SHOULD COSTS BE DISAPPLIED IN A “MIXED” CASE WHERE PART OF A CLAIM HAS BEEN STRUCK OUT? A DECISION ON APPEAL
What order for costs should the court make in a “mixed” claim when part of the claim is struck out but a personal injury claim continues. That was the question considered in the appeal we are looking at here. In…
EXPERT WATCH 21: THE EXPERT WHO FAILED TO CONSIDER NEW EVIDENCE IN SUFFICIENT DETAIL AND “WHO WAS NOT PARTICULARLY OPEN TO RECONSIDERING HIS OPINION”
Here we look at a judgment about medical evidence in a personal injury action. The issue was one of causation – whether an earlier injury to the claimant’s leg “caused” a later decision to have that leg amputated. The critique…
SURVEILLANCE EVIDENCE UNDER SCRUTINY, ADMISSIBILITY AND CONDUCT CONSIDERED: “THE PROVIDING OF PATENTLY UNTRUE WITNESS STATEMENTS TO THE COURT, ENDORSED WITH STATEMENTS OF TRUTH, IS A MATTER OF SERIOUS CONCERN TO THE COURT”
This is the most serious criticism of surveillance operatives as I have seen. The judge found that the operatives, filming on behalf of a defendant for the purpose of litigation, had been “fundamental and repeated” errors. The operatives then put…
COST BITES 294: “A DETAILED ASSESSMENT IS NOT THE FORUM TO RESCUE OR TO ATTEMPT TO CHANGE THE EFFECT OF A POORLY WORDED ORDER”: THE COURT WOULD NOT CONSIDER ASSERTIONS OF POTENTIAL FUNDAMENTAL DISHONESTYOF THE PRIMARY ACTION ON ASSESSMENT
Here we are looking at an attempt by a paying party defendant to raise issues of conduct, including potential fundamental dishonesty, at the assessment of costs stage. The defendant argued (or attempted to argue) that the costs judge should take…
EXPERT WATCH 14: THERE WERE “TOO MANY IMPONDERABLES” TO FORM A VIEW THAT THE INJURIES WOULD HAVE BEEN REDUCED IF A CAR HAD BEEN DRIVEN AT A LOWER SPEED
The judge in this case considered whether the medical evidence established that driving at a lower speed would have “significantly reduced” the injuries that the claimant suffered. This is often a difficult matter to prove. (The evidence on whether…
MEMBER NEWS: “ON DEMAND” CIVIL LITIGATION BRIEF WEBINARS AVAILABLE TO WATCH AT A TIME AND PLACE TO SUIT YOU: WITH DISCOUNTS FOR CLB MEMBERS
Last week we looked at webinars coming up which may be of interest to CLB readers. CLB members can obtain a discount on these webinars. The same discount applies to webinars which are now available “on demand”. These webinars are…
LIABILITY FOR ACCIDENTS INVOLVING OUTDOOR ACTIVITIES: WEBINAR 3rd SEPTEMBER 2025
As recent events have shown the consequences of inadequate training, supervision and knowledge of those responsible for running outdoor activities can lead to major injuries and fatalities. The webinar looks at the case law, statutes and general guidance in relation…
EXPERT WATCH 11: EXPERT ASSERTS THAT THE CLAIMANT WAS MALINGERING BUT WOULDN’T TELL THE COURT ABOUT THE DETAILS OF THE TESTS THAT LED TO THAT CONCLUSION
We have seen some unusual conduct of experts on this site. However the case we look at today has elements that we have not looked at before. An expert carried out tests on the claimant and, as a result of…
AVOIDING NEGLIGENCE CLAIMS IN LITIGATION 2025 (1): LIMITATION IN PERSONAL INJURY CLAIMS – HOW DOES ANYONE MISS A THREE YEAR LIMITATION PERIOD?
