PI Brief Update, October 2018

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PI Brief Update, October 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 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
(1) LXA (2) BXL v (1) Cynthia Willcox (As personal representative of the estate of Edward Willcox, Deceased) (2) Cynthia Willcox [2018] EWHC 2256 (QB)
In (1) LXA (2) BXL v (1) Cynthia Willcox (As personal representative of the estate of Edward Willcox, Deceased) (2) Cynthia Willcox [2018] EWHC 2256 (QB), issues of questioning by the court in the absence of a party, s.33 of the Limitation Act 1980 and the valuation of damages in a historical child sexual abuse case were considered.
In this case, a brother and sister brought a claim for personal injury and other losses against their adoptive parents. The Claimants had been sexually abused by their adoptive parents in the 1970s. They had both sustained long-term psychiatric injuries. The Claimants had been adopted in the early 1970s when aged approximately 5 or 6 years old. In 2015, their father (First Defendant) was found guilty of indecent assault, indecency with a male child and child cruelty whilst the Claimants were at their home. Their mother (Second Defendant) was found guilty of child cruelty against the Claimants. The First Defendant died in 2017 and the proceedings continued against his estate. The Second Defendant did not attend the hearing, indicating instead that her witness statement and defence should be considered in her absence.
As the Second Defendant was not represented at the hearing, CPR 3.1A(5) applied which states:
"(5) At any hearing where the court is taking evidence this may include--
(a) ascertaining from an unrepresented party the matters about which the witness may be able to give evidence or on which the witness ought to be cross-examined; and
(b) putting, or causing to be put, to the witness such questions as may appear to the court to be proper."
As such, the Court put questions to the witnesses. CPR 3.1(A)(5) applied even where the unrepresented party was not present. Equally, where an unrepresented party had indicated matters of concern it was proper for a judge to explore those matters with the witnesses.
The court disapplied the limitation period using its discretion under s.33 of the Limitation Act 1980. The court considered the factors listed in s.33(3) and in particular s.33(3)(e) which states:
"the extent to which the plaintiff acted promptly and reasonably once he knew whether or not the act or omission of the defendant, to which the injury was attributable, might be capable at that time of giving rise to an action for damages".
Here the Claimants had known from the outset that they had been abused but they had, understandably, been reluctant to report the abuse. The psychiatric evidence was that very few sexual abuse victims felt able to report parental abuse and that both Claimants had feared that the Defendants would kill them if they took action. Another relevant factor was whether the evidence was likely to be less cogent and reliable due to the delay. Equally, it was noted that assessing the loss was inevitably going to be more difficult given that the historical nature of the injuries. However, the Court considered that since the medical records were available and psychiatric injuries are often experienced over a long period of time, a fair trial was possible.
In relation to liability, the Defendants did not discharge the burden in s.11(2)(a) of the Civil Evidence Act 1968 which states:
"(2) In any civil proceedings in which by virtue of this section a person is proved to have been convicted of an offence by or before any court in the United Kingdom...--
(a)he shall be taken to have committed that offence unless the contrary is proved."
It was additionally held that, on the balance of probabilities, the First Defendant had raped the Second Claimant on one occasion.
The First Claimant sustained an adjustment disorder and dysthymia following the abuse. He required cognitive behavioural therapy which was estimated to cost £4,800. His psychiatric injury was valued at £35,000, falling within the moderately severe psychiatric damage bracket in the Judicial College guidelines. He was also awarded £40,000 for loss of earnings, pursuant to the approach in Blamire v South Cumbria HA [1993] P.I.Q.R. Q1. His total award, including therapy costs and travel, was £115,040.
The Second Claimant sustained an adjustment disorder and a recurrent depressive disorder. She also needed cognitive behaviour therapy at an estimated cost of £4,800. Since the sexual abuse had been particularly serious, a higher award of £80,000 was justified. She was awarded £76,000 for past loss of earnings. In terms of her future loss of earnings, she was only working at 80% capacity and therefore was awarded £17,564.27. Her total award was £186,011.08, which included an award for past and future prescription costs.
Lewis -v- Tinsdale & the Motor Insurers Bureau [2018] EWHC 2376 (QB)
In Lewis -v- Tinsdale & the Motor Insurers Bureau [2018] EWHC 2376 (QB), the Claimant suffered serious injuries when he was walking on private land and hit by an uninsured Nissan Terrano 4 x 4 vehicle. The First Defendant was debarred from defending the claim and judgment was obtained against him. The Court considered whether Articles 3 and/or 10 of Directive 2009/103/EC were directly effective against the MIB through being an emanation of the state.
