LexisNexis Personal Injury A LexisNexis mini-mag helping personal injury lawyers stay up to date.

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1 LexisNexis Personal Injury A LexisNexis mini-mag helping personal injury lawyers stay up to date. Spring 2015 Checklist: New Rule 36 Making a Part 36 offer Lexis PSL Table of changes New Rule 36 v old CPR 36 rules Lexis Calculate: Future Loss of Earnings What s the point of the Social Action, Responsibility and Heroism Act? David Gabell, Tees Law Proving negligence-duty of care and the assumption of risk Andrew Wilson An offer you can t refuse? Chris Hoyer-Millar & Alex Fox Penningtons Manches

2 From the Editor Contents Welcome to the Lexis Nexis personal injury mini-magazine. In this edition we review the Part 36 reforms and provide you with a handy guide to the new rule 36 v the old CPR 36 rules. We also highlight interesting articles from our key publications including New Law Journal and our PI blog. The breadth of reform in the personal injury sector has been unparalleled over the last few years. At Lexis Nexis we are committed to providing practitioners with all the resources they need to keep abreast of these changes. As well as our extensive Lexis Library we also have our online guidance product PSL which includes a comprehensive suite of time saving calculators and up to the minute current awareness reports. Best wishes Karen O Sullivan Solicitor and Head of LexisPSL Personal Injury Lexis PSL Personal Injury 4 Meet the team 7 Latest whiplash reforms MedCo from 6 April Checklist: New Rule 36 Making a Part 36 offer 13 Table of changes: New Rule 36 v old CPR 36 rules 19 Proving negligence-duty of care and the assumption of risk Andrew Wilson 25 Lexis Calculate: Future Loss of Earnings LexisNexis Blog 6 What s the point of the Social Action, Responsibility and Heroism Act? David Gabell, Tees Law New Law Journal 22 An offer you can t refuse? Chris Hoyer-Millar & Alex Fox, Penningtons Manches Lexis Library 17 Butterworths Personal Injury Litigation Service 26 LexisLibrary Personal Injury 27 The Civil Court Practice 2015 Editorial Editor: Karen O Sullivan Production Editor: Rachel Buchanan Design: Creative Solutions Offices: Lexis House, 30 Farringdon Street, London, EC4A 4HH Tel: Reproduction, copying or extracting by any means of the whole or part of this publication must not be undertaken without the written permission of the publishers. This publication is intended to be a general guide and cannot be a substitute for professional advice. Neither the authors nor the publisher accept any responsibility for loss occasioned to any person acting or refraining from acting as a result of material contained in this publication. 2

3 Lexis PSL Personal Injury Half the battle is keeping on top of the latest case law, legislation, precedents and forms. LexisPSL Personal Injury brings everything together for you online, in one place. So you can get up to speed faster, with more time to spend on your clients. Lexis PSL Our succinct practice notes and layered approach gives you more control over accessing the level of information you need. Short, concise practice notes help you find what you need more quickly, and provide direct links to relevant cases and legislation, including the All England Law Reports. A wide portfolio of expert commentary, includes Butterworths Personal Injury Litigation Service, Bingham & Berrymans Personal Injury and Motor Claims Cases, Munkman Employer s Liability, Redgrave s Health and Safety, and Munkman on damages. LexisPSL Personal Injury precedents include suites of precedents with detailed drafting notes, and direct links through to cases, legislation and relevant commentary. Lexis Smart Precedents also allow documents to be created from a single questionnaire, saving huge amounts of time in drafting and crosschecking, and reducing the risk of error. So you can be confident you re giving the right advice, even when you re outside your comfort zone. And you re free to spend more time focusing on rewarding work that makes a real difference. LexisPSL Personal Injury has thousands of quantum cases in one easyto search database, with new cases added every week. Plus over 20 quantum calculators that can run highly complex calculations for you in minutes (not hours). To find out more about LexisPSL Personal Injury, or to have a free trial, visit lexisnexis.co.uk/pimag15/psl 3

4 Lexis PSL Personal Injury: Meet the team Lexis PSL Karen O Sullivan Karen has 15 years of experience in all types of personal injury litigation and specialises in employer liability claims from union-funded claimants, occupational disease claims, and group actions as well as representing defendants. Karen trained at Nelsons solicitors before moving to Thompsons upon qualification (by client request) where she acted primarily for union GMB. Karen then became Head of Department at RSA Legal South managing and supervising a team handling over 2000 litigated cases on behalf of defendant companies. Karen joined the LexisNexis PSL Team in 2009 as the in-house expert and spokesperson for personal injury. She is also a regular contributor to the New Law Journal. Elizabeth Milbourn Elizabeth has ten years of experience in personal injury litigation. She studied science and law at the University of Adelaide in Australia and practised there for several years before relocating to London. She initially practised in insurance litigation dealing with product and public liability claims and then specialised in clinical negligence. She worked at Lovells and then at US Firm Howrey. Following that she transferred to Nabarro with her team to help establish the healthcare practice. Elizabeth managed a significant case load dealing with large and small value claims and several large scale group actions. Elizabeth joined the Lexis PSL team in January Consulting Editorial Board Robin de Wilde QC Clerksroom Simon Taylor QC Cloisters Professor Dominic Regan Legal Consultant Andrew Wilson Legal Consultant Mark Havenhand Irwin Mitchell Susan Brown Prolegal Sarah Padmore RSA Legal Sue Bright RSA Legal Stephen Garner Old Square Robert Hunter Devereux Chambers Theo Huckle QC Civitas Chambers Marcus Weatherby Pattinson & Brewer Contributing authors Andrew Ritchie QC 9 Gough Square James Sullivan 12 Kings Bench Walk Tom Pacey 12 Kings Bench Walk Louise Thomson 12 Kings Bench Walk Stephen Innes 4 New Square George McDonald 4 New Square Robert Hunter Devereux Chambers Alistair Hill Dundas & Wilson Marcus Weatherby Pattinson & Brewer Joel Donovan QC Cloisters Sarah Fraser Butlin Cloisters Catriona Stirling Cloisters Mike Hill Trinity To find out more about LexisPSL Personal Injury, or to have a free trial, visit lexisnexis.co.uk/pimag15/psl 4

5 News & Views: LexisNexis Free Content There is no escaping the fundamental changes that personal injury law is undergoing. To assist personal injury practitioners coping with this change, we provide freely available material, including the personal injury content on LexisNexis Dispute Resolution blog, Personal Injury Twitter feed and the LexisNexis hosted think tank, Halsbury s Law Exchange. LexisNexis Free Content Our free Personal Injury content sits within the Dispute Resolution blog in its own category, PI. Other parts of the Dispute Resolution blog may also be of interest to personal injury practitioners, especially the Jackson Reforms material and comment. Sign up to receive exclusive content sent to our subscribers on a monthly basis including access to a piece of bespoke content such as a practice note or checklist from LexisPSL The blog is a space for news and views on the latest developments, whether they are changes to the law or tips on building a thriving legal practice. We cover all CPR updates and include news and case analysis to keep our readers up to speed. We also post practical guidance, checklists and send our subscribers exclusive content in a monthly . The Dispute Resolution blog includes Personal Injury and Arbitration content as well as all aspects of Dispute Resolution. We write in-house with comments and guest posts from leading practitioners. To find out more, visit lexisnexis.co.uk/pimag15/blog 5

6 What s the point of the Social Action, Responsibility and Heroism Act? David Gabell, Tees Law PI Blog This post discusses the main features of the much-maligned act and considers whether it is likely to muddy the waters for judges when they are required to apply the legal tests of duty of care, liability and causation. SARHA 2015 applies when a court, in considering a claim that a person has been negligent or in breach of statutory duty, is determining whether that person met a standard of care. This means courts will take account of the fact an individual was acting for the benefit of society eg doing a good deed such as volunteering if something goes wrong. The Act applies to England and Wales only. What is the significance of SARHA 2015? The significance, in my view, is largely a negative one. It essentially provides more shades of grey where there really isn t any need. The Act means that those people who may otherwise have been the defendant in a claim for personal injury are now potentially safe from alleged liability, assuming they can convince a court that they were: acting for the benefit of society, and/or demonstrating a predominantly responsible approach towards protecting the safety or interest of others, and/or acting heroically by intervening in an emergency to assist an individual The purpose of the Bill was to reassure people, including employers, that if they demonstrate a predominantly responsible approach towards the safety of others, during a particular activity, the courts will take this into account in the event that proceedings are issued against them. The scope of the word predominantly is staggering. Does it mean, for example, that an employer can be irresponsible to a degree that an employee suffers an injury, but get away with it on the basis that they are responsible most of the time? In my view that is a peculiar way to administer justice for the injured party. SARHA 2015 has received a great deal of criticism from lawyers, are there any redeeming features? You have to appreciate the sentiment of an Act, which seemingly tries to afford protection to the brave passer-by who risks life and limb to rescue someone in peril but in reality that is not really what this Act achieves. All it does is muddy the waters for judges who already need to grapple with the often complex legal tests of duty of care, liability and causation. would be hugely risky and the chances of success are typically less than 50%, but if successful it would save this child s life. The surgeon could close up and discuss the findings with the child and the parents and discuss the options and risks, but to do so would waste valuable time and mean a further risky operation for the child. In this case the surgeon presses on, against the odds, and attempts to remove the tumour. In doing so the condition of the child deteriorates and she dies on the operating table. Some may say the surgeon acted heroically and therefore any claim that the family try to bring for clinical negligence ought to be defended on that basis. Indeed, in principle, such a defence would apparently be available to the surgeon under SARHA Others may say, not least the parents, that the surgeon s actions fell far below a reasonable standard and that he/she was negligent in failing to stop the procedure and discuss the risks and options with the parents. Defining heroism is a difficult task when the context is such that the hero has seemingly caused significant harm or loss to another. Does SARHA 2015 create any enforceable duties or obligations? Not on individuals, per se. There is no legal duty for passers-by to now intervene in order to protect someone else from apparent harm. However, now that the Bill has achieved Royal Assent, courts will be obliged to consider the provisions of SARHA 2015 when/if defendants seek to use its provisions in order to protect themselves from liability. To what extent must the court have regard to the provisions in SARHA 2015? In my view the court will, of course, have a duty to consider the provisions of the SARHA 2015 where applicable but in practice I expect the court will still ultimately be guided by the established legal principles of negligence (ie duty of care, liability and causation). I cannot realistically see a court finding in favour of a defendant where they have been shown to have breached their duty of care and caused harm, regardless of whether they were predominantly responsible in their approach and/or acting heroically. Are there concerns around the definition of heroism? The word hero conjures up all sorts of ideas about what a hero really is. A man in a cape and tights wearing their underpants over the top, or burly firemen running into a burning building to rescue the occupier. Both of which probably fit the bill for being a typical hero, but just what is heroic heavily depends on the circumstances and context of the case. Take the following example. A surgeon performing surgery on a child discovers, during the procedure, a life threatening tumour. To remove it That said, stranger things have happened in our courts of late, so anything is possible. Interviewed by Hannah Giles. The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor. First published on Lexis PSL Personal Injury. To find out more about LexisPSL Personal Injury, or to have a free trial, visit lexisnexis.co.uk/pimag15/psl 6

7 Latest whiplash reforms MedCo from 6 April 2015 The next tranche of the government s whiplash reforms came into force on 6 April This instalment introduces the contentious and hotly debated MedCo portal. For the uninitiated the MedCo website describes the portal as a new system for sourcing medical reports in soft tissue injury claims brought under the Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents (the RTA PAP). It will no longer be possible for claimant lawyers to source reports from an individual or organisation with which they have a financial link. The changes aim to: address concerns around the independence and quality of medical reports assist in the prevention of fraudulent claims What are the main changes? Changes are made to the: RTA protocol CPR and 45.29I Practice Direction 35 Practice Direction 8B Practice Direction 16 to implement the new requirement in relation to medical reports and the further requirements in relation to claimant representatives carrying out claims history checks for potential claimants. Table of amendments (changes are effective from 6 April 2015 unless otherwise stated): The main changes are detailed in the table below for completeness, but essentially, the amendments bring into force two procedural changes: For all Claim Notification Forms (CNFs) sent on or after 6 April 2015*, the first report in a soft tissue injury (whiplash) claim must be a fixed cost medical report commissioned via the MedCo portal from experts who have been accredited, and selected via MedCo. With effect from 1 January 2016 medical experts must be accredited by MedCo in order to provide the initial fixed cost medical report in a soft tissue injury claim. For full details of the amendments to the RTA PAP and the Practice Directions and Transitional Provisions, see the 78th Update to the CPR Making Document Practice Direction Amendments Lexis PSL 7

8 Section Amendment Effected by Details Procedural Instrument RTA protocol Lexis PSL Paragraph 1.1 of the RTA Protocol: Definitions New paragraph A1 The Civil Procedure (Amendment No. 8) Rules 2014 SI 2014/3299 (A1) accredited medical expert means a medical expert who (a) prepares a fixed cost medical report pursuant to paragraph 7.8A(1) before 1 January 2016 and, on the date that they are instructed, the expert is registered with MedCo as a provider of reports for soft tissue injury claims; or (b) prepares a fixed cost medical report pursuant to paragraph 7.8A(1) on or after 1 January 2016 and, on the date that they are instructed, the expert is accredited by MedCo to provide reports for soft tissue injury claims;] See also amendments to paragraph 7.8A and the new 7.8B. The medical expert must be provided with the defendant s account of the accident (if it is different) to the expert and a second report is only justified in certain circumstances. Stage 1 Completion of the Claim Notification Form (CNF) New paragraph 6.3A The Civil Procedure (Amendment No. 8) Rules 2014 SI 2014/3299 Paragraph 6.3A (1) Before the CNF is sent to the defendant pursuant to paragraph 6.1, the claimant s legal representative must undertake a search of askcuepi (website at: and must enter in the additional information box in the CNF the unique reference number generated by that search (2) Where the claimant has sent the CNF without the unique reference number required by subparagraph (1), the defendant may require the claimant to resend the CNF with the reference number inserted. The period in paragraph 6.11 or 6.13 starts from the date the CNF was sent with the unique reference number. (3) Where the claimant has sent the CNF without the unique reference number required by subparagraph (1) and the defendant does not require the claimant to resend the CNF pursuant to subparagraph (2), the defendant must respond in accordance with paragraph 6.11 or 6.13.] NB: See also the table in paragraph 4.7, substituted paragraph 5.10, new paragraph 5.10A and amended paragraph 6.8. The unique reference number generated by the CUEPI search must be on all claim notification forms sent on or after 1 June Procedural Instrument CPR & 45.29I Substituted paragraph 2A(a) The Civil Procedure (Amendment No. 8) Rules 2014 SI 2014/3299 CPR and 45.29I are amended to insert a paragraph 2A(a): (2A) In a soft tissue injury claim to which the RTA Protocol applies, the only sums (exclusive of VAT) that are recoverable in respect of the cost of obtaining a fixed cost medical report or medical records are as follows (a) obtaining the first report from any expert permitted under 1.1(12) of the RTA Protocol: 180;[obtaining the first report from an accredited medical expert selected via the MedCo Portal: 180;] New paragraph 2A The Civil Procedure (Amendment No. 8) Rules 2014 SI 2014/3299 Failure to comply with RTA protocol paragraph 6.3A (2A) in rule 45.24, to provide that claimants who do not comply with paragraph 6.3A(2) of the RTA Protocol (requirement to include the unique reference number on the Claim Notification Form as evidence of having undertaken a search of askcuepi.com) will only be awarded the costs of their claim in exceptional circumstances 8

9 Section Amendment Effected by Details Procedural Instrument Practice Directions PD 35 New paragraph 2.6 The Civil Procedure (Amendment No. 8) Rules 2014 SI 2014/3299 Paragraph 2.6 (1) In a soft tissue injury claim, where permission is given for a fixed cost medical report, the first report must be obtained from an accredited medical expert selected via the MedCo Portal (website at: org.uk). (2) The cost of obtaining a further report from an expert not listed in rule 35.4(3C)(a) to (d) is not subject to rules 45.19(2A)(b) or 45.29I(2A)(b), but the use of that expert and the cost must be justified. (3) Accredited medical expert, fixed cost medical report, MedCo, and soft tissue injury claim have the same meaning as in paragraph 1.1(A1), (10A), (12A) and (16A), respectively, of the RTA Protocol. Lexis PSL PD 8B Substituted paragraph 3.5 The Civil Procedure (Amendment No. 8) Rules 2014 SI 2014/3299 Paragraph 3.5 Accredited medical expert, fixed costs medical report, MedCo and soft tissue injury claim have the same meaning as in paragraph 1.1(A1), (10A), (12A), and (16A), respectively, of the RTA Protocol. PD 8B Amended paragraph 6.1A The Civil Procedure (Amendment No. 8) Rules 2014 SI 2014/3299 Paragraph 6.1A (1) In a soft tissue injury claim, the claimant may not proceed unless the medical report is a fixed cost medical report. Where the claimant includes more than one medical report, the first report obtained must be a fixed cost medical report [from an accredited medical expert selected via the MedCo Portal (website at: and any further report from an expert in any of the following disciplines must also be a fixed cost medical report (a) Consultant Orthopaedic Surgeon; (b) Consultant in Accident and Emergency Medicine; (c) General Practitioner registered with the General Medical Council; (d) Physiotherapist registered with the Health and Care Professions Council. (2) [The cost of obtaining a further report from an expert not listed in paragraph (1)(a) to (d) is not subject to rule 45.19(2A)(b), but the use of that expert and the cost must be justified.] PD 16 Amended paragraph 4.3A The Civil Procedure (Amendment No. 8) Rules 2014 SI 2014/3299 Paragraph 4.3A As per paragraph 6.1A in PD 8B above How will the Medco portal work? From 6 April 2015 medico-legal experts and MROs will need to be registered with MedCo in order to provide medico-legal reports for RTA soft tissue injury claims brought under the RTA PAP. Medical experts wanting to provide initial reports in soft tissue injury cases must be accredited by MedCo from 1 January Claimant representatives and compensators, as commissioners of medical reports, are now able to submit an application to register MedCo users will be able to search for either individual experts or MROs who can provide the initial medico-legal report for RTA soft tissue injury claims as defined by 1.1(16A) of the Pre-Action Protocol: soft tissue injury claim means a claim brought by an occupant of a motor vehicle where the significant physical injury caused is a soft tissue injury and includes claims where there is a minor psychological injury secondary in significance to the physical injury. The system will return a choice of randomly generated results and the user will be able to select from those results which individual 9

10 Lexis PSL experts/mro to instruct. Users will be given the choice of one high-volume national MRO and six smaller ones, or seven medical experts, the MoJ has decided. The MoJ have produced an overview of how the search facility will work: What are the intended benefits? The MoJ s intention is that the new process will crack down on fraud and abuses of the system which have for years lead to honest drivers facing unfairly increased insurance premiums. The MoJ considers that its implemented reforms so far have already had a major positive impact - combatting the compensation culture and rising premiums. The new process aims to ensure all medical reports are above suspicion. The Civil Justice Council has expressed its concern that MedCo, as an IT hub, should not be unduly restrictive or risk any perception of anti-competitive practice, and should accommodate solicitors who prefer not to approach individual experts. Other views include that MedCo should be available to litigants in person for the sake of consistency, and should include helpful guidance to litigants in person. A number of Personal Injury firms have recently joined together to submit an application for judicial review of the reforms. They argue that ministers failed to consult adequately before announcing the amendments and that the restrictions are irrational and unfair. *According to the Claims Portal website around 900,000 RTA claim files were created during What are the concerns or anticipated issues? The introduction of the MedCo portal has been widely criticised. Essentially, concerns are about the random selection of experts and that it may interfere with the ability of claimant and defendant solicitors to control the production of a report within the relevant service requirements, potentially having a negative effect on one or both parties. 10

11 Checklist: New Rule 36 Making a Part 36 offer This checklist identifies the key factors that you should consider when drafting a Part 36 offer as considered under the New Rule 36 in force as of 6 April It is assumed that: the offer is to be made on/after 6 April 2015 and therefore the New Rule 36 will apply in its entirety the Part 36 offer is a global offer (ie it is not one which is limited to a specific part(s) or issue(s) in the claim) Lexis PSL Consideration Comment New Rule 36 provision The claim Offer can be made in relation to whole or any part or issue of: a claim, counterclaim or other additional claim, or an appeal or cross-appeal from a decision made at trial You cannot make a Part 36 offer in respect of an appeal from an interlocutory decision New Rule 36.2(3)(a)(b) When to make offer Offer can be made at any time before or after proceedings start. Make a fresh offer if matter goes to appeal New Rule 36.7(1) and New Rule 36.4(1) Relevant period For offers 21 or more days before trial, state relevant period, usually 21 days from date offer is served. If made less than 21 days before trial then relevant period lasts until trial ends New Rule 36.3(g) and New Rule 36.5(1)(c) Content of offer Offer must: be in writing. You can use Form N242A but this is not compulsory make clear it is made pursuant to Part 36 specify a relevant period of not less than 21 days within which the defendant will be liable for the claimant s costs if the offer is accepted state whether it relates to whole or part of claim or specified issue(s) and, if so, which one(s) state whether it takes into account counterclaim provide, as required, certain additional information relevant in personal injury cases (New Rules 36.5(3), 36.18, and 36.22) If defendant is making offer and it is to pay a sum of money in settlement of the claim, it must be an offer to pay a single sum of money. If the offer is to pay some/all of that sum at a date later than 14 days following the date of acceptance, it will not be treated as a Part 36 offer unless the offeree accepts the offer New Rule 36.5 New Rule

12 Consideration Comment New Rule 36 provision Offer in split trial case If proceedings will/are likely to involve a split trial, be aware that a global offer or one which includes issue(s) that are to be covered in the preliminary issue trial (eg if there is a preliminary trial on liability or limitation) cannot be accepted until seven days after judgment is handed down in the trial of specific issues New Rule Lexis PSL Time-limit for acceptance Offer can (if desired) include a term providing that the offer will be treated as automatically withdrawn if not accepted by a specified date/event (provided the requirement for a relevant period is not compromised) New Rule 36.9(4)(b) Interest Offer will be treated as inclusive of interest until end of relevant period New Rule 36.5(4) Clarity of terms Minimise risk of offeree seeking clarification of terms, delaying date of offer New Rule 36.8 Serving offer Offer is made when served on offeree. Serve on offeree s legal representative if they have one. Serve by fax before 4.30pm on a business day for quickest service (note, however, that dates of deemed service under CPR 6.26 apply only for service effected within the United Kingdom). Whatever ever method of service is chosen, calculate (1) date of service and (2) when relevant period ends New Rule 36.7 New Practice Direction 36A, para 3.1 CPR 6.26 Costs to date If acting for claimant, prepare details of claimant s costs to date (including pre-action costs). If the offer is accepted within the relevant period, the defendant will pay claimant s costs until acceptance (on standard basis if not agreed) New Rule 36.13(1) New Rule 36.13(4)(b) Withdrawing or varying the offer to be less favourable Court permission needed if within the relevant period. Serve written notice of withdrawal or change on offeree s legal representative if they have one. Serve by fax before 4.30 pm on a business day for quickest service (if serving within the United Kingdom). Withdrawal/variation takes effect on expiry of relevant period unless, in that time, the offeree serves notice to accept the original offer. If the offeree does so, file an application (within seven days of offeree s notice or earlier if trial is earlier) seeking court permission to withdraw/vary the offer. Court will give permission if there has been a change in circumstance and it is in the interests of justice to give permission New Rule Varying offer to be more favourable to offeree Can vary the offer to make it more favourable to the offeree at any time, this will take effect as a new offer (with a new relevant period). The original offer is not withdrawn and therefore may be relevant on the question of costs should neither offer be accepted New Rule 36.9(5) To find out more, visit lexisnexis.co.uk/pimag15/psl 12

