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 - Costs

Woodburn v Thomas - Sen Cts Costs Office (Master McCloud) 11/08/2017

The court provided guidance on drafting bills of costs in details assessments in cases subject to the CPR Part 3 costs budgeting regime.

The bill of costs specified costs claimed on a phase-by-phase basis, each phase matching those set out in Precedent H forms. The costs lawyer set out in the CMC phase of the bill all the CMC costs which did not relate to costs budgeting. He provided a separate "non-phase" part of the bill in which all the costs relating to costs budgeting and costs management were set out. It followed that the bill's CMC phase excluded some items of costs which related to budgeting which were required to be included in the Precedent H by the PD and the Precedent H Guidance Note.

The defendant paying party submitted that the "non-phase" costs were costs which had actually been budgeted in the CMC phase of the Precedent H and should have appeared in that part of the bill. The claimant receiving party contended that it was correct to have separated out the costs of costs budgeting in line with P v Cardiff and Vale University Local Health Board (unreported) and that the costs for every item appeared only once and were not duplicated.




Held:

There was a tension between the requirement in the PD to follow the Precedent H Guidance and the sensible guidance in P in relation to the need to spell out in the eventual bill the costs which were claimed as being within the 1% or 2% caps on budgeting costs. The court approached the issue on the basis that the assumptions in the Precedent H were the starting point. The costs lawyer drafting the Precedent H had to follow the Guidance as to which costs of costs budgeting were included in the CMC and PTR phases and which were included in the non-phase elements as being the "other" costs of costs budgeting. Where a budget was approved or agreed then the assumptions on which it was approved or agreed were the best guide as to how the relevant budgeting costs should be treated in the bill. Ensuring that the bill phases included, wholly and exclusively, the costs which were budgeted in the corresponding identical Precedent H phases could avoid confusion.

The master directed that the items in the "non-phase" part of the bill which fell within the CMC phase assumptions of the approved Precedent H should be treated as if they had been pleaded in the CMC phase of the bill, and that all other costs of costs budgeting and costs management should remain in the non-phase part of the bill and be subject to the appropriate 1% or 2% caps.

Summary of Recent Cases - Civil Procedure

Thomas v Hugh James Ford Simey Solicitors [2017] EWCA Civ 1303

The Claimant coal miner had instructed a firm of solicitors in a personal injury claim for vibration white finger. The solicitors advised the Claimant that he might be able to claim for various heads of special damage arising from loss of services (e.g. decorating, gardening or DIY). The Claimant instructed them that he did not wish to claim for special damages, for which he could not provide any evidence. He stated he had received assistance with decorating but that he had paid cash in hand and had no documentary evidence. He therefore accepted a sum for general damages in full and final settlement. 7 years later he contacted another firm of solicitors after seeing a newspaper advert that thousands of such claims had settled at a lower value that they should have. He brought a claim for professional negligence alleging that he would have made a claim for lost services had he been properly advised. That claim was dismissed at first instance.

The Claimant appealed, submitting that his original solicitors had breached their duty to him by failing to provide an approximate valuation of the claim for services; failing to inform him of the availability of an interim payment had he pursued special damages; and treating his comments about evidence for the special damages claim as an end to the matter.

The court held:

The original retainer required the solicitors to advise the claimant about his possible claims for general or special damages and to pursue such claims where appropriate. The solicitors had advised him about the possibility of a claim for special damages. They had indicated that the amount payable could be significant. The claimant was an intelligent and articulate man who knew his own mind and instructed his solicitors that he had decided not to pursue a claim for special damages. The solicitors had not been under a duty to probe matters in the hope of changing his mind. It was not the role of a solicitor to tempt the client by referring to large sums once it was clear that supporting evidence for a claim was not available. If a client instructed his solicitor that he did not wish to pursue a particular head of claim and that he did not have evidence to support it, the solicitor was not necessarily under a duty to challenge that decision or to try to change the client's mind. If the client was an adult with full capacity, there came a point when his autonomy had to be respected.

