1 New developments 1.1 The Mitchell 3 a new era for relief from sanctions? Denton and Others v TH White Limited and others (and related cases) [2014] EWCA Civ 906 Following the Court of Appeal decision in Mitchell, there was a seismic shift in the way parties and the court have approached relief from sanctions applications and there has been a plethora of first instance and appeal decisions seeking to interpret and apply the relevant principles. The case law to date has been rather inconsistent and that has left the court, the parties and their legal advisors in some difficulty when attempting to apply the principles to their own particular case. The long awaited Court of Appeal decision in Denton has attempted to provide clarity and further expound the principles to be applied in a relief from sanctions application. The Court of Appeal has stated that the guidance in Mitchell remains substantially sound but that it has been misapplied and misunderstood. However Denton has clarified the guidance in Mitchell by introducing a 3 stage test that should be used to deal with a relief from sanctions application; 1. The court needs to firstly identify and assess the seriousness or significance of the failure to comply with any rule, practice direction or court order. 2. The court should consider why the failure or default occurred. 3. The court must consider all the circumstances of the case, so as to enable it to deal justly with the application. Denton also introduces guidance relating to heavy cost sanctions, which will be imposed on parties who unreasonably refuse an extension of time or unreasonably oppose a relief from sanctions application. 1.2 Heroism Bill; a good idea? The Social Action, Responsibility and Heroism Bill is the most embarrassing and pathetic piece of legislation ever put forward by the Ministry of Justice, the shadow justice secretary Sadiq Khan has claimed. The Bill had a second reading in the Commons on 21 July when justice secretary Chris Grayling said the proposed legislation was about deterring spurious claims and sending a message to the courts that we want them to focus on ensuring that they are on the side of the person who has done the right thing.
APIL have commented that the Bill is a license for have-a-go heroes to cause needless injury, for volunteers who work with children and elderly people to escape proper vetting, and for rogue bosses to dodge their responsibilities to look after their employees. 1.3 Striking out fundamentally dishonest claims? New clause introduced. Clause 45 has been added to the Criminal Justice and Courts Bill to achieve the aim of the Government, set out in their announcement of 7 June, to allow fundamentally dishonest PI claims to be struck out in their entirety. The proposed clause requires that if a court is satisfied, on the balance of probabilities, that the claimant has been fundamentally dishonest in relation to a claim for personal injuries or a related claim connected with the same incident for which the claim is made, the court must dismiss the claim, unless it is satisfied that in doing so the claimant would suffer substantial injustice. 1.4 Coventry v Lawrence [2014] UKSC 46 The Supreme Court has handed down an interesting judgment. One of the issues raised was whether the Acts and rules under the costs regime introduced in 1999 (but which were changed in April 2013 as part of the Jackson reforms) which rendered the paying party liable to pay not just the receiving party s base costs but also the applicable success fee and ATE premium infringed Article 6 of the European Convention on Human Rights. Lord Neuberger, the President of the Supreme Court said: In the light of the facts of this case and the Strasbourg court judgments relied on by it may be that the respondents are right in their contention that their liability for costs under the 1990 Act, as amended by Part II of the 1999 Act, and in accordance with the CPR, would be inconsistent with their Convention rights. However, it would be wrong for this Court to decide the point without the Government having had the opportunity to address the Court on the issue. His conclusion on this point was: Consideration of the respondents contention that the Judge s order that the respondents liability for costs extends to the success fee and the ATE insurance premium infringes their rights under article 6 of the Convention is adjourned for further hearing after notice being given to the Attorney-General and the Secretary of State for Justice, following which the parties (including any authorised interveners) must seek to agree issues and proposed procedure, and the Court will then give directions. The potential ramifications of this decision are huge but much will depend upon whether the case settles by negotiation and therefore without further court involvement or what the Attorney General or the Government will do. It is definitely a question of watch this space. 2
