The Practical Lawyer

Personal injury

RTAs – refund stage 1 costs?

Under the 2010 RTA protocol a fee of £480 became payable to the claimant’s solicitors on admission of liability by the defendant. There was no requirement for the claimant to then progress the claim to stage 2. This became known in the market as the ‘£400 club’. Recognising that this automatic entitlement to £400 could be abused, the protocol was subsequently changed in 2013 so that stage 1 fixed costs only became payable on receipt of the stage 2 payment pack and medical report.
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Personal injury – changes

It seems the government is going ahead with its proposals to scrap general damages for whiplash claims, and to raise the small claims limit to £5,000 for all PI claimants. These changes are likely to come into effect in 2017. [2016] LSG 9 May 1.
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Highway – moss?

Section 41 Highways Act 1980 requires the highway authority to maintain the highway at the public expense. This is an absolute duty (ie there is no element of reasonableness). But, that duty is to ‘repair’ and ‘keep in repair’.

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RTA – medical fees

In a ‘soft tissue claim’ under the RTA protocol the only amounts that can be recovered for medical reports or medical records are as below.

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Labour market disadvantage – Smith damages

Smith v Manchester damages are awarded to compensate the claimant for future disadvantage in the labour market. 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 would receive compensation for that.

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Foreign claim – Rome II

Within the EU, Rome II deals with foreign claims. In general terms, the claimant can sue in the country in which they are domiciled, but the ‘applicable law’ will be that of the country in which the accident occurred. Note that ‘applicable law’ will cover the ‘nature and assessment of damages’, although ‘evidence and procedure’ matters will be governed by the country in which the claimant sues.

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Vicarious liability – wider interpretation

The Supreme Court has reviewed the law on vicarious liability and the end result is a more flexible approach.
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Infant approval – 25% is maximum

Suppose an infant approval involves a straightforward RTA where the child was a passenger. In such cases the risk to the solicitors of not winning the case is very low. But, many solicitors will want to deduct an amount representing a success fee and ATE insurance premium. That such sums are deductible is quite clear. But, what the solicitors cannot do is to deduct 25% of the child’s damages as of right, irrespective of the reasonableness of entering into the CFA and irrespective of the reasonableness of the success fee being claimed, or the need to take out an ATE insurance premium.
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Fatal accidents – multiplier

The Supreme Court has overturned the previous rule that in fatal cases the multiplier should be calculated as at the date of death. Now, it will be calculated as at the date of trial. This was a widely anticipated change, and one that had been recommended by the Law Commission as long ago as 1999. It adopts the practice that has been followed in Scotland since 2011, and also accords with modern practice, as evidenced by the Ogden tables.
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CFA – assignable?

Last month (March 2016, p26) we noted a county court decision which held that it was not possible to assign a CFA. We now have a similar decision, this time by a costs judge in the Senior Courts Costs Office.
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