The Practical Lawyer

Personal injury

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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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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