2 Emerging behaviours 2.1 APIL publishes manifesto of PI reform The Association of Personal Injury Lawyers (APIL) has published its manifesto for the general election. APIL is calling on political parties to support reform in four key areas: 1. Fair outcomes for injured and bereaved people 2. Modernising the law 3. Caring for patients 4. Rights in the workplace. The manifesto includes proposals to reform the law on bereavement damages in England and Wales, putting the law on a par with Scotland, and reform of the law affecting those who suffer psychiatric harm after the death or injury of a loved one. Read the manifesto here. 2.2 MPs demand crackdown on PI lawyers playing the system It has been reported that MPs have called upon the government to put pressure on the Solicitors Regulation Authority (SRA) to stop personal injury lawyers playing the system by commissioning medical reports on psychological injuries. In Driving premiums down: fraud and the cost of motor insurance, MPs said the Association of British Insurers had complained that unqualified individuals were testing claimants for psychological injury. The ABI said the questionnaires being used were insufficiently rigorous and that claims were often advanced for the benefit of the claimant solicitor rather than the accident victim. The committee added that it welcomed the government s intention to ban law firms from owning medical reporting agencies. 2.3 CMCs still not complying with referral ban The Claims Management Regulator (CMR) has revealed that over 65 claims management companies (CMCs) in relation to their compliance with the referral fee ban in the first three months of this year. It has also emerged that the CMR has launched a mystery shopping exercise in order to crack down on companies that buy and sell marketing leads in breach of the rules. The Ministry of Justice has stated that it had carried out a programme of revisits and planned audits of personal injury CMCs whose business models were causing concern. A total of 85 business models were inspected and 65 warnings issued, but only one investigation started. 2.4 Latest claims Portal figures RTA Portal 67,298 new RTA claims entered the Portal in June, representing an increase of 442 new claims from the previous month. Of the total number of RTA CNFs entering the Portal in June 2014, only 17% (11,391) remain in the system this represents a 3% decrease from May s figures. The average figure for damages is 2541. EL Accident and PL The figures for new EL Accident (4,003) and PL claims (6,346) represent a slight increase on the previous month, in addition to being the highest number of new CNFs to enter the Portal on a monthly basis. Just over 51% (previously 30%) of new EL Accident CNFs for the month of June remain in the Portal. 21% (previously 20%) of new PL CNFs for the month of June remain in the Portal. General damages for both EL Accident ( 2,919) and PL ( 3,020). The PL figures for general damages also represent the highest figure for general damages. 3
EL Disease 1,378 new EL Disease CNFs entered the Portal in June. However only 2% (27) of new CNFs remain in the Portal for June, this reflects a significant departure from April whereby 30% of new claims remained in the Portal. The number of settled disease claims has increased to 76, representing the highest figure so far since August 2013. 3 Motor claims 3.1 Adapted vehicles: VAT relief consultation A Revenue and Customs consultation seeks views on the reform of the VAT zero rate relief on motor vehicles that have been substantially and permanently adapted for use by a disabled wheelchair user. The consultation closes on 19 September 2014. Read more. 3.2 ABI hits back at MPs over call for ban on pre-med offers The Association of British Insurers has hit back at MPs on the transport select committee for demanding a complete ban on pre-medical offers by insurance companies in whiplash cases. They are of the view that it will increase costs and therefore premiums. They have called for progress on the proposed nationwide panel of independent medical experts for whiplash cases. In a recent interview with Radio Four s You and Yours, Mr Dalton (head of motor insurance at the ABI) commented he thought the 3 year limitation period for a whiplash case should be reduced. 3.3 Gray v Botwright (2014) Liability for a road traffic accident was apportioned 50:50 where a driver had proceeded to turn right through a green light without checking for oncoming traffic on the assumption that the other lights would be red and had collided with a car which had driven through a red light. 3.4 Jade Christian v South East London & Kent Bus Co [2014] EWCA Civ 944 There was no basis for interfering with a judge's findings of fact in respect of a road traffic accident. The matter turned on the reasonableness of a bus driver's reactions over a four-second period, and the judge had had the benefit of hearing his evidence, which would have been key in informing his decision. 4 Disease 4.1 Malone v Relyon Heating Engineering Ltd [2014] EWCA Civ 904 A judge had erred in disapplying the relevant limitation period, under section 33 Limitation Act 1980, when granting an employee damages for noise-induced hearing loss and moderate tinnitus arising from his employment. 4.2 High Court sets out new procedure to help families of asbestos victims access employment records The High Court has set out a new procedure to help the families of workers who died from asbestos-related diseases trace their employment histories. The Association of Personal Injury Lawyers (APIL) said the procedure would enable personal representatives and lawyers acting for estates to obtain an order for disclosure of National Insurance records. At the end of this year, the Deregulation Bill will be enacted which will enable disclosure of deceased workers NI records. The interim procedure will mean a claim is issued against persons unknown so that the court has jurisdiction to order disclosure. 4
