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Bethan Davies reports on a case which reaffirms that proving a measure to be unreasonable is an onerous duty on defendants ‘At first instance the judge should have asked whether the measure would have been “grossly disproportionate”, rather than merely asking on the balance whether the measure would have been proportionate.’ The first instance judgment …
Continue reading "Reasonable practicability: Too much to ask?"
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Ryan Bright highlights the implications of a recent Court of Appeal decision ‘The claimant had sought to overturn DJ James’s order by relying on his own failure to comply with the procedural requirements.’ If a personal injury claimant is protected by qualified one-way costs shifting (QOCS) in first instance proceedings, can that claimant also rely …
Continue reading "Costs orders: Does QOCS cover appeals?"
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James Bentley examines a case where fixed costs did not apply when a cyclist was injured due to a defective road ‘Someone who is injured as a result of driving into a defect in the road denotes an accident that “arises out of” the use of the vehicle. There was a clear nexus between the …
Continue reading "Pre-action protocols: Falling in between the portals"
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Paul Jones discusses when it is possible to exit from the Protocol ‘The Master had been speculating but this was based on the available evidence and it could not be said that this was wrong.’ Cases exiting the Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents (the Protocol) are a frequent …
Continue reading "Costs: Let’s speculate about misconduct"
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Francesca O’Neill warns that failure to comply with procedural steps can have severe consequences ‘Not only did the judge in C v AXS accept that the decision in AEI was persuasive and strike the claim out, she was also persuaded to make a costs order on the indemnity basis – and order the claimant’s solicitors …
Continue reading "Sanctions: Persuading a judge to strike the claim out"
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Paul Sankey provides guidance on the appropriate test for breach of duty after negligence in diagnosis ‘The judge reached the right answer to the straightforward question “did the professional exercise reasonable care and skill?”, but had to use a route through Bolam and Bolitho to get there.’ The test of what amounts to breach of …
Continue reading "Pure diagnosis cases: The test of breach of duty"
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Limitation; credibility; prejudice ‘This is an important judgment in relation to evidential prejudice under s33(3)(b) Limitation Act 1980. Defendants in stale claims frequently submit that they have suffered prejudice due to the degradation or loss of critical evidence.’ Under s33 Limitation Act 1980 (LA 1980), the court may disapply the limitation period in a personal …
Continue reading "Case report: London Borough of Haringey v FZO [2020] EWCA Civ 180"
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Does conferring with a consultant absolve a junior doctor? Rajkiran Barhey summarises a recent case ‘While at first blush it may seem unfair to require the same standard of care from junior doctors as their more senior colleagues, a number of considerations must be borne in mind.’ The Scottish case of Andrews v Greater Glasgow …
Continue reading "Breach of duty: Assessing the standard of care: junior doctors"
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Noise-induced hearing loss; adverse inferences; noise surveys ‘In reviewing Garnham J’s decision, the court restated how cautious judges should be in overturning decisions of fact, particularly as they had not had the benefit of hearing what they referred to as the “sea” of evidence.’ Historic noise-induced hearing loss (NIHL) claims are notorious for posing evidential …
Continue reading "Case report: Mackenzie v Alcoa Manufacturing (GB) Ltd [2019] EWCA Civ 2110"
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Paul Jones highlights a recent case that provides helpful guidance in an area where the rules are silent ‘The defendant’s submission was that CPR 36.20 gave rise to a deemed order for costs to be assessed by the court and, the claimant, therefore, should have sought a detailed assessment of those costs.’ One of the …
Continue reading "Costs: Assessment of fixed costs: a three-stage process"
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