13 Table of changes: New Rule 36 v old CPR 36 rules This Practice Note provides a summary analysis, in table format, of the New Rule 36 in force as of 6 April 2015 as against the existing CPR 36 rules (which remain in force until 5 April 2015). It shows you where to find the existing rules in the new Part as well as identifying wholly new provisions and amended provisions. Note: although the New Rule 36 applies in its entirety only to Part 36 offers made on/after 6 April 2015, as of that date certain of its provisions (New Rule 36.3: definitions, New Rule 36.11: acceptance of a Part 36 offer, New Rule 36.12: acceptance of a Part 36 offer in a split trial case and New Rule 36.16: restriction on disclosure of a Part 36 offer) will also apply to Part 36 offers made before that date where trial (whether of the whole claim or a part(s)/issue(s)) is due to commence on/after 6 April Lexis PSL Note: this table does not consider those provisions relating to Part 36 offers concerning low value RTA or EL/PL protocol cases. Nature of provision Old (pre 6 April 2015) CPR 36 rule New Rule 36 (in force as of 6 April 2015) Has it changed much? Scope of Part New Rule 36.1 Confirms that Part 36 is a self-contained procedural code about offers to settle made pursuant to the procedure in Part 36. Scope of this Section (ie Section I) New Rule 36.2 Confirms that New Rule 36, Section I does not apply to an offer to settle to which New Rule 36, Section II applies. Confirms that you can still make an offer to settle in whatever way you wish but if the offer is not made in accordance with New Rule 36.5 it will not have the consequences set out in New Rule 36, Section I. Confirms that for a non-part 36 compliant offer the court will still be required, by virtue of CPR 44.2, to take into account an offer to settle which does not have Part 36 consequences. Counterclaims New Rule 36.2 Specific provision now that you can make a Part 36 offer in respect of the whole or any part or issue of a counterclaim or other additional claim. This deals therefore with the issue as it arose in F&C Alternative Investments. Appeals CPR 36.3(4) New Rule 36.2(3)(b) New Rule 36.4 CPR 36 definitions Requirements for a valid Part 36 offer Various throughout the existing CPR 36 New Rule 36.3 Confirmation can only make a Part 36 offer on an appeal from a trial (not an appeal from an interlocutory application). Relocation of the provision that Part 36 costs consequences of first instance proceedings do not extend to appeals, unless the Part 36 offer is being made in appeal proceedings. Check out the corresponding term table in New Rule 36.4 to guide you through using New Rule 36 if making a Part 36 offer in appeal proceedings. Key definitions are now located in one place, including definitions to cover split trial scenario. New definitions as to: trial : can mean a trial of all the issues or a trial only of liability, quantum or some other issue a trial is in progress : defined to mean from the time the trial starts until judgment is given/handed down a case is decided : when all the issues in the case have been determined, whether at one or more trials trial judge : includes the judge (if any) allocated in advance to conduct a trial relevant period : maintains essentially the same definition as under the existing CPR 36.3(1)(c) CPR 36.2 New Rule 36.5 Not much has changed but still important: you no longer need to state on the face of your offer that it is intended to have the consequences of Section I of CPR 36 rather, your offer must make clear that it is made pursuant to Part 36 a subtle but helpful distinction to deal with the so-called technicality issue as seen in cases such as Thewlis. Defendant s offer CPR 36.4 New Rule 36.6 Maintains essentially the same definition as under the existing CPR Part 36. When can a Part 36 offer be made? CPR 36.3(2) New Rule 36.2(3)(b) and New Rule 36.7 Reorganised the location but the basics remain the same: you can make a Part 36 offer before commencement of proceedings and you can make a Part 36 offer in appeal proceedings. 13

14 Lexis PSL Nature of provision Serving a Part 36 offer When and how to withdraw a Part 36 offer Seeking clarification of a Part 36 offer When and how to accept a Part 36 offer Accepting a Part 36 offer in split trials Old (pre 6 April 2015) CPR 36 rule New Rule 36 (in force as of 6 April 2015) Has it changed much? CPR 36.7 New Rule 36.7 A Part 36 offer is made when it is served on the offeree. Although not new, the drafters resisted the temptation to further define what is meant by served on the offeree instead relying on the already set out concepts of service under CPR 6 which is now specifically referred to in New Rule CPR 36.3(5)- (7) and CPR 36.7 New Rule 36.9 and New Rule You can still vary or withdraw a Part 36 offer after expiry of the relevant period if it has not already been accepted without the court s permission (New Rule 36.9(4)(a)) and you are still required to serve notice to do so, such notice taking effect when it is served on the offeree (New Rule 36.9(2)(3)). Some new provisions, however: Now, where the terms of your Part 36 offer specify a time when it will expire if not already accepted (provided such time limit is not within the relevant period) then your offer will be treated as having been automatically withdrawn after expiry of the relevant period without you needing formally to serve a notice of withdrawal (New Rule 36.9(4)(b)). A welcome provision for Part 36 offerors as it will bring an end to overlooked but unwithdrawn Part 36 offers. For the first time there is express provision regarding varying a Part 36 offer so as to make it more advantageous to the offeree. Such variation may be made at any time and will not be treated as a withdrawal of the original offer, but as a new Part 36 offer with a new relevant period. Thus both the original and the new offer would remain open for acceptance. The effect of two such offers still being open comes in terms of costs consequences for unaccepted offers (New Rule 36.17). If you want to withdraw or adversely vary your Part 36 offer within the relevant period New Rule applies. You may do so but this does not prevent the offeree from still accepting the original offer if they do so within the relevant period. Where they do so then you can only withdraw/adversely vary your Part 36 offer by then applying (within seven days of the offeree s acceptance or earlier if trial is earlier) to the court for permission. Such permission will only be given if there has been a change of circumstance and it is in the interests of justice. If the offeree does not accept your original offer within the relevant period then your withdrawal/adverse variation of it takes effect on expiry of the relevant period (New Rule 36.10(2)(3)). This should now deal with issues as they arose in the Evans case. As before: The costs consequences for failing to accept a Part 36 offer as set out in New Rule 36.17(3)(4) do not apply where the Part 36 offer has been withdrawn (New Rule 36.17(7)(a)). If the offeree has beaten a Part 36 offer where the terms were varied so as to become less advantageous to the offeree then, again, the costs consequences of New Rule do not apply (New Rule 36.17(7)(b)). However, New Rule confirms that CPR 44.2 requires the court to consider an offer to settle that does not have the costs consequences set out in New Rule 36, Section I and so, presumably, such an offer may yet be capable of consideration under CPR 44.2 when it comes to costs. CPR 36.8 New Rule 36.8 No change. Provision is replicated in full in New Rule CPR New Rule The provisions are generally the same, with one key exception: under existing CPR 36.9(5) you cannot accept a Part 36 offer after the end of trial but before judgment is handed down unless the parties agree. This provision has been removed. Rather, it is now apparent from New Rule 36.3(d) and New Rule 39.11(3)(d) as to when a trial is in progress that, in order to accept a Part 36 offer after trial but before judgment is handed down/given, you would need the court s permission (not simply the parties agreement). It remains the case where the court s permission is required to accept a Part 36 offer that, unless the parties agree, the court must (rather than will, if there is a distinction to be drawn) make an order dealing with costs and may order that the costs consequences of accepting a Part 36 offer as set out in Part 36 (ie in New Rule 36.13) apply (New Rule 36.11(4)). New Rule This is an entirely new provision. It provides that where you have a split trial, you cannot accept a Part 36 offer in respect of an issue which has already been decided and that you cannot accept any other Part 36 offer until seven clear days after judgment has been handed down in the decided issue(s). This is to protect those Part 36 offerors who have made separate issue-based Part 36 offers and wish to withdraw those Part 36 offers made in respect of (as yet) undecided issues as a consequence of the judgment given in the already decided issues. 14

15 Nature of provision Costs consequences of accepting a Part 36 offer The non-costs consequences of accepting a Part 36 offer Accepting a Part 36 offer made by one but not all defendants Disclosing the existence of a Part 36 offer Old (pre 6 April 2015) CPR 36 rule New Rule 36 (in force as of 6 April 2015) Has it changed much? CPR New Rule No significant change although some points of clarification: Where a Part 36 offer is accepted within the relevant period the claimant is entitled to his costs of the proceedings and those are now specifically stated to include the claimant s recoverable pre-action costs (New Rule 36.13(1)). Where a defendant has made a Part 36 offer which relates to only part of the claim and the claimant accepts this and abandons the balance of the claim, under existing CPR the claimant is entitled to its costs of the proceedings up to the date of acceptance unless the court orders otherwise. Now New Rule 36.13(2) specifies that in such a case the claimant will only be entitled to its costs of such part of the claim (as was accepted under the Part 36 offer) and not costs of the proceedings more generally, again, unless the court orders otherwise. New Rule 36.13(3) clarifies that costs are to be assessed on the standard basis if not agreed unless the recoverable costs are fixed costs. New Rule 36.13(4) makes it clear that the court will determine the costs liability (unless the parties agree it) where: the Part 36 offer was made less than 21 days before trial is accepted, or the Part 36 offer relates to the whole of the claim is accepted after expiry of the relevant period, or the Part 36 does not relate to the whole of the claim and is accepted at any time Where the Part 36 offer relates to the whole of the claim and was accepted after expiry of the relevant period but the parties cannot agree the costs such that the court order them, New Rule 36.13(5) changes the wording subtly so, instead of talking about the claimant s entitlement and the offeree s liability, the language used instead is that the court must order that the claimant be awarded its costs up to the date of expiry of the relevant period and the court must order that the offeree do pay the offeror s costs from the date of expiry of the relevant period to the date of acceptance of the offer. In such case, although the costs consequences of accepting a Part 36 offer are, under the existing regime, to be ordered unless the court orders otherwise, New Rule 36.13(5)-(6) together impose a requirement that the court must make such order unless it considers it unjust to do so and, in considering whether it would be unjust, the court is required to take into account all the circumstances of the case including the matters listed in New Rule 36.17(5). This requirement under New Rule 36.13(6) is a new provision. CPR New Rule Under existing CPR where a defendant made an offer that was/included a single sum and that sum was not paid within 14 days of acceptance of the offer, the claimant was entitled to enter judgment for that sum. There was no corresponding provision where the offer to accept a single sum in settlement of the claim emanated from the claimant (rather than the defendant). This meant that an unscrupulous defendant could accept a claimant s Part 36 offer to settle on payment of a single sum and then not pay that sum, this did not give the claimant an automatic right to enter judgment on that sum. This lacuna has now been rectified in the provision appearing as New Rule 36.14(6)-(7). Otherwise the non-costs consequences of accepting a Part 36 offer remain as per the existing regime. CPR New Rule The New Rule maintains essentially the same definition as under the existing CPR without substantial change. CPR New Rule The key change here is to accommodate the situation where a Part 36 offer has been made in relation to one or more issue(s) in a case and there has been a split trial. In such case, it is now clear under New Rule 36.16(3)(d) and New Rule 36.16(4) that: You can disclose to the trial judge the existence and terms of a Part 36 offer which is limited to the issues which have been decided in the case However, if the Part 36 offer is a global offer or includes other issues that have not yet been decided, you can only disclose the existence of the offer to the trial judge but not its terms unless one of the criteria in New Rule 36.16(3)(a)-(c) applies This is a new provision to deal with the so-called Ted Baker issue. Lexis PSL 15