5 EL/PL 5.1 Reduction in fatal accidents at work The HSE reported a welcome reduction in fatalities in the workplace which are at all time low. The HSE has also released the latest number of deaths from mesothelioma, a cancer caused by exposure to asbestos. These show that 2,535 people died in 2012. This is an increase from 2,291 in 2011. 5.2 Kirby class action date A trial date has been set for around 16,000 people claiming compensation following a 2011 factory fire in Kirby, Merseyside. Residents from the area around the factory will go to court next April with Portuguese-owned Sonae in one of the biggest class actions of its kind in UK legal history. Sonae has denied responsibility. 6 Fraud 6.1 Driving premiums down: fraud and the cost of motor insurance: First Report of Session 2014-15 A Transport Committee report reviews Government plans to tackle fraudulent and exaggerated motor insurance claims, particularly for whiplash injuries. It cautions against "hasty" legislation to strike out dishonest insurance claims; agrees with the Government's wish to prohibit solicitors from offering inducements, such as cash or tablet computers, to people considering making claims; and calls for the practice of insurers offering to settle whiplash claims before the claimant has undergone a medical examination to be banned. Read more. 6.1 Liverpool Victoria Insurance Company Ltd v Thumber (2014) An insurance company which alleged that a driver had made a fraudulent claim successfully applied for a committal order against him where there was powerful evidence of fraud and dishonesty. 7 Market 7.1 Newly acquired ABS hits the acquisition trail as promised Simpson Millar the law firm acquired last month by AIM-listed Fairpoint Group has begun making good on its promise to go on the acquisition trail by snapping up Bristol-based family law firm Foster & Partners. 7.2 Slater & Gordon launch 1,000,000 philanthropic fund A new 1million philanthropic fund, the Slater & Gordon Health Projects and Research Fund has been launched to improve the lives of people who have suffered serious work based injury or illness. There is 500,000 for projects in the UK and an additional $1million AUD in Australia will be provided by 2020. The fund will provide grants of between 500-12,500 to not-for-profit groups, health and rehabilitation organisations and research bodies. The advisory committee with be made up of UK and Australian experts in various specialties, including medicine, health, rehabilitation and support. 7.3 Strong performance from legal services arm sees Quindell share price rise sharply Strong performance from its legal services arm boosted a trading update from Quindell plc, which it turn began to pull the alternative business structure out of the doldrums, with its share price shooting up 30% in a day. 5
7.4 Slater & Gordon, Irwin Mitchell and Minster Law will be the PI winners David Fisher, catastrophic and injury claims technical manager at Axa Insurance, has named Slater & Gordon, Irwin Mitchell and Minster Law as the winners from the personal injury market consolidation. Minster Law have moved into the travel claims sector, hiring Andrew Morton (formerly Pannone s head of travel). 7.5 OH Parsons acquires Neil Hudgell Solicitors industrial disease department London PI firm OH Parsons has acquired the industrial disease department of Neil Hudgell Solicitors (a medical negligence firm) which is reported to allow each firm to focus on their specific growth areas. 8 In Europe 8.1 Hull law firm secures landmark 1.75m euros international injury case A Hull lawyer has secured a landmark legal victory which included the setting of an international precedent for future cases by securing a German aircraft worker who lost an arm and a leg at a UK airport 750,000 euros in personal injury compensation. This update does not attempt to provide a full analysis of those matters with which it deals and is provided for general information purposes only and is not intended to constitute legal advice and should not be treated as a substitute for legal advice. Weightmans accepts no responsibility for any loss that may arise from reliance on the information in this update. The copyright in this update is owned by Weightmans LLP. Pursuant to the Data Protection Act 1998, your name may be retained on our marketing database. The database enables us to select contacts to receive a variety of marketing materials including our legal update service, newsletters and invites to seminars and events. It details your name, address, telephone, fax, e-mail, website, mailing requirements and other comments if any. Please ensure you update our marketing team with any changes. You have the right to correct any data that relates to you. You should contact James Holman, our Data Protection Officer in writing, at 100 Old Hall Street Liverpool L3 9QJ. 6