February 2013 #112 – Law Journals

Costs: The continuing saga of Part 36

Paul Jones investigates the latest challenge to the provisions There was no power within the CPR 36 for the court to enter judgment following an agreement between the parties as suggested by the claimant. If one considers the entirety of the Civil Procedure Rules (CPR), it would be difficult to counter the argument that CPR …

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Jurisdiction: A short introduction to Rome II

Charles Dougherty and Marie Louise Kinsler look at the scope and impact of the rules Commercial parties will need to consider the scope of choice of law clauses and whether they are wide enough to encompass a non-contractual as well as contractual choice of law.On 11 January 2009, Regulation (EC) 864/2007, on the law applicable …

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Case Report: Harries v Stevenson [2012] EWHC 3447

Discount rate; Damages Act 1996; preliminary issue A single fixed discount rate was preferable in reducing the cost and uncertainty of future loss calculations. In Harries v Stevenson [2012], a claimant tried and failed to escape from the arguably unjust effects that the 2.5% discount rate creates in the current economic climate. The case provides …

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Vicarious Liability: Overworked and under attack

Chris Gutteridge contemplates recent decisions of the Court of Appeal on an employer’s liability for injuries sustained by employees who are victims of violence while at work The trial judge was entitled to conclude that the failure to provide full-time guarding did not amount to a failure to take reasonable care for the safety of …

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Advocate’s Advice: There’s no such thing as a minor brain injury

Bill Braithwaite discusses the signs that should trigger investigation The management of the patient’s life-threatening injuries may well have taken precedence over investigation into the brain injury, so we should not assume that silence about PTA or coma is indicative. I remember years ago an American brain injury trial lawyer friend of mine told me …

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Clinical Negligence: Delayed diagnosis in cancer: proof of causation

Julian Matthews reports on a recent application of the alternative approach to causation suggested by Lord Phillips and Baroness Hale in Gregg v Scott Mr Justice Bean found that on the balance of probabilities the failure to diagnose the tumour in March 2006 had caused the claimant’s life expectancy to be reduced by three years. …

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Capacity: Masterman-Lister and Bailey v Warren revisited

Deirdre Goodwin considers when neurological advice should be sought Where a person sought to rely on an unsoundness of mind, he had to show that such incapacity had been known to his opponent. The recent case of Dunhill v Burgin highlights the risks of settling cases where the claimant lacks capacity and a litigation friend …

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Split Trials: A look to the future

Laura Sylvester and Verity Danziger examine the factors that will influence a judge to order a liability hearing Judicial comment in recent cases has provided some further guidance on matters to consider when deciding whether a case should proceed to a split trial or not. Contained within the court’s general powers of management, in Part …

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