PERSONAL INJURY SEMINAR

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1 PERSONAL INJURY SEMINAR Recent Developments in Law and Practice Chaired by Alan Jeffreys QC Thursday, 2 nd October 2014

2 WHIPLASH: A POLITICAL RATHER THAN A MEDICAL DIAGNOSIS? Nigel Spencer Ley

3 The story so far February 2012 December 2012 October 2013 May 2014 August 2014 Whiplash summit in Downing Street Consultation Paper on reducing the number and costs of whiplash claims Government Response to Consultation Letter from Lord Faulks consulting on various specific proposals including fixed fees for medical reports Second letter from Lord Faulks and amendments to CPR and RTA Protocol

4 The evidence for a problem with whiplash (1)the number of RTA claims (of all sorts) is going up while the number of reported RTAs is going down (2)a greater percentage of the total RTA claims relate to whiplash claims in the UK than in the rest of Europe

5 Increase in reported numbers of RTA injury claims Between 2006 and 2012: RTA claims increased by 60% Clinical negligence claims also increased by 60%

6 Decrease in number of RTAs STATS19 shows: Decrease in RTAs since 1965 But DoT advises the figures are unreliable

7 Greater percentage of the total RTA claims relate to whiplash claims in the UK than in the rest of Europe United Kingdom: 76% Italy: 66% Norway: 53% France: 3%?

8 Miles of road per vehicle in 2002 UK: 30 million vehicles and total roads of 400,000km France: 35 million vehicles and total roads of 1,000,000km

9 Proposals in the December 2012 Consultation Paper (a) improving diagnosis of whiplash injuries by having medical panels appointed or accredited by the court (b) increasing the threshold of the small clams track for personal injury cases from 1,000 to 5,000 (c) giving the Information Commissioner more powers

10 Proposals in the October 2013 Response (a) creation of medical panels (b) no settlement without first obtaining medical evidence (c) encouraging insurers to share data on suspected fraudulent claims (d) more effective checks on clients (e) undertaking further research (f) banning cash inducements (g) encouraging the development of emergency braking systems

11 May 2014: First letter from Lord Faulks (a) fixed fees for medical reports in soft tissue injury cases (b) allowing the Defendant to provide its own factual version of the accident to the medical expert (c) prohibiting the Claimant or Defendant from having a financial interest in the medical agency used to commission the report

12 Changes coming into effect on 01/10/14 Changes apply to all claims for soft tissue injuries falling within the RTA Protocol i.e. claims up to 25,000 ( 10,000 if accident before 31/07/13)

13 Changes coming into effect on 01/10/14 (a) permission will initially only be given for one medical report which must be a fixed cost report (b) the maximum recoverable sum in respect of the first medical report is fixed at 180 (c) the treating doctor cannot write report

14 Changes coming into effect on 01/10/14 (d) the cost of a further report is only recoverable where justified and the fees are limited as follows: orthopaedic surgeon 420 accident and emergency consultant 360 general practitioner 180 physiotherapist 180

15 Changes coming into effect on 01/10/14 (e) the RTA Protocol has been amended banning either side from making offers until a fixed cost medical report has been obtained (f) no Part 36 costs protection for Defendant until a medical report has been served by Claimant

16 The future (a)accreditation of doctors (b)restrictions on medical reporting agencies

17 WHIPLASH: A POLITICAL RATHER THAN A MEDICAL DIAGNOSIS? Nigel Spencer Ley

18 PERSONAL INJURY SEMINAR Recent Developments in Law and Practice

19 LIMITATION IN PRACTICE GEORGINA CRAWFORD

20 This talk considers the Limitation Act 1980 and its application to some areas of personal injury, and covers: An overview of the Act Extension of time limits Contribution proceedings Sex abuse Abuse of process in re-issuing claims

21

22 An overview of the Act In theory, any claim that is brought after the expiry of the applicable time limit will be statute-barred. In practice, we know that the court has a great deal of discretion to extend the time limit

23 Section 11 Time limits

24 Date of knowledge Section 14 Sudden realisation

25 Therefore, time limit in PI claims: Either 3 years from the date of injury Or 3 years from the date of knowledge

26 What is knowledge? When a claimant first had knowledge of all of the following; 1. That the injury was significant 2. That the injury was wholly or partly attributable to D 3. D s identity; or 4. If not D, who

