piBlawg

the personal injury and clinical negligence blog

A collaboration between Rebmark Legal Solutions and 1 Chancery Lane

Simply a Fruitful Source of Gainful Employment?

  Some avid readers have read a recent article in the Solicitors Journal entitled “Judge condemns 'forum shopping' by claimant personal injury lawyers”. In this article a Romford-ian circuit judge is referenced as being “deeply troubled” as to what he appeared to perceive to be PI lawyers attempting to “boost costs” in a recent case before him. The judge made explicit reference to counsel’s fees for attending infant settlement hearings. The article quotes him by suggesting: “there is simply no basis for allowing counsel’s fees for attending the settlement hearing in a straightforward case”. Not stopping there, the judge continued to refer to another mainstay of much of the junior Civil Bar – credit hire. The Solicitors Journal quotes him as suggesting “the same attitude of mind is becoming equally prevalent in the field of credit hire where arguments are regularly being presented to district and circuit judges which have been clearly rejected by the Court of Appeal and the House of Lords”. The judge justified his eruption with reference to the “huge and increasing pressure” on judicial resources. Again the article records him as somewhat cynically expounding that “The civil procedure rules were not made in order to provide a fruitful source of gainful employment either to solicitors or to the junior Bar”.   Not surprisingly as a member of the said “Junior Bar”, I have to respectfully disagree with the learned judge.   Anybody who has attended a few approval hearings will be very aware of the importance of counsel attending, especially where some aspect of the child’s injury has been overlooked previously, or when there are outstanding issues as to costs. [Frances McClenaghan of 1 Chancery Lane recently penned an article on the subject - www.1chancerylane.com/documents/newsletters/New_Tenants_Briefing.pdf]. Likewise, surely without consistent testing in the lower courts, it is a certainty that the common law shall stagnate. This could well be seen as especially true of the law governing credit hire, the development of much of which has come by way of the appealed decisions of district and circuit judges.   It would be a matter of extreme professional impropriety (not to mention, potentially also of criminal liability) for any member of either branch of the legal profession to ever take a step in a case purely for personal gain. It is a fundamental right for anyone in the population to be free to litigate as they please. The legal professions exist to service the exercise of this right. In my opinion, legitimate concerns as to the pressures on judges and the court system should not be used to attack the litigators.

Warning - Potholes!

My morning commute was brightened up this morning by an article in the Metro, (the staple free newspaper for London commuters,) entitled “Motorists sign up to a pothole warning drive”. I think the last word of the title should have read “Sign”. The article focused on a triangular warning sign depicting a lopsided rear view of a car with one wheel down a pothole. It is suggested the Department of Transport is being lobbied by Confused.com to introduce the dedicated sign for use on potholed roads.   The first thing I (and I would assume, many of my fellow commuters) thought, was “Aha! What about section 58(2)(e) of the  Highways Act 1980?” Certainly I thought that the use of such a sign could potentially raise some issues as to a highway authority’s special statutory defence pursuant to section 58 to a claim brought against it pursuant to section 41 of the same Act.   Would such a permanent sign be a factor the court should take into account pursuant to section 58(2)(e) (which concerns warning notices) in relation to the court’s assessment of whether the highways authority had in place a “reasonable” system of highways inspection, maintenance and repair?   My inclination is that the answer to that question is “absolutely not”, given that it would then be possible for a highways authority to place ‘Pothole Warning Signs’ at 25 yard intervals along all their roads; sit back and spend their highways budget on something else; and pray in aid their sign’s presence as a section 58 defence in any ensuing court actions against them for non-repair. In any event, surely the presence of such a sign could be described as akin to an admission by the highways authority of a failure to repair and thus a breach of section 41 of the 1980 Act.   However in borderline section 58 defences, the presence of such a sign may provide a tipping point for the court. Likewise it may have a bearing on a finding of contributory negligence?      

A Riding Hat? Not on Our Nelly!

On 23 February of this year I wrote an article on the Piblawg regarding Mayor Boris Johnson’s distain for ski helmets and considered the implications for claimants not wearing safety equipment which is entirely optional and contributory negligence (see: A Ski Helmet? – Not on your Nelly).   Well, some similar controversy has been sparked from an unlikely source – the launch image for the Royal Windsor Horse Show. This shows a picture of our gracious monarch atop a black pony flanked by her youngest grandchildren, similarly mounted. Whilst the youngest Royals have the benefit of black velvet riding hats, the Queen (who let’s face it is internationally renowned for her headwear, both bejewelled and otherwise) has decided upon a rather fetching floral headscarf.   More...

Fraudulent personal injury claims and contempt of court

 Mrs Justice Cox has reminded us of the test and standard to be applied in applications for committal for contempt of court arising out of allegedly fraudulent personal injury claims.  In Montgomery v Brown [2011] EWHC 875 the Defendant made a range of allegations that C had lied about a substantial loss of earnings claim.  Mrs Justice Cox confirmed the test that a person is guilty of contempt of court if, in legal proceedings, he interferes or attempts to interfere with the administration of justice. Putting forward a dishonest claim, suppressing documents which should be disclosed and making false statements of truth were all examples of contempt. The court had to be satisfied, to the criminal standard, that the statements made by C were false, that he knew them to be false when he made them, that at the time they were made they would have, if persisted in, been likely to interfere with the course of justice in some material respect and that he knew that they would be likely to so interfere (Kabushiki Kaisha Sony Computer Entertainment Inc v Ball (Contempt of Court) (2004) EWHC 1984 (Ch) applied).   On the facts, contempt was not made out; however the case is a useful reminder of the test to be applied and the standard it must be proved to.    

