Mon10232017

Last updateTue, 24 Feb 2015 5pm

Personal Injury Law Journal: April 2017

Paul Jones sets out the lack of consensus on proportionality since the end of ATE premiums and success fees

Two of the most fundamental reforms ushered in the Jackson reforms were abolition of recovery of success fees and ATE premiums and the new test for proportionality. In both instances, the old rules had given rise to a whole raft of case law which, with the advent of a new dawn, have had to be re-evaluated. A recent case in the Senior Court Costs Office (SCCO), Rezek-Clarke v Moorfields Eye Hospital NHS Foundation Trust [2017], provides a very stark example of how matters have changed.

Julian Matthews looks at recent case law on the issue of consent to medical treatment including the recent Court of Appeal decision of Webster

Legal and medical practitioners alike recognised that the decision of the Supreme Court in Montgomery v Lanarkshire Health Board [2015] represented a major change in the approach to be adopted when dealing with the issue of consent to medical treatment. What was not wholly apparent was how the principles set out in Montgomery would be applied in practice. There was a genuine concern that the apparently clear principles would be undermined by first instance courts who might feel that the consequence of applying the principles was in some way ‘unfair’ to medical professionals, and would try and re-introduce some elements of the ‘Bolam’ test in order to restrict liability, particularly in relation to assessing what information ought to be provided to the patient at the time any consent to treatment was taken. The Court of Appeal has now delivered its first decision in a consent case since Montgomery, which gives a real pointer to lower courts and practitioners on the extent to which the Montgomery principles will be observed, and how they should be applied in difficult cases.

Contaminated food; package travel holidays; reasonable care; transfer of goods

This important package travel case represents a significant coup for claimants in the context of food poisoning cases. Although the package travel industry will be disappointed by the court’s decision, comments in the judgment suggest a demanding approach to establishing causation on the evidence.

Melanie Homersham investigates entitlement to indemnity costs after the late acceptance of a Part 36 offer

One of the questions most frequently posed by solicitors who are acting on behalf of the claimant is whether there is an entitlement to indemnity costs when there is late acceptance of a Part 36 offer. There is, of course, a requirement to have bettered the offer at trial pursuant to CPR 36.17. However, on further examination, there are also authorities supporting the recovery of indemnity costs from expiry of the 21-day period, even if the matter does not go to trial.

Liam Ryan and Tess Barrett discuss ways of determining unhappy employees from genuinely injured claimants

Cases where employers face claims predicated on stress at work naturally bear certain similarities. One trait, which seems to permeate in a number of cases is that of an employee who, having taken umbrage with a decision or act carried on the behalf of their employer, becomes so entrenched in their opposition to such a decision that their reaction begins to develop into a recognised psychiatric disorder, or to affect their health in other ways. It’s a difficult position for any employer to be placed in. On one hand, an employer is entitled to pursue its genuine commercial interests but at the same time, must balance this against its duty of care owed to its employees. This is particularly true in cases where employees suffering from significant stress react emotionally, perhaps even obstructively to genuinely commercial motivated decisions. In these cases, a cross roads is reached where an employer has to decide on how to proceed, do they accommodate the obstructive employee, or push on fearing the threat of legal action for the greater good of their operation?

Keoghs

Toby Evans outlines the actions an insurer needs to take to prove a claim is fraudulent

The case of Johnson, Burns and Gilchrist v Zurich Insurance Plc and Gilchrist (2016) related to a road traffic accident which was alleged to have occurred on 2 February 2015.

Brian Dempsey examines the rigid application of the fixed recoverable fees regime

In 2013, the government introduced a myriad of changes to the rules at a breakneck speed, not only those giving effect to the Legal Aid, Sentencing and Punishment of Offenders Act 2012 but also major changes to the Protocols and the Civil Procedure Rules themselves.

Patrick West explores the test of fundamental dishonesty

In the film Pirates of the Caribbean, Jack Sparrow said: