piBlawg

the personal injury and clinical negligence blog

A collaboration between Rebmark Legal Solutions and 1 Chancery Lane

Are counsel’s doodles privileged?

    Do you doodle in meetings? Should you doodle in meetings?   There is both good news and bad.       The good news is that doodling may be good for you! A study by the University of Plymouth and published in Applied Cognitive Psychology suggests that doodling actually helps improve concentration and memory. Two groups of people were asked to listen to a boring telephone conversation. One group was doodling, the other was not. The doodlers remembered 29 per cent more information than those who had simply sat and listened.   The bad news at least so far as counsel is concerned is that any doodles may now have a wider audience than the doodler may have intended. In Hellard and another v Irwin Mitchell [2012] All ER (D) 71; [2012] EWHC 2656 (Ch) His Honour Judge Purle Q.C. sitting as a judge of the Chancery Division heard an application in a claim for alleged professional negligence against the defendant firm of solicitors.       The essential issue was limitation and, in particular, whether it was reasonable for the solicitors to rely on the advice of counsel and what counsel's advice had been. The solicitors applied for a declaration that the claimant trustee in bankruptcy had impliedly waived the obligations of the bankrupt’s former counsel to uphold legal professional privilege in respect of the subject matter of the claim.       It was common ground that the bringing of the claim had operated as a waiver of privilege with regard to the solicitors’ file including the solicitors’ notes of conferences with counsel and the deliberations of the solicitor including deliberations with counsel. The issue was whether privilege still attached to counsel’s own papers such as working papers and notes of conferences because counsel had not been joined in the claim.       The court held that privilege attached to confidential communications between the solicitors, counsel and their mutual client. Once privilege regarding those communications had been waived, any evidence as to those communications could be adduced - see [9], [12], [15] of the judgment.       Thus having waived privilege in relation to counsel's advice, the claimant could not pick and choose which bits of counsel's advice or deliberations could be withheld from the court. The waiver would therefore extend to all of counsel’s own working papers, deliberations and notes including, presumably, any doodles!       Despite the results of the Plymouth study, it seems that doodling does not always help with concentration and memory. One individual is quoted as saying:   “I always doodle, and I don't pay attention … It kind of hurts my memory”.   

The Court’s Indulgence and Litigants in Person

One of the more widely promulgated arguments against the legal aid cuts and reform of civil justice funding is that any savings will be eclipsed by the additional costs to the courts and to other parties caused by an expected rise in Litigants in Person (“LIPs”).   Already, most litigators have faced the tribulations involved in facing a LIP opponent. Inappropriate orders are sought, papers are not served, court dates are not met, and applications to set aside orders and judgments are commonly made out of time – sometimes well after your represented clients have long thought their cases concluded. What strikes many is the multiplicity of approaches taken by courts in dealing with LIPs and the common issue of their defaults. Some appear to take an extremely lenient line, whilst others treat them with the same strictness of a represented party.   The Court of Appeal last week gave judgment in a case where represented parties – Tinker and Another – appealed against the decision of Mrs Justice Sharpe (handed down on 15 March 2012) allowing a Mr Elliot – a LIP and subject of a civil restraint order – to set aside a judgment of 15 March 2010.   The application to set aside was made on 8 December 2011 however Sharp J held that it was made “promptly” taking into account the fact that Mr Elliot was a LIP and had some mental health difficulties.    Tinkler & Anor -v- Elliot [2012] EWCA Civ 1289        Lord Justice Kay gave the leading judgment, with which Lord Justice Munby and Lord Justice Lewison agreed. It held that whilst there were circumstances where this could be taken into account as regards the issue of whether a party acted promptly, these “will only operate close to the margins” (paragraph 32).    Kay LJ continued to proffer some guidance as to the approach which should be taken with LIPs (paragraph 32 cont.):   “An opponent of a litigant in person is entitled to assume finality without expecting excessive indulgence to be extended to the litigant in person.  It seems to me that, on any view, the fact that a litigant in person “did not really understand” or “did not appreciate” the procedural courses open to him for months does not entitle him to extra indulgence.  ...  The fact that, if properly advised, he would or might have made a different application then cannot avail him now.  That would be to take sensitivity to the difficulties faced by a litigant in person too far. ” The Judgment is available at www.bailii.org/ew/cases/EWCA/Civ/2012/1289.html     A fuller article on this matter by Thomas Crockett, has been published in the Commerical Litigation Journal Nov/Dec 2012 and a copy is available at http://www.1chancerylane.co.uk/?action=barrister&publications_asset_id=3720  

Bankrupt claimant – bankrupt claim?

