permission stage involving a consideration of the papers did not disqualify the Judge from hearing the appeal or an oral renewal of the application unless the Judge had expressed her views in such a way as to indicate to any fair-minded observer that she had reached a concluded view and was unlikely to be open to further argument. Such cases would be rare. There was nothing inherent in the process which prevented the appellant from having a fair hearing. With the benefit of oral argument, the Judge would be open to changing her initial view on the prospects of appeal. That was an everyday feature of litigation.
PI Practitioner - each issue a particular topic is highlighted, citing some of the useful cases and other materials in that area.
Those who read this PIBU update regularly will recall that in March of this year we provided a case summary of Herbert v HH Law Limited [2018] EWHC 558 (TCC), which concerned solicitors charging a 100% success fee, and what would constitute a client's approval of the same, particularly in the absence of risk assessments justifying the percentage of the success fee. On appeal, Soole J held that the 100% success fee had been insufficiently explained to the client prior to proceedings, and upheld the finding of the first instance judge who had reduced the success fee to 15%. The Court of Appeal has given permission to hear a second appeal on this point, which will provide some welcome appellate-level authority on the issue.
District Judges across the country vary greatly in their approach to this topic. This is particularly so in the context of cases concerning deductions from personal injury awards or settlements made to infants. The CPR requires that for a success fee in those circumstances to be deducted from the award, it must be reasonably incurred and also reasonable in its amount. There is no legislative requirement to undertake a risk assessment. Despite this, many District Judges nonetheless insist on requesting to see a risk assessment to support the claim for a success fee to be taken from a child's damages. Particularly, judges will rely on CPR Practice Direction 21, which at paragraph 11.3 specifies that the litigation friend requesting such expenses to be deducted from the infant's award should provide a witness statement which, inter alia, must include and be accompanied by "(2) the risk assessment by reference to which the success fee was determined".
Whilst the above example is context specific, it is but one example of judicial unwillingness to permit a solicitor to charge a blanket 100% success fee without justifying the same. Whilst recognising that the recent personal injury reforms have necessitated the use of new funding strategies by firms, this author expects that the Court of Appeal will take a consumer-protective stance and require solicitors to produce risk assessments showing the calculation of their success fee. Either way, it will be helpful for firms to know where they stand following a judgment; currently, the legislation and civil procedure rules provide an unclear and mixed message. In the meantime, a prudent firm would want to ensure it is conducting risk assessments for any new cases to ensure that its position is protected.
Industry News
Even low levels of air pollution may cause dangerous heart changes... Call for Tomlin order review after major QOCS ruling... Whiplash reform delay welcomed by all sides... Appeal against trimmed hourly rates in clinical negligence case fails... 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... PIBU Law Journal Summaries, July 2018
In Credit Hire circles, what goes around comes around (again...): Irving v Morgan Sindall PLC considered - Jason Prosser, Leeper Prosser Solicitors In Credit hire arguments go in circles, at least that is the experience of the writer (who has now been engaged in conducting credit hire claims for nearly 15 years), with issues which one thought had been decided being raised again and again...
Pauline Carter v Kingswood Learning and Leisure Group Limited - Angus Piper, 1 Chancery Lane Foskett J gave judgment on the 27th June 2018 on the claim of Pauline Carter v Kingswood Learning and Leisure Group Limited [2018] EWHC 1616 (QB), having heard evidence and submissions over 4 days earlier in the month. The trial was in respect of liability only, on a personal injury claim which was potentially...
Metal on Metal hips and the Consumer Protection Act 1987 (Part Two) - James Bell, Hodge Jones & Allen The statistical data arguments - The recorded 10-year CRR for the Pinnacle Ultamet Prosthesis in the NJR is 13.98% - which more than double the CRR in the NJR for all external comparators, including the latest and best MoP hips .This was described as the 'high water mark of the claimant's case'...
The Problem of Never Saying Never: Case Comment on Duce v Worcestershire Acute Hospitals NHS Trust [2018] EWCA Civ 1307 - Lucile Taylor Duce v Worcestershire Acute Hospitals NHS Trust [2018] EWCA Civ 1307 was the appeal of a surgical consent case. The Appellant had failed at first instance to establish that she would have either deferred or abandoned an operation had she been warned of a given risk as she contended she ought to have been...
When is a supplier not a supplier? The Court of Appeal decision in X v Kuoni (2018) - Jack Harding, 1 Chancery lane In X v Kuoni Travel Limited (2018) EWCA Civ 938 the Court of Appeal concluded that, for the purposes of Regulation 15 of the Package (Travel etc) Regulations 1992, the employees of foreign suppliers (conventionally, hoteliers) are not themselves 'suppliers' for whom...
Nothing to fear: Kimathi & Ors v The Foreign and Commonwealth Office [2018] EWHC 1305 (QB) - Peter Wake, Weightmans LLP In a useful decision on what does or does not constitute 'personal injury', the High Court has confirmed that fear alone is not a recognised personal injury and therefore it could not ground a claim in which the court had any discretion to extend the three-year limitation period, as prescribed by the Limitation Act 1980...
Editorial: Applications for Service of Claim Form - Aidan Ellis, Temple Garden Chambers CPR 7.5(1) requires a claimant to serve his / her claim on the defendant within four calendar months of the date of issue of the claim form. Where claims are approaching limitation, this effectively gives the claimant a bonus of four months in which to investigate and perfect the claim...
No Advocacy, then no Advocate's Fee in fixed Recoverable Costs Cases - Elaine Pitt, Keoghs 24/07/18. Jean Crawshaw v Alfred Dunhill Limited. County Court Sheffield, 16 November 2017 before District Judge Bellamy...
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Access the trial now! How Litigants in Person find Medical Experts 2018 - Dr Mark Burgin Dr Mark Burgin BM BCh (oxon) MRCGP calls for more appropriate information for Litigants in Person to improve access to justice...
Barrister-Direct's RESOLVE service provides potential income boost to firms planning to close or abandon winnable files Barrister-led law firm Barrister-Direct has launched a new service to provide law firms, credit hire agencies, medical agencies and ATE agencies with a complimentary second look service on files they are planning to close or abandon...
Summary of Recent Cases, July 2018 Here is a summary of the recent notable court cases over the past month...
PI Practitioner, July 2018 Each issue a particular topic is highlighted, citing some of the useful cases and other materials in that area. This month: Molodi v Cambridge [2018] EWHC 1288 (QB) and Richards & Anor v Morris [2018] EWHC 1289 (QB) - Case Comment...
Clinical Negligence Medicine by Dr Mark Burgin
Assessing Risk in Family Law 2018 - Dr Mark Burgin Dr Mark Burgin BM BCh (oxon) MRCGP considers how the biopsychosocial model can assist the family court when assessing risk by providing a clear structure...
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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