COST BITES 90: CLAIMANTS LIABLE TO PAY 5% OF DEFENDANT’S COSTS: HUMAN RIGHTS, PERSONAL INJURIES AND “MIXED CLAIMS”
In ABC & Ors v Derbyshire County Council & Ors, Re Costs [2023] EWHC 1337 (KB) Mrs Justice Hill considered the liability of the claimants to pay costs in a “mixed claim” which was, primarily, a personal injury claim. She…
PROVING THINGS 226: PROVING CONTRIBUTORY NEGLIGENCE (AND A WEBINAR ON THAT VERY SUBJECT…)
There is often very little attention paid to judgments in relation to contributory negligence. Commentators tend to concentrate, on the whole, on primary liability. If considered at all contributory negligence is often an after thought – a “finding on the…
THE JUDGE WAS WRONG TO STRIKE OUT A PROPERLY PLEADED CLAIM IN A PERSONAL INJURY CASE: JUDGE’S SHOULD BE ASTUTE TO DEAL WITH APPLICATIONS TO STRIKE OUT WHICH ARE, IN REALITY, APPLICATIONS FOR SUMMARY JUDGMENT
The judgment of Mr Justice Choudhury in Kasongo v CRBE Ltd & Anor [2023] EWCA Civ 557 demonstrates the danger when a defendant makes an application to strike out a statement of case. The judge allowed an appeal where a…
PROVING THINGS 255: HEARSAY NOTICE FROM AN ANONYMOUS CALLER HELPED DETERMINE KEY FINDINGS IN A CIVIL CASE: JUDGMENT IN FAVOUR OF THE CLAIMANT
The judgment of Her Honour Judge Howells (sitting as a Deputy High Court Judge) in Brown & Anor v Sestras & Ors [2023] EWHC 1220 (KB) is an interesting example of the use of hearsay, indeed anonymous evidence. An unknown…
CONTRIBUTORY NEGLIGENCE: LEARNING FROM RECENT CASES: WEBINAR 5th JUNE 2023
Contributory negligence is one of those issues that play a daily part of the life of the personal injury practitioner. The basic principles underlying findings of contributory negligence are rarely explored, however these can have profound practical implications for the…
INTEREST ON DAMAGES FOR PERSONAL INJURY CANNOT BE USED AS A MEANS OF PENALISING A DEFENDANT FOR POOR BEHAVIOUR: PART 36 ISSUES ALSO CONSIDERED
The judgment of Mr Justice Ritchie in Smout v Wulfrun Hotels Ltd [2023] EWHC 1128 (KB) considers the question of the use of interest as a penalty for the poor conduct of a defendant. The judge held that interest should…
CLAIMANT’S APPLICATION FOR PERMISSION TO CONTINUE WITH THIRD SET OF PROCEEDINGS REFUSED: CPR 38.7 CONSIDERED IN DETAIL
In Danielewicz v Cannon & Anor [2023] EWHC 948 (KB) Master Thornett refused the claimant’s application for an order under CPR 38.7. The claimant had issued proceedings twice before, but discontinued those actions. The judgment contains a detailed consideration of…
ANOTHER CHANGE IN THE RULES ON APRIL 6th: PERSONAL INJURY LAWYERS CAN SAY GOODBYE (IN SOME CASES) TO THE ADMIRALTY COURT
The focus on the new rules on QOCS coming into force on the 6th April may lead to losing sight of some other changes. In particular the new rules and amendments to the Practice Direction in relation to accidents at…
Damages for pain and suffering: The legal principles and their practical implications: Webinar 12th April 2023
