piBlawg

the personal injury and clinical negligence blog

A collaboration between Rebmark Legal Solutions and 1 Chancery Lane

Edward Bishop QC considers obstacles in claims for psychiatric damage

In Speirs v St George’s Healthcare NHS Trust (Unreported, December 2014) a mother claimed damages for psychiatric injury which she said had arisen as a result of the shock of seeing one of her daughters who had been seriously damaged during an instrumental ‘ventouse’ birth. The judge dismissed the mother’s claim on the grounds that she had not suffered a psychiatric injury as a result of the ‘event’ identified by the claimant. In an extremely helpful article, Edward Bishop QC, who appeared for the Defendant in Speirs, sets out what a secondary victim must prove to establish his or her claim. Namely: A close tie of love and affection with the person killed, injured or imperilled Physical proximity to the incident in time and space Direct perception of the incident That he or she suffered a recognised psychiatric illness as a result of witnessing a sudden, shocking event. As he says in his article, it is (d) which has arisen for particular consideration in recent case law. He goes on to examine the questions “did seeing the ‘event’ cause a ‘recognised psychiatric illness? What is meant by ‘an event’? And how ‘shocking’ must it be?” The article has been published in the October 2015 1 Chancery Lane Personal Injury Briefing and can be accessed via this link.

Health and safety and self-employment – where do the boundaries lie?

Regular readers of the piblawg will no doubt recall previous posts discussing the various implications of the Lofstedt report . Published in November 2011, it is of course more correctly referred to as the “Reclaiming Health and Safety for All Review”.  It included a large number of suggested reforms, all aimed at “reducing the burden of health and safety regulation on business, whilst maintaining the progress that has been made in health and safety outcomes”. To date, perhaps the most high profile (and significant) of its implications was of course the Enterprise and Regulatory Reform Act 2013 and its abolition of civil liability for breach of duty under health and safety regulations. We are of course now almost two years on from the coming into force of those changes. Despite this, questions as to what practical effect this change might ultimately have on personal injury practice remain unanswered as yet. It appears likely that further issues may soon arise, with another of the Lofstedt report’s recommendations about to enter into force on 1st October 2015. This is as a result of the coming into force of the Health and Safety at Work etc. Act 1974 (General Duties of Self-Employed Persons)(Prescribed Undertakings) Regulations. The Regulations are very short (hardly longer than their rather verbose title) and have only one practical purpose. This is to exempt the self-employed from the application of health and safety legislation. In this context, this refers to  obligations arising under the Health and Safety at Work Act 1974 and the Management of Health and Safety at Work Regulations 1999.  As a result, health and safety legislation will no longer apply to anyone who is self-employed unless their work activities “may pose a risk to the health or safety of another person (other than the self-employed person carrying it out or their employees)” Certain activities will not be treated as exempt activities, irrespective of whether or not they are being carried out by a self-employed person. In those circumstances, the existing regulatory framework will continue to apply. Work activities that will not be affected by the 2015 Regulations for this reason are identified within its Schedule. Essentially, they include what the HSE refers to as “high risk” activities. These are those involving: (1) agriculture and forestry; (2) work with asbestos or involving the sampling of it; (3) construction, including any activity giving rise to duties under the Construction (Design and Management) Regulations 2015; (4) any work to which the Gas Safety (Installation and Use) Regulations 1998 applies; (5) the “contained use” of genetically modified organisms; and (6) the operation of a railway. It seems unlikely that the description of any of these activities as potentially giving rise to a risk to the health and safety of another is likely to be contentious. What is rather harder to work out is who can (and should) assert that their work activities do not pose a risk to the health and safety of another and that they are thus outside the scope of more extensive regulation. The HSE estimate that 1.7 million people will fall within this category, but working out which side of the line a particular individual might fall is going to be more problematic and, inevitably, is going to provide fertile ground for argument. Putting aside questions of probability and foreseeability, pretty well any work activity might plausibly give rise to risks to others. Presumably therefore, although the Regulations do not actually contain any wording to this effect, the words “may pose a risk” is to be read as indicating that there is a threshold level of risk below which it can be treated as non-existent. Quite where that boundary might lie in practice is however harder to determine. For obvious reasons, there are not yet any decided authorities on the point and presumably will not be for some time to come. Nor is the HSE’s own guidance especially helpful. On the one hand, it suggests that the possibility that someone might be “burnt, scalded, crushed, trip over or fall” will mean that the threshold level of risk has been crossed and that the exemption will not be available. This is understandable. What is perhaps harder to understand is why it is then suggested that a baker working from home would not now be caught within the scope of health and safety law. This uncertainty is not only going to be problematic for personal injury lawyers dealing with these cases at some point in the future. In the very near future, many self-employed people are going to have to elect whether or not to treat themselves as outside the ambit of this area of regulation. Whilst the answer may be obvious in many cases, for those whose activities are perhaps closer to the line, the decision as to whether or not to ignore some more onerous requirements may be a difficult, costly and unwelcome one. Is the making of that decision merely one form of bureaucracy taking the place of another? Normal 0 false false false EN-US JA X-NONE It seems naïve to think that such a decision is not going to be the subject of regular challenge in the aftermath of an accident. Even if ultimately vindicated, the time, effort and money involved in having to deal with the inevitable consequences of this uncertainty are hardly consistent with the stated aims of the Lofstedt Review. Moreover, where individuals are found to have been in error in treating themselves as being outside the scope of more extensive regulation, the price of making the wrong call on this might be considerable…

Are there discernable trends in the RTA claims sector?

How effective have recent reforms been in reducing the number of road traffic injury claims and their associated costs? The Institute and Faculty of Actuaries reports there has been a slight rise in claims by 1.7% between 2013 and 2014 which is less than suggested by the portal where claims notifications are back to pre-LASPO* levels. Average costs of claims are also increasing again (by 3%). These conclusions are drawn by the Institute’s interim findings on 2014 data. The number of claims fell by 9.9% between 2012 and 2013 which is consistent with MoJ Portal Statistics. The reduction in average costs in 2013, following the introduction of LASPO, was 15%. Understandably, however, the Institute says that the long-term effects of legal changes (such as those introduced by LASPO) remain uncertain. The turnover of authorised personal injury claims management companies reduced from £455m in the first quarter of 2012 to £354m in the same quarter in 2013 and then to £238m in 2014. However the first quarter of 2015 saw turnover rise by 30% to £310m. Meanwhile motor insurance premiums have risen by an average of 2% per year between 2008 and 2015. That said, the first quarter of 2015 has demonstrated a reduction of 0.5%. Such reports will undoubtedly be watched carefully by all sides for trends and the government will want to tighten the system if it does not think it reducing costs can claims enough. At the moment the long term trends are not readily discernible. This may mean that the system will remain as it is for at least the short term. The report is packed with further data: Average car mileage per year has fallen by 11% since 2003 The total number of licensed cars has risen by 13% since 2003 The total mileage driven in 2014 is back to the 2003 level Congestion has increased year on year since 2011: the average speed in 2014 was 24.1 mph In 2014 there was a total of 194,477 casualties as a result of road traffic accidents In 2014, 1775 were killed, 22,807 were seriously injured and 169,895 slightly injured Pedestrians, pedal cyclists and motorcyclists account for disproportionately more casualties than would be expected given the distance travelled Liverpool remains the claims capital of the UK with 55% of claims arising out car accidents involving damage to property of another driver also involving a claim for personal injury (the national ratio is just above 30%). The lowest ratio of personal injury claims to property damage claims is in Scotland (20%) The highest ratios are in the North East (33%) and the North West (43%) The full report can be viewed via this link *LASPO - Legal Aid, Sentencing and Punishment of Offenders Act which came into force on 1st April 2013

Scrutiny of Medical Evidence & Physiotherapy Charges in low-value PI cases

I recently acted for an insurer in a routine low value personal injury case (to which QOCS applied) which had an unusual twist.   The claimant claimed damages for neck injuries sustained in a road traffic accident. He signed the Particulars of Claim which were vague as to the description of his injury, but which made reference to an appended medical report. The medical report was of the lamentably short “tick box” variety and concluded that the claimant had sustained a “soft tissue neck injury which resolved in around five months”. At the time of the examination by the GP expert around three months post-accident, the claimant complained of some ongoing symptoms.   Well, the Claimant’s social media persona begged to differ. The Defendant’s online sleuths obtained evidence that the Claimant actually undertook a half marathon a few days post-accident and an ‘Iron Man’ a few weeks after that. This was at a time when the medical report suggested that the Claimant’s symptoms were most acute (“moderately-severe” – whatever that means!).   The Claimant submitted a Notice to Discontinue.   His solicitors came off the record as acting for him.   The Defendant applied to have the Notice of Discontinuance set aside.   On the day of the listed hearing, the Defendant’s solicitors received a remarkably candid witness statement from the Claimant, who had procured the services of a direct access counsel. This expressed a great deal of regret for what had occurred and made a large number of serious allegations against the claimant firm of personal injury solicitors including: that the firm aggressively pursued the Claimant to encourage him to litigate when he was reluctant; indeed, that the firm “reminded” him that he may have sustained an injury despite his being unaware of it at the time and/or drawing any causal link with the index accident; that despite the Claimant telling the firm that his injury resolved in “about one week” she was pressured into attending physiotherapy sessions; the said physiotherapy sessions were arranged by the solicitors without any reference to any medical opinion; and he was persuaded to sign the Particulars referencing the medical report despite knowing the conclusion of the doctor therein to be incorrect. (This does not explain the complaints of ongoing symptoms however!).   The Claimant settled with the Defendant insurer with a Strike Out on the grounds of Abuse of Process by consent ant the payment of costs, however the case throws into an unpleasantly harsh light the tactics which many who may represent insurers and indeed the insurers themselves have long since suspected are employed by some less scrupulous law firms.   The lesson for such firms is of course obvious, but those for legal professionals representing defendant parties can be distilled thus in cases where the medical evidence appears formulaic (i.e. in the majority of routine Fast Track cases, particularly now costs for the provision of such evidence have been limited by the CPR): defendants should be less prepared to accept the conclusions of medical professionals as face value; claimants ought to me more rigorously cross-examined on the duration and significance of their symptoms; charges for physiotherapy charges should be more stringently scrutinised. These frequently are “evidenced” by invoices made out to the solicitors. Without further evidence of under what mechanism the claimant party is expected to meet these, they are arguably unproven losses. This may raise consumer credit points of course and potentially wider issues in cases where it transpires there is a connection between solicitors and physiotherapy providers. In my experience it is not unusual for the claimant to deny receiving such treatment or as many sessions as claimed for; the chronology also should be more carefully looked into. Perhaps Part 35 Questions should ask when was physiotherapy recommended and by whom? If it was the (medically-unqualified (and often formally legally-unqualified) “solicitors”, can the fact that a subsequent medical report makes reference to this in the “treatment received” section, undermine such a report or seriously be said to pertain upon its conclusion?

Contribution, limitation and the Athens Convention

In South West Strategic Health Authority v Bay Island Voyages [2015] EWCA Civ 708 the Court of Appeal considered the scope of the Athens Convention and the nature of the time-bar in Article 16. In coming to its decision, the Court also considered sections 5(1) and 5(2) of the Carriage by Air Act 1961. In the main action, Dr Feest claims damages for personal injury arising out of an accident which occurred whilst she was a passenger on board The Celtic Pioneer in the Bristol Channel. Her original solicitors missed the two-year time limit for bringing claims under the Athens Convention against the carrier ('BIV'). She issued proceedings against her employer ('SWSHA') one day before the expiry of the three-year time limit under section 11 of the Limitation Act 1980. SWSHA brought a claim for contribution against BIV which was struck out by the district judge. His order was upheld on appeal.  The first issue for the Court of Appeal was whether claims for contribution are encompassed by Article 14 of the Convention which states “no action for damages for the …personal injury to a passenger… shall be brought against a carrier…otherwise than in accordance with this Convention.” On appeal, HHJ Havelock-Allan QC held that Article 14 encompassed contribution claims ([2014] EWHC 177 QB). The Court of Appeal disagreed. The Athens Convention only claims to unify ‘certain rules relating to the carriage by sea of passengers and their luggage’. It is not a complete code and does not encompass contribution claims which are autonomous and derive from the Civil Liability (Contribution) Act 1978. In reaching this conclusion the Court looked at Australian, US and Canadian cases on the equivalent provisions under the Warsaw and Montreal Conventions. The Court of Appeal then considered the nature of the time-bar under Article 16. The importance of this is that SWSHA would not have had a claim for contribution against BIV under the Contribution Act if the effect of Article 16 was to extinguish the cause of action rather than bar the remedy. The Court found that the effect of the words of Article 16 in the light of Financial Services Compensation Scheme Limited v Larnell (Insurances) Limited (in liquidation) [2006] QB 808 (which considered the similarly-worded section 14B of the Limitation Act 1980) was to bar the remedy – unless there was an international consensus upon the understanding of the provision. The Court looked at the French text and concluded that the natural meaning of the French words was to bar the remedy. This understanding was also consistent with language (‘Verjaehrungsfrist’) used in the German Commercial Code. Accordingly Article 16 operated to bar the remedy and not extinguish the cause of action and therefore SWSHA’s contribution claim survived. In reaching their conclusion on Articles 14 and 16 the Court of Appeal also looked at section 5(1) and 5(2) of the Carriage by Air Act 1961 which incorporates the Warsaw and Montreal Conventions into UK law. Of note is its comment that section 5(1) provides a time limit for actions against carrier’s servants or agents, which actions are not themselves within the scope of the Warsaw Convention. John Ross QC and Ian Miller of 1 Chancery Lane acted for the successful appellant.

Car vs Cyclist: Apportionment of liabilty

Fenella Sinclair (A protected person by her litigation friend & daughter) v Rachel Joyner [2015] EWHC 1800 (QB). The Claimant was cycling along a rural road. She was in the middle  of the road, standing on her pedals. She was not wearing a helmet. The Defendant was driving her car along the same road in the opposite direction. She had just come around a bend when she saw the Claimant. She had not been travelling very fast before the bend and she immediately slowed down to around 20 mph. That was the speed she was travelling when she passed the Claimant. Her evidence also was that she was as far over to the nearside of her lane as possible. As the car and and the bike passsed one another their wheels collided.  The Claimant lost control and fell.  She suffered multiple injuries, including a severe brain injury. She was left with a permanently impaired conscious level. The trial was liability only. The Claimant's case was that the Defendant had not kept a proper look out and had failed to properly assess the hazard presented by the Cliamant who was in the middle of the road stadning on her pedals. The Defendant maintained that as she approached and past the Claimant she was driving slowly and appropriately. She reasonably considered the Claimant to present a hazard which required her to do no more than slow down and drive past her. The Claimant lost control of her bike and deviated unexpectedly onto the Defendant's side of the road so that contact occurred. She (the Defendant) was not responsible for that. Mrs Justic Cox held: 1. The courts must not fall into the trap of imposing a counsel of perfection on car drivers. 2. Nevertheless, cyclists are amongst the most vulnerable of road users. The Highway Code expressly says so and advises car drivers to give them plenty of room. 3. The Claimant was on her side of the road but only just. She was also standing on her pedals. The evidence suggested that she was grimacing or loooking uncomfortable. 4. In all the circumstances, a reasonably prudent driver would have appplied the brakes immediately and stopped to allow the Claimant to pass safely. The Defendant did not do that and primary liability was therefore established against her. 5. In terms of contributory negligence, the Claimant should not have been riding in the middle of the road. Her conduct in doing so materially contributed to the damage and was negligent. 6. In assessing apportionment: "The causative potency of the motor vehicle is highly significant in assessing apportionment. There was a risk of very serious injury to the Claimant in this case if the Volvo were to collide with her...the appropriate apportionment of fault for the Claimant in this case is 25 per cent" 7. The Defendant had pleaded that failure to wear a helmet was contributorily negligent. It was not explored in evidence, however, and was not addressed in the Defendant's closing submissions. The judge said that there was no medical evidence adduced to show that failure to wear a helmet had made the injury worse. The allegation was therefore rejected.   Comment This strikes me as placing really quite an onerous burden on drivers. After all, the Claimant was in the middle of the road, on her pedals and approaching a bend. The Defendant was not speeding, she slowed down and she was as far over to the nearside as possible. To suggest that she ought to have stopped completely seems too high a requirement. The case is also worth a read because it involved live evidence from the parties' accident reconstruction experts. The Defendant's expert appears to have been so poor in evidence that, ultimately, counsel did not rely on him. The judge thought this was wise and was critical of his report and his oral evidence.   Sophie Mortimer

Expert evidence in road traffic cases

Is the evidence of an expert in cycling safety reasonably required in a personal injury claim arising out of an accident which the claimant alleges was caused by the highway authority’s breach of duty (in respect of maintenance, layout etc)? At a Case Management conference in the case of Allen v Cornwall Council [2015] EWHC 1461 the District Judge gave the claimant permission to rely on such evidence to deal with allegations of contributory negligence made by the defendant. He refused to grant the defendant permission to rely on its own evidence.  In the case of Liddell v Middleton (7th July 1995, Unreported), the Court of Appeal gave guidance as to the admissibility of expert evidence in road traffic claims. Stuart-Smith L.J. said that in such cases the function of the expert is to furnish the judge with the necessary scientific criteria and assistance based upon his special skill and experience not possessed by ordinary laymen to enable the judge to interpret the factual evidence of the marks on the road, the damage, or whatever it may be. What he is not entitled to do is reach conclusions on facts or give his opinion on whether there was a breach of duty. In Liddell the Court of Appeal found the ‘expert’ had overstepped the mark and given evidence which was entirely irrelevant and inadmissible. The defendant in Allen appealed the District Judge’s order and the case was heard by Green J. He would not interfere with what was a case management decision of the district judge. Green J found that the district judge was addressing a threshold issue as to whether the evidence should be admitted for the purpose of case management but, he had made it clear it was without prejudice to any more mature and considered view which a trial judge might take. He had not given the defendant permission to have its own report because it might see the expert evidence of the claimant and decide that it wanted to abandon allegations of contributory negligence altogether. Green J held that the district judge had not seen the expert’s report at the time he made his decision and therefore he was not in a position to assess its content; he took account of the fact his decision would not bind the trial judge. Green J thought that the facts of the case were somewhat unusual (as it was not a case of a collision with a pedestrian or another vehicle but one involving the condition and layout of the highway). He did not rule on the admissibility of the evidence but thought the judge had not acted outside the generous ambit afforded to a judge exercising his case management powers. Green J acknowledged the ‘practical force’ of the defendant’s complaint that the judge should have required the report to be prepared and produced before granting permission. Indeed the defendant’s suggestion that this would have been the appropriate course was commended as ‘sensible’. It is notably the course commended by the Court of Appeal in Casey v Cartwright in the context of low velocity road traffic accident litigation. But Green J did not think the judge had erred in not adopting this approach. This case raises an interesting question as to when exactly the threshold is reached for the granting of permission for expert evidence at the case management stage: when is expert evidence ‘reasonably required’ (CPR 35.1)? In Casey the question was whether, once the judge had seen the expert evidence, the issue itself had a ‘real prospect of success’. Liddell v Middleton and the decision in Allen tend to suggest that at the case management stage the question is no more than whether it is arguable that the evidence is admissible - the final decision rests with the trial judge. The questions the expert was to examine included where a cyclist should be positioned on a carriageway and whether he was cycling too fast or should have dismounted where visibility was poor. Do such questions require expert evidence? If so, why not in cases involving motorcycling, lorry driving and other modes of transport which may be outside the experience of a trial judge? It will be interesting to see what the trial judge decides. In the meantime it is striking that, at the appeal, Green J gave the defendant permission to rely on its own expert evidence before it had seen the evidence of the claimant. Draw what conclusions you will… (Ian Miller represented the defendant on the appeal)