At a trial of the preliminary issues, Mr Justice Soole noted that the CJEU had made it "unequivocal that the obligation of compulsory insurance extends to the use of vehicles on private land". Crucially, he went on to find that the MIB was an "emanation of the state" for the purposes of the Insurance Directives. He considered that Farrell v Whitty (No.2) (C-413/15) [2018] 3 WLR 285 had superseded the reasoning in Byrne v MIB [2009] QB 66 and the observations of Hobhouse LJ in Mighell v Reading [1999] Lloyds Rep IR 30. Further, the MIB was liable to indemnify the Claimant at least to the minimum level of cover under Directive 2009/103/EC, which is EUR 1 000 000 per victim. The question of whether the European principle of equivalence in fact requires unlimited cover was raised late in the hearing and was not fully argued. As such, Mr Justice Soole went no further than to state that Article 3 had direct effect to the extent of at least the minimum requirement of EUR 1 000 000 per victim. Whether unlimited cover is indeed required remains to be seen.
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Summary of Recent Cases - Costs
Culliford & Anor v Thorpe [2018] EWHC 2532 (Ch):
Here it was held that the court has jurisdiction to entertain an application for a payment on account of costs pursuant to CPR 44.2(8), even where the order for detailed assessment has already been drawn up and sealed.
The Defendant had successfully defended the claim at trial and obtained a costs order in its favour, subject to detailed assessment. It did not, at that stage, request a payment on account under to CPR 44.2(8). CPR 44.2(8) provides: "Where the court orders a party to pay costs subject to detailed assessment, it will order that party to pay a reasonable sum on account of costs, unless there is good reason not to do so".
The Defendant made a later application for a payment on account of costs pursuant to CPR 44.2(8), which the Claimant resisted on the grounds that: (1) the court had no discretion to entertain such an application, as CPR 44.2(8) required the order for payment on account to be made at the time the court makes the costs order in the receiving party's favour; alternatively (2) if the court did have discretion to entertain the application, it should not exercise it in the Defendant's favour, inter alia because the Defendant had failed to seek a payment on account at trial.
As to (1), the judge found that he had jurisdiction to entertain the application. The language of CPR 44.2(8) contemplated that orders for payments on account would routinely be made at the same time as the principal costs order, but it could not be construed as excluding the possibility that an application may be made later. Indeed, there may be a very good reason why a payment on account was not sought at the time the costs order was obtained, and it would not be right to allow the receiving party (who has an entitlement to the costs sought) only one window of opportunity to seek a payment on account. I pause to note that that must be correct, otherwise CPR 44.2(8) would represent a dramatic erosion of the court's general discretion as to when costs are to be paid: CPR 44.2(1)(c). That being so, it in turn suggests that parties may be able to make successive applications for payments on account prior to detailed assessment.
As to (2), the Judge took into account the fact that CPR 44.2(8) sets up a presumption in favour of ordering a payment on account, as well as the fact that there was no evidence the Defendant had deliberately failed to seek such a payment at trial, in order the Claimant to pay some £30,000 on account.
Other cases:
Both Reynolds v One Stop Shop Ltd (unrep., Cambridge County Court, 21 Sept. 2018) and Welsh v Walsall Healthcare NHS Trust (Costs) [2018] EWHC 2491 (QB) contain interesting and useful commentary on the exercise of the court's general discretion as to costs.
In the former case, the Claimant appealed against a decision at detailed assessment to reduce the claim costs from £115,000 to £75,000. Inter alia, the Claimant argued that the costs had in effect been down twice by reference to the proportionality principle: first, at the costs budgeting stage, where the 'future' costs were reduced in accordance with the proportionality principle; and again at detailed assessment, where the incurred costs were cut down, and then the overall costs (including the 'future' costs which had already been subject to a reduction at the CCMC) were reduced still further. HHJ Auerbach, dismissing the appeal, approved the District Judge's approach and commented that the rules did not envisage any particular or algorithmic approach to the issue of proportionality. Rather, "[t]he fact that the Court, when conducting a detailed costs assessment, may bring proportionality to bear on all of the costs, does not, in my view, mean that there is a form of double counting, by the Court as it were further cutting down for proportionality, costs which may have already been cut down for proportionality. Rather, the Court is simply applying, and then later reapplying, the same filter at two different stages. At the assessment stage it does so with the benefit of different information, and bringing hindsight to bear, which it is entitled to do" (at paragraph [59]).
