Sun11192017

Last updateTue, 24 Feb 2015 5pm

James Goudkamp explores whether the Supreme Court’s policy-based approach to the illegality doctrine will be followed in tort cases

The Supreme Court recently handed down judgment in the appeal in Patel v Mirza [2016]. In this landmark decision, the Supreme Court put to rest a long-running debate that had raged between justices of the Supreme Court regarding the proper approach to the law of illegality. Several justices, spearheaded by Lord Sumption, had preferred a rule-based analysis, with the reliance test constituting the relevant rule. According to the reliance test, the claimant will fail in his or her action if he or she needs to rely on his or her own wrongdoing in order to establish the claim. The rival approach, championed by Lord Toulson, entails a discretionary analysis. The discretion-based test involves examining all of the factors that weigh in favour and against permitting recovery and then reaching a conclusion as to the proper outcome in the light of those considerations. Salient factors might include the need to prevent wrongful profiting, the concern to deter offending, the imperative of maintaining both the dignity of the courts and the coherence of the legal system, any relevant statutory policy, and the importance of guarding against disproportionate reactions to what might be relatively insignificant illegality. In Patel, the Supreme Court rejected, by a majority, the rule-based approach in favour of the policy analysis.

Brian McCluggage argues for a greater focus on trial preparation in motor fraud cases

This short article developed out of a presentation at the 2017 Personal Injury Bar Association conference at Oxford. There are no esoteric questions of law raised within. The focus is rather upon evidential and tactical techniques for getting a case best prepared for trial through ensuring that the litigator is ‘trial-minded’. The context of the article is motor cases in which fraud is alleged. Motor fraud cases comprised a substantial part of my practice over a period of about 15 years to 2013. Over the 200 or so trials conducted in this line of work, it was extraordinary to see the same mistakes and poor practices applied time and time again. While my experience is rooted in acting for insurers, much of the analysis below is of as much if not more relevance to claimant representatives.

Anna Macey evaluates the balance between patient confidentiality and the prevention of harm

In the sad case of ABC v St George’s Healthcare NHS Trust [2017], the Court of Appeal overturned the High Court’s decision to strike out the claimant’s claim for damages, following the decision of the defendant not to inform her that her father was suspected, and later diagnosed, with Huntington’s disease, even though she was pregnant.

Liam Ryan reports on claims by rescuers and secondary victims, and assesses the need for law reform

In recent months, the tragic events which occurred in both London and Manchester have reignited the debate about the impact of austerity on our public, security and emergency services. It has also highlighted the role and importance of our communities in responding to the consequences of such tragedies. This in turn has raised questions as to where the law of personal injury stands in assisting members of these communities and the families of victims who suffer psychiatric injury as a result of the events they are exposed to. It is a difficult discussion and debate to engage in and one where public policy and justice seem to collide, but it is a debate that cannot be avoided and must be addressed to avoid potential injustice.

Following the Grenfell tower block disaster Theo Huckle QC examines differing legal provisions for fire safety and considers what lessons can be learnt

Any new-build or refurbished building in England and Wales must comply with the 2010 Building Regulations, with requirements set out in approved documents to provide a level of flexibility on how the regulations are met. Approved Document Part B (last updated in 2013 for England) deals with fire safety and covers:

Rebecca Fenton explains how delegation can reduce costs in low-value personal injury claims

Due to the ever-changing landscape of personal injury, we all need to look at what improvements can be made, in particular in order to maintain the viability of low-value claims. The topics I am reviewing are the management of medical records, the importance of medical records in clinical negligence cases, where unnecessary costs are created and how they can be streamlined.

Shoulder dystocia; secondary victims; psychiatric injury; destruction of medical records

In this case, the infant claimant had suffered a brain injury during her protracted birth in 2011. She was a very large baby and suffered (the claimants argued) a shoulder dystocia, meaning that her shoulders got stuck in the birth canal. As a result of this she suffered a hypoxic insult to her brain. The two other claimants were her mother and grandmother, who sustained psychiatric injury as a result of the birth.

Anna Macey evaluates a claim for compensation by the child of an incestuous rape

CICA and FTT v Y [2017] was a Court of Appeal claim for compensation from the Criminal Injuries Fund for a man born with a serious genetic disorder, following the incestuous rape of his mother. Sir Brian Leveson began by saying: