Wed10182017

Last updateTue, 24 Feb 2015 5pm

Ropewalk Chambers

Ropewalk Chambers

Philip Turton examines Bussey, Williams and the problem of low-level asbestos exposure

If, as seems likely, the recent decision in Bussey v Anglia Heating [2017] marks a fresh attack on Williams v University of Birmingham [2011], insurers and defendants’ legal representatives may have to prepare for a more difficult future in low-dose mesothelioma claims. While the decision itself favoured the defendant, HHJ Yelton, who tried the case as a High Court judge, expressly rejected the invitation of the claimant’s counsel not to follow Williams on the basis that, if that case had been wrongly decided by the Court of Appeal, it was a matter for them or for the Supreme Court to overturn it. It thus seems likely that the claimant will strive to renew his argument before a higher forum.

Patrick Limb QC provides practical advice on how and when to make offers following the lowering of the discount rate

A week is a long time in personal injury litigation. On Monday 27 February 2017 came the ministerial statement announcing the lowering of the discount rate from 2.5% to minus 0.75%. The day following, there was a meeting between 13 CEOs of the insurance industry with the Chancellor of the Exchequer leading to a joint statement from the Chancellor of the Exchequer, Philip Hammond, and the Director General of the Association of British Insurers, Huw Evans. By Wednesday 1 March (as planned) there were questions of the Lord Chancellor who attended before the House of Lords, Justice Select Committee. On Thursday 2 March, there was publication of a consultation paper on a redress scheme for severe birth injury (the state, it may be noted, being the principal tortfeasor for such large claims); and the online publication of a highly instructive paper by Sir Henry Brooke on the origins of the statutory discount rate for lump sum personal injury awards.

Andrew Hogan sets out the different strategies for approaching mediation

Alternative dispute resolution (ADR) is an alternative to litigation. Seen 20 years ago, as touchy-feely nonsense, ‘being nice’ to the ‘being nasty’ of litigation, the last 20 years have seen it increase dramatically in importance.

Andrew Hogan sets out the need to adhere to the restricted scope of an oral hearing

I have now undertaken more than two dozen oral hearings, in the aftermath of a provisional assessment, when the paying party tries to make its points of principle, or the receiving party tries to claw something from the wreckage.

Shilpa Shah explains how withdrawing a premature case can still lead to a costs order

The 9 March 2015 or ‘Fee-Day’, heralded the commencement of the new court fees structure, which introduced large increases in court issue fees for claims with a value in excess of £10,000. Somewhat predictably, the preceding weeks had seen a huge increase in the number of claims issued as claimants sought to take advantage of the lower fees.

Philip Turton assesses the effects of the recent clarifications in non-delegable duty case law

Liability which is imposed without fault is at odds with most cases encountered day to day by the personal injury practitioner. In this field of the law, the idea that you are responsible for your own actions tends to hold sway. Thus liability for injury usually arises where there is fault of some sort. For this reason, after all, the catchphrase: ‘Where there’s blame there’s a claim’ took hold as claims companies first began to appear on our television screens. While it may, by now, have become an irritating incursion into our viewing pleasure, perhaps it does neatly encapsulate a principle of English law (even if that was not the intention of the advertisers).

Jason Cox reports on s69 of the Enterprise and Regulatory Reform Act 2013

More than 20 years after the introduction of the ‘Six Pack’ regulations, s69 of the Enterprise and Regulatory Reform Act 2013, which took effect on 1 October 2013, is set to have a seismic effect on personal injury litigation in the future. The legal clock is being turned back – many would argue by decades. Whatever one’s political bent (and there can be no doubt that this is a politically motivated reform), all personal injury lawyers need to have a clear understanding of what changes this section effects and how litigation may change as a result.

In the concluding part of their two-part article Jonathan Mitchell and Georgina Cursham examine the issues that arise with accidents on demised premises

In last month’s article we considered the liability of landlords at common law and under statute. A further issue to consider is limitation.