On the 12th April 2023 I am presenting a webinar on “Damages for pain and suffering”. Looking, in a detailed way at the practical issues that a litigator has to consider when dealing with awards for pain and suffering. The…
WHAT TO DO IF THE DEFENDANT MAKES AN EARLY PART 36 OFFER: WEBINAR 30th MARCH 2023
The changes to the rules as to the set off of QOCS for action issued on or after the 6th April 2023 makes the proper assessment of Part 36 offers of even more importance. Not only will the costs incurred…
CLAIMANT HAD NOT “WON” UNDER PART 36 WHEN SHE HAD NOT BEATEN THE DEFENDANT’S OFFER ON DAMAGES BUT MADE AN OFFER IN RELATION TO LIABILITY: “BAFFLING” ARGUMENTS FAIL TO PREVAIL
NB THE OBSERVATIONS ABOUT PART 36 WERE DOUBTED AND “OVERRULED” BY THE COURT OF APPEAL IN Smithstone v Tranmoor Primary School [2026] EWCA Civ 13. SEE THE DISCUSSION IN THE POST ON THE CASE HERE I am grateful to barrister…
SPORTING INJURIES AND CIVIL EVIDENCE: WHEN THE DEFENDANT’S EXPERT CONCEDES THE CLAIMANT’S CASE IN CROSS-EXAMINATION
The judgment of Mr Justice Martin Spencer in Czernuszka v King [2023] EWHC 380 (KB) contains important observations in relation to the duty of care owed to those taking place in sporting activities. It also shows the important role of…
JUDGMENT OF A FINDING OF FUNDAMENTAL DISHONESTY – BUT THIS CASE GOES MUCH FURTHER: COLLUSION IS FOUND
Here we are looking at a case where District Judge Lumb made a clear finding of fundamental dishonesty on the part of a personal injury claimant. That finding was confirmed, or perhaps compounded, by the judge’s views in relation to…
THE NEW RULES ON QOCS AND COSTS 1: IMPLEMENTATION
The Civil Procedure (Amendment) Rules 2023 make major changes to the rules relating to the set off of costs and QOCS, reversing the decision of the Supreme Court in Ho -v- Adelkun. Here I want to look at the rule…
FUNDAMENTAL DISHONESTY FOUND WHEN AN INVOICE WAS DOCTORED: NOT EVERYTHING CAN BE SAID WITH FLOWERS
I am grateful to barrister William Rankin for sending me a copy of the judgment of Recorder Knifton KC in Hamblett -v- Liverpool Wholesale Flowers Limited (Liverpool County Court, 23rd January 2023) a copy of which can be found here …
PROVING THINGS 247: A NON-CONVICTION CANNOT IMPOSE A CIVIL DUTY OF CARE: CLAIMANT FAILS IN PERSONAL INJURY ACTION
In Lewin v Gray [2023] EWHC 112 (KB) HHJ Robinson (sitting as a Judge of the High Court) decided the issue of liability against the claimant. The case involved questions relating to the duty of care and the impact of…
MULTIPLE INJURIES AND TARIFF CASES: ASSESSING DAMAGES – A PRIMER
Following the judgment on Friday in Hassam & Anor v Rabot & Anor [2023] EWCA Civ 19 there is now a clear cut approach to assessing damages where a claimant’s injuries include damages for matters not within the whiplash tariff. Here…
COURT OF APPEAL JUDGMENT TODAY: WHIPLASH TARIFF INJURIES AND COMMON LAW DAMAGES: HOW SHOULD THE COURT DEAL WITH “MIXED” CLAIMS?
In the judgment today in Hassam & Anor v Rabot & Anor [2023] EWCA Civ 19 the Court of Appeal (by a majority view) decided that the Civil Liability Act 2018 did not impact on the assessment of damages for…
COST BITES 45: COURT REJECTS DEFENDANT’S APPLICATION THAT CASE INVOLVING A CHILD BE BUDGETED: ACCEPTS CLAIMANT’S APPLICATION FOR AN INTERIM PAYMENT ON COSTS – BUT NOT THE AMOUNT CLAIMED
In CXS v Maidstone and Tunbridge Wells NHS Trust [2023] EWHC 14 (KB) Master Cook considered issues relating to costs in a case concerning a child where the matter is unlikely to be resolved for many years. The Master rejected…
COURT REFUSES TO GRANT RESTRICTIONS ON CLAIMANT’S ACCESS TO FORMER SOLICITOR’S FILE: NOT A CASE OF LIEN ON ME
In Ellis v John Hodge Solicitors (a firm) [2022] EWHC 2284 (Comm) His Honour Judge Pearce refused to place any restrictions on the disclosure of a litigation file to the claimant. The claimant was bringing an action alleging professional negligence…
COURT AWARDS CLAIMANT DAMAGES FOR HARASSMENT: FORTHCOMING WEBINAR ON THE LAW OF HARASSMENT AND THE PERSONAL INJURY LAWYER
In Thomas Hodson Hodson Developments Ltd v Person Unknown & Ors [2022] EWHC 1960 (QB) Mr Justice Jay awarded damages in a case where he found that the defendants had harassed the claimant. An award was made for general damages…
THE 10 YEAR LONGSTOP PERIOD IN PRODUCT LIABILITY CLAIMS: A POINT TO WATCH
There is one very tricky area of limitation law that I wanted to return to following the judgment in Coote -v- Ullstein [2022] EWHC 606 (QB). The case was looked at in detail here. However I want to concentrate on the…
PERIODICAL PAYMENTS AND PROVISIONAL DAMAGES: THE IMPORTANCE OF RECENT DEVELOPMENTS: WEBINAR 9th SEPTEMBER 2022
This webinar looks at recent cases in relation to periodical payments and provisional damages and considers their practical implications for personal injury practitioners. Booking details are available here. WEBINAR CONTENTS Cases to be considered include: The decision in Mathieu v…
CLAIMANT LIED ABOUT “JOB OFFER”: FOUND TO BE FUNDAMENTALLY DISHONEST AND LOSES £130,000
I am grateful to Aled Morris from Horwich Farrelly for sending me a transcript of the judgment of HHJ Murdock in Hawkins -v- Holmes (County Court at Leicester, 1st April 2022). It is a case where the court found the…
TOO MANY CLAIMANTS SPOIL THE CLAIM FORM: THREE STRIKES … AND YOU’RE OUT
NB THIS DECISION WAS OVERTURNED BY THE DIVISIONAL COURT. SEE THE LATER POST ON THE DECISION HERE. In Abbott & 3,499 Ors v Ministry of Defence [2022] EWHC 1807 (QB) Master Davison rejected the claimant’s arguments that it was permissible…
THE REDUCTION OF A SUCCESSFUL CLAIMANT’S COSTS BECAUSE OF CONDUCT: RELEVANT CALDERBANK OFFERS CONSIDERED: RECOVERABLE COSTS REDUCED BY 15% AND 60%
In Mathieu v Hinds & Anor (No. 2: Costs) [2022] EWHC 1624 (QB) Mrs Justice Hill reduced a claimant’s recoverable costs. An initial 10% reduction was made because of the pursuit of a claim for provisional damages which was not…
INTERIM PAYMENTS AND THE LEVEL PLAYING FIELD: CLAIMANT OBTAINS PAYMENT DESPITE DEFENDANT’S CONCERNS
In Salwin v Shahed [2022] EWHC 1440 (QB) HHJ Pearce considered the appropriate sum to be paid to the claimant by way of interim payment. This case shows a very careful consideration of the “Eeles” criteria and the factors the…
THE COMPENSATION RECOVERY UNIT, LISTED AND UNLISTED BENEFITS
I gave a webinar earlier today in relation to deductions from damages. One of the issues considered was the problems caused by Universal Credit. There is an important distinction, in law, between “listed” benefits – which are subject to CRU…
AN INSURANCE PREMIUM WAS PROPERLY INCURRED: JUDGE, ON APPEAL, ALLOWS ATE COSTS TO BE DEDUCTED FROM CHILD’S DAMAGES
