The Practical Lawyer

Personal injury

London uplift – counsel?

Is it possible for counsel in low-value PI claims to claim the London 12.5% uplift in costs? 

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QOCS – strike out?

The qualified one-way costs shifting regime says that a successful defendant can only enforce an order for costs to the extent that the claimant has been awarded a sum for damages. But, there are exceptions – where the claimant has been ‘fundamentally dishonest’ and also where a claim has been struck out. 

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CFA – assignable?

A recent county court decision has held that it is not possible to assign a CFA. 

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Forum shopping – Scotland?

The issue of forum shopping has become a growing problem between Scotland and England. Claimants have been trying to raise proceedings in that part of the UK that they think will best suit their claim. 

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MIB – uninsured drivers

The new Uninsured Drivers Agreement applies to any incident from 1 August 2015 (the 1999 Agreement applies to earlier accidents). 

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Offer – pre-medical

Pre-medical offers are evidentially unsound, unsupported, incapable of accuracy – and probably best regarded as a tactic for prematurely under-settling claims. 

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Costs – J codes

 A new form of e-bill is currently being trialled and is likely to be adopted for all cases. Accordingly, it is recommended that practitioners start to implement the appropriate systems at an early stage in anticipation of that change. Early adoption of these codes will make it far easier to claim for existing work under the new system, assuming it is introduced in due course.

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Damages – Judicial College

The guidelines for the assessment of damages in PI cases are published by the Judicial College (previously known as the Judicial Studies Board). The 13th edition has now been published and is mandatory reading.

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Costs – ex-protocol claims

What if a case is started under the RTA Protocol (ie no more than £25,000) but is then transferred to the multi-track. Do fixed costs still apply?

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Labour market disadvantage – Smith damages

Smith v Manchester [1974] damages are awarded to compensate the claimant for future disadvantage in the labour market. Thus we are dealing with loss of future earning capacity, not future loss of earnings. For instance, if a claimant has returned to work but has a disability that will put them at a substantial and not speculative or fanciful disadvantage in the open labour market, then they will receive compensation for that. The typical Smith award is about two times net annual income. Twenty years ago it would probably have been five times net annual income but the figures have been reducing over the years. In large part, this is because of an advent of an actuarial approach to the assessment of damages through the Ogden tables (first introduced in 1984).

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