What happens where a personal injury claimant is made bankrupt part way through the case, or where a bankrupt wishes to bring a claim for personal injury?   Under Section 306 of the Insolvency Act, the bankrupt’s estate vests in his trustee. This includes “property”, which includes things in action. This would cover a personal injury claim, unless the only damages being claimed are general damages: these are and remain personal to the bankrupt and are an exception to the vesting rule (see Heath v Tang [1993] 1 WLR 1421, 1423). Any personal injuries claim including a claim for special damages vests in the trustee in bankruptcy. The trustee is entitled to retain the special damages ultimately recovered (including damages for past and future loss of earnings), but will hold the general damages on constructive trust for the claimant (see Ord v Upton [2000] Ch 352 at 369-70).   Of course, this position gives rise to practical difficulties. The Court of Appeal in Ord optimistically took the view that these were nothing the law could not deal with. Where a bankrupt claimant wishes to pursue a personal injuries claim including special damages the Court of Appeal made clear that the trustee in bankruptcy “would have to consider carefully his duty to the bankrupt and would probably, if requested, assign the cause of action to him”.  

The addition of a late expert: case note

Van Niekerk v Carnival Plc & Anor. [2012] LTL 13/6/12 (QB, HHJ Seymour QC)   This claim concerned further directions for a High Court trial that was listed a little over 2 months after a Pre-trial review in which further permissions for expert evidence were sought. The Claimant’s husband had died on holiday while he had been taking part in a diving excursion arranged by or through the Defendant cruise line operator. Liability, causation and quantum were all in issue. The Claimant brought a substantial claim for damages. The Claimant’s schedule of loss included, among other things, a claim for loss of financial dependency based on pension income. In correspondence, the Defendant had queried the calculation of this head of loss. Approximately, two months before the date fixed for trial of liability and quantum the Claimant applied for permission to obtain and rely on a report from an expert forensic accountant on the investment growth rates relating to the financial dependency claim. Each party had also obtained a medico-legal report on the cause of death. The Claimant's expert was a histopathologist. The Defendant's expert was a cardiologist with experience in the cardiological aspects associated with diving. The issues considered at the Pre-trial review concerned: (i) whether permission should be granted to adduce expert accounting evidence; (ii) whether directions should be given for a joint statement by the cause of death experts; (iii) the appropriate order for costs.HELD: (1) Permission was granted to obtain expert accounting evidence limited to the issue of investment growth rates - while this evidence was being sought at a late stage, it would likely assist in the accurate calculation of loss and would be helpful to the Trial Judge. (2) There was potential value in the cause of death experts producing a joint statement, despite the risk that it would simply repeat their individual reports (and in spite of the fact that they were experts in different disciplines). (3) Although the Claimant had succeeded on her application to admit accounting evidence, it had been necessary because there was a deficiency in her case which the Defendant had pointed out some months earlier, and she had sought to adduce additional evidence close to the trial and in circumstances where it raised serious questions about whether the trial could proceed in the event that permission were granted. The issue about a joint experts' report had been a serious issue. Taking those issues into account, the proximity to trial and the matters on which the parties had argued, it was appropriate to consider the hearing as a pre-trial review. In those circumstances, the appropriate order for costs was costs in the case.

What's in a name?

  On 22 March, after 200 years of being called Cadbury, Kraft, the US food conglomerate which bought the Cadbury business in 2010, is changing its name to - Mondelez (pronounced mohn-dah-LEEZ) International.   The article I read suggests this means delicious world – “monde” coming, I suppose, from the French (or perhaps the Latin) for world and “delez” being a diminutive (or it could be “street” - I would need to check) for delicious. Apparently it is the result of suggestions by two different Kraft employees based in Chicago and Vienna respectively.   I was reminded of this when I read a thoughtful article in the Law Society Gazette on 5 April by District Judge Richard Chapman, the new president of the Association of Her Majesty’s District Judges.   http://www.lawgazette.co.uk/opinion/comment/solicitors-can-help-litigants-person-prepare-their-day-court   Judge Chapman reminds those who did not know that litigants in person are also changing their name - to self-represented litigants or SRLs.   SRLs are likely to feature increasingly in the courts. In November 2011 the Civil Justice Council published a helpful report on “Access to Justice for Litigants in Person”.   http://www.judiciary.gov.uk/about-the-judiciary/advisory-bodies/cjc   This is well worth downloading and filing as it contains amongst other goodies a “nutshell” guide for SRLs and in Appendix 2 “Suggested Draft Guidance for legal professionals representing against a self-represented litigant”   The report points out in the Overview in Chapter 2 that “every informed prediction is that, by reason of the forthcoming reductions and changes in legal aid, the number of self-represented litigants will increase, and on a considerable scale. Such litigants will be the rule rather than the exception” (my emphasis).   This prospect clearly concerns Judge Chapman who says that “judges like me are spending more and more of our time having to deal with litigants who simply do not know the law, have never heard of the Civil Procedure Rules 1998 … and have breached most of the case management directions”.   Any advocate is already under a duty to do what they reasonably can to ensure that an SRL has a fair opportunity to prepare and put his or her case. However, the likelihood is that Judge Chapman and other judges at all levels will increasingly be looking for help from lawyers in managing the changes which will follow the new “funding landscape”.    As Judge Chapman ruefully observes:   ”A new name but old problems”.   [Image - thechocolatereview.net]

Government U Turn on the office of Chief Coroner

Those of you who have any regular involvement in or contact with the coronial process will no doubt have shared my sinking feeling when it was announced during the bonfire of the quangos that the office of Chief Coroner was not going to be implemented.  I was surprised and pleased to see that yesterday Ken Clarke announced a u-turn on this issue, although in limited form. The background to this development is that the Coroners and Justice Act 2009 provided for the appointment of a Chief Coroner and Deputy Chief Coroner.  The purpose of these roles was to provide national leadership for the coronial system in England and Wales, with aims to improve standards.  The Chief Coroner was also intended to provide a new route of appeal from inquests, removing the cumbersome and expensive requirement to judicially review decisions, however small.  In October 2010 the government announced that, in the current economic climate, plans to implement the office of Chief Coroner would not proceed.  The government proposed to abolish the office of the Chief Coroner and to transfer some of the Chief Coroner’s functions to alternative bodies.  The Public Bodies Bill was the means by which it was intended that the office would be abolished, although the provision enacting this power was defeated in the House of Lords in December 2010.  Thereafter the plan became not to abolish the office, but to provide that the functions could be transferred elsewhere.  The plan not to enact the office of Chief Coroner has been very unpopular and heavy opposition has been mounted by charities such as the Royal British Legion.  Yesterday Mr Clarke said in a statement: "Over recent months I have listened to and reflected on the concerns raised across Parliament, by families and by other groups, including the Royal British Legion, that a single figure needs to be responsible for the coroner system. "I am prepared to have one last try to meet those arguments and so have taken the decision to implement the office of the chief coroner. "The existing mechanisms for challenging a coroner's decision will remain in place and will avoid the need for expensive new appeal rights. The new post will be focused on working to deliver the reform to coroners' services that we all want to see and which I previously argued should be delivered by the Lord Chief Justice and myself. "Everyone is agreed that the priority is raising the standards of coroners' inquiries and inquests to ensure that bereaved families are satisfied with the whole process. "I am therefore giving the chief coroner the full range of powers to drive up standards, including coroner training, as well as setting minimum standards of service through the new Charter." So... partial good news then.  The central oversight of the coronial system that is so desperately needed will be implemented.  Unfortunately however, we are stuck with JR for the foreseeable future as the route of appeal against controversial decisions.   

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.

Part 36... again

The Court of Appeal has overturned Warren J's decision in "C v D1 & D2". Question: was an offer headed "Offer to Settle under CPR Part 36" which was expressed to be "open for 21 days":- a) A time-limited offer and/or b) A Part 36 offer. The party making the offer argued it was a time-limited Part 36 offer. Warren J agreed it was time-limited, but held a time-limited offer was not a Part 36 offer. The Court of Appeal disagreed, construing the offer so as to be compatible with Part 36. It was a part 36 offer and, not having been withdrawn, was open for acceptance.  

The Fashion for Fraud

It is a fact of life for the personal injury lawyer that fraud will raise its ugly head from time to time whether one acts for claimants or defendants.  I have observed an interesting shift over the decade I have been in practice.  Ten years ago judges seemed not only uninterested in suggestions of fraud, but many appeared to find the concept positively distasteful.  I have had judges make frankly bizarre findings about what your average person can be "mistaken" about, in order to avoid finding them liers...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.