16 Lexis PSL Nature of provision Costs consequences of not accepting a Part 36 offer Personal Injury claims for pecuniary loss Offer to settle a claim for provisional damages Costs consequences of acceptance where Section IIIA of CPR 45 applies Deduction of benefits and lump sum payments Costs budgeting and Part 36 Old (pre 6 April 2015) CPR 36 rule New Rule 36 (in force as of 6 April 2015) Has it changed much? CPR New Rule The same basic provisions apply where a party fails to accept a Part 36 offer, ie certain specified costs consequences will apply where either the claimant obtains a judgment more advantageous than a defendant s Part 36 offer or the claimant obtains a judgment which is at least as advantageous as the proposals contained in its own Part 36 offer. There has been no change in terms of identifying what is more advantageous or at least as advantageous in this respect. The only key changes are: New Rule 36.17(3)(a) and New Rule 36.17(4)(b) make it clear that in ordering costs such costs are to include any recoverable pre-action costs. There has been a change from use of the word that the court will make such costs orders (unless unjust to do so) to it must make such orders (unless unjust to do so) although it is not obvious that there is necessarily any practical consequence in this difference in terminology. New Rule 36.17(4)(d) makes it clear that the additional amount that must be awarded where the claimant obtains judgment at least as advantageous as his own unaccepted Part 36 offer, can only be awarded if the case has been decided (ie all issues in the case have been decided) and there has not been a previous order of costs under New Rule 36.17(4) and also confirms that the additional amount applies to all cases, including those where the amount awarded by the court exceeds 1 million (by removing this upper threshold). New Rule 36.17(5)(e) is new and is possibly one of the most interesting of the new Part 36 provisions. In determining whether an order under New Rule 36.17(3) or New Rule 36.17(4) is unjust, the court must consider the factors listed in New Rule 36.17(5). New Rule 36.17(5)(e) is a newly added factor which requires the court to consider whether the unaccepted Part 36 offer was a genuine attempt to settle the proceedings. Its inclusion arose out of the issue of cynical claimant offers, ie those claimant offers that were made at such a level as to be almost impossible to accept as conferring no real benefit of settlement on the defendant and so were made with little inclination to settle but as a strategic attempt to recover on costs under the existing provisions of CPR when the defendant did not accept the offer. They were typified in cases such as Huck. Although personal injury claimant lawyers have argued that, in an open-and-shut claim, an offer to settle for 95% - ie a discount of 5% - can represent a significant concession of real value to the defendant. However, it was outside the remit of the Civil Procedure Rules Committee sub-committee s work on revising Part 36 to consider those specific types of case and, instead, it elected to include this genuine attempt to settle requirement as a means of preventing cynical claimant offers. Quite what tools will be available to the court to determine whether or not the unaccepted offer was a genuine attempt to settle remains to be seen. Otherwise the costs consequences of failing to accept a Part 36 offer remain unchanged. CPR 36.5 and CPR 36.6 New Rule The new provisions have moved to New Rule but we do not consider here the substance of those changes. CPR 36.6 New Rule The new provisions have moved to New Rule but we do not consider here the substance of those changes. CPR 36.10A New Rule and New Rule New Rule New Rule The new provisions have been moved to New Rule and New Rule but we do not consider here the substance of those changes. There is new provision at New Rule but we do not consider here the substance of these provisions. This is a new provision. It provides that in any case where the offeror is treated as having filed a costs budget limited to applicable court fees, or is otherwise limited in their recovery of costs to such fees, then the meaning of costs for the purposes of: New Rule 36.13(5)(b) (the offeree do pay the offeror s costs for the period from expiry of the relevant period to acceptance of the Part 36 offer, unless unjust so to order) New Rule 36.17(3)(a) (costs consequences where the claimant obtains a judgment more advantageous than the defendant s unaccepted Part 36 offer) New Rule 36.17(4)(b) (costs consequences where the claimant obtains a judgment at least as advantageous as the proposals in its own, unaccepted, Part 36 offer) means: (a) In respect of those costs subject to any such limitation, 50% of the costs assessed without reference to the limitation, together with (b) Any other recoverable costs The effect is intended to maintain the ability of an offeror to seek early effective settlement in the claim (ie some cost benefit to doing so) even where such offeror has been punished in respect of recoverable costs under the costs budgeting regime. 16

17 Butterworths Personal Injury Litigation Service Butterworths Personal Injury Litigation Service provides practical and comprehensive coverage of every aspect of personal injury litigation. Edited by some of the UK s most senior and respected personal injury lawyers, it offers expert guidance on a whole range of topics from costs, RTAs, fatal accidents, clinical negligence, psychiatric injury and limitation, to highways, children and criminal injuries compensation. It also incorporates the Personal Injuries Damages Statistics book (including the Ogden Tables), Judicial College Guidelines, quantum summaries, case digests and key cases, anatomical drawings and a glossary of medical terms. Quarterly bulletins feature articles of topical interest, notes on recent cases, and information on legislation mean that subscribers have the latest information to hand. BPILS The subscription consists of six looseleaf volumes plus approximately seven service issues per year (invoiced separately on publication), Letters, Forms, and Pleadings CD-ROM and quarterly Bulletins. Butterworths Personal Injury Litigation Service is also available online. Medical drawing of a ruptured disc. Medical drawing of the chest. To find out more or to buy Butterworths Personal Injury Litigation Service, visit lexisnexis.co.uk/pimag15/bpils 17

18 Personal Injury Webinars The Butterworths Personal Injury Law Webinars programme offers you the opportunity to hear about the latest developments from the leading experts in the field without leaving your desk, bringing you up-to-date whilst saving you the most valuable commodity time. Webinars Personal Injury Law Webinars Schedule Broadcast live from 12:30-13:30. *These webinars are available to watch on demand Code Title Date WI0115 Clinical negligence - implications of the NHS mediation service * 13/01/2015 WI0215 Latest developments with regards to CMCs* 02/03/2015 WI0315 Personal injury litigation post-jackson 27/04/2015 WI0415 Industrial disease 29/05/2015 WI0515 Maximising damages 19/06/2015 WI0615 Fraudulent claims 07/07/2015 WI0715 Employers liability 21/09/2015 WI0815 Asbestos claims 21/10/2015 For more details on LexisNexis webinars, visit lexisnexis.co.uk/pimag15/webinars 18

19 Lexis PSL Proving negligence-duty of care and the assumption of risk Andrew Wilson In the vast majority of cases, the claimant personal injury practitioner will have very little difficulty in identifying a person (or entity) who owed a duty of care to the claimant and who therefore, on the face of it, can be sued. Where liability is in issue, the argument often relates not to the existence or otherwise of a duty of care, but to whether the defendant has breached its duty of care. However, in some cases the practitioner will be required to address the question of whether the identified potential defendant owes a duty of care at all. The purpose of this practice note is to pick out some broad principles from cases decided by the Court of Appeal and the Supreme Court, while echoing the note of caution sounded by Lady Hale in the Supreme Court in the case of Woodland v Essex County Council: References: Woodland v Essex County Council [2013] UKSC 66 But the words used by judges in explaining why they are deciding as they do are not to be treated as if they were the words of statute, setting the rules in stone and precluding further principled development [of the duty of care] should new situations arise. The cases in which the appeal courts have grappled with these issues cover a broad range. However, some specific appeal court decisions have arisen from some particular types of relationship or accident circumstances: injuries suffered during hazardous activities duties of householders or occupiers of property to visitors (invited or otherwise) and independent contractors non-delegable duty of care of schools to pupils (and of health trusts to patients) Injuries suffered during hazardous activities There is a risk inherent in many recreational activities, such as sport and adventure activities, typically climbing. When adults, fully aware of the risk, suffer injury while engaged in the risky activity, the question arises whether the organiser of the activity owes a duty of care to the injured person. In the case of Poppleton v Trustees of the Portsmouth Youth Activities Committee the judgment of May LJ, which is the only reasoned judgment, begins with what must be taken to be a very firm proposition: References: Poppleton v Trustees of the Portsmouth Youth Activities Committee [2008] EWCA Civ 646, [2008] All ER (D) 150 (Jun) Adults who choose to engage in physical activities which obviously give rise to a degree of unavoidable risk may find that they have no means of recompense if the risk materialises so that they are injured. Poppleton was rendered tetraplegic by a fall at indoor climbing premises run by the defendant when, during a climbing activity known as bouldering, he attempted to jump from one wall to another. The evidence at first instance, when the court had found in favour of the claimant subject to 75% contributory negligence, was that: he was an inexperienced climber he had been given no instruction or explanation of the risks he was shown no rules, although there were rules posted on a board outside the climbing room (including an injunction not to jump from the walls) he was not asked about his climbing ability there was no supervision 19

20 Lexis PSL The Court of Appeal laid emphasis on a finding that there were obvious and inherent risks in this activity. In such circumstances the defendant owed no duty to warn Poppleton of the danger, to instruct him or to supervise him. May LJ did make reference to cases which might be distinguishable if the defendant has in some relevant way assumed responsibility for the claimant s safety. The case of Wilson v GP Haden t/a Clyne Farm Centre, a decision of the High Court, is an example of such an assumption of responsibility. Indeed, the judgment of Swift J gives no indication that any issue was raised by the defendant as to the existence of a duty of care, the argument being in relation to the issues of breach of duty and causation. The claimant Wilson was a scout leader accompanying a party of scouts on a visit to the defendant s outdoor activity centre where there was a cross country assault course, featuring a particular challenge called the Burma Bridge, a construction of platforms in trees and a fireman s pole. Wilson suffered serious injury in a fall when he tried unsuccessfully to slide down the pole. The evidence was clear, that the defendant had carried out a risk assessment and provided training notes to instructors. However, the instructor on the day had simply advised Wilson and others to hug the pole. The distinction between the two cases is that in Poppleton the defendant simply afforded the claimant the opportunity to pursue the risky activity whereas in Wilson the defendant assumed a duty by providing instruction and supervision. References: Wilson v GP Haden t/a Clyne Farm Centre [2013] EWHC 229 (QB). February 25, 2013 The case of Uren v Corporate Leisure Ltd and MOD was concerned with very serious injury suffered by the claimant during an It s a Knockout style game which involved getting into an inflatable pool containing not water but plastic balls. The claimant went in head first, hit his head on the bottom and suffered injury which left him tetraplegic. References: Uren v Corporate Leisure Ltd and MOD [2013] EWHC 353 (QB) The judge at first instance had held that bearing in mind the social value of the game, the defendant had not been in breach. However, the Court of Appeal sent the matter back for retrial before a different judge in the High Court with the issue of breach of duty to be limited to the question of the degree of risk of serious injury entailed in the game as played and whether that degree of risk was acceptable in the light of the social value of the game. Dame Janet Smith in the Court of Appeal and then the judge on the retrial emphasised the high importance of risk assessment. While there was a balance to be struck between risk and the encouragement of socially valuable or desirable activity, the social value did not obviate the need for full and careful risk assessment. The judge on the retrial, holding in the claimant s favour, found that the defendant ought to have foreseen the risk of serious injury from head first entry. He found that risk to have been more than minimal. Note: Section 1 of the Compensation Act 2006, which applies to desirable activities, does not have the effect of relieving a defendant of a duty of care. Rather, in assessing whether a defendant should have taken particular steps to meet a standard of care, the court should have regard to whether a requirement to take those steps might discourage the organisation of or involvement with a desirable activity. See: Uren v Corporate Leisure Ltd and MOD. Duties of householders to independent contractors The case of Biddick v Morcom arose from an accident suffered by Morcom, a skilled tradesman, when he was fitting insulation to the loft hatch of the defendant s home. The defendant had offered to stand directly under the loft hatch holding a pole to the lock of the hatch to make sure that the hatch could not open. Although the claimant did not think this necessary he agreed to it. The defendant took up position but then left the hatch to answer the phone, allowing the lock to come loose. The claimant fell through the hatch, suffering serious injury. References: Biddick (deceased) v Morcom [2014] EWCA Civ 182 The claimant had conceded that he had not placed reliance on the defendant and therefore the defendant argued that no duty of care should be imposed on him. The Court of Appeal, rejecting that argument, found that in taking on the responsibility to hold the pole in place on the lock, the claimant assumed a duty to discharge that task with care. Duties of landowners The House of Lords in Tomlinson v Congleton Borough Council was concerned with an accident suffered by a young man who was a lawful visitor to a park but who, he conceded, became a trespasser when he (ignoring notices saying: Dangerous Water. No Swimming ) dived into a lake in the grounds. References: Tomlinson v Congleton Borough Council [2003] UKHL 47 Under the Occupiers Liability Act 1984 an occupier owes a duty in respect of a risk of injury arising by reason of danger due to the state of the premises or to things done or omitted to be done on them. Here, Tomlinson knew the lake well and even if he had not, it contained no dangers which would not have been expected. He was a person of full capacity who engaged in an activity which had inherent risk. Hoffmann LJ found that the only risk arose from his decision to dive in to the murky water and not out of the state of the premises. Accordingly there was no risk of a kind which gave rise to a duty, whether under the 1957 or 1984 Act. Although Hutton LJ disagreed with Hoffmann LJ on the issue of whether the risk arose from the state of the premises he found it contrary to common sense and therefore not sound law to expect an occupier to provide protection against an obvious danger on his land arising from a natural feature and to impose a duty on him to provide that protection. Hutton LJ went on to reject the notion that the council should be discouraged by the law of tort from providing facilities for the young. Duties of surveyors In Harrison v Technical Sign Co Ltd the Court of Appeal again considered the issue of the existence (or otherwise) of a duty or its extent. References: Harrison v Technical Sign Co Ltd [2013] EWCA Civ 1569 As they walked past a patisserie, the claimants were struck by a concrete fascia which fell from the building causing them serious injury. Amongst the companies sued were Cluttons, a firm of surveyors. The reason for involving them in the action was that three months before the accident the patisserie owners had requested that they attend the shop and examine some damage to a wooden box which housed the shop s awning. Cluttons attended as the landlord s agents to investigate claims made by the tenant (patisserie owner) that the damage had been caused by builders who had worked, on the landlord s instruction, on the 20

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