Knit at your peril...

I’ve long believed that knitting is a rather odd pursuit. I learnt in childhood that the results rarely justify the hours of effort: misshapen Christmas presents and unwanted scarves still litter cupboards at home. However, I didn’t believe that knitting was actually dangerous. It seems that I was wrong. As a result of a recent Supreme Court decision we now know that knitting – at least on an industrial scale – can cause hearing loss. The Supreme Court appeal concerned the liability of employers in the knitting industry of Derbyshire and Nottingham for hearing loss that employees suffered during the years prior to 1 January 1990 (being the date when the Noise at Work Regulations 1989 came into force). The key issue for the Supreme Court Justices was whether liability could be established at common law and/or in breach of statutory duty pursuant to section 29(1) of the Factories Act 1961 in respect of an employee able to prove a noise-induced hearing loss as a result of exposure to noise levels between 85 and 90dB(A)lepd. The appeal is Baker v Quantum Clothing Group & Anor. [2011] UKSC 17 (judgment was delivered yesterday and a report is in today’s Times and on Lawtel).

When is an agreement not an agreement?

The Claimant suffered very significant injuries at 8 months old which have left her with life long cognitive and physical impairments. The Defendant admitted liability, including causation, at an early stage.  Proceedings have been issued and, thus far, there has been a great deal of co - operation between the parties. Indeed, this even extended to agreement in respect of (1) a substantial interim payment and (2) a costs order whereby the Defendant would pay the Claimant's costs to date in an agreed amount. Very recently the parties attended court for directions and for an order setting out the terms of the aforementioned interim payements.  The night before the hearing it was quite clear both from discussions between the fee earners and from the face of the documents that agreement had been reached as to the date on which the interim payments would be made. In fact the claimant's solicitors had compromised on the amount of the costs on the understanding that  the payment would be received before the end of their financial year. At court however, a different fee earner was in attendance from the Defendant's solicitors and wanted an extra week to make the payments on the basis that the Easter bankholidays would cause difficulties with raising a cheque by the originally agreed date. The extra week took the deadline outside the Claimant's solicitor's financial year. The District Judge gave the Defendant the additional week. Was this the right decision? For what its worth, I do not think so. It makes a bit of a mockery of the consensus that had been reached by the solicitors. Also (and this is not necessarily  a concern for the court), it does not bode well for future relations between the parties....  

How far do you have to go to prove that someone is a malingerer...?

The answer is: quite far – If you read the recent judgment of Field J in the case of Noble v Owens [2011] EWHC 534 (QB). For those who can’t be bothered to trawl through 30 pages, here are the facts. C sustained severe personal injury in a motorcycle accident. Liability was admitted and damages were assessed in 2008 in the sum of almost £3.4million.  C bought a property with his partner and enjoyed a relatively quiet life until he was snapped by the investigators doing things that he claimed he could not do and would never be able to do. The insurer appealed to the CA who found that there was a case to answer in fraud and remitted it back for a re-trial. The insurer relied on a number of matters to demonstrate that C was a malingerer. Firstly the video footage, secondly that he had provided false accounts to the Inland Revenue, thirdly that he had done virtually none of the things that he said he would do concerning his future care and assistance claim. Lastly that he’d lied about a number of matters in order to make the medical evidence suit his claim. Now, don’t get angry! But this was apparently insufficient to persuade the court that he was dishonest or malingering. The fact that he’d cheated the Revenue and had not put his damages to the use that he declared that he had, was not of itself probative of his dishonesty.  It was a matter for him to spend his money how he so chose. His explanation that he appeared to be fitter and more active on account of his over-dependency on painkillers was accepted by the court. The footage of him walking unaided did not demonstrate malingering but a determination to succeed in regaining mobility. The judge was very much influenced by his demeanour in court and the general manner in which he answered questions. Thus the allegation of fraud was dismissed. In the current climate, where the Press and Media bemoan the enveloping miasma of the ‘Compensation Culture’, it is cases like this that add to the list of examples of where the law is going wrong. I’m sure there must have been some cogent evidence to have persuaded Field J to find for the Claimant; but one can see the press having a field day with this (excuse the pun!).