In the first of a two-part article Jonathan Mitchell and Georgina Cursham examine the issues that arise with accidents on demised premises

This article is concerned with liability arising for injury and loss suffered on or immediately around demised premises. It does not include consideration of liability to neighbours or users of adjoining premises, land or the highway.

Patrick Limb QC examines the decision in the appeal case of IEG v Zurich

The facts of the case are that Mr Alan Carré worked for 27 years until 31 December 1988 for Guernsey Gas Light Co Ltd, a predecessor of the claimant (IEG). For the last six years of that period IEG was insured under a standard form of employer’s liability policy by a company whose liabilities have been absorbed by the defendant (Zurich).

Andrew Hogan reviews the first Court of Appeal decision and if it will be possible to depart from an approved budget

On 28 January 2013, the Court of Appeal handed down judgment in Henry v News Group Newspapers Ltd [2013].

Philip Davy sets out an overview of costs at Stages 1, 2 and 3 of the Pre-Action Protocol for Low-Value Personal Injury Claims in Road Traffic Accidents

Personal injury practitioners are becoming increasingly familiar with the Pre-Action Protocol for Low-Value Personal Injury Claims in Road Traffic Accidents.

Andrew Hogan examines issues regarding mitigation

Some credit hire claims, particularly where the claimant is impecunious and without ready funds to replace a wrecked motor vehicle, can swiftly rise to many thousands or tens of thousands of pounds. Sometimes a claimant may have the benefit of an insurance policy, which would provide for replacement of the car or provision of a courtesy car. If called upon, this policy would prevent substantial credit hire charges from accruing.

Philip Turton provides practical advice for claimants and defendants

The expiry of a limitation period relating to a personal injury action does not extinguish the claim, but bars the remedy only. Thus, pleading the relevant facts requires care and attention, whether acting for a claimant or a defendant. An understanding of how the defence arises, and to what the constituent parts of ss11, 14 and 33 relate, is key to avoiding procedural error, which may otherwise threaten success on the point. While, in certain circumstances, a defective pleading might be overlooked or swept up in a procedural desire to dispose of cases effectively, a solicitor or barrister runs a risk, if the pleading is not clear, of failing to place before the court the precise issue which requires adjudication, with consequential penalty in the form of adjournment, costs wasted or, worse, avoidable failure on the whole issue.

Andrew Hogan looks at recoverability of ATE premiums under the pre-action protocol for low-value personal injury claims in RTAs

Cases are starting to reach the assessment process on the single point as to what after-the-event (ATE) premiums incurred for cases disposed of either at a stage three hearing or, more commonly, through settlement at stage one or stage two of the pre-action protocol for low-value personal injury claims in RTAs are properly recoverable.

Shilpa Shah examines the difficult relationship between allocation and costs recovery

While one of the aims of allocation was to enable the principle of proportionality to be dovetailed into the costs rules appropriate for each track, disputes continue to arise when the damages recovered in a claim fall far short of expectations and would have justified allocation to a lower track.

James Wibberley urges that care be taken when drafting offers

On 16 November 2010, Mr Justice Warren handed down judgment in the case of C v D & D2 [2010], and in doing so signalled the beginning of a far stricter approach to the requirements of Part 36 under which the court will give precedence to the contents of an offer over its form.

Andrew Hogan considers whether we have reached the end of success fees

On 18 January 2011, the Fourth Section of the European Court of Human Rights handed down judgment in the case of MGN v The United Kingdom [2008], wherein the European Court of Human Rights ruled that the success fees awarded to Naomi Campbell’s lawyers in hard-fought domestic litigation, and assessed on perfectly conventional principles in the United Kingdom courts, were a disproportionate interference with MGN’s rights under article 10 of the European Convention on Human Rights.

Andrew Hogan investigates credit hire agreements in view of Chen Wei v Cambridge Power and Light Ltd

The decision in Chen Wei v Cambridge Power and Light Ltd (2010) has come to the consideration of those representing liability insurers, and numerous cases have now been argued across the country (with varying results) favouring either the credit hire company or the liability insurer.