In the latter case, the Claimant was the "undisputed winner" in a clinical negligence claim arising out of complications from bariatric surgery. One of the Claimant's allegations had been that she was not told she could have the surgery laparoscopically rather than invasively ("the consent issue"), and she failed on that issue, although that was ultimately irrelevant to both liability and quantum. Although the failure to make out her case on consent had not adversely impacted the outcome for the Claimant, the Defendant argued that she should bear the costs of dealing with that issue, since it had never been satisfactorily articulated in her pleadings or evidence, it was never explained why it was causative, it was undermined by the Claimant's own evidence at trial, and it had occupied a substantial part of the evidence at trial. The Defendant estimated that 30% of its costs were attributable to dealing with the consent issue. Yip J (in the first of his two appearances in this month's update) agreed that the Claimant's inadequate presentation of the consent issue, and her unreasonable pursuit of it at trial, should sound in costs. However, having given a helpful overview of the principles and authorities governing the making of issue-based costs orders at paragraphs [5]-[13], he declined to follow the "mathematical approach" contended for by the Defendant and order the Claimant to pay 30% of the Defendant's costs. The Defendant had also been at fault in certain respects, and weighing all the factors in the round, it was appropriate to simply apply a 15% discount to the Defendant's costs liability.
Summary of Recent Cases - Civil Procedure & Evidence
Livewest Homes Ltd v Bamber [2018] EWHC 2454 (QB):
The Respondent wanted to oppose an appeal against a possession order, both on the ground relied upon by the first instance judge in his judgment, and/or upon a different basis rejected by the judge at first instance. The Respondent had not filed a Respondent's Notice to uphold the lower court's decision "for reasons different from or additional to those given by the lower court", as it was required to do by CPR 52.13.
The Respondent therefore had to make an oral application, at the appeal hearing, to file a Respondent's Notice out of time. Dingemans J held that the Respondent was indeed required to file a Respondent's Notice, and whether permission to file one out of time should be granted was governed by the principles set out in Denton v TH White Ltd [2014] EWCA Civ 906.
Despite the lateness of the application, it was granted. The breach was serious, and there was no good reason for it (the failure appeared to be founded upon the Respondent's representatives' misunderstanding of the function of a Respondent's Notice and of CPR 52.13). However, the point had been ventilated previously and was taken by the Respondent in its skeleton argument, so the Claimant could not be said to be unaware of it; it was a point of pure law, so no further investigation was required in respect of it; and the Claimant's representative were able to deal with it so there was no unfairness.
Playboy Club London Ltd v Banca Nazionale Del Lavoro Spa [2018] EWCA Civ 2025:
The Court of Appeal held that there was no abuse of process where the Claimant failed to bring a deceit action at the same time as its claim for negligent misrepresentation.
The Claimant was a casino which had extended credit to a customer who had been provided with a good credit reference by an employee of the Defendant bank. The customer defaulted, and the casino brought an action against the bank alleging that the employee had negligently misstated the customer's creditworthiness in his reference. At the time of bringing that claim, the casino was aware that it may have a claim in deceit against the bank, but considered that such a claim would be speculative and weak. At trial, material emerged in cross-examination which would substantially support a claim in deceit.
The claim in negligence was lost - on appeal, on the basis that the bank owed no duty of care in negligence to the casino, since the casino was not the addressee, but the addressee's undisclosed principal: [2018] UKSC 43. Following the loss in the Supreme Court, the casino sought to being a further claim, this time in deceit. The deceit claim was initially struck out as abusive, but the Court of Appeal overturned that decision, noting that: (a) the negligence claim was substantially different from the deceit claim; (b) there was a good reason for not bringing the deceit claim previously, namely that the evidence to support it was circumstantial and weak, and it would have been inappropriate to plead allegations of dishonesty on such a basis; (c) the casino had not been acting tactically or 'keeping its powder dry'; and (d) it would be a "rare case where the litigation of an issue which has not previously been decided between the same parties or their privies will amount to an abuse of process".
PI Practitioner - each issue a particular topic is highlighted, citing some of the useful cases and other materials in that area.
