DEFENDANT REFUSED PERMISSION TO RELY ON “SPECIALIST” EVIDENCE AS TO LIFE EXPECTANCY: THE CIRCUMSTANCES IN WHICH SUCH EVIDENCE IS ALLOWED AND CONSIDERED
In Dodds v Arif & Anor [2019] EWHC 1512 (QB) Master Davison refused the defendant’s application to rely on a specialist report in relation to the claimant’s life expectancy. The judgment also contains an important summary of the circumstances in…
MOTOR INSURERS BUREAU IS LIABLE TO COVER VEHICLE BEING DRIVEN OFF ROAD: COURT OF APPEAL DECISION TODAY
NB THE PRACTICAL EFFECT OF THIS DECISION WAS OVERTURNED BY THE THE MOTOR INSURERS (COMPULSORY INSURANCE) ACT 2022 In Motor Insurers’ Bureau v Lewis [2019] EWCA Civ 909 the Court of Appeal upheld the finding of Mr Justice Soole that…
RISK ASSESSMENTS: USEFUL LINKS: A HOMAGE TO THOSE AT THE APIL CONFERENCE TODAY (OR AT LEAST THOSE WHO ATTENDED MY TALK…)
In a seminar I gave earlier today I was speaking about the central importance of risk assessments in relation to liability. Risk assessments can be important to establishing liability and practical knowledge of the nature of risk assessments is important. …
FIXED COSTS WHEN A PERSONAL INJURY ACTION SETTLES FOR MORE THAN £25,000: “NEW RULES” TO BE APPLIED AND FIXED COSTS APPLY
I am grateful to Matthew Hoe from Taylor Rose TTKW for sending me a copy of the judgment of HHJ Sephton QC in Lovatt -v- Lew Diecastings Ltd (County Court in Manchester, 4th December 2018). Lovatt v LEW Diecastings Ltd…
BREACH OF REGULATIONS IS IPSO FACTO NEGLIGENT: HIGH COURT JUDGMENT ON s.69 OF THE ERRA
I am grateful to Colm Nugent for sending me a copy of the judgment of HH Gore QC (sitting as a High Court judge) in Tonkins -v- Tapp (7th December 2018). The judgment deals with the issue of the relevance…
LIABILITY OF McKENZIE FRIEND: EXCLUSIVE NOTE OF JUDGMENT:
There was considerable discussion yesterday about the decision of HHJ Eady (sitting as a High Court judge) in Wright -v-Troy Lucas. My colleague Colm Nugent has been kind enough to send me a note of the judgment (where he appeared…
PROVING THINGS 142: CLAIMANT HAS TO PROVE SIZE OF HIGHWAY DEFECT: PHOTOGRAPHS THAT WERE “ALMOST COMPLETELY USELESS”
The judgment today in Walsh v The Council of the Borough of Kirklees [2019] EWHC 492 (QB) contains an important message for anyone involved in highway or “tripper” litigation: the claimant has to have evidence to prove the size of the…
PERIODICAL PAYMENTS, ASBESTOS CASES AND THE CONDUCT OF LITIGATION: AMBUSH IS TO BE AVOIDED
In the judgment today in Howard v The Imperial London Hotels Ltd [2019] EWHC 202 (QB) Master Thornett had to consider whether periodical payments were suitable for someone with a very short life expectancy. The judgment is a careful and sensitive…
THE ABSENCE OF KEY DOCUMENTS CANNOT BE EASILY IGNORED: CLAIMANT SHOULD HAVE BEEN SUCCESSFUL: JUDGMENT FOR DEFENDANT OVERTURNED ON APPEAL
In Mackenzie v Alcoa Manufacturing (GB) Ltd [2019] EWHC 149 (QB) Mr Justice Garnham overturned a judgment in favour of a defendant. The defendant’s failure to produce key documents, or give any explanation for their not being available, was a major…
THE ADMISSIBILITY OF POLICE REPORTS AS EVIDENCE: NO NEGLIGENCE WHEN DRIVER FEARED HE WAS TO BE ASSAULTED: A CASE TO POINT
In Mohmed v Barnes & Anor [2019] EWHC 87 (QB) Mr Justice Turner found that a driver had not been negligent when he drove into a pedestrian an attempt to escape an assault. The case is important in relation to an…
CIVIL PROCEDURE: BACK TO BASICS 24: THE BANKRUPT CLAIMANT (PERSONAL INJURY LITIGANTS IN PARTICULAR)
I am writing this primarily because of a conversation I had with a law graduate who thought the term “bankruptcy” was a generic term to cover anyone who was hard up. The very basic point about what bankruptcy is, and…
NOT TELLING THE CLAIMANT THE AMOUNT OF HIS DAMAGES: JUDICIAL APPROVAL OBTAINED
In EXB v FDZ & Ors [2018] EWHC 3456 (QB) Mr Justice Foskett had to consider the approach of the court when it was felt to in the claimant’s best interests not to be told of the size of his award…
PROVING THINGS 133: FALLING OFF A BED AND THE PIECES OF THE JIGSAW
The case of Busby v Berkshire Bed Company Ltd [2018] EWHC 2976 (QB) was one of those cases that centred on credible evidence. It is an example of where witnesses can be totally honest but mistaken in their recollection. The judge…
DOES A COUNTERCLAIMING DEFENDANT HAVE THE BENEFIT OF QOCS? NOT IN THIS COURT: THERE ARE NOW TWO (CONFLICTING) JUDGMENTS ON THIS ISSUE
I am grateful to Barrister Kevin Latham for sending me details of the decision of HHJ Venn in Waring -v- McDonell [2018] EW Misc B11 (CC). A link to the full decision is also available at the foot of Kevin’s…
PROVING THINGS 123: THE PERSONAL INJURY CLAIMANT WHO COULD NOT SAY WHETHER OR NOT HE HAD BEEN INJURED
We looked at the case of Kavak v FMC – HHJ Pearce Manchester CC 24.04.18) in an earlier post, primarily in the context of re-allocation. However that case provides a clear illustration of a failure to prove a basic element of…
LIMITATION: COURT DOES NOT EXERCISE SECTION 33 IN CASE CONCERNING ALLEGATIONS OF SEXUAL ABUSE: A CAUSE OF ACTION CANNOT BE PUT ON THE SHELF
This is the second post of the day on Section 33. In Murray v Devenish & Ors (Sons of the Sacred Heart of Jesus) [2018] EWHC 1895 (QB) the claimant was not successful. Mr Justice Nicol held that the claimant’s delay…
LIMITATION: SECTION 33 IN A FATAL DISEASE CASE: CASE ALLOWED TO PROCEED AFTER 25 YEAR DELAY
In Pearce & Ors v The Secretary of State for Business, Energy And Industrial Strategy & Ors [2018] EWHC 2009 (QB) Mr Justice Turner considered the principles relating to Section 33 of the Limitation Act 1980 and granted an application where…
DEALING WITH THE ARCH ENEMY: EVERY LITIGATOR’S BUGBEAR
Some of the ideas for this blog come from the legal community on Twitter. This evening there was a discussion about the virtues of instructions that arrive in numerous emails versus the problematic (and usually broken) arch lever file. Last…
PROVING THINGS 121: FAILING TO PROVE LOSS OF EARNINGS, AND THE APPROPRIATE APPROACH WHERE FUTURE TREATMENT IS UNCERTAIN
Yesterday I looked at Welsh v Walsall Healthcare NHS Trust [2018] EWHC 1917 (QB) and the comments from the judge in relation to the joint statement of experts. The case also contains interesting observations in relation to proving damages. These are observations on matters…
BREACHING THE RULES, RELIEF FROM SANCTIONS, PERMISSION TO APPEAL AND THE CORRECT JUDGE TO HEAR THE APPEAL
There is much for the litigator to ponder in the Court of Appeal judgment in Broughal v Walsh Brothers Builders Ltd & Anor [2018] EWCA Civ 1610. Firstly how did the claimant come to be in a position when it breached…
WHEN IS A REPORT NOT A MEDICAL REPORT? RELIEF FROM SANCTIONS GRANTED WHEN CLAIMANT FAILED TO SERVE A “MEDICAL REPORT” WITH THE PARTICULARS OF CLAIM
In a judgment given today at Leeds County Court His Honour Judge Gosnell held that a claimant, seeking damages for industrial deafness, breached the rules when issuing by not serving a medical report but serving an “AMR” report. The judge,…
PROVING THINGS 116: HONEST WITNESSES CAN BE WRONG: “INSIGNIFICANT EVENT” BECOMES “MAGNIFIED IN THE CLAIMANT’S MIND”
The judgment in Pauline Carter v Kingswood Learning And Leisure Group Limited [2018] EWHC 1616 (QB) shows a scenario where a claimant can be totally honest and credible, but still be wrong. “I am sure she is an honest person, but…
FIFTH BIRTHDAY REVIEW 8: MYTHS ABOUT LIMITATION
This was a series in 2017. Looking at common “myths” or misconceptions in relation to limitation issues, particularly in personal injury cases. MYTHUSTING 1 The limitation period for a personal injury action based on breach of contract is…
ORDER FOR COSTS TO BE ASSESSED DOES NOT OUST FIXED COSTS: CIRCUIT JUDGE DECISION
I am grateful to Matthew Hoe of Taylor-Rose for sending me a copy of the decision of His Honour Judge Yelton in Bratek -v-Clark-Drain Limited (County Court at Cambridge 30th April 2018). A copy is available here Bratek v Clark-Drain Ltd…
RISK ASSESSMENTS AND THE PERSONAL INJURY LAWYER: IF YOU COULDN’T MAKE THE LECTURE – SEE THE WEBINAR: 10th JULY 2018
I am giving a webinar on the 10th July 2018 at 1.00 pm “Risk Assessments and Personal injury Claims : A Blueprint for action”. “Risk assessments are meant to be an exercise by which the employer examines and…
“NOTHING SHORT OF A RECOGNISED PSYCHIATRIC INJURY CAN AMOUNT TO A PERSONAL INJURY”: SECTION 33 CANNOT APPLY WHERE THE CLAIMANTS SUFFERED “FEAR”
The judgment of Mr Justice Stewart in Kimathi & Ors v The Foreign and Commonwealth Office [2018] EWHC 1305 (QB) (24 May 2018) considers the question of what is an “injury” for the purpose of Section 33 of the Limitation Act…
PROVING THINGS 106: YOU DIDN’T COMPLY WITH YOUR OWN RISK ASSESSMENT AND YOU WANT TO APPEAL: COURT REJECTS DEFENDANT’S ARGUMENT THAT CLAIMANT FAILED TO PROVE CAUSATION
In CC v Leeds City Council [2018] EWHC 1312 (QB) Mr Justice Turner reiterates the importance of the risk assessment in personal injury litigation. On appeal the judge rejected an argument that a claimant had failed to prove causation. The defendant’s…
PROVING THINGS 105: BURDEN ON CLAIMANT TO PROVE A DEFECT: THE DIFFICULT TASK OF APPEALING FINDINGS OF FACT ON APPEAL
I am grateful to Matthew Snarr for sending me a copy of the judgment, given yesterday, in Bond -v- Tom Croft (Bolton) Ltd [2018] EWHC 1290 QB. It contains an important observation about the burden of proof in establishing that…
FUNDAMENTAL DISHONESTY ESTABLISHED ON APPEAL: WHEN A CLAIMANT DIGS A BIG HOLE FOR THEMSELVES THE COURT SHOULD NOT STRUGGLE TO EXTRACT THEM
In London Organising Committee of the Olympic And Paralympic Games (LOCOG) v Sinfield [2018] EWHC 51 (QB) Mr Justice Julian Knowles overturned a decision whereby a claimant was allowed damages. The claimant had been fundamentally dishonest in making a claim for…
LIMITATION: DISEMBARKATION AND THE TWO YEAR LIMITATION PERIOD: THE BARQUE AND THE BIGHT
In Collins v Lawrence [2017] EWCA 2268 Civ Lord Justice Hamblen considered an issue under limitation and the Convention Relating to Carriage of Passengers and their Luggage by Sea (the “Athens Convention”). It serves as an important reminder that many cases…
ABSENCE OF RISK ASSESSMENTS LEADS TO JUDGMENT FOR DEFENDANT BEING OVERTURNED: THE SECOND PART OF POWELL -v- WATFORD BOROUGH COUNCIL
The first part of the decision of Mr Justice Jay in Powell -v- Watford Borough Council [2017] EWHC 2283 (QB)was considered in detail in the previous post. Mr Justice Jay held that a peremptory order had not been complied with and the defence…
MIB CLAIM IS SUBJECT TO QOCS: COURT OF APPEAL OVERTURN HOWE
“For the purposes of CPR Part 44.13, which describes the claims eligible for Qualified One-Way Costs Shifting (“QOCS”), what is a claim for damages for personal injury? As Stewart J said it is a simple question but does not yield…
BOOK REVIEW: AN INTRODUCTION TO PERSONAL INJURY LAW
I reviewed David Boyle’s book on expert evidence earlier in the year. He has presumably decided to forego all forms of social interaction and has now written a general introduction to Personal Injury. The book places some emphasis on the…
LIMITATION AND DATE OF KNOWLEDGE: NO SPECIAL RULE BECAUSE THE CLAIMANT WAS A SOLICITOR
I am grateful to Thomas Jervis of Leigh Day for sending me a copy of the judgment of Mr Justice Goss in Lewin -v- Glaxo Operations UK Limited [2016] EWHC 3331 (QB), an interesting decision in relation to limitation. (A…
UNDUE HARDSHIP AND THE FOREIGN LIMITATION PERIODS ACT
The Foreign Limitation Periods Act 1984 is one of those matters that litigators must always have at the forefront of their mind when dealing with any matter that has a foreign connection. The stringent nature of the Act is made…
"FUNDAMENTAL DISHONESTY" A ROUND UP OF CASES & COMMENTARY
The earlier post on the procedural aspects of “fundamental” dishonesty led to the most visitors to the blog in a weekend ever. Here we look at posts, articles, comments and cases in relation to the concept of fundamental dishonesty. REPORTED…
LETTERS OF EXPLANATION NOT GOOD ENOUGH: SOLICITOR SHOULD HAVE EXPLAINED MATTERS TO THE CLIENT: COURT OF APPEAL UPHOLD DECISION ON SOLICITOR'S NEGLIGENCE
In Procter -v- Raleys Solicitors [2015] EWCA Civ 400 the Court of Appeal upheld a decision at first instance that a failure to give an oral explanation to a client was negligent. The solicitors could not simply rely on standard…
CHANGES TO THE PRE-ACTION PROTOCOLS THAT WE KNOW ABOUT: LOW VALUE ROAD TRAFFIC ACCIDENTS
Important changes have been made to the Pre-Action Protocols which came into force yesterday. At the moment the whereabout of the the Protocols is a mystery in that they have not been published generally. However there are some changes to…
PERCENTAGE COSTS ORDERS AFTER A CLAIMANT BEATS THEIR OWN PART 36 OFFER: A HIGH COURT DECISION
In Webb -v- Liverpool Womens’ NHS Foundation Trust [2015] EWHC 449(QB) HH Judge Saffman (sitting as a High Court Judge) considered the consequences where a claimant had beaten their own Part 36 offer at trial. NB this aspect of the…
LAY EVIDENCE AND EXPERT EVIDENCE IN CLINICAL NEGLIGENCE: MORE IS NOT ALWAYS BETTER
In Wake -v- Johnson [2015] EWHC 276(QB) HH Judge Collender QC (Sitting as Judge of the High Court) conducted a critical analysis of the lay evidence and expert evidence when dismissing a clinical negligence claim against a GP. There are…
AVOIDING NEGLIGENCE CLAIMS: A SUMMARY OF PREVIOUS POSTS
There are now over 640 individual posts on this blog. Occasionally it helps to recap. Here I provide links to the series on “avoiding negligence” claims written at the end of 2013. THE SERIES The series was primarily aimed at…
THE NEW PART 36: PART 8: STRUCTURE OF THE NEW RULE AND A RECAP OF POSTS TO DATE
Here we look at the structure of the new Part 36. The section part of this post recaps and provides links to the earlier posts on the new Part 36. Future posts will deal with the impact of the new…
THE NEW PART 36: PART 6: PERSONAL INJURY CASES
This is the sixth in the series of posts dealing with the new rules governing Part 36 coming into force in April 2015. This post deals with a new section of Part 36 on personal injury cases. This appears to…
MORE ON EVIDENCE AND CAUSATION: A CLINICAL NEGLIGENCE CASE
The previous post dealt with issues of evidence and causation. Similar issues can be seen in the case of Irene Packham -v- Anita Hazari [2014] EWHC 3951 (QB), a decision of Michael Harvey Q.C. The issue of causation and evidence…
LIMITATION & THE DATE OF KNOWLEDGE CONSIDERED IN THE CONTEXT OF HEARING LOSS
In Platt -v- BRB Residuary Ltd [2014] EWCA Civ 1401 the Court of Appeal considered issues relating to the date of knowledge in the context of a claim for hearing loss. THE LAW The relevant sections of the 1980 Act…
COSTS ASSESSED AT NIL WHEN SOLICITOR FAILED TO MAKE PROPER INVESTIGATIONS INTO CLIENT'S FUNDING
The case of McDaniel & Co -v- Clark (QBD Hickinbottom J 15/10/14) contains a clear warning that solicitors must make proper enquiries about funding at a very early stage. (This post is based on the Lawtel note of the judgment…
COSTS AFTER VARIATION OF A PART 36 OFFER TO BE LESS ADVANTAGEOUS TO THE RECIPIENT: BURRETT -v- MENCAP CONSIDERED
The decision of District Judge Ackroyd in Burreett -v- Mencap Ltd (14th May 2014) was reported on Lawtel earlier this week and is available on Bailli. It contains an important lesson to both defendants and claimants as to costs when…
"ESSENTIAL CHECKLISTS": THE COMPLETE LIST
The “Essential Checklist” series developed out of a workshop series in a course I gave last month. Six groups produced six checklists. Here is a link to them all. SERVICE OF PROCEEDINGS: (“SERVICE WITH A SMILE”) Essential points before the…
HISTORIC AGREEMENTS TO EXTEND TIME: WHAT IS THE APPROPRIATE APPROACH OF THE COURT? CAROLINE MAEVE MEEHAN -v- JOSEPH MANLEY & CHURCHILL INSURANCE COMPANY LIMITED
The decision in Lloyd that it was not open to the parties to agree to extend time can cause a problem in relation to cases where service of documents has taken place late by agreement. This was a common occurrence…
AVOIDING NEGLIGENCE CLAIMS 6: COMMUNICATIONS WITH THE CLIENT
Procter -v- Raleys Previous posts in this series have concentrated upon limitation issues. This post looks at the recent decision of Judge Gosnell in Procter –v- Raleys (Leeds County Court 6/11/2013). In particular what it demonstrates about the need to…
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