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

Advantage Insurance Ltd v Ewere (16 November 2017, QBD, Slade J)
The Claimant insurance company applied for committal of the Defendant for contempt of court. The Defendant had stated in the original personal injury action that he was in a parked vehicle when it was struck by the Claimant's insured thereby causing him injury. That was verified with a statement of truth in the Particulars of Claim and two witness statements. The claim was dismissed, the Judge finding that the Defendant was not in the vehicle at the time. Slade J considered that the Claimant had established to the criminal standard, that the Defendant was not in the vehicle. In assessing the evidence of the Claimant's insured, she had been consistent throughout. The Defendant, conversely, had given an inaccurate account of his medical history and had failed to disclose a previous RTA. In order to succeed in proving contempt of court, the Claimant had to demonstrate that the Defendant had signed the documents with no honest belief in the truth of their contents and he knew they were likely to interfere with the course of justice. Each of the grounds was made out, and the Defendant was thus in contempt of court.

Aviva Insurance Ltd v Kovacic [2017] EWHC 2772 (QB)
Spencer J determined whether the Claimant insurance company had proved its allegations of contempt of court against the Defendant in committal proceedings. The Defendant had made statements (verified by statements of truth) that he continued to struggle with a range of day-to-day tasks. The Claimant placed him under surveillance which contradicted those claims. The Judge at the damages assessment hearing found that the Defendant had grossly exaggerated his disability and lied to the experts. A second judge granted permission for the insurer to bring contempt proceedings. He allowed the Judge's findings in the assessment hearing to be admitted as evidence in the later contempt proceedings. The High Court proceeded on the basis that the Judge's findings were evidence of the facts found, including adverse findings to the Defendant's credibility and the deliberate exaggeration of his continuing disability, and that the court was entitled to treat them as conclusive evidence on the matters unless further material showed that the finding was not justified. The Court found that 12 allegations of contempt were made out, regarding a range of aspects of the Defendant's alleged continuing disability. The case was listed for another hearing to determine the penalty that would be imposed.



Smith (in her own right and as the partner of John Bulloch, deceased) v (1) Lancashire Teaching Hospitals (2) Lancashire Care NHS Trust (3) Secretary of State for Justice [2017] EWCA Civ 1916
The appellant appealed against the dismissal of her claim under the Fatal Accidents Act 1976 on the basis it was incompatible with her rights under ECHR Art 14 read in conjunction with Art 8. The appellant had cohabited with the deceased for over two years before he died as a result of the Second Defendant's negligence. She brought a dependency claim and sought bereavement damages. The former was compromised, and the Judge held the latter applied solely to spouses and civil partners. There was no direct infringement of her Art 8 rights as the denial of damages was not a sufficiently serious infringement and the absence of a right to compensation was only tenuously linked to respect to the family life which she enjoyed with the deceased and not linked at all to her private life. The Court of Appeal held the Judge erred by finding a claim was incapable of falling in the ambit of Art 14 if there had been no infringement of Art 8. The Judge further erred in determining that the irrecoverability of damages did not achieve the level of serious impact envisaged by Art 8. Bereavement damages were specifically intended to reflect the grief that flowed from the intimate relationship between spouses, and thus clearly fell within the ambit of Art 8. The Court further found that the appellant was in an analogous position to spouses for the purposes of Art 14. Therefore it required any discrimination to be justified. It was notable that Parliament treated cohabitees of over two years as being comparable to spouses for the purpose of dependency damages, and had not provided any justification for position in relation to bereavement damages. In the circumstances it was appropriate to make a declaration of incompatibility under s4 HRA.

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Summary of Recent Cases - Costs

BNM v MGN Ltd [2017] EWCA Civ 1767
BNM's privacy's proceedings settled within 12 months. She had entered into a conditional fee agreement with her solicitors, and had also purchased ATE insurance. Her solicitors also entered into conditional fee agreements with the appellant's barristers. The success fees under these arrangements increased significantly upon the commencement of proceedings, and the respondent contended that the proceedings had been issued prematurely, and therefore that the appellant should not recover the entirety of the fees claimed.