27 Actual v Constructive knowledge Actual Constructive Burden on C Subjective test Awareness of negligence as a matter of law irrelevant More straightforward Complicated by definition Facts ascertainable with expert help What can be imputed? Nash v Eli Lilly [1993] 4 All ER 383 A v Hoare [2008] UKHL 6

28 Defences are more successful now

29 Change afoot Adams v Bracknell Forest BC [2004] UKHL 29 [2005] 1 AC 76 Johnson v MOD and Hobourn Eaton Ltd [2012] EWCA Civ 1505

30 However. It s unlikely that this area of law will ever be straightforward Identifying a limitation problem at the earliest point is key Preliminary trial on the issue of limitation alone is advisable to reduce costs exposure.

31 Significant injury If the Claimant would reasonably have considered it sufficiently serious to justify his instituting proceedings for damages.

32 McCoubrey v MOD [2007] EWCA CIV 17 Re-established clearly that the seriousness test is mainly objective. The question whether an injury is significant must be decided by reference to the injury itself and not to its effect on the Claimant s career

33 Hoare Stubbings v Webb [1993] 1 All ER 322 overturned The House of Lords dismissed the relevance of mixed subjective-objective standards Tests for significant injury and constructive knowledge are now objective

34 Extension of time limits Section 33 Discretionary exclusion of the time limit if it appears to the court that it would be equitable to allow an action to proceed, having regard to the degree that to do otherwise would either unfairly prejudice the Claimant or unfairly prejudice the Defendant

35 Cairns and others v Tyler South Wales West Division [2010] EWCA Civ 1642 : - The burden of proof lies on C - The exercise involves balancing prejudice to C with prejudice to D - The court will have regard to all the circumstances of the case - Including likely prospect of success and potential value -

36 Cairns, cont. - The principal damage to D lies in the effect of a delay - Delay referred to in Section 33 (3) (a) and (b) is between the expiry of the limitation period and the issue of proceedings - If C is dilatory in notifying D of the claim, thereby prejudicing D forensically, that will militate against the exercise of discretion

37 Burden of proof Is on C Sayers v Chelwood [2012] EWCA Civ 1715: not helpful to discuss in the abstract whether that burden was a heavy one or a light one, because the extent of the burden would vary from case to case.

38 Recent decisions Collins v Secretary of State for Business Innovation and Skills and Stena Lane Irish Sea Ferries Ltd [2014] EWCA Civ C had constructive knowledge in mid 2003 when it would have been reasonable for him to have asked about the cause of his cancer D could rely on the passage of time to show that it already faced massive difficulties in defending the action, and that any additional problems caused by C s recent delay were therefore a serious matter

39 Malone v Relyon Heating Engineering Ltd [2014] EWCA Civ 904 Deals with cumulative injury claims where exposure is alleged to have continued after the date of knowledge Two distinct periods of delay- the period applicable to the pre 2001 injury ( ) and the period applicable to the post 2001 injury ( ) which should be considered separately under section 33. The cause of action therefore does not accrue only when the exposure comes to an end. Value of the post 2001 portion of the claim was very small

40 The shorter the delay, usually the less prejudice. NB however Gibson v Jobcentre Plus [2012] EWCA Civ 1885

41 Davies and Others v Secretary of State for Energy and Climate Change [2012] EWCA Civ 1380 At the other end of the spectrum Nature of the injury meant impossible to say with any precision when the injury was actually caused. Clear distinction between the industrial disease cases, which concerned continuous exposure to toxic substances, and the instant case.

42 Sex abuse Hoare; damage for personal injury for an intentional trespass to the person was personal injury within the meaning of section 11 of the Limitation Act Parliament could not have intended to exclude those Claimants who had been intentionally injured from the benefit of the date of knowledge provisions and of the court s general discretion to extend time. Date of knowledge = when the assault occurred, even though psychological consequences may not come to the fore until much later

43 Section 33 applications under Hoare Real significance attached to the specific factor of inhibition arising in sex abuse claims Compelling and cogent evidence that abuse occurred and prevented C from bringing proceedings, is a point in favour of exercising discretion The length of the delay will be important Court must consider what evidence might have been available to D if the trial had taken place earlier Conviction in the criminal court will weigh against D No public interest in testing sex abuse allegations in civil courts Proportionality is relevant

