It seems there may be a shake up of the whole issue of costs in civil proceedings on the way….
http://www.judiciary.gov.uk/publications_media/media_releases/2008/2108.htm
A report setting out recommendations with supporting evidence is expected by 31 December 2009.
Be aware of the 2009 Regulations 864/2007 on the Law Applicable to Non-Contractual Obligations (The Rome II Regulations) which comes into force on January 11th 2009.
These regulations will introduce a new regime for determining the choice of law for torts committed abroad.
The most significant change is under Article 15(c) which makes the foreign applicable law govern the assessment of damages.
Up to now, English courts have determined damages for accidents abroad by using English law. For proceedings issued on or after January 11th 2009 damages will now be assessed (subject to a few exceptions) using the law of the country where the injury occurred. Cue expensive experts in foreign law.
Further entertainment will no doubt be caused by Recital 33 which applies to road traffic accidents abroad. In such cases, when determining damages, the Court seised should take into account all the relevant circumstances of the specific victim, including in particular the actual losses and costs of after-care and medical attention.
In DEBRA JANE SAMUEL v (1) SWANSEA CITY & COUNTY COUNCIL (2) EUROP ASSISTANCE INSURANCE LTD (2008) CC (Swansea) the Claimant was acting under a CFA.
Her claim was struck out and her ATE insurers (represented by Mathew Gullick of 3 Paper Buildings) declined to pay the costs order against her on the grounds that the Claimant had failed to disclose material facts at the outset. The Claimant was on income Support and thus the sucessful Defendants could recover nothing from her.
The Defendants applied for an order under section 51 of the Supreme Court Act 1981 that her ATE insurers should pay part of the costs which the Claimant was ordered to pay to them when her case was struck out.
In refusing the Defendant’s application application the Judge stated, inter alia:
“I am satisfied that ATE insurers who substantially control litigation may in principle be ordered to pay the costs of a successful defendant. But for the reasons given by Hale LJ in paragraphs 81 to 83 of her judgment in Hamilton v Al Fayed (No. 2), a court should be slow to make such an order and should do so only when the evidence establishes that the ATE insurer was really running the case. Such cases are likely to be rare. The evidence in this case does not in my judgment come close to establishing the level of control which it would be necessary to demonstrate before it would be reasonable and just to make such an order and this application fails”
The General Medical Council has issued guidance to doctors on their duties when acting as an expert witness http://www.gmc-uk.org/guidance/ethical_guidance/expert_witness_guidance.asp
Paragraph 19 is of interest to those who obtain reports from treating doctors:
“If there is any matter that gives rise to a potential conflict of interest, such as any prior involvement with one of the parties, or a personal interest, you must follow the guidance on disclosure in paragraph 13. You may continue to act as an expert witness only if the court decides that the conflict is not material to the case.”
Should you be lying on the beach in Hawaii wondering what became of the responses to the “Case Track Limits and the Claims Process for Personal Injury Claims”, fret no more : http://www.justice.gov.uk/docs/case-track-limits-response.pdf
The 3 Paper Building’s civil procedure guru Gavin Hamilton has discovered that there are impending significant changes to CPR Part 6 Service of Documents, due to come into force at some point in October (See Civil Procedure News Issue 7/2008 14.7.08)
In particular:
1. Actual knowledge that the Defendant has moved from his last address imposes an obligation to discover Defendants current address for serving claim form.
2. The step to be taken within 4 months of the date of issue of the claim form is to be initiation of a service step. Save for personal service, it is not necessary to complete the service step within the 4 months.
3. Other forms of postal service than by Royal Mail will be acceptable, where providing next day delivery.
The Barrister F. E. Smith once defended a bus driver against claims that his negligence had caused injury to a young man’s arm: “Will you please show us how high you can lift your arm now?” Smith asked the plaintiff. The young man obediently raised his arm to shoulder level, his face contorted with apparent pain. “Thank you,” said Smith. “And now, please, will you show us how high you could lift it before the accident?” The man’s arm shot above his head.