BNM entered into her funding arrangements prior to the significant changes regarding recoverability of such fees brought about by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 ('LASPO'). The Senior Cost Judge Gordon-Saker had held that whilst it was clear that the transitional provisions of LASPO permitted BNM's recovery of such fees, the old proportionality test and provisions in the old Costs Practice Direction did not apply. However, the Court of Appeal held that there was a plain legislative intention to continue the application of the old costs rules governing funding arrangements, and therefore that recoverability of the appellant's success fees and insurance premiums should not have been subject to the new proportionality test. The Court rejected the respondent's argument that premiums were "costs" for the purposes of the new CPR 44.1, noting that the phrase "any additional liability incurred under a funding arrangement" had been deliberately omitted from the new definition of "costs", and also found that ATE insurance premiums cannot be said to be the "expenses" of litigation, as they have nothing to do with the cost of issuing and progressing litigation. Accordingly, the matter was remitted to the Senior Costs Judge for proportionality to be assessed again.

On MGN's cross-appeal on the Senior Costs Judge's finding that BNM had not issued prematurely, the Court of Appeal did not wish to make a finding on the point and made it clear that this was "...certainly not a question in respect of which there is only one answer". However, the Court did highlight various evidential and procedural matters and remitted the matter back to the Senior Costs Judge for re-consideration, which would enable him to make it clear that he had taken such matters into account.



Peterborough & Stamford Hospitals NHS Trust v McMenemy & Ors [2017] EWCA Civ 1941
In two joint appeals the Court of Appeal ruled on the recoverability of ATE premiums in a clinical negligence context. In both cases, the claimants had taken out ATE insurance around the same time that they had instructed solicitors. In the event, the claims settled pre-issue and without the need for the claimants to obtain expert reports. The defendants therefore argued that the premiums in respect of the reports should not be recoverable. However, the Court of Appeal rejected the argument that it should depart from Callery v Gray and instead assess the recoverability of ATE premiums on a case by case basis. The Court specifically relied on the Government's decision to exempt ATE premiums for expert reports in clinical negligence cases from the general abolition of recovery of ATE premiums.

On the question of timing, the Court held that it was permissible for ATE insurance to be taken out by claimants as soon as they entered into a CFA, and that premiums were recoverable even though no expert reports had in fact been obtained. Lewison L.J. commented that it was not for judges to "second guess" the insurance market, or deconstruct a 'package' policy; however, he did say that it would be open to defendants to argue that one kind of ATE insurance would be more reasonable or proportionate than another, though this will go to the amount that is recoverable.


Bowman v (1) Norfran Aluminium Limited; (2) R M Easedale and Co Limited; (3) Norfran Limited (Newcastle County Court, 11 August 2017, unreported)
The Claimant had brought personal injury proceedings against all three defendants. She discontinued her claim against the Second Defendant in November 2016, and on the day of trial (28 June 2017) the First and Third Defendants jointly settled her claim. In assessing whether the Claimant was liable for the Second Defendant's costs having discontinued her claim, His Honour Judge Freedman considered the application of the QOCS rules. The Second Defendant argued that the reference within the relevant Civil Procedure Rules to "proceedings" referred to the entirety of the action, and therefore that the Second Defendant ought to be able to enforce an order for costs against the damages paid by the First and Third Defendants. HHJ Freedman rejected this and held that the reference within the CPR to "proceedings" was to individual claims, rather than the entirety of the action. He also held that the QOCS rules operate as a set off, and therefore operate so as to reduce or extinguish what defendants have to pay in damages. As a result, the Second Defendant was unable to recover its costs from the Claimant.

Summary of Recent Cases - Civil Procedure & Evidence

Pennine Acute Hospitals NHS Trust v De Meza [2017] EWCA Civ 1711
A Judge erred by disapplying the limitation period under section 33 Limitation Act 1980 in respect of a clinical negligence claim in which there was a 28-year delay between the expiry of the primary limitation period and the bringing of the claim. The Claimant was diagnosed with hypogonadism and was prescribed testosterone. The testosterone was effective but the Claimant was concerned that it was causing weight gain and stopped taking the medication. He brought an action against both the individual doctor and NHS Trust for failing to have in place a follow-up system. The Recorder disapplied the limitation period at first instance against the Trust but not against the hospital. The Recorder noted the lack of reason for the long delay and found that the Claimant's evidence was not cogent and the doctor was unlikely to remember; the relevant records had been destroyed; and the doctor was elderly and in poor health and would be distressed by the claim. The Court of Appeal held that the Recorder had erred in assuming that the case had merit and in failing to take into account the weakness of the claim. He had further erred in taking into account the difference between the Trust, as an institution, and the doctor, as an individual. That was not a proper consideration for the exercise of discretion under s. 33. The Recorder's reasoning could not be upheld and his decision was overturned. The delay was not a reason to refuse to extend time in itself, but its prejudicial effect as to the Defendant's defence was a material consideration.