44 Case law AB v Nugent Care Society [2009] EWHC 481 (QB) Raggett v Society of Jesus Trust [2010] EWCA Civ 1002 In appropriate cases inhibition had to be a proper factor in the section 33 exercise of discretion. Discretion under section 33 was unfettered

45 EB v Haughton [2011] EWHC 279 QB Lack of evidential prejudice to the Defendant was a key factor EL v The Children's Society [2012] EWHC 355 The Defendants had suffered significant evidential prejudice as a result of the delay

46 Contribution proceedings

47 Abuse of process Aktas v Adepta and Dixie v British Polythene Industries plc [2010] EWCA Civ 1170: mere negligent failure to serve a claim form in time is not an abuse of process, so it might still be possible to bring a claim using the special discretion in section 33 of the Limitation Act 1980 Hall v Ministry of Defence [2013] EWHC 4092 (QB): long delay for which the Claimant could be held responsible was not in itself sufficient to amount to an inordinate and inexcusable delay justifying a strike-out for abuse of process Mitchell/ Denton??

48 PERSONAL INJURY SEMINAR Recent Developments in Law and Practice

49 DENTON AND SANCTIONS: WELCOME RELIEF JOSHUA HEDGMAN

50 The Overriding Objective 1.1(1) Dealing with cases justly and at proportionate cost 1.2 Dealing with a case justly includes, so far as is practicable... (f) enforcing compliance with rules, practice directions and orders

51 The new rule 3.9 New 3.9: the court will consider all the circumstances of the case, so as to enable it to deal justly with the application, including the need (a) For litigation to be conducted efficiently and at proportionate cost; and (b) To enforce compliance with rules, practice directions and orders.

52 Mitchell [2013] EWCA Civ 1537 *What follows may contain misunderstanding and misinterpretation

53 Mitchell (paragraph 40 onwards)

54 Co-operation between the parties? The new rule 3.8 with effect from 5 th June 2014 (4) In the circumstances referred to in paragraph (3) and unless the court orders otherwise, the time for doing the act in question may be extended by prior written agreement of the parties for up to a maximum of 28 days, provided always that any such extension does not put at risk any hearing date

55 Denton [2014] EWCA Civ 906

56 The Mitchell misinterpretation The Judgment in Mitchell has been misunderstood and is being misapplied by some courts by hardpressed judges Non-trivial breach + No good reason = Automatic fail This has led to decisions which are manifestly unjust and disproportionate (para 38)

57 The new 3-stage test

58 The Denton cases Denton relief not granted where service of witness statements caused loss of trial date Decadent relief granted for non-payment of court fees Utilise relief granted where costs budget filed 45 minutes late

59 Later cases Currently only 9 cases citing Denton 7/9 are from the Tax Chamber The outstanding 2 decisions both concern success fees Ultimate Products v Woolley [2014] EWHC 2706 Relief granted where there was a failure to inform of new CFA prior to trial Yeo v Times Newspapers Limited [2014] EWHC 2853 Relief granted where no notice of funding served but all relevant information contained within correspondence in any event

60 Costs risk confirmed (para 40 to 43) CPR rule 1.3 provides that "the parties are required to help the court to further the overriding objective". Parties who opportunistically and unreasonably oppose applications for relief from sanctions take up court time and act in breach of this obligation. The court will be more ready in the future to penalise opportunism.

61 Conclusions The triviality test has gone and replaced with a not substantial/significant test. The focus under Mitchell was narrow and exceptional; whereas now there will be many non-trivial but clearly not substantial breaches. 3.9(1)(a) and (b) are not of paramount importance but remain of particular importance: all the circumstances of the case has assumed a greater role The absence of no good reason is not fatal: see Decadent and Utilise

62 Conclusions continued The culture of gamesmanship, tactics and not being co-operative could carry heavy costs penalties both interlocutory and final Promptness now falls to stage 3 and has assumed a less draconian role Note another CA reference to litigants in person at paragraph 40: this applies as much to litigants in person as it does to others re co-operation

63 PERSONAL INJURY SEMINAR Recent Developments in Law and Practice

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