More Political Uncertainty for PI Litigators

Ian Miller’s recent post looking at of what party manifestos might tell us about the way ahead for personal injury lawyers identified a large number of potentially significant and yet radically differing changes ahead. Which actually lay in store for us was, of course, going to be dependent upon which way we voted – and upon which post-election alliances were formed and the compromises that were going to be required to hold them together.   Surprisingly, only a short time after that post was published, we find ourselves in a position in which a much clearer outcome has emerged from that election than appeared likely at the time of Ian’s post. Whilst the Green Party’s proposal to bring back legal aid never really appeared to have much of a chance of being implemented, it did at times appear that a return to one-party government was not a great deal more likely. Nonetheless, that is where we find ourselves.   As a result, one might expect that we would be able to move on from the election better able to plan for the future with a degree of certainty as to what might lie ahead. Despite the relatively conclusive outcome to the election, whether this is in fact the case for personal injury lawyers is however questionable. The “in-out” referendum promised in the Conservative manifesto makes it (still) very difficult to predict what might lie in store – whatever the result and whatever interpretation one might put on the contents of that manifesto.   Opposing views as to which outcome of the referendum might be preferable are beginning to appear in the media - despite the fact that there appears to be very little (or no) suggestion as to what changes might be wrought by the “new settlement” to which the manifesto refers. Insofar as it might affect the business of personal injury litigation, the possibilities seem both endless and potentially very far-reaching, whether we end up with a novel basis of membership of the EU or indeed no membership at all.   The possibilities for change (whether intended or not) are myriad – whether under a “yes” to a novel settlement or a “no”. One can only wonder what might ultimately be the subject of renegotiation or an “opt out”. What, for instance, would be the position in relation in relation to claims arising from road traffic accidents abroad? Would claims arising from package holidays still fall to be dealt with in the same way? Would potentially diverging consumer standards impact upon product liability claims?   It is equally hard to see how any degree of disengagement from the EU would or could permit a status quo to be maintained, even where this might be perceived as a desirable compromise position in relation to a particular areas of law. Were this approach to be tried, it begs the question of what would happen when and if the remaining states revised the current situation. Would it necessitate renewal of the UK’s agreement to the position? Would it leave the UK outwith that agreement? Or would it leave us in some other position entirely?   Equally, were we to see a particularly emphatic “no” vote, could this be perceived as a mandate to “undo” some of the six-pack regulations or other legislation widely perceived as imposing “red tape” upon public bodies and employers? Given the contents of the recent Enterprise and Regulatory Reform Act 2013, it may not be a surprise if this were so.   So many questions – so few answers. Deciding how to vote in any such referendum is going to be challenging for anyone. To what degree it will be possible to make an informed decision about the issues potentially affecting personal injury litigation remains to be seen.   It can only be hoped that potentially significant changes receive the publicity and scrutiny that their significance would merit. Given the apparent lack of appreciation of the significance of the changes wrought by the Enterprise and Regulatory Reform Act 2013 prior to its coming into force, it does not seem to be inappropriately pessimistic to wonder whether this will in fact be the case.   Time, as ever, will no doubt tell…