Bishop & Anor v Chhokar (15 November 2017, Court of Appeal, )
The appellant appealed against a judgment granted in 2010 in favour of the respondent landlord. The appellant had brought a money claim in the County Court. The respondent counterclaimed for unpaid rent. At trial the Judge accepted the respondent's evidence at trial and dismissed the appellant's claim. In a later action, the respondent admitted lying in relation to a pleaded action in the first claim. The appellant argued that, had the Judge known that the respondent was lying, it was likely that a different outcome would have been reached. The Court of Appeal held that the lie tainted the whole of the first judgment and it should be set aside. The usual process if the court had been misled was to order a re-trial. The Court considered Summers v Fairclough Homes [2012] UKSC 26 and noted that the court could exercise its power to strike out the claim even after judgment in cases of persistent or flagrant fraud. However, in this case, the lie was only one reason that the Judge believed the respondent. In those circumstances it was appropriate to set aside the judgment aside and give the parties liberty to apply for directions for the retrial of the original claim and counterclaim.

D (A Child) v Chapman & Anor (10 November 2017, QBD, Moulder J)
The Defendants appealed against a master's decision to permit the Claimant to rely on a new expert report in a PI claim. The Claimant's expert had given an unfavourable opinion as to causation of her severe developmental abnormalities. As such she sought permission to instruct a new paediatric neurologist. A second neurologist concluded, having reviewed the Defendant's evidence, that he could no longer support the Claimant's case. The Claimant approached a third neurologist who concluded that the Claimant had suffered a brain injury in the accident and it was hard to believe her disabilities were coincidental. The Claimant successfully applied to rely on the third expert's report, subject to disclosure of the first two. The Defendant appealed. Moulder J held the Claimant was expert shopping (which should be discouraged) and it was not a case of 'loss of confidence' in one's expert. However there might be a good reason for seeking a second opinion and relying on a different expert, for example where a report was disappointingly favourable to the other side. The master had discretion to grant permission for the report and had exercised it properly. He was not bound to exercising it only in a case where a party had lost confidence in an expert. The master had properly ordered disclosure of the previous reports while granting permission.

Industry News

Government confirms intention to introduce CMC cold-calling ban...
Fault-based system 'inherently biased' to PI claimants...
CMC users are more likely to have lower incomes and watch Strictly Come Dancing says Legal Ombudsman...
MoJ backtracks on Keen's discount rate dates...
Court of Appeal confirms judges can make findings of fundamental dishonesty without plea from defendant...
Lidington confirms rise in small claims limit for personal injury cases...
Jeremy Hunt: We must do better on NHS waiting times...
Government issues call for evidence on bogus travel sickness claims...
London mayor seeks power to ban wood-burning stoves...
Third hand smoke (eg smoky smelling clothes and furniture) causes brain and liver damage...

