The Practical Lawyer

Personal injury

Fatals – the basics

There will normally be two claims. Firstly there will be a claim on behalf of the estate (under Law Reform (Miscellaneous Provisions) Act 1934), and secondly there will be a claim by any dependants (Fatal Accidents Act 1976). The claim on behalf of the estate can include reasonable funeral expenses, any special damages (including loss of earnings to the date of death), as well as general damages for pain, suffering and loss of amenity (unless death was instantaneous).

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Surveillance – expert

   A surveillance expert has come in for criticism in two recent cases. Indeed, the need for an ‘expert’ on surveillance evidence has been questioned (with one judge warning of the dangers of ‘making mountains out of molehills’ and of ‘a cottage industry in making the issues relating to surveillance more horrendous than they need to be’). In one of the cases, the High Court allowed the expert’s factual evidence to be produced, but rejected his opinion evidence. Hayden v Maidstone [2016] EWHC 1962 (QB).


Medical evidence – foreign law

What is the correct approach to obtaining expert evidence in a PI case following a foreign accident, in which the foreign ‘applicable law’ applies?

The starting point is Wall [2014] in which an English motorcyclist was involved in a serious accident in France. The claimant argued for the usual plethora of experts (ten in total) that might be involved in a catastrophic injuries claim. The defendant argued that French procedure should prevail, namely that there should be one expert acting alone (in accordance with the French Procedural Code). The CA agreed with the claimant, on the basis that the question of how expert evidence should be provided is a matter of ‘evidence and procedure’ which is decided in accordance with the law of ‘the forum’ (ie in this case, England) rather than the ‘applicable law’ (France).

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Sanctions – no relief

This is a clear illustration of the modern approach to failure to comply: the court refused to grant an application for extra time, or to grant relief from sanctions, despite (i) the application being made before the expiry of the deadline, (ii) there was no trial date listed, and (iii) liability was admitted for a six-figure sum.
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RTA – stage 2

Suppose a claimant stalls the claim at stage 2 of the pre-action protocol for low-value RTA claims, having issued a protective county court claim which stands stayed. Is there anything the defendant can do to get things moving?
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QOCS – appeals

The High Court has confirmed that qualified one-way costs shifting applies to appeals (ie they are part of the ‘proceedings’). Parker v Butler [2016] EWHC 1251 (QB).

Interim payment – forcing medical disclosure

There has recently been an important clinical negligence case on how the courts should deal with applications for an interim payment prior to exchange of medical evidence. The lesson that emerges is of the importance of both sides being able to produce proper medical evidence – even if the proceedings are at an early stage.
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Agency fees – profit cost

Agency fees can be claimed by a solicitor as profit cost (not disbursements), with the subsequent mark-up.

The starting point for this was Smith [1999] where a solicitor instructed an external agent for investigative work. It was held that the agent’s work was of a fee-earner nature and thus the agent should be regarded as a temporary employee of the instructing solicitor. Thus the agent’s fees could be charged as profit cost (with the solicitor then able to charge and recover more in profit cost than he had paid out to the agent).

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Infant approval – application to deduct

A reminder of the principles that will apply on an application to make a deduction from child’s damages in respect of the liabilities under the CFA (entered into between the solicitors and the litigation friend). The key requirement, of course, is that the district judge will want to be sure there has been informed consent to the agreement by the litigation friend. Usually this will mean it is necessary for the litigation friend to attend, since a witness statement alone is unlikely to be acceptable. On that basis:
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