4It was significant that the claim was a modest one which the solicitors were running under a fixed costs regime and under a scheme for dealing with high volume, low value personal injury cases. There had to be a sensible limit upon what solicitors could be expected to do in such cases. Such schemes might be the only practicable way of facilitating access to justice in such cases at proportionate costs. The solicitors still had to exercise reasonable skill and care in advising clients and pursuing claims, but they could not be expected to turn over every stone and pursue avenues of enquiry which the client had closed down.


Dring (on behalf of Asbestos Victims Support Groups Forum (UK)) v (1) Cape Distribution Ltd (2) Cape Intermediate Holdings Ltd (3) Concept 70 Ltd & Ors (4) Aviva Plc [2017] EWHC 2103 (QB)

The court determined issues in relation to an application made under CPR 5.4C(2) for permission to obtain from the court record copies of documents filed by parties in compromised asbestos litigation. The compromise in the earlier litigation was made prior to trial on a confidential basis.

On learning that this compromise would include the imminent destruction of documents, the applicant association successfully obtained an interim order that any documents filed during the course of the earlier litigation would be preserved pending hearing of the substantive application. The issues for the court were (1) what directions to make regarding the incidence of the interested parties' costs in respect of the application; the association submitted that while the parties to the compromised litigation were entitled to be heard, they were not a respondent to the application and should not be entitled to any order for costs; (2) case management of the application.

The Master held:

An application under r.5.4C(2) was one made between a member of the public and the court; it concerned the court's powers over what it did with the contents of its own files and record. The parties in the compromised litigation could properly be described as interested parties. They had been given notice of the application and there was no dispute that they were entitled to make representations since the documents related to them. The question for the court was not whether to make a protective costs order (PCO). Where a PCO might not be granted, a court might in an appropriate case, make use of such powers as it might have to impose conditions on the involvement of a party so as to prevent injustice: UNISON v Kelly [2012] I.R.L.R. 442. The court was persuaded that the powers under CPR 3.1(2)(m), coupled with the general and very broad discretion of the court under the Senior Courts Act 1981 s.51 and the overriding objective itself, provided the power to impose conditions on the involvement of interested parties: Baker v Quantum Clothing Group Ltd [2008] EWCA Civ 823. Baker supported the view that that extended to an order imposing a condition that an interested party could take part on condition that it might not seek its costs of doing so.

In the instant case, the association was a non-profit organisation. It lacked the resources to cope with a large costs order of the sort which could result from a contested argument by a party with enormous resources. It would face a choice whether to abandon its application if it risked paying costs, or to risk proceeding, losing, and being rendered unable to perform its functions in supporting victims of asbestos exposure in future, in the public interest. The association had no financial interest in the application, its lawyers were acting pro bono and would not themselves be seeking costs against the interested parties. Those parties were plainly well funded and likely to incur substantial costs in protecting their commercial interests. In the circumstances, the court ordered that the interested parties might be heard orally or in writing at the substantive hearing of the application on condition that they might not seek any order for costs against the association, Unison considered and Baker applied). (2) The court also considered case management directions.

Industry News

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...
NHS clinical negligence claims down but legal costs rise...
One third of nursing homes fail safety inspections...
ABTA tool persuades MPs to put holiday sickness claims into fixed costs regime...

