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Personal Injury Law Journal: May 2015

John McDonald of 2TG considers the vexed question of whether one insurer can challenge another insurer’s avoidance of a motor policy

The number of uninsured motorists on our roads used to, until recently, be a scandal. Now, however, factors such as improved accessibility of the Motor Insurance Database, the need to have insurance to obtain a car licence and automatic number plate recognition have led to there being fewer uninsured drivers. But while more motorists now take out insurance, most people now take out motor policies on the internet or through call centres, and a significant proportion of applicants have scant regard to the truthfulness of their answers to the questions they are asked online or by the operator. This has resulted in more insurers seeking to avoid motor policies for non-disclosure or misrepresentation, particularly after an accident has occurred.

Philip Turton assesses the effects of the recent clarifications in non-delegable duty case law

Liability which is imposed without fault is at odds with most cases encountered day to day by the personal injury practitioner. In this field of the law, the idea that you are responsible for your own actions tends to hold sway. Thus liability for injury usually arises where there is fault of some sort. For this reason, after all, the catchphrase: ‘Where there’s blame there’s a claim’ took hold as claims companies first began to appear on our television screens. While it may, by now, have become an irritating incursion into our viewing pleasure, perhaps it does neatly encapsulate a principle of English law (even if that was not the intention of the advertisers).

With court fees going up more than 500% the time has come for insurers, the NHSLA, the MIB and personal injury firms to use arbitration to settle personal injury and clinical negligence claims, suggests Andrew Ritchie

Many shipping, building and commercial disputes are resolved by arbitration. So why is arbitration not used to resolve personal injury and clinical negligence claims in England and Wales? In the United States of America many PI cases are resolved by arbitration.

The courts have once again punished a wholly successful party in costs for their unreasonable refusal to mediate – a trend that is only likely to grow, writes Ben Handy

It is now over a decade since the Court of Appeal made it clear, in the case of Dunnett v Railtrack [2002], that parties who unreasonably refuse an offer of mediation might be punished in costs. They went further shortly afterwards in Halsey v Milton Keynes NHS Trust [2004], setting out a list of factors that are to be considered where such conduct is alleged.

Paul Jones gives a warning on the importance of weighing the value of a claim against the possible costs

Arguments regarding small claims fixed costs are nothing new. Whether it was the pre-CPR position of small claims being referred to arbitration or the CPR position of claims being allocated to the small claims track, it has been a fertile area of argument between paying and receiving parties. The reason being that the difference in costs payable for a small claim and the costs payable for a normal claim are substantial and it is, therefore, often worth it for the parties to argue the point, all the way to court if necessary. The recent case of Conlon v Royal and Sun Alliance plc [2015] managed to reach all the way to the Court of Appeal.

Patrick West looks at the latest guidance from the Court of Appeal on basic hire rates in credit hire cases

Not for the first time the humble (yet hugely lucrative) business of credit hire has occupied the collective mind of the Court of Appeal.

Nathaniel Caiden summarises a case that brings attention back to the employer-employee relationship in liability claims

Recent case law on imposing vicarious liability seems to have suggested a wider test, with the range of cases resulting in vicarious liability extending to those where the relationship is one ‘akin to employment’: Catholic Child Welfare Society v Various Claimants [2012] and Cox v MoJ [2014].

Patients’ rights; doctors’ duties; consent test

The appellant, Nadine Montgomery, sought damages on behalf of her catastrophically injured son, Sam, born on 1 October 1999 at Bellshill Maternity Hospital, Lanarkshire, alleging negligent care provided by her obstetrician Dr McLellan during her first pregnancy and labour.