Transsexual seeking NHS breast augmentation loses appeal

In R (on the application of AC) v Berkshire West PCT [2011] EWCA Civ 247 the Court of Appeal has dismissed the appeal of a male to female transsexual who was seeking NHS funding for breast augmentation surgery.  In 1996 AC was diagnosed with Gender Identity Disorder (GID).  The PCT provided AC with hormone replacement therapy and was prepared to fund genital reassignment surgery, which AC declined.  AC was disappointed with her breast development as a result of the hormone therapy and sought funding for surgical enhancement, which the PCT declined.  Her challenge to this decision by way of judicial review was unsuccessful at first instance.  She appealed.  The main issue in the case was disposed of in short order by the Court of Appeal (per Hooper LJ): "I understand why the appellant feels aggrieved that the respondent funds the core gender reassignment procedures outlined in the Policy, notwithstanding the absence of evidence of limited clinical effectiveness, but does not also fund breast augmentation surgery for persons like the appellant (given, in particular, that there is no professional consensus on the classification of core and non-core procedures for gender reassignment). But the answer in law to that feeling is that the respondent, in exercising its statutory responsibilities, has to make very difficult choices as to what procedures to fund and not to fund and the choice made in this case is not irrational...  this conclusion disposes of the case”. Hooper LJ went on however to consider arguments that had been pursued on the issue of discrimination.  The PCT had defended its policy in part by arguing that to grant funding for this surgery to transsexual women could be considered to amount to discrimination against women born female who were similarly dissatisfied with the size of their breasts.  It was argued against the PCT that this reasoning was unlawful because it involved treating different cases in the same way improperly.   It was said that breast augmentation for an individual in AC's position was not simply a matter of improving body image but was an important part of the gender transformation, in other words it is an issue of identity rather than simply of body image. The Court of Appeal ultimately decided that discrimination was not proved. The question was essentially what the “relevant characteristic” was when deciding whether to treat particular cases alike or differently in respect of access to breast enlargement surgery.  The Court of Appeal recognised the competing views held by the parties, but concluded that, in the context of making difficult decisions and judgments about treatments and the use of resources, the PCT was entitled to take its view that at the time of presentation both a transsexual female and a congenital female had the same reason for seeking the same treatment.

Smile... you're on candid camera!

In the Judicial Studies Board Annual Lecture yesterday Lord Neuberger, Master of the Rolls, considered the issue of open justice and, in doing so, revisited the contentious question of cameras in court.  In a compellingly argued lecture, he expressed the view that "if we wish to increase public confidence in the justice system, transparency and engagement, there is undoubtedly something to be said for televising some hearints, provided that there were proper safeguards to ensure that this increased access did not undermine the proper administration of justice." The full text can be found online:  http://www.judiciary.gov.uk/Resources/JCO/Documents/Speeches/mr-speech-jsb-lecture-march-2011.pdf

We can all now resile from pre action admissions

In Woodland v Stopford [2011] EWCA Civ 266 handed down today the Court of Appeal again considered the law on resiling from pre action admissions when it dismissed an appeal by the Claimant of the decision of HHJ Holman who had permitted the Defendant to resile from their pre action admission. The claim arises as a result of the infant Claimant suffering an hypoxic brain injury during the course of a school swimming lesson on 5th July 2000. The Claimant was left severely disabled as a result of this injury and the claim is valued at between £2 and £3 million. After an initial denial of liability a pre action admission of liability was made by the Defendant on 27th November 2007. The Defendant then made an interim payment. Thereafter however the Defendant purported to retract that admission in further pre action correspondence on 27th July 2009. The claim was then issued on 25th November 2009 and the pre action admission was pleaded. There then followed cross applications made by the Claimant for Judgment on the admission and by the Defendant for permission to resile from the pre action admission. The applications came before HHJ Holman in April 2010. The applicable law was contained within CPR 14.1A and in particular paragraph 7.2 of the Practice Direction which sets out a non exhaustive list of factors for the Court to consider when hearing such an application. In relation to the Practice Direction HHJ Holman held that the fact that no new evidence had come to light was not fatal to a party wishing to resile. New evidence coming to light was simply one of the matters that the Court must have regard to. In addition HHJ Holman found that the reason why the Defendant had changed their mind about admitting liability was unclear. This absence of information again did not bar the Defendant from succeeding in their application. The clear inference that HHJ Holman formed was that the Defendants had simply misjudged the value of the claim when making the admission. In all the circumstances HHJ Holman permitted the Defendants to reslie from their admission. The main grounds of appeal raised were that there had been no new evidence relied on by the Defendant and that there had been no explanation given to explain the Defendants change of mind. Reliance was placed upon the decision of Steel J in American Reliable Insurance v Willis [2008] EWHC 267 (at present cited in the White Book) that these factual issues were crucial for a Court when deciding whether a party should be permitted to resile. In that case Steel J had described the requirement to show why a party had changed its mind and to evidence the same as a threshold requirement for the party making such an application.      The Court of Appeal held that American Reliable was an unusual commercial case on very different facts. The Court held that it would be “quite wrong” to lift Steel J’s observations out of context and elevate the factual issue of why a party had changed its mind on an admission to a threshold test. Instead the Court has a wide discretion under CPR 14.1A and the listed factors are not listed in any hierarchical order. In this case the Defendant had changed its mind mainly following a second careful appraisal of the known facts. This was an adequate explanation to found such an application. The Judge had carefully considered all of the listed factors he was required to consider and had come to a decision he was entitled to come to.    As a result the Claimants appeal was dismissed and the Defendant was permitted to resile from their pre action admission.