Personal Injury Articles
Editorial: Abolition of Personal Injuries Law - Aidan Ellis, Temple Garden Chambers Earlier this month, Lord Sumption delivered a provocative lecture to the Personal Injuries Bar Association entitled "Abolishing Personal Injuries Law: A Project". Taking inspiration from Atiyah's Accidents, Compensation and the Law, he argued that our fault-based system leads to anomalous results and is inefficient in its attempt to allocate resources to those who need or deserve it...	FREE BOOK CHAPTER: The Basics of Advocacy (from 'Arguments and Tactics for Personal Injury and Clinical Negligence Claims' by Dorian Williams) This is the complete Chapter One from our new book, 'Arguments and Tactics for Personal Injury and Clinical Negligence Claims' by Dorian Williams - The objective is to win the case fairly and at proportionate cost; that means ideally resolving before trial as the litigation risk of an adverse outcome is always present, although it can be limited. Much of this book will concentrate on...
FREE BOOK CHAPTER: Qualified One-Way Costs Shifting (QOCS) (from 'A Practical Guide to QOCS and Fundamental Dishonesty' by James Bentley) Before exploring the qualifications to one-way costs shifting, it will be useful to first look at when the QOCS regime does and does not apply...	Truth, Lies, Exaggeration and the Judicial Crucible: A Reminder of Judicial Independence in Assessing Expert Evidence - Liam Ryan, 7 Bedford Row Liam Ryan considers the recent decision of Fletcher v Keatley [2017] EWCA Civ 1540 and how a Court should, and can approach a claim for psychiatric injury where a Claimant has been found to have purposefully exaggerated their symptoms...
Patient Consent and the Law: 3 Reasons Why It Matters - Paul Sankey, Enable Law The Supreme Court's decision in Montgomery v Lanarkshire Health Board changed the law in relation to patient consent. Previously a doctor's duty to advise a patient was governed by the Bolam test. This meant advice was adequate if it accorded with the advice a responsible body of specialists within the same discipline would have given...	Vicarious Liability Once Removed? by Way of TUPE - Lucile Taylor Case Comment on Baker v British Gas Services (Commercial) Ltd and J&L Electrics (Lye) Ltd [2017] EWHC 2302 (QB)...
Getting Started With the Ogden Tables - Simon Levene, 12 King's Bench Walk The MOJ's announcement on 27th February 2017 that the discount rate for calculating future losses was to be reduced from 2.50% to - 0.75% caused more excitement than personal injury litigants are used to. The following guide to the basics of the Tables might be useful...	Taking Responsibility: Foster Care, Child Abuse and Vicarious Liability - Liam Ryan, 7 Bedford Row When dealing with cases of child abuse, strong emotions are stirred in almost all people with clear feeling of right and wrong being arrived at. However, when seeking to compensate an abused party, the question of who should, or can meet a Judgment is a lot more complex, since the culpable individual may have no means with which to satisfy such a Judgment rendering it almost worthless...
The Scottish Government Should Remove Time-Bar for Abuse Victims Over 18 Where There is a Power Imbalance - Mike Kemp, Thorntons Law LLP I wrote last year about Scottish Government proposals to remove the time limits for childhood abuse claims and those proposals have now been passed and came into effect earlier this month. Now the Scottish Government have produced a helpful guide to making such claims...	Fundamental Dishonesty Goes Beyond Claims in the Fast Track- Sunil Nannar, DWF LLP Although there are many reports of a finding of fundamental dishonesty in whiplash cases, they are only now starting to emerge in larger claims. Sunil Nannar looks at the judgment in one such case, Stanton v Hunter (2017), where the claimant's attempt to exaggerate his claim for loss of earnings, saw his claim dismissed and lose out on the genuine elements of his claim, which the court valued over £50,000...
CPD Information Note that there are no new monthly CPD quizzes since the SRA and the BSB have both updated their CPD schemes to eliminate this requirement. Reading PIBULJ articles can still help to meet your CPD needs. For further details see our CPD Information page. Free Sample Issue If you haven't subscribed yet there's no need to miss out. You can try a free PIBULJ sample issue with no obligation. Simply click below to access our October 2015 issue. Access the FREE ISSUE now!
A Quick Change of Gear? - Joanne Clancy, Thorntons Law LLP The Department of Transport have announced their plans to review the law regarding dangerous cyclists. Their announcement comes in the wake of the recent trial of Charlie Alliston sentenced to 18 months imprisonment for causing bodily harm by 'wanton and furious driving' after ploughing down Kim Briggs as she crossed a busy central road in London...	The Relevance of Local Living Standards in the Assessment of Damages - Jack Harding, 1 Chancery Lane What is the correct approach to the assessment of general damages in a case in which the Claimant resides abroad? Should the increased (or possibly lower) cost of living be taken into account and thereby result in an adjustment to the figures set out in the Judicial College Guidelines?...
Summary of Recent Cases, November 2017 Here is a summary of the recent notable court cases over the past month...	PI Practitioner, November 2017 Each issue a particular topic is highlighted, citing some of the useful cases and other materials in that area.  This month: Howlett v Davies - The Court of Appeal's approach to Fundamental Dishonesty...
An Update from North of the Border, Edited by Kate Donachie, Brodies LLP
Is the Tide Turning? Sanction for Counsel Refused Again - Kate Donachie, Brodies The Sheriff Personal Injury Court has recently issued two decisions refusing sanction; Sheriff Mackie's in McKenzie v McCormack and now an unpublished decision issued by Sheriff McGowan last week in McCracken v Kazanowski. McKenzie is the only published refusal of sanction since the new court was created two years ago and there were very few, if any, applications refused before that. These recent decisions are a sign that sanction is not always a given; and it may be that the direction of travel has changed...
Clinical Negligence Medicine by Dr Mark Burgin
Short Notes on Confusion 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 confusion...	Short Notes on Chronic Cough 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 chronic cough...
Short Notes on Urinary Tract Infections 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 urinary tract infections...

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

Dr Hugh Koch
Adults & children, all PI, employment & sport, nationwide
hughkoch@aol.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.