Personal Injury Articles
Emerging Issues in Holiday Sickness Claims - James Beeton, 12 King's Bench Walk It is now 7 months since the Court of Appeal's decision in Wood and Anor v TUI Travel Plc (t/a First Choice) [2017] EWCA Civ 11 (considered in detail here). That decision coincided with a massive increase in claims by British tourists for holiday sickness, prompting recent calls by the MOJ for a government-led crackdown on the new 'sickness claims culture' in the form of the extension to this area of fixed recoverable costs...	Damages for the Failure to Obtain Informed Consent? - Nicholas Pilsbury, Hailsham Chambers When a doctor fails to obtain a patient's informed consent to an operation, should damages be awarded for that failure to obtain consent, regardless of any award that might be made for PSLA and financial losses? After all, the failure to obtain consent means that a person's right to self-determination and bodily integrity has been violated and doesn't that require the Court to make an award to recognise that legal wrong? These were the questions that the Court of Appeal was being asked to decide in the recent case of Shaw v Kovac [2017] EWCA Civ 1028...
Review of the Latest Proposals for Fixed Costs in Clinical Negligence - Geoffrey Simpson-Scott, Simpson Millar LLP At p117 of his Supplemental Report on Fixed Recoverable Costs (31st July 2017), Sir Rupert Jackson recommends that fixed recoverable costs cannot simply be imposed in clinical negligence cases in the absence of also changing the procedural rules. I made this point in "A Practical Approach to Clinical Negligence Post-Jackson" (Law Brief Publishing (2016). It recognises that the average clinical negligence case is inherently more complex than the average civil litigation case of comparable value...	Part 36 & Late Acceptance: When Is It Unjust to Apply the Usual Order? - Fran McDonald, Old Square Chambers The case summary of Briggs v CEF Holdings Ltd (Court of Appeal, 13/7/17) was published on lawtel this morning. Although it is important to bear in mind the lack of a full judgment as yet, the decision gives further guidance on the way in which lower courts should decide if it is unjust to impose the normal Part 36 cost consequences, where an offer is accepted out of time...
Stressful Times: Marsh v Ministry of Justice [2017] EWHC 1040 (QB) - Andrew Roy & Vanessa Cashman, 12 King's Bench Walk Following a 15 day trial before Thirlwall LJ (as she now is; she was promoted to the Court of Appeal during the course of the litigation) the Ministry of Justice was found liable for prolonging a disciplinary investigation and accompanying suspension against the Claimant prison officer. These failings were found to have caused the premature termination of the Claimant's career due to psychiatric injury. He was awarded over £286,000...	A Novel Duty of Care by Geneticists to Provide Information: ABC v St. George's Healthcare NHS Trust and Others [2017] EWCA Civ 336 - Lawrence Caun, Lamb Chambers The Court of Appeal in this case realized that it might be creating a novel duty of care in deciding that it is arguable that geneticists could be liable for a failure to provide information to a claimant ("C") about her father's diagnosis of Huntington's disease. The Court reversed the striking out of a claim by Nicol J. [(2015] EWHC 1394)...
Hospital Misdiagnosis of Foot and Ankle Fractures - Sylvia Taylor, Tilly Bailey & Irvine Foot and ankle injuries are a common place reason for attending the Accident and Emergency Department or Minor Injuries Unit. However, not everyone with an ankle and foot injury will need an x-ray...	Personal Injury Claims Involving Insolvent Defendants: Selecting the Correct Statutory Scheme - Andrew Burns QC & Jonathan Butters, Devereux Chambers Redman v Zurich Insurance plc [2017] EWHC 1919 (QB) analyses the circumstances in which a claim for personal injuries where an insured defendant is insolvent should be brought relying on the old statutory regime provided by the Third Party (Rights Against Insurers) Act 1930 ("the 1930 Act") as opposed to the new regime provided by the Third Party (Rights Against Insurers) Act 2010 ("the 2010 Act"). It is of particular importance in industrial disease claims where the date when a liability for an injury is incurred is medically uncertain...
Rights Without Recourse? - Richard Paige, Park Square Barristers In the case of Shaw v Kovac & others [2017] EWCA Civ 1028 the Court of Appeal considered the question of whether a claimant could recover damages for "infringement of the [claimant's] right of autonomy" as a free-standing head of loss, when they had been treated in the absence of informed consent...	Catalano v Espley-Tyas Development Group Ltd [2017] EWCA Civ 1132 - Jamie Carpenter, Hailsham Chambers In the 1960s Ms Catalano had been employed as cone winder in a textile factory. In 2012, she decided that she wanted to bring a claim against her former employer for deafness as a result of the noise in the factory. She instructed solicitors, who entered into a CFA with Ms Catalano on 13 June 2012. So far, so commonplace...
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!
J C and A Solicitors Ltd v Andeen Iqbal & Another [2017] EWCA Civ 355 - Jim Knight, Harmans The Court of Appeal unanimously agreed that no obligation to repay Stage 1 fixed costs (£400 + VAT) is imposed by the RTA Protocol or by the CPR upon Protocol Claimants merely because, after the conclusion of Stage 1, they take no steps to pursue their claim under Stage 2.	What Is a Diffuse Axonal Brain Injury And Why Is It Important to Get Early Rehabilitation - Alix Walker, Burnetts Solicitors The brain is a relatively small part of the human body, measuring the size of about two adult fists together and weighing only 3lbs. Made up of around 75% water it consists of 60% white matter (the network needed to send signals) and 40% grey matter (neurons that send the signals)... sheet preview http://www.pibulj.com/content/law-journal-summaries/news-category-2-53514/4268-what-is-a-diffuse-axonal-brain-injury-and-why-is-it-important-to-get-early-rehabilitation-alix-walker-burnetts-solicitors
If Only I Had Known I Would Have... Consent to Medical Treatment and the Problem of Hindsight - Paul Sankey, Enable Law A recent decision (Lucy Diamond v Royal Devon & Exeter NHS Foundation Trust [2017] EWHC 1495 (QB)) is another example of how the law has changed following Montgomery v Lanarkshire Health Board. It nevertheless also shows how difficult it is for patients to succeed in consent claims... sheet preview http://www.pibulj.com/content/law-journal-summaries/news-category-2/4266-if-only-i-had-known-i-would-have-consent-to-medical-treatment-and-the-problem-of-hindsight-paul-sankey-enable-law	Editorial: Filing by Email or Fax - Aidan Ellis, Temple Garden Chambers Upon emailing draft directions to a County Court recently (as requested by the Judge), I received a standard acknowledgement email which reminded me (in bold red and blue lettering) of the rules applicable to filing documents by email...
Summary of Recent Cases, August 2017 Here is a summary of the recent notable court cases over the past month...	PI Practitioner, August 2017 Each issue a particular topic is highlighted, citing some of the useful cases and other materials in that area.  This month: Fixed recoverable costs: Jackson Part II...
Legal Mind Case and Commentary No 16: Uncertainty in Judicial Decision Making: A Case to Answer? - Dr Hugh Koch, Dr Lorna Livingstone & Dr Sophie Mayhew, Hugh Koch Associates Kennedy v. London Ambulance Service Trust (LAS) 2016 QBD. This complex case reviewed in June's edition of PIBULJ (Johnson and Jacobson, 2017) illustrates interesting medico-legal points about causation and attribution...
Clinical Negligence Medicine by Dr Mark Burgin
10 Issues With Medical Reports That Make Third Parties Suspicious - Dr Mark Burgin Dr Mark Burgin BM BCh (oxon) MRCGP gives 10 examples of weaknesses in medical reports that defendant solicitors can challenge with a low value generalist re-examination...	Short Notes on Muscular Skeletal Susceptibility 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 Muscular Skeletal Susceptibility...
Book Reviews
Two Excellent Books for Your Shelf - Dr Hugh Koch Bloomsbury Publishing have recently published two excellent legal books which I would recommend to lawyers and experts alike. They cover areas such as Compensation Culture, Damages, Uncertainty and Causation, all of which are crucial yet, at times, confusing concepts in theory and practice...

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.

James Yapp (2014), Temple Garden Chambers James is developing a busy court and advisory practice. He regularly appears in applications, fast track trials and case management conferences. His practice encompasses the range of chambers’ specialisms including personal injury, credit hire and motor fraud. jyapp@tgchambers.com

Robert Riddell (2015), Temple Garden Chambers Robert is developing a busy representative and advisory practice across the range of chambers’ specialisms, with a particular focus on personal injury, credit hire and motor fraud. rriddell@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.