I am grateful to Express Solicitors for sending me a copy of a judgment of X -v- H&M Hennes, made by HHJ Lethem on 21st April 2022. It relates to the recoverability of an insurance premium between solicitor and client. …
THE THIRD PARTY (RIGHTS AGAINST INSURERS) ACT 2010 AND THE DATE OF “ACTIONABLE DAMAGE”: COURT REFUSES TO STRIKE OUT THE CLAIMANT’S CASE
In the judgment today in Brooks v Zurich Insurance Public Ltd Co & Anor [2022] EWHC 1170 (QB) Master Davison refused an application to strike out an action against insurers under the provisions of the Third Party (Rights Against Insurers)…
PROVING THINGS 232: “THE RULES OF THE GAME OF ASSOCIATION FOOTBALL HAVE NOT BEEN DRAFTED WITH CIVIL LIABILITY IN MIND”: APPEAL LEADS TO OVERTURNING OF JUDGMENT ON FOOTBALLER’S NEGLIGENCE: A REMATCH IS ORDERED
In Fulham Football Club v Jones [2022] EWHC 1108 (QB) Mr Justice Lane allowed an appeal in a case where a footballer had found to be negligent when tackling an opponent. The judgment considers the issue of liability in the…
PROVING THINGS 231: ASSESSING LOSS OF EARNINGS OF AN ARTIST: THE WIDE PALETTE OF APPROACHES THE COURT CAN TAKE
There are many cases where the courts have had to consider the loss of earnings of a claimant whose career pattern, and thus earnings, are not wholly certain. Often these relate to those working in sports or entertainment. In Mathieu…
PART 36: JUDGES SHOULD NOT LET THEIR HEARTS RULE THEIR HEADS: CLAIMANT ACCEPTING AN OFFER LATE FACES FULL COSTS CONSEQUENCES THAT FLOW
In the judgment in MRA -v- The Education Fellowship Limited [2022] EWHC 1069 (QB). Master McCloud held that it was not unjust for the usual principles in relation to costs to apply following a claimant’s late acceptance of a defendant’s…
PROVING THINGS 229: WHO BEARS THE BURDEN OF PROOF WHEN A CLAIMANT SEEKS DAMAGES GROSS OF TAXATION
We are returning for the second, but not the last, time to the judgment of Mrs Justice Hill in Mathieu v Hinds & Anor [2022] EWHC 924 (QB). The judge awarded an injured claimant damages for loss of earnings gross of tax. …
PROVING THINGS 228: PLEADING AND PROVING MITIGATION OF LOSS: THE NEED FOR A DEFENDANT TO ESTABLISH A “CONCRETE CASE”
The judgment of Mrs Justice Hill in Mathieu v Hinds & Anor [2022] EWHC 924 (QB) is interesting for a large number of reasons. Here we look at the judgment in relation to pleading and proving mitigation of loss. “A…
WHEN A WITNESS GIVES DIFFERENT ACCOUNTS IN DIFFERENT STATEMENTS IT RARELY HELPS THEIR CASE: JUDGE FINDS IT “UNIMPRESSIVE”
In Parry v Johnson & Anor (Rev1) [2022] EWHC 889 (QB) Mr Justice Ritchie considered the evidence of the defendant driver in a road traffic case. The defendant’s different accounts on different occasions did not help his cause. The judge…
COURT ALLOWS CLAIMANT’S APPEAL AGAINST FINDING OF FUNDAMENTAL DISHONESTY: THE DEFENDANT SHOULD HAVE GIVEN NOTICE OF THE ISSUES AND MADE ITS CASE CLEAR
In Jenkinson v Robertson [2022] EWHC 756 (Admin) Mr Justice Choudhury set aside a trial judge’s finding of fundamental dishonesty on the part of a claimant. This is a judgment that highlights the need for defendants to give clear notice…
TEXTING WHILE DRIVING AND CIVIL LIABILITY: JUDGES KNOW, YOU KNOW: “A CONCLUSION I REACH WITHOUT ENTHUSIASM BUT THE EVIDENCE IS COMPELLING”
In HRA v KGC [2022] EWHC 650 (QB) Mr Justice Turner considered the question of liability. It is an example of a phone record playing a part in the decision that the defendant was negligent. The judge found that the…
CLAIMS FOR LOSS OF EARNINGS OF THE SELF-EMPLOYED AND THOSE INVOLVED IN ENTERTAINMENT AND SPORT: WEBINAR 14th MARCH 2022
There are 5 million self-employed people in the United Kingdom making up 15.5% of the workforce. A self-employed person (including directors of small companies) face particular difficulties when seeking to recover loss of earnings after being injured. Similarly those who…
THE COURTS WILL RARELY DETERMINE ALLEGATIONS OF FUNDAMENTAL DISHONESTY AS A PRELIMINARY ISSUE
In Stannard -v- Euro Garages Ltd [2022] EW Misc 3 (CC) HHJ Walden-Smith dismissed the defendant’s application that the issue of alleged fundamental dishonesty be heard as a preliminary issue and the action struck out. The judge held it was…
CLAIMS FOR LOSS OF EARNINGS: LEARNING FROM RECENT CASES: WEBINAR 7th MARCH 2022
The “Proving Things” series on this blog often looks at cases relating to loss of income. Recent cases on this topic are explored in a webinar on the 7th March 2022: Claims for Loss of Earnings: Learning from Recent Cases,…
Children and liability: Law, practice and procedure: WEBINAR 22nd FEBRUARY 2022
This webinar looks at the law and practice relating to children as claimants and defendants. It also looks at those cases where allegations are made against those who had care of the children and vicarious liability for the acts of…
THE USE OF A SECOND REPORT IN THE LOW VALUE ROAD TRAFFIC PROTOCOL: FAILURE TO DISCLOSE FIRST REPORT TO THE DEFENDANT DID NOT LEAD TO MEDICAL EVIDENCE BEING EXCLUDED
I am grateful to barrister Kriti Upadhyay for sending me copies of the judgment of Mrs Justice Foster in Greyson -v- Fuller [2022] EWHC 211 (QB), a copy of which is available here Greyson v Fuller – HC Judgment 3-2-22…
PROVING THINGS 224: PROVING LOSS OF EARNINGS: THE IMPORTANCE (& LIMITATIONS) OF THE CLAIMANT’S OWN EVIDENCE
The impairment of someone’s ability to earn their living is always a serious matter. There are a number of approaches that the court can take to the award of damages. Anyone representing a claimant should read McRae -v- Chase International…
CHANGES TO THE HIGHWAY CODE: WHERE TO FIND THEM AND WHY THEY ARE IMPORTANT TO LAWYERS (APART FROM THE FACT THAT LAWYERS, WALK, DRIVE AND RIDE LIKE EVERYONE ELSE?)
The Highway Code is changing on the 29th January 2022. This has some relevance to lawyers. Here we look at the importance of the Highway Code, the significant changes, with links as to where to find the new rules and…
PROVING THINGS 223: PROVING A SUBSTANTIAL LOSS OF EARNINGS CLAIM (£1,206,053 TO BE EXACT)
In Palmer v Mantas & Anor [2022] EWHC 90 (QB) Anthony Metzer QC (sitting as Deputy High Court Judge) awarded a claimant £1,206,053) in loss of earnings. The judge found that the approach in Smith -v- Manchester was not an…
A CLAIMANT IS NOT FUNDAMENTALLY DISHONEST WHEN THEY DON’T PROVIDE INFORMATION THAT IS NOT ASKED FOR: JUDGMENT FOR £1,679,406 IN A PERSONAL INJURY CASE
In Palmer v Mantas & Anor [2022] EWHC 90 (QB) Anthony Metzer QC (sitting as a Deputy High Court Judge) rejected an argument that a claimant had been fundamentally dishonest. Judgment was entered for £1,679.406 instead of a finding of…
LIMITATION, SEXUAL ABUSE AND THE SECTION 33 DISCRETION: A FAIR TRIAL WAS NOT POSSIBLE AND CLAIMANTS’ ACTION DISMISSED
The previous post looked at the decision in TVZ & Ors v Manchester City Football Club [2022] EWHC 7 (QB) in relation to the issue of vicarious liability. However it is important to note that the claimants did not succeed in…
VICARIOUS LIABILITY AND SEXUAL ABUSE: THIS IS NOT A TEST OF INTUTION, BUT ONE THAT IS TIGHTLY CONTROLLED
The judgment of Mr Justice Johnson in TVZ & Ors v Manchester City Football Club [2022] EWHC 7 (QB) makes for difficult reading. The judge pays tribute to the remarkable men who brought the action, all of whom had been…
WHEN A CLAIMANT RELIES ON EXPERT EVIDENCE TO PROVE LIABILITY: THE (NOT SO) SLIPPERY SLOPE TO FAILURE
I am grateful to barrister Frederick Simpson for sending me his note of a decision where the claimant relied heavily on expert evidence in order to establish their claim. There were weaknesses in the report which contributed to the claimant’s…
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