A client’s claim may be seriously under settled if too low a retirement age is used when determining a future loss multiplier. There are a number of factual “signs” that many lawyers are of course aware of.
However, in Sarwar (No.2) [2007] EWHC 1255 the Judge found it most unlikely that the Claimant (being aged 10) would have worked to only 65. Using the figures set out in the May 2006 White Paper “Security and Retirement: Towards a New Pension System” in which the Government outlined its commitment to raising the State retirement age, he decided that the Claimant would probably retire at 68.
“…I entirely accept that the Claimant, in selecting a date for retirement, would not have been greatly influenced by the availability of a State retirement pension. However, I consider that the expectation in his generation is that people will go on working longer because of the ability and need to do so. Accordingly, I have come to the conclusion that, but for the accident, the Claimant would have retired at the age of 68. In setting this age I attach considerable weight to the recommendation in the White Paper.”
The same Judge also held retirement for retirement at 68 for a young woman in A v Powys [2007] EWHC 2996 (QB):
“The Claimant contends for a retirement age in the range of 68 to 70 years of age. The Defendant contends for a retirement age of 65. A number of considerations support the view that workers of A’s generation are likely to work longer and retire later than earlier generations. First, life expectancy has increased very considerably. A’s life expectancy, had she not suffered these injuries, would have been to the age of 89. Secondly, in its White Paper “Security in Retirement: Towards a New Pensions System”, published in May 2006, the Government outlined its commitment to raising the State retirement age. For people of A’s age eligibility to a State pension will arise at only the age of 68. Moreover, it is the Government’s stated intention to bring the current State retirement age for women into line with that for men so that the retirement age for both sexes with eventually be raised to 68. Thirdly, it seems probable that people will need to work longer in order to ensure they have sufficient to keep them during their prolonged retirement. Fourthly, having regard to the type of employment in which the Claimant would have been engaged, there is no good reason why she should not continue in employment to a later age. Having regard to all these considerations I conclude that it is appropriate to adopt a retirement age of 68″
It is therefore essential the Claimants and Defendants are aware of the anticipated retirement ages under this White Paper (which is packed full of cheerful bearded folk working on market stalls).
The Ministry of Justice has today announced a review of no win no fee arrangements in England and Wales.
To quote the press release: “The study, by senior academics, will look at whether no win no fee arrangements are still operating in the best interests of giving people access to justice”
The areas of law relating to no win no fee arrangements to be investigated are personal injury, employment and defamation/cases
Expect something by the autumn.
Read it here
If you are still routinely assessing Smith v Manchester by working on the basis of 6 months to 2 years net loss of earnings, please be aware of the 6th edition of the Ogden tables.
The new method of calculating loss of earnings / handicap on the labour market claims as set out in the 6th Edition of the Ogden Tables could give rise in the future to much larger Smith v Manchester awards than previously.
The usual scenario is of course where a Claimant returns to work after an accident earning less. The new tables now allow the loss of earnings claim to be calculated which includes a sum for the handicap on the labour market. The posisition becomes more interesting when the Claimant returns to his pre-accident job but with a disability.
This point has yet to be litigated in isolation, but the 6th Edition of the Ogden Tables now place much greater emphasis on whether or not the Claimant is disabled and provide for the first time a statistical / logical basis for the calculation.
Take, for instance a 20 year old man with GCSE’s who undergoes an amputation of his leg and is left with significant back pain . He has nonetheless has managed to return to his pre-accident driving job of £20,000 nett per annum.
