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Personal Injury Law Journal: June 2011

Giles Eyre looks at keeping expert witnesses up to the mark

For as long as any of us can remember, if in the course of personal injury or clinical negligence litigation we were let down by a medical expert, there was nothing we could do about it, except delete the expert from our approved list.

Paul Jones considers the latest Predictable Costs case

Once more, it is the intricate workings of the Predictable Costs Scheme for Road Traffic Accidents (Part II r45 CPR) that throws up yet another cautionary tale for the unwary. This time, the issue is when is a small claim not a small claim?

discusses the consequences of Wilkinson v City of York [2011] Jack Harding

On 18 January 2011 the Court of Appeal handed down judgment in the case of Wilkinson v City of York Council [2011]. The ratio of the case – that a local authority’s resources are simply irrelevant to the statutory defence under s58 of the Highways Act 1980 – is a crushing blow to county councils across the length and breadth of the country struggling to fulfil their statutory obligations in an era of unparalleled economic stringency. The purpose of this article is to argue that Wilkinson is inconsistent with previous Court of Appeal authority and is, in the final analysis, wrongly decided.

Mark Lee provides guidance as to whether legal expenses insurers can still oblige a policyholder to use their panel solicitors before proceedings

Before Eschig v UNIQA Sachversicherung AG [2009] it was accepted that legal expenses insurers could insist on the use of their own panel solicitors up to the issuing of proceedings because of the Insurance Companies (Legal Expenses Insurance) Regulations 1990 (the Regulations), which transpose the European Council Directive 87/344/EEC (the Directive) into English law. This approach was also formally approved by the Financial Services Ombudsman.

Ben Hicks offers tips to defendants on how to attack schedules of loss

Whilst trite, it is worth starting any consideration of how to successfully argue for a reduction in the amount of special damages being claimed by a claimant with consideration of the ‘first principles’ applicable to deciding what is in fact recoverable. So, the claimant is entitled to be put in the financial position that he would have been in were it not for the negligence of the defendant: not in a better position. So firstly, by way of (obvious) examples:

Statutory interpretation; control; Occupiers Liability Act 1957

Can a householder’s ‘control’ under the Occupiers Liability Act 1957 somehow equate to control under the Construction/Work at Height Regulations, such that an ordinary householder would be liable under those regulations for an injury suffered by a workman on his premises? As Smith LJ said when granting permission to appeal in this case:

Andrew Sands and Nicholas Martin examine the issues relating to the discount rate and conclude that a reduction in the rate should be inevitable

It is common knowledge that the Lord Chancellor, Kenneth Clarke, has announced a review of the current 2.5% discount rate. The review has mainly been brought about through pressure from APIL, which has threatened Judicial Review. The aim of this article is to explain what the discount rate is and to highlight the important reasons for its urgent need for review. There have been attacks ( Warriner v Warriner [2002] and Cooke v United Bristol Healthcare NHS Trust [2003]) on the discount rate, but the courts have consistently held that any change can only be made by the Lord Chancellor, pursuant to s1 of the Damages Act 1996.