April 2017 #154 – Law Journals

Costs: Out with the old

Paul Jones sets out the lack of consensus on proportionality since the end of ATE premiums and success fees ‘Regarding the exclusion of the ATE premium when considering proportionality, the master, again, drew a distinction between the pre-April 2013 rules, where the ATE would have been considered separately, and the new rules, where there was …

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Fundamental Dishonesty: Collision collusion

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Toby Evans outlines the actions an insurer needs to take to prove a claim is fraudulent ‘There are a plethora of options in an insurer’s armoury when defending claims which are patently fraudulent, such as contempt of court, police intervention by virtue of IFED and private prosecutions.’The case of Johnson, Burns and Gilchrist v Zurich …

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Personal Injury Protocols: Sticking to the rules

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Brian Dempsey examines the rigid application of the fixed recoverable fees regime ‘The Court of Appeal has been consistently clear that the certainty provided by the careful scheme of fixed costs in CPR 45 would be undermined if the court was to apply the discretion provided by CPR 44 to decide whether to allow or …

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Patient Autonomy: Montgomery in action

Julian Matthews looks at recent case law on the issue of consent to medical treatment including the recent Court of Appeal decision of Webster ‘The judge had expressly found that there was an expectation that the consultant should have informed himself about the unusual combination of features and the potential risks arising from them.’Legal and …

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Case Report: Wood and Anor v TUI Travel PLC T/A First Choice [2017] EWCA CIV 11

Contaminated food; package travel holidays; reasonable care; transfer of goods ‘HHJ Worster found that the defendant had failed to provide food or drink of satisfactory quality, breaching a term implied into the contract by virtue of s4(2) SGSA 1982.’This important package travel case represents a significant coup for claimants in the context of food poisoning …

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Qualified One Way Costs Shifting: Blind men and elephants?

Patrick West explores the test of fundamental dishonesty ‘There is a sliding scale and where inconsistencies reach a certain level, subject to judicial instinct, only then is fundamental dishonesty reached.’ In the film Pirates of the Caribbean, Jack Sparrow said: Me I’m dishonest, and a dishonest man you can always trust to be dishonest. Honestly …

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Part 36 Offers: Looking for explicit instructions

Melanie Homersham investigates entitlement to indemnity costs after the late acceptance of a Part 36 offer ‘It is important to note there is no automatic entitlement to costs on the indemnity basis if a paying party accepts the claimant’s Part 36 offer after the 21-day period and there has been no judgment.’ One of the …

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Stress At Work: Walking the tightrope

Liam Ryan and Tess Barrett discuss ways of determining unhappy employees from genuinely injured claimants ‘In cases where stress-related symptoms surface in a clear and unambiguous manner, such as an employee making a complaint or bursting into tears, a certain level of initiative is to be expected from an employer.’Cases where employers face claims predicated …

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