The Practical Lawyer

Personal injury

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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Holiday claims – local standards

The Package Tour Regs 1992 apply to ‘packages sold or offered for sale in the territory of the UK’, with a ‘package’ defined as a pre-arranged combination of at least two components (usually, if not always, the flight and the lodgings). Liability under the Regs falls on the retailer or organiser, and it does not matter if the injured person is not a party to the contract.
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Accounts rules – breaches

A reminder of some of the accounts rules provisions that are particularly relevant to PI practitioners:
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Employment history – HMRC

It can often be important to obtain work and employment history records from HMRC, especially in old cases. Firstly, it will identify the correct company name (given that there may be other companies with similar names). Secondly, it will confirm the correct dates of employment (which may be important if the company is no longer in business, with the liability of individual insurers depending on the time when exposure to risk took place).
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Patient consent – ‘reasonable patient’

Consent to medical treatment is only valid if it covers the relevant treatment; is voluntarily given; and if the patient has capacity, and was informed appropriately about the procedure before consenting. If there is no patient consent then this will potentially be the tort of battery and trespass. In practice, litigation will involve a negligent failure to obtain consent, for instance where consent is given but reasonable steps were not taken to warn the patient adequately of the risks and side-effects, or to inform them of any alternative treatments.
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Trustees – duty to beneficiaries
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Trustees cannot simply ignore beneficiaries’ request for information about a trust, the High Court has held. In this case, the trust property was a farm outside Cardiff. Read more...
Conveyancing searches – disbursements?
Wednesday, 11 July 2018
Should electronic property searches be treated as disbursements for VAT purposes? Alternatively, are they part of the legal service provided, and so subject to VAT? Read more...
Professional – update
Wednesday, 11 July 2018
From December 2018 there will be new rules requiring firms to publish prices for conveyancing, probate, motoring offences and immigration, as well as the price for bringing ET claims.  Read more...
Service mistake – discretion?
Wednesday, 11 July 2018
To what extent do you have a duty to point out the other side’s procedural errors (as part of your obligation to comply with the ‘overriding objective’)? Read more...
Exiting the Portal – reasonable
Wednesday, 11 July 2018
Insurers should be very careful about making allegations (for instance, at Stage 2 of the EL/PL Protocol), especially if they could be interpreted as allegations of ‘dishonesty’. Read more...
Airbnb – breach of lease
Wednesday, 11 July 2018
It now seems clear that an Airbnb short let will be in breach of a typical long lease. Read more...
GDPR – data rooms
Wednesday, 11 July 2018
If L is planning to sell a property subject to leases, then almost certainly a data room will be set up containing all relevant documents. Read more...
Rights of way – public
Wednesday, 11 July 2018
There are four categories of public rights of way: Read more...
Financial remedies – company assets
Wednesday, 11 July 2018
A recent ruling illustrates when a court can treat a company-owned asset as as a matrimonial asset. Read more...
GDPR – references
Wednesday, 11 July 2018
GDPR impacts on the giving of references:


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