On first blush, the new compensation figure for a Smith & Manchester award under the 6th Edition Ogden Tables could be calculated as follows:
Pre-accident earnings: £20,000 x 26.56 [multiplier to age 65] x .92 [male/not disabled] = £488,704
Post-accident earning capacity: £20,000 x 26.56 [multiplier to age 65] x .55 [male/disabled] = £292,160
This would lead to a potential Smith v Manchester award of (£488,704-£292,160) = £196,544, far in excess of a traditional award of e.g. 2 years loss of income (which would equate to only c. £40,000)
Defendants could of course attack this figure on the basis of the Claimant’s previous employment history and/or the effect of the residual disability and its relevance to the Claimant’s likely field of work, but Claimants must now be careful to consider such an approach.
The case of AL CONNER v BRADMAN & COMPANY LTD (2007) [2007] EWHC 2789 (QB) also gives an insight into these types of calculations, and crucially, how the effects of the particular Claimant’s disability, job etc may alter these calculations.
Cyrus Katrak is a specialist in personal injury and clinical negligence actions and is the leader of the 3 Paper Buildings Personal Injury Group.
He has acted for both Claimants and Defendants in many high profile cases including the British Coal Respiratory Disease Litigation, the 3M Hip Implant cases, the Paddington and Potters Bar Rail Disaster and has also conducted a large number of industrial injury cases including asbestosis, hearing loss and vibration white finger injuries.Cases against the MOD and MIB form a significant area of work.
Examples of his work over the last 12 months include claims involving head injuries of maximum severity, hospital MRSA infection, plastic surgery complications and proceedings arising out of alleged sexual abuse.
Reported/interesting cases:
R v Scottish & Southern Energy PLC [2007]: Mesothelioma claim - Loss of Years / Fatal Accidents Act claim
P v X [2007]: Fatal Accidents Act claim by separated wife
B v S [2006]: Acting for Defendant in relation to fatal injuries suffered by seaman Beattie v Thamesport [2006] - Acting for Defendant in relation to serious injuries suffered by seaman
A v B [2005]: Acting for Defendant in relation to claim for alleged sexual abuse
R v Jaroslav Garner - Trans [2005]: Acting for Defendants - injuries of utmost severity sustained in road traffic accident
Smith v Pinkarts [2004]: Acting for Defendants - injuries of utmost severity sustained in road traffic accident
B v Thames Trains Limited [2003]: Fatal Accident Claim arising out of the Paddington Rail Crash
Willet v Marsh [2003]: Catastrophic injury claim against MIB
Miller v MOD [2002]: Acting for airman crippled in parachuting accident
The Tag Cases: Further CFA litigation
Callery v Grey (No.2) [2001] 4 All ER 1: The CFA litigation
Stuart Murray v Wembley Stadium Ltd (2000) LTLPI 27/4/2000
Barnes v Avon Lippiatt Hobbs (Contracting) Ltd (2000) LTLPI 20/10/2000
Newbury v Bath DHA HCJ (1999) 47 B.M.L.R. 138: Medical negligence leading to paralysis
Violet Brett v Lewisham Borough Council CA LTL 20/12/99: Ttripping accidents under the Highways and Occupiers Liability Act Publications
Written articles include a number for the Motor Accident Solicitors Society and the Personal Injury Law Journal. He also lectures to many solicitors and other professional bodies. Engagements include the Lyons Davidson Whiplash Seminar and the Motor Accident Solicitors Society (on road traffic accidents abroad).
He has a particular interest in cases involving head injuries and allegations of exaggeration/malingering.
Cyrus edits the highly successful personal injury e-mail update which is read by over 2,500 solicitors. To join the update list, please e-mail him at the address above.
Cyrus is a member of the Personal Injury Bar Association and the Professional Negligence Bar Association.
Languages spoken - Russian
This site is for solicitors and those in the insurance industry. All are free to read, but I will limit comments to solicitors and insurers who must register with a business email.
I take all reasonable care to ensure that the materials and information on this web site are accurate and complete. However they are provided for general information purposes only. They are not intended to be comprehensive or to include advice on which you may rely. If you are not a solicitor you should always consult a suitably qualified lawyer on any specific legal matter.
We are happy to visit firms of solicitors to give lectures, usually without any cost. Please contact me here for further details