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Personal Injury Law Journal: December 2013/January 2014

Deirdre Goodwin looks at the costs consequences of a refusal to mitigate six years after Halsey

The case of PGF II SA v OMFS Company 1 Ltd [2013] concerned a claim for dilapidations arising out of alleged breaches of repairing covenants of an underlease in respect of a mixed commercial and office building where the claimants were the freehold owners and the defendant the assignees of the underleases.

Bill Braithwaite QC discusses the basic requirements

Ihave a strong impression that the assessment of mental capacity in catastrophic brain injury litigation is coming under the spotlight more, and that claimant lawyers need to be increasingly enquiring about the detailed nature of the process. In anything other than a clear case, it is no longer sufficient for a doctor simply to assert that a patient either does, or does not, have mental capacity. Similarly, in such cases claimant lawyers are under a duty to consider the issue carefully, and to gather all available evidence (see the Code of Practice, paragraphs 4.41 and 4.63). Equally, we have to find out what the claimant’s wishes are and were, and consider those in the light of all the surrounding circumstances, including the opinions of the family, friends and carers. I had a classic example where the claimant was firmly of the view that they had capacity, contrary to the feelings of the close family. We felt that we had a duty to put the claimant’s wishes at the top of our priorities, but to consider whether our duty to the Court meant that we might have to present evidence that contradicted the assertion of capacity.

Steve Parkin examines the evidential issues

An issue that often arises as a result of road traffic accidents is whether an injured party was a restrained passenger, and if they were not would their injuries have been reduced or avoided had a seat belt been worn. There are various factors that an accident reconstruction expert will consider to make that determination.

Sandra De Souza reviews recent case law and insurers’ willingness to reopen cases where fraud is suspected

With an increase in social networking in recent years, personal injury claimants are now under more scrutiny then ever. While it is true that misleading claimants should not be rewarded for their dishonesty, not all accusations of fraudulent behaviour have merit. One picture or one comment, taken out of context can have a damaging affect on your client’s claim.

Paul Jones considers the need to take care drafting consent orders but highlights the courts’ reluctance to allow parties to side-step the rules

The interface between fixed costs and reasonable costs has always been fraught with issues. The difference in the level of costs that are recoverable on the standard basis as against the level recoverable under fixed costs is such that parties will often raise arguments to push a case into one camp or the other. The recent case of Davies, Ollin and Ollin v Greenway (2013) illustrates the issue in fairly clear terms.

Fixed costs; fast track; exceptions

This case provides a salutary indication of the courts’ approach to what is likely to be an increasingly prevalent issue, namely claimants seeking to exit a fixed costs regime and thereby escape its restrictions.

David Porter explains the urgency in management of this condition to prevent progression from incomplete to complete syndrome

In this article I shall consider the following questions: