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Personal Injury Law Journal: June 2013

Mark Fowles considers the status of The Code of Practice for Highway Maintenance following the recent Court of Appeal decision of TR v Devon County Council

The Code of Practice for Highway Maintenance, Well Maintained Highways, first published in 1993, is frequently cited when considering the reasonableness of a Highways Authority’s regime and deciding whether an authority can make out the statutory defence under s58 of the Highways Act 1980. The code has loomed large recently as authorities grapple with intervention levels, tightening budgets and inspection regimes.

Justin Valentine highlights the issues and gives practical advice

As a parallel development to the intended introduction of fixed costs in relation to fast-track cases, the government is introducing a regime of costs budgeting for most multi-track cases issued on or after 1 April 2013. A system of budgeting should aim to remedy the problems of unpredictability and disproportionality. It is questionable whether this system will achieve that aim. Early indications suggest significant satellite litigation. Interestingly, Lord Woolf considered but rejected costs budgeting in his 1996 Final Report on the basis that it may lead to inflated budgets which judges may not be able to control.

Eversheds

Ian Gascoigne discusses the potential pitfalls

Whenever a revision occurs in the court rules, the role of the expert witness becomes a more difficult one to undertake. In personal injury and medical cases expert evidence is often crucial to the outcome, so this trend matters.

Andrew Sands and Nick Leech explain what is involved in setting up an investment strategy aimed at ensuring that lump-sum awards of damages last as intended

We have written extensively in this publication over the years, explaining why, from a financial perspective, periodical payments make sense – particularly for personal injury claimants who are burdened with the very significant and lifelong risks related to investment and mortality in respect of lump-sum awards. Periodical payments simply do away with all of that. Linkage to earnings-related inflation and tax freedom make them a must consider in all high-value claims. Unfortunately, not all claimants can benefit from that form of compensation – the court can only order periodical payments if it is satisfied of the reasonable security of continuity of payment. Insurers that are Lloyds Syndicate members, where the policies pre-date January 2004, cannot satisfy the court for various technical reasons. Also, many employer and public liability policies have indemnity limits, often under £10m. Periodical payments designed to keep pace with inflation might, over a long life expectancy, add up to a sum that impacts upon the level of indemnity. Again, the court would have difficulty with that as periodical payments would stop once the indemnity level is reached.

Paul Jones examines a recent case that illustrates how courts may approach new funding arrangements

In the post-Jackson epoch, the litigation funding options will take some time to settle down. Gone will be the ubiquitous Conditional Fee Agreement (CFA) where all the costs (including success fee and ATE premium) were payable by the losing party and in will come a variety of funding methods intended to fill that gap, from CFA with success fees capped at 25% of the damages to damages based agreements once the regulations for the same are finally sorted out. As claimants in personal injury claims and their solicitors wrestle with the new environment, the recent case of Jones v The Secretary of State for Energy and Coal Products Ltd [2013] may give an interesting glimpse into what the future may hold.

Patrick Vincent and Tom Banks analyse the effect of costs budgets and the new case management powers

Surveillance is a familiar battleground for PI lawyers. But it does not need to be. It is just about the only effective weapon against fraudulently exaggerated PI claims. But its use also frequently promotes settlement by confirming to insurers the bona fides of a claimant. Good use of surveillance aids both sides in a claim and often leads to quicker and fairer resolution of the areas of dispute.

Anthony Gold

Stephanie Prior looks at recent media events and the difficulties faced by victims pursuing claims

One only needs to glimpse at the national newspapers over the past few months to notice the massive amount of coverage Sir Jimmy Savile has been given. The furore is being caused (cynically some might say) by an ITV documentary that aired in October 2012.

Employers’ liability; breach and causation; Personal Protective Equipment Regulations

This case provides a telling illustration of the stringency of the Personal Protective Equipment Regulations 1992 (the PPE Regulations) and the evidential difficulties a defendant is likely to face rebutting liability under health and safety regulations.