In an ideal world all personal injury limitation periods would be three years, and all other action six. However we do not live in an ideal world. The first, and most obvious, place to look at avoiding negligence claims is…
PERSONAL INJURY POINTS 10: WAS THIS CLAIM STATUTE BARRED?IF SO SHOULD THE COURT EXERCISE ITS DISCRETION UNDER SECTION 33 OF THE LIMITATION ACT 1980?
Here we look at a decision in relation to limitation. The trial judge had to determine whether the claimant’s action was statute barred. If it was she then had to consider whether it was appropriate to exercise the court’s discretion…
EXPERT WATCH 10: CLAIMANT UNSUCCESSFUL ON APPEAL IN ATTEMPTING TO OVERTURN THE TRIAL JUDGE’S PREFERENCE FOR THE DEFENDANT’S EXPERTS: “THE IRREDUCIBLE FACT IS IS THAT THE JUDGE ACCEPTED THE EXPERT EVIDENCE OF THE RESPONDENT’S KEY WITNESS AND PREFERRED TO OVER THE EVIDENCE OF THE APPELLANT’S KEY EXPERT WITNESS”
There are relatively few cases where a party appeals on the basis that trial judge was wrong to accept the evidence of one party’s expert witness in preference to the other. There are even fewer cases where such an appeal…
COST BITES 266: WHAT DOES THE COURT DO IF THE COSTS ARE DISPROPORTIONAL AFTER A LINE BY LINE ASSESSMENT? A WORKING EXAMPLE
Here we look at a judgment relation to proportionality and the assessment of costs. The claimant’s costs had been substantially reduced after a three day assessment but the judge found that the total sum was still disproportional. The judge could…
EXPERT WATCH 8: “SCIENCE DOES NOT CHANGE” : EVIDENCE THAT WAS “UNIMPRESSIVE IN PARTS AND OF LITTLE ASSISTANCE TO THE COURT”
To end the week I am looking at another decision about expert witnesses (it has been a theme this week). This time we are looking at accident reconstruction experts. One expert was found wanting, the judge favoured the other. The…
EXPERT WATCH 5: AN EXPERT SHOULD DISCLOSE PREVIOUS CRITICISMS MADE BY JUDGES: PARTICULARLY WHEN THEY HAVE BEEN WARNED ABOUT THIS BEFORE…
We have seen a trend in a number of recent cases of advocates cross examining experts and referring to judicial criticism made in previous cases that experts have been involved in. The judgment here goes one further and indicates that…
COST BITES 262: THE CLAIMANTS SHOULD NOT HAVE BEEN ORDERED TO PAY COSTS IN A “MIXED” CLAIM AGAINST THE POLICE
Here we are looking at issues relating to costs in an action that included a claim for personal injury but also included other elements. The question the appellate judge had to decide was whether the trial judge had applied the…
CLINICAL NEGLIGENCE CORNER 2: OVER TWO WEEKS IN COURT, A PANOPALY OF EXPERTS – BUT THE CASE CAME DOWN TO “WHO SAID WHAT TO WHO?”
The principles relating to clinical negligence cases are well known. The major problem is usually determining the facts. In cases that involve a disputed recollection of what was said and asked in medical consultations this gives rise to major issues. …
A DEFENDANTS’ FIRM OF SOLICITORS COULD LAWFULLY GIVE DETAILS OF CLAIMANTS IN SIMILAR CASES WHEN DEFENDING FUNDAMENTAL DISHONESTY CLAIMS
Here we are looking at a case where claimants brought an action claiming that their data protection rights had been breached by a defendant firm of solicitors. The defendant had collated a list of claimants who had relied on a…
AN INTRODUCTION TO LAW AND PRACTICE IN THE CORONER’S COURT: WEBINAR 17th JULY 2025
Representing people at a Coroner’s hearing gives rise to major challenges and responsibilities. Ensuring that the concerns of the participants are fully considered whilst recognising the limited role that the coroner has. This webinar is an introduction to the role…
DAMAGES IN ANTICIPATION OF DEATH AND DAMAGES FOR LOSSES PRIOR TO DEATH: WEBINAR 15th JULY 2025
This webinar deals with some of the most sensitive and difficult issues that a litigator may have to deal with. It looks a law and practice relating to losses incurred prior to death. Booking details are available here. ISSUES COVERED…
COST BITES 250: SHOULD THE CLAIMANT’S SOLICITOR BE ENTITLED TO RECOVER A FULL SUCCESS FEE AND THE ATE PREMIUM? A DECISION MADE ON APPEAL
We are looking at a decision made on appeal in relation to the very common issue of the percentage of a success fee and the taking out, and subsequent deduction from damages, of an After the Event Insurance policy. The…
THE KEY CASES IN FATAL ACCIDENT DAMAGES 2025: WEBINAR 3rd JULY 2025
In a recent case the court observed the importance of working from the established cases when considering how fatal accident damages should be assesessed. When allowing an appeal from an “unconventional” means of assessment by the trial judge it was…
HOW SHOULD THE COURT EXERCISE ITS DISCRETION TO CASE MANAGE ACTIONS ONCE PART 8 PROCEEDINGS ARE ISSUED UNDER THE PAP? COURT OF APPEAL GIVES CLEAR GUIDANCE
Having determined that the court does have jurisdiction to case manage actions issued under Part 8 the Court of Appeal went on to make some trenchant observations in relation to avoiding the possibility of delay. (Applications to extend a stay…
CLINICAL NEGLIGENCE CORNER 1: ASSESSMENT OF DAMAGES FOR PAIN AND SUFFERING IN A CLINICAL NEGLIGENCE CASE: IT HELPS IF THE PSLA IS IN THE SCHEDULE
It is relatively rare for litigators to get a detailed insight into the court’s approach to an award for pain and suffering. We see any example here. Of course every case is fact specific, but practitioners have to be aware…
CONTRIBUTORY NEGLIGENCE CONSIDERED: CASES IN THE COURTS IN THE PAST 12 MONTHS: WEBINAR 1ST JULY 2025
It is commonplace for defendants to make allegations of contributory negligence against an injured claimant. Litigators working in this field need to know the basic law and principles relating to contributory negligence and also how these are being applied in…
PERSONAL INJURY POINTS 9 : COURT OF APPEAL CONSIDER ISSUES OF LIABILITY FOR INJURIES CAUSED IN A RUGBY MATCH: WHAT IS THE APPROPRIATE LEGAL TEST?
There are relatively few cases in which the Court of Appeal looks at civil claims for injuries caused in the course of sporting activity. We are looking at such a case here. The Court addresses the question of what standard…
WASTED COSTS ORDER MADE AGAINST SOLICITORS WHO HAD PURSUED A “HOPELESS” CASE: ATTEMPTS TO RELY ON PRIVILEGE WERE A RESORT TO A MERE “FIG LEAF”
It is rare for a wasted costs order to be made against a solicitor for pursuing what is seen as a “hopeless” case. However we have such an order in the case we are considering here. The Master found the…
THE COURT OF APPEAL DECISION ON THE LIABILITY OF CREDIT HIRE COMPANIES TO PAY COSTS: THE SPECIFIC CASES EXAMINED
This is the second post about the Court of Appeal judgment today in relation to the liability of credit hire companies to pay costs. Here we look at the decisions made in relation to each of the two cases under…
PREPARING A SCHEDULE AND PROVIDING EVIDENCE IN A FATAL CLAIM 2025: WEBINAR 18th JUNE 2025
It is a difficult task to summarise the value of a life in one document. This is what happens when a schedule is drafted in a fatal claim. It is a task that has to be done carefully and with…
WHAT COSTS REGIME APPLIES WHERE A JUDGE FINDS THAT A SUCCESSFUL CLAIMANT SHOULD HAVE USED THE LOW VALUE PERSONAL INJURY PORTAL? THE ISSUES CONSIDERED ON APPEAL
For the second time this week we are looking at the issue of whether, or not, it was reasonable for a claimant’s solicitor to conclude that a matter should have been commenced outside the Low Value Personal Injury Portal. This…
UNDERSTANDING THE LAW AS TO FATAL ACCIDENTS 2025: WEBINAR 11th JUNE 2025
Part of a series on fatal accident litigation this webinar takes you through the essential elements you have to consider before you can advise whether a claim for fatal accident damages can be brought. Booking details available here WHAT THE…
WITNESS STATEMENTS, FORGED DOCUMENTS AND A FINDING OF CONTEMPT OF COURT: A WHOLE BUNCH OF PROBLEMS
This is a case where the judge found that the claimant and a witness relied on documents that they knew to be forged. It is an important reminder of the lengths that some people can go to in litigation. It…
PERSONAL INJURY POINTS 7: THE COUNCIL WAS LIABLE FOR THE STATE OF AN UNADOPTED HIGHWAY: A FINDING FOR THE CLAIMANT WAS NOT A BRIDGE TOO FAR
The issues of an occupier’s duty in relation to those walking along unadopted highways are always complex. Here we look at a case where the claimant was successful in establishing a breach of duty following an injury she sustained when…
DOES EVERY DOG DESERVE ONE BITE? LIABILITY FOR ANIMALS – RECENT CASES CONSIDERED: WEBINAR 6th JUNE 2025
It is difficult to find anyone who has a good word to say about Section 2 of the Animals Act, this webinar looks at recent cases relating to liability for animals and the practical steps litigators can take when considering…
PERIODICAL PAYMENTS AND PROVISIONAL DAMAGES 2025: WEBINAR 4th JUNE 2025
This webinar looks at recent cases in relation to periodical payments and periodical payments, including an interesting negligence case brought against solicitors who failed to claim provisional damages. Booking details are available here. It then looks at the…
THE JUDGE WAS WRONG TO GRANT THE DEFENDANT SUMMARY JUDGMENT IN A PERSONAL INJURY CASE: THIS SHOULD NOT BE A “MINI TRIAL”
Today we are looking at a case where the claimants were successful on appeal in overturning an order granting the defendant summary judgment. The case shows the limits of applications for summary judgment, in particular arguments that evidence was not…
PERSONAL INJURY POINTS 6: HOW IS THE COURT GOING TO APPROACH THE COSTS OF ACCOMMODATION WHEN THE CLAIMANT HAS A REDUCED LIFE EXPECTANCY – & HOW DOES THE COURT DEAL WITH THIS ON AN APPLICATION FOR AN INTERIM PAYMENT?
The decision in Swift -v- Carpenter set out the approach the courts should normally take when a claimant needs to purchase accommodation because of their injuries. However that judgment, expressly, left open issues relating to the approach the courts should take…
INTEREST ON DAMAGES AND COSTS THAT HAVE TO BE REPAID FOLLOWING AN APPEAL: WHAT IS THE APPROPRIATE RATE?
Losing a case on appeal is always painful. Having to repay the damages and costs that have been received is more painful still. Another element of pain is the fact that the losing party has to pay interest on the…
PERSONAL INJURY POINTS 5: THE PUBLICAN WAS NOT VICARIOUSLY LIABLE FOR THE ACTS OF A SEPARATE SECURITY COMPANY
When a claimant is injured by doormen working on licensed premises is the publican vicariously liable if the assailants were employed by a separate security company ? The answer is “it depends”. The issue is primarily one of control. It…
EXPERTS IN COURT: “TRESPASSING ON THE JUDICIAL FUNCTION” AND “SEEKING TO ADVOCATE” ON BEHALF OF PARTY: THIS RARELY ENDS WELL…
There is no shortage of posts on this blogs where judges are critical of expert witnesses. Today we look at another such case where the judge found the expert’s approach “concerning” and went on to state that the expert was…
PROVING THINGS 261: PROVING FUTURE INTENTIONS: AN INTENTION TO HAVE MEDICAL OPERATIONS CARRIED OUT PRIVATELY
Today we are looking at a case where the defendant appealed against a decision that the claimant could recover the future cost of medical treatment to be carried out on a private basis. Statute states that there is no duty…
COST BITES 240: THERE IS NOT A “CATCH 22” POSITION IN RELATION TO THE DRAFTING OF THESE CONDITIONAL FEE AGREEMENTS
We are continuing to work through the results of one case in relation to the recoverability of success fees from a client’s damages. The claimants, seeking to challenge their former solicitors deduction of costs from their damages, argued that the…
AVOIDING UNDERSETTLEMENT: PROTECTING THE CLIENT AND PROTECTING YOURSELF: WEBINAR 29th MAY 2025
“We go back through your claim in fine detail and if we find that your previous solicitor wasn’t thorough enough and your claim was mishandled, we’ll squeeze out all the compensation that you’re entitled to, getting you more money, and…
PERSONAL INJURY POINTS 4: THE EMPLOYER WAS IN BREACH OF DUTY WHEN EMPLOYEE WAS INJURED CROSSING THE ROAD
Last week we looked at a case where someone was injured in their workplace, but there was no breach. Today we are looking a case where an employee was injured crossing the road and it was held that the employer…
PERSONAL INJURY POINTS 3: A SOLICITOR INJURED AT WORK FAILS TO ESTABLISH LIABILITY: A DOOR IS NOT WORK EQUIPMENT
The question of what is work equipment can be a fairly fundamental one for personal injury lawyers. There can still be something akin to strict liability under the provisions of the Employer’s Liability (Defective Equipment) Act 1969. Here we consider…
PERSONAL INJURY POINTS 2: CONTRIBUTORY NEGLIGENCE, CAUSATION, EVIDENCE AND FAILURE TO WEAR A CYCLE HELMET (SOMETHING ABOUT PLEADINGS TOO)
In the previous post in this series I mentioned that there was a backlog. I didn’t anticipate that I would be looking at a case that was decided in 2009. However the judgment has recently arrived on BAILLI and it…
PERSONAL INJURY POINTS 1: WHAT DISCOUNT SHOULD BE GIVEN WHEN CARE IS PROVIDED GRATUIOUSLY ? THE COURT REVIEWS THE “STANDARD APPROACH”
For a while now I have planned a series that gives a focal point to the many cases and examples that arise, and are sent to me, in relation to personal injury matters. Many people offer help but the procedural…
WHAT TO DO IF THE DEFENDANT MAKES AN EARLY PART 36 OFFER: WEBINAR 21st MAY 2025
A defendant is entitled to make a Part 36 offer whenever it wants. The making of an early offer can cause major problems for claimants and their lawyers. An understanding of the rules, the relevant cases and the steps that…
AVOIDING PROBLEMS WITH CLAIMS FOR LOSS OF EARNINGS: A WEBINAR (& CHECKLIST): 14th MAY 2025
There are many ways in which a court can approach a claim for loss of earnings. There are as many ways in which a claim for loss of earnings can go wrong. In recent weeks I have written about cases…
DEDUCTIONS OF INSURANCE PAYMENTS FROM PERSONAL INJURY DAMAGES: TWO RECENT CASES CONSIDERED: A POINT FOR BOTH CLAIMANTS AND DEFENDANTS TO WATCH
The principle that insurance payments are sometimes deducted from a claim for personal injury damages is overlooked. Here we are looking at two recent cases where this principle was considered and applied. In one case, at least, the principle does not…
JUDGE STRIKES OUT CLAIM FOR LOSS OF EARNINGS: IT IS “INCOHERENT” AND OBSTRUCTS THE JUST DISPOSAL OF THE CLAIM
It is an easy matter for a claimant to insert a claim for a substantial loss of earnings into a schedule of damages. However a claimant then has to prove that loss. Further, even prior to trial, a defendant is…
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