The Practical Lawyer

Personal injury

Costs – assets frozen

 If a client’s assets are subject to a freezing order, then the law firm needs to ensure that any payments it receives do not breach that freezing order.

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Liability – ex turpi causa

What test is applied when deciding whether a claim should be dismissed because
of ex turpi causa? Typically, this will be because the claimant has been engaged
in a criminal act at the time they were injured. The test was defined by Lord

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Damages – interest

The interest rate to be applied to general damages is clear: for general damages in respect of pain, suffering and loss of amenity a rate of 2% applies from the date of issue of court proceedings to the date of trial. That rule has been confirmed in a series of cases since 1982 and is straightforward to apply.

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Small claims – or fast track?

The small claims track is the normal track for claims with an overall value of not more than £10,000 and general damages for pain, suffering and loss of amenity of not more than £1,000. Above those figures, cases are suitable for the fast track.

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RTA – protective Part 8 claim

Suppose there is a low-value RTA in which the claimant issues a Part 8 claim to protect the limitation period while the pre-action protocol stages are progressed. The claim form will be returned to the claimant solicitor for service (if required in due course), and the court will normally stay the claim as requested. In that situation, it is important for the claimant solicitor to check that the claim has indeed been stayed – otherwise, the claimant may not comply with the requirement to serve the proceedings within four months of issue.

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Maritime – two-year limitation

The 1974 Athens Convention applies to maritime claims for personal injury in domestic waters: ‘no action for damages for the death of or personal injury to a passenger shall be brought against a carrier… otherwise than in accordance with this Convention’, with claims being ‘time-barred after a period of two years and in no case shall an action… be brought after the expiration of a period of three years’.

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Fraud – exemplary damages

A whiplash fraud claim saw the claimants being described as ‘fundamentally dishonest’. The end result was that their claim was dismissed: QPCS was suspended and the defendants got exemplary damages.

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Success fees – too high?

Prior to the introduction of LASPO, success fees from insurers were largely fixed (12.5% in RTAs and usually 25% in employers’ liability claims). If the claim went to trial then those success fees were increased to 100%. But, since the introduction of LASPO, most claimant lawyers have moved to a business model that charges a success fee out of the client’s damages. Typically, those success fees are at the maximum allowed, 100%. Plus of course there is protection for the client in that the success fee cannot exceed 25% of the damages, but that has merely meant that most claimant lawyers structure the success fee accordingly. In short, the vast majority of claimant firms charge the maximum permitted.

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QOCS – purposive approach

Qualified one-way costs shifting is a complex system. The basic idea is to reduce the claimant’s risk of having to pay the defendant’s costs, but in return, claimants have had to give up the previous right to success fees and ATE premiums.

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‘Fundamental dishonesty’ – human rights?

Section 57 Criminal Justice and Courts Act 2015 has been in force since April 2015. It provides for a claim to be struck out (in its entirety) if there is ‘fundamental dishonesty’ (unless that would cause ‘substantial injustice’). See our July/August 2015 issue (p29) for more on s57.

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