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Last updateTue, 24 Feb 2015 5pm

Paul Jones explains the interrelationship between the capped costs of provisional assessment and Part 36 offers

One of Lord Justice Jackson’s reforms that doesn’t generally create much excitement outside the legal costs profession is provisional assessment. This paper based assessment of bills up to £75,000 was intended to streamline the costs assessment process and bring more certainty and lower costs to all parties. However, the costs of matters that proceed to provisional assessment can still be worth arguing over and the recent case of Lowin v W Portsmouth & Co [2016] provides a good example of the kinds of issues that can arise.

Adam Dyl highlights the importance of foreseeability in the context of determining liability following the recent decision from the Court of Appeal in Scott v Gavigan [2016]

Drivers rightly have a high burden placed upon them to be careful in their actions towards other road users. Vehicles do, after all, pose great potential risk towards more exposed road users such as cyclists or pedestrians. It is against this background that we often see defendant drivers, and riders, found liable for damage, injury and loss against their more vulnerable counterparts. There was surprise therefore when the Court of Appeal took the decision to award an injured pedestrian nothing for his injuries on grounds of foreseeability in the recent case of Scott v Gavigan [2016].

Andrew Nicoll offers advice for quantifying earnings and planning the future career of an injured client

In many personal injury cases the most significant financial issue in dispute relates to a loss of income. It is essential for the parties in the case that the employment issues, short and long term are identified, and if there are potential financial effects then they are quantified as accurately as possible. Whether a solicitor is acting for the claimant or the defendant it does not serve the client that their advice and decision making is based on a lack of information or wishful thinking. Should the matter of financial loss have to be resolved by a judge then each party will be required to produce their evidence in a detailed and persuasive form.

Negligence; contribution to loss; multiple injuries

Assume an accident involving a neck injury to a blameless claimant led to a complete spinal cord injury that with proper treatment would have been far less serious. Historically the insurer paid out, and if the hospital had been negligent, well, that would be no concern of the claimant’s, and the insurer’s view would be that it wouldn’t be cricket to seek a contribution from the NHS. But no longer.

Nicholas Lee discusses the issues surrounding payments on account of costs

In April 2013 the provisions within the CPR setting out the court’s power to order a payment on account of costs changed. The previous provision provided that the court ‘may’ order an amount to be paid on account whereas the new wording (CPR 44.2(8)) provides that the court ‘will’ make such an order, unless there is good reason not to do so. With the emphasis having shifted, most assumed that the only real argument left to be had was as to whether there was good reason not to order a payment on account, but that may not necessarily be the case.

Bill Braithwaite analyses the Rehabilitation Code 2015 and provides practical tips on how to approach its adoption for both low value and catastrophic claims

I remember well when the first version of the Rehabilitation Code was introduced in 1999; we were full of hope and good intentions, but I’m not sure it achieved much in my area of work (catastrophic brain and spine injury), apart from allowing unscrupulous insurers to persuade gullible claimants and their lawyers to have their rehabilitation managed by the insurers, sometimes to the disadvantage of the injured person. It was updated in 2007, and we now have the Rehabilitation Code 2015, which came into effect in December 2015. The working parties that drew up the 2015 Rehabilitation Code included representatives of ABI, IUA, APIL, FOIL, MASS, PIBA and CMS UK. Additionally, A Guide for Case Managers and those who Commission them was published separately, but the two documents should be read together. A significant limitation of the Code is that it ‘deals mainly with the Initial Needs Assessment’, as distinct from the entire rehabilitation process, although it does encourage the parties to adopt the same principles until the case is finished.

The Consumer Rights Act 2015 has updated the law for consumer protection, and liability in personal injury claims. Justin Valentine reports

The Consumer Rights Act 2015 (the Act) which came into force on 1 October 2015 is primarily a consolidating piece of legislation in the area of consumer protection, although it does make substantial changes in some areas of consumer law, for example in relation to contracts for digital content. This article is confined to the impact of the Act on personal injury litigation.

Clive Thomas explains how success fees and ATE premiums are calculated

There was a time in the not too distant past when the approval of a claim for personal injuries on the part of a child was a relatively straight-forward application. The role of the court was largely restricted to ensuring that the terms of settlement were appropriate having regard to the child’s injuries. While historically a litigation friend was entitled to recover those costs that he/she had incurred on behalf of the child in pursuing the claim, few such claims were advanced. Traditionally claimant solicitors tended to accept by way of costs whatever they could recover from the defendant. However, things changed dramatically after the 1 April 2013 when success fees and after the event insurance premiums (ATEs) were no longer recoverable from the defendant but were, subject to some limitations, recoverable from the claimant.