The Practical Lawyer

Personal injury

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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PPE Regs – effect of ERRA 2013?

The clear intention of s69 Enterprise and Regulatory Reform Act 2013 is that claimants can no longer rely on the pre-existing Health and Safety Regs (in particular the Personal Protective Equipment Regs 1992 and the Management Regs 1999). But, is that goal being thwarted by the courts simply absorbing those statutory requirements into the common law duty?

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Secondary victim – psychiatric damage

 A person who witnesses someone else being injured will be a ‘secondary victim’. That ‘secondary victim’ might then have a claim for psychiatric damage. However, judges have used common law to impose strict ‘control mechanisms’ to limit the scope of such claims.

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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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