In this month's PI practitioner update we consider the case of Alpha Insurance A/S v (1) Lorraine Roche (2) Brendan Roche [2018] EWHC 1342 (QB) which concerns discontinuance and fundamental dishonesty. In this case Yip J considered the approach to be taken where, following discontinuance, a judge is considering an application for issues arising out of an allegation that a claim is fundamentally dishonest to be determined, pursuant to paragraph 12.4(c) of CPR Practice Direction 44.
Paragraph 12.4 states:
"12.4
In a case to which rule 44.16(1) applies (fundamentally dishonest claims) -
(a) the court will normally direct that issues arising out of an allegation that the claim is fundamentally dishonest be determined at the trial;
(b) where the proceedings have been settled, the court will not, save in exceptional circumstances, order that issues arising out of an allegation that the claim was fundamentally dishonest be determined in those proceedings;
(c) where the claimant has served a notice of discontinuance, the court may direct that issues arising out of an allegation that the claim was fundamentally dishonest be determined notwithstanding that the notice has not been set aside pursuant to rule 38.4;
(d) the court may, as it thinks fair and just, determine the costs attributable to the claim having been found to be fundamentally dishonest."
The First and Second Respondents, a mother and son respectively, brought a claim for personal injuries following a road traffic accident. The Appellant admitted that their insured's negligence had either caused or contributed the accident but asserted that the Second Respondent's claim was fraudulent and therefore the First Respondent's claim was dishonest. A notice of discontinuance was served the day before the trial date. The Appellant sought a direction that the dishonesty issue be determined so that it could enforce its entitlement to costs under CPR 44.16. This application was refused by the trial judge on the basis that to determine such an issue would be a disproportionate use of court resources to deal with the issue.
On appeal the Appellant argued that this decision was perverse and/or wrong in law since the judge had given insufficient weight to the need to ensure dishonest claimants pay litigation costs and failed to consider properly the waste of resources by the Respondents in serving the notice of discontinuance the day before trial.
Yip J allowed the appeal, finding that the judge had erred in law when exercising his discretion under CPR PD 44 para 12(4)(c). It was held that 12(4)(c), unlike 12(4)(b) did not require exceptional circumstances before the court could give direction for the determination of a dishonesty issue. The correct approach to the 12(4)(c) discretion was to weigh all relevant considerations in accordance with the overriding objective. It was held that where liability was not disputed save for an allegation of fundamental dishonesty, and where the matter was close to trial, some explanation could reasonably be expected. This case provides practitioners with useful clarification of the correct approach to be taken by courts when exercising the discretion under paragraph 12(4)(c).
Industry News
Woman awarded £20 million from the NHS for brain injury
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Supreme Court refuses appeal bid from firm denied PI costs...
Serial crash for cash fraudster sentenced to 22 months...
PI small claims limit below £5,000 'would see lawyers play system'...
Financial Conduct Authority proposes fees for CMCs...
Calls to ban smoking in homes due to alarming child death rate...
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PI firm's collapse highlights LASPO survival struggle...
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PIBU Law Journal Summaries, August 2018
Pleadings and fundamental dishonesty: Howlett affirmed as film director's compensation claim is dismissed - Jeff Turton, Weightmans LLP
David Pinkus v Direct Line [2018] EWHC 1671 is an example of another claim being dismissed under section 57 Criminal Justice and Courts Act 2015. The claimant raised a preliminary issue as to whether the defendant should be prevented from arguing the claim was dishonest at all...
FREE BOOK CHAPTER from 'A Practical Guide to Industrial Disease Claims' by Andrew Mckie & Ian Skeate
Chapter Two - The Portals and Fixed Portal Costs in ELD Claims. The Low Value Portals in Employers Liability Claims Came into effect for any claim where the accident date is on or after 31 July 2013. The purpose of this Chapter is to examine the most important aspects of the Portals in the context of Low Value Personal Injury claims, for claims that start off with the Low Value Portal but then exit the Portal...
Can an 8-year old child be contributory negligent? - Ian Peters, Anthony Gold
The short answer is yes, but that was not the finding of Mrs Justice Yip when she handed down her Judgement in the case Master Caine Ellis v Mr Paul Kelly and Mrs Violet Ellis on 31 July 2018...
Irving v Morgan Sindall PLC [2018] EWHC 1147 (QB) - Sharon Hughes, 43templerow
The recent appeal judgment in Irving v Morgan Sindall PLC [2018] EWHC 1147 (QB) by Mr Justice Turner is greatly appreciated for bringing much needed clarity over two issues credit hire practitioners regularly battle with: (1) Where is the line drawn for impecuniosity to be established; and (2) Must a claimant have a personal liability to pay the hire charges in order for it to be recoverable from the defendant?
When an accident is just an accident: first judicial guidance on ERRA - Seema Bains, DWF
Cockerill v CXK Ltd & Artwise Community Partnership, High Court (QB), 17 May 2018 - Seema Bains Partner in DWF's London office and Nigel Lewers of 12 King's Bench Walk acted for an employer and their insurers, in what we believe to be the first reported case to consider the application of s.69 of the Enterprise and Regulatory Reform Act 2013...
Absent Witnesses and Adverse Inferences - Claire Christopholus, Hill Dickinson LLP
Even during an uncomplicated surgical admission, a patient can expect to see a host of professionals, including nursing staff, the junior and senior surgical team and anaesthetists, all of whom are on regular shift rotation. The idea that the failure to call the entire medical cast as witnesses might lead to adverse inferences at Trial would present defendants in clinical negligence claims with an obligation so disproportionate as to be ridiculous...
McDermott v InHealth Limited - Adam Weitzman QC, 7BR
The Claimant in this case was a professional boxer licenced by the British Board of Boxing Control. He was obliged to undergo annual brain imaging in order to ensure that he was fit to fight. The imaging was arranged by InHealth Ltd, the Second Defendant (D2). D2 had also...
Marketing for PI Lawyers in Challenging Times, ROI and Why Content is Still King - Carl Waring, Aware Marketing
For Personal Injury solicitors and barristers, these are increasingly difficult times. They have been so, ever since LASPO 2012 came into force on 1st April 2013 and the screw has been continuously tightening for claimant PI solicitors with referral fee bans, the slashing of RTA portal fees...
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Analysis Shows Increased Cash Flow Troubles for PI Firms - Norman Kenvyn, VFS Legal Funding
Running a personal injury law firm has never been so hard. With regulatory changes eating into profit and cash flow stymied by the slow billing process in cases, it is no surprise that many are reportedly teetering on a cliff edge...
Percuatneous Vertebroplasty: Too Much Information? - Ryan Harvey, Bolt Burdon Kemp
It's no secret that any treatment, be it surgical or conservative, may provide no therapeutic benefit to the patient. In light of a recent study into the efficacy of a routine treatment for osteoporotic spinal cord com-pression fractures, the question raised is if, and when, a patient should be informed of the existence of research which contradicts a traditionally held belief in a treatment's efficaciousness?...
Summary of Recent Cases, September 2018
Here is a summary of the recent notable court cases over the past month...
PI Practitioner, September 2018
Each issue a particular topic is highlighted, citing some of the useful cases and other materials in that area. This month: Advantage Insurance Company v Lee Stoodley and Anor [2018] EWHC 2135 (QB)...
Medico-Legal Articles, Edited by Dr Hugh Koch
Legal Mind Case and Commentary No 18: Stretching an expert's impartiality - Professor Hugh Koch
Case: Enders Stretch-v-Newcastle County Council - This case is of interest because of the issues of expert evidence which are of universal application. The case involves Newcastle City Council giving permission for a 'pop-up' shopping mall in Newcastle. Stretch, the appellant, appealed the decision to the Magistrates Court and introduced the evidence of an expert, (name provided)...
Clinical Negligence Medicine by Dr Mark Burgin
Medical Expert Report Audit (MERA): Opening the Black Box 2018 - Dr Mark Burgin
Dr Mark Burgin BM BCh (oxon) MRCGP explains how a solicitor can commission an audit on a medical report where they need metrics to confirm their professional impression...
Short Notes on Clinical Guidelines 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 clinical guidelines...
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
Harriet Wakeman, Temple Garden Chambers
Harriet is developing a broad civil and public law practice, including personal injury, health and safety, credit hire and employment law. Harriet acts in both an advisory and representative capacity.
HarrietWakeman@tgchambers.com
Juliet Wells, Temple Garden Chambers
Juliet is developing a practice in Chambers’ core areas, with an emphasis on personal injury, health and safety, employment law, public law and extradition. She regularly appears in the County Court in applications, CMCs, small claims and fast track trials, and appeals, and is building a busy paper-based practice.
JulietWells@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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