Costs Budgeting: reforms on their way…

Jackson L.J. delivered a speech on costs budgeting on Wednesday. For many of us engaged in CCMCs who encounter inconsistency, courts overwhelmed by the volume of hearings, unnecessary costs incurred and often the thinly disguised frustration of judges with the process, his conclusion that ‘costs management works’, may come as a surprise. His proposals for reform, including fixed costs in some multi-track cases, may not. In his speech he gave 7 benefits of costs management (see below) but he also dealt with objections and problems and made recommendations. I pick out a few: First, he mentioned the costs of the process in low value multi-track cases which he defined as up to ‘about £50,000’. Leeds District Judges recommended fixed costs for such cases and Jackson L.J. endorsed the recommendation for fixed costs in the lower reaches of the multi-track ‘strongly’. Secondly, the issue of judicial inconsistency, unduly long hearings and micro-management he thought should be dealt with by better compulsory judicial training. Thirdly, the problem of the wide variation in the forms of costs management orders he recommended should be dealt with by a standard form of costs management order. Fourthly, he thought that the time for filing and exchanging budgets should be increased so that they are lodged 14 days before the CCMC although there must be a discretion for the court to specify a different period. Fifthly, he was of the view that Precedent H could be improved but he recognised that solicitors had been developing their IT systems for the purpose of completing Precedent H and therefore he did not want to make successive changes. Sixthly, the problem of delays and backlogs of CCMCs he thought should be tackled by repealing PD 3E which says that courts will generally make a costs management order under rule 3.15 where costs budgets are filed and exchanged. The PD should be replaced with a judicial discretion on whether to make a costs management order and criteria to guide its exercise. Seventhly, he acknowledged the backlog of clinical negligence cases in London and suggested that all London Clinical negligence cases with CCMCs listed between October 2014 and January 2016 be released from costs management and called in for short old-style CMCs. He thought a similar solution might be required in Birmingham and Manchester. Eightly, he addressed the issue of incurred costs and the practice of doing as much work before the CCMC in order to shelter costs within the ‘incurred’ column. He did not think that it was appropriate for judges at detailed assessments to treat absence of ‘comment’ on incurred costs as approval. He suggested powers to comment on incurred costs, summarily assess them or set a global figure for any phase to act as an incentive not to put forward excessive incurred costs. In clinical negligence cases he thought that there was a need to introduce pre-action costs management. Ninthly, Jackson L.J. expressed concern about the increase of court fees introduced in March 2015. He thought they should be disregarded when considering whether a party’s costs are proportionate. These are just some of the areas touched upon in Jackson L.J.’s speech which can be read in full by following my hyperlink. He ended his talk by arguing that Costs Management was in the public interest. He thought that lawyers disliked it because it meant more work and required us to develop new skills. He predicted that within the next 10 years costs management would be accepted as an entirely normal discipline and people would wonder what all the fuss was about. For the time being Costs Budgeting is here to stay – but reform is now overwhelmingly likely to occur and we can expect to hear from the Coulson Committee in due course on what form the new rules are likely to take.   The benefits of Costs Management (refered to above) Both parties to litigation know where they stand financially It encourages early settlement It controls costs from an early stage It focuses attention on costs at the outset It stops CMCs from being formulaic leading to debate about what is really required It is fair to give your opposition notice of what you are claiming It prevents losing parties from being destroyed by costs  

Insurers’ proposals for further reform to the PI sector

The Association of British Insurers' website recently set out its top 10 insurance and savings priorities for the next parliamentary session. The most striking of these for personal injury lawyers is the proposal for “Modernising the civil justice system to get compensation to claimants rather than lawyers.” The ABI fleshes this out by suggesting increasing the small claims track limit for PI claims, considering a reduction in the current 3-year limitation period and using fixed legal fees to address the rise in industrial deafness claims and ensuring people suffering from asbestos related conditions get compensation quicker. Another of the ABI proposals which would also affect the PI sector is a proposal for “Cracking down on the behaviour of Claims Management Companies” by requiring them to comply with a more robust regulatory regime and stopping nuisance calls and texts. Some consider that pressure from the insurance industry played an important role in bringing about some of the reforms which occurred in the last parliament. The themes in the proposals are familiar and are not new. Indeed the last government consulted on some of these matters. However the ABI clearly wants to keep these issues on the agenda and it will be interesting to see what pressure is exerted in the next parliament for further reforms which could have far reaching consequences for PI lawyers and litigants. The whole list can be viewed on the ABI Website