Legal Watch:Personal Injury24th September 2015Issue: 077

Events

Plexus and Greenwoods hold a series of events which are open to interested clients. See below for those being held in the next few months:

The Major Bodily Injury Group (MBIG) | Spring Seminar - You the client | 21.04.16 | The Wellcome Collection, London

In this issue:

• Civilprocedure/specificdisclosure

• Watch this space

Civil procedure/specific disclosureAlthough it is not a personal injury claim, Ali v CIS General Insurance [Lawtel 11/09/2015] relates to a relatively common scenarioinroadtrafficaccidentcases.

Theclaimanthadbeen involved ina road trafficaccident inwhichhercarwasdamaged.Aweekafterthataccident,shewas involved inasecondroadtrafficaccidentwhilstdrivingherfamily’ssecondcar,whichwasherfault,andher insurersettledtheotherdriver’sclaimagainsther.

Aclaimsmanagementcompanyengagedinrelationtothefirstaccidentthenprovidedtheclaimantwithahirecar.Theclaimantsought to recover damages for vehicle recovery, repair andstorage,andcredithirechargesfromthedefendantasinsureroftheothervehicleinthataccident.Thedefendantrefusedtosettletheclaim,andtheclaimantissuedproceedings.

The defendant doubted whether the substantial hire claimarose from thefirstaccidentatall, considering that it aroseasaconsequenceofthesecondaccident,oratleastthattheneedforavehiclewasinpartcausedbythesecondaccidentcausingdamagetothesecondfamilycar. Itwasgrantedanorderforspecificdisclosurerequiringtheclaimanttoprovide,by a certain date, details of all accidents she had beeninvolved in for fiveyearsbeforeandsubsequent to thefirstaccident, including disclosure ofmedical reports, details ofspecial damage claimed, witness statements and engineering evidence.Theorderwasnotappealed.Theclaimantfailedtoprovidedocuments relating to the settlementof the secondaccident. The district judge, having considered that thatmaterial was relevant and ought to have been disclosed, allowedthedefendant’sapplicationtostrikeouttheclaimfornon-compliance.

The claimant appealed and argued that the district judge had beenwrongtostrikeouttheclaimbecausethenon-disclosurecomplainedof related todocumentsconcerning thesecondaccident, which were not relevant to the issues between the

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parties in the present claim because she had not made any claiminrespectofthesecondaccident.Shesubmittedthatevenifthedocumentssoughtwererelevant,strikingoutherclaimwasdisproportionate.

‘…the defendant had been entitled to cast a relatively wide net in seeking disclosure’Dismissing the appeal, the county court judge held that the court had to consider whether documents whose disclosure hadbeensoughtwerestillrelevantbythetimeofastrike-out application. The mere fact that the claimant had notmade a claim in relation to the second accident did not render the documents sought irrelevant. In a case werethegenuinenessoftheclaimwasinissueandtherewasamaterialhistoryofmultipleaccidents/claims,thedefendanthad been entitled to cast a relativelywide net in seekingdisclosure.

Theextentofthedamagetotheclaimant’ssecondvehiclepotentiallywenttotheissueofwhethersheneededtohireanothervehicleoncredithireandforhowlong,orwhethershemighthavereasonablymanagedwiththesecondcar.Whether the claimant had sought the hire car before thesecondaccidentoccurredwasnotdeterminativeoftheissueof reasonable need andmitigation of damage. The pointwas whether she could reasonably have used the second car.Thus,theextentofanydamagetoitwasrelevanttotheclaimant’sconductandmotivationinenteringintothecredithireagreementafterthesecondaccident.Thedistrictjudgehadbeenentirelyjustifiedinconcludingthatthedocumentsrelating to the settlement were potentially relevant to that issue.

Indecidingwhetherthestrikeoutwasjustifiedthedistrictjudge had been required to consider the provisions ofCPR 3.4. The striking out of a statement of case wasone of the most powerful weapons in the court’s case

management armoury and should not be deployed unless itsconsequencescouldbejustified.Thedistrictjudgehadrightlyconcluded that thebreachof theorder forspecificdisclosure was real and far more than trivial, and theclaimanthadgivennoreasonableexcuseforit. CPR 3.9(1)(a) and CPR 3.9(1)(b) required litigation to be conducted efficiently and at a proportionate cost, with compliancewith thecourtorders. Itwasopen to thedistrict judge tohave concluded that those who chose not to comply with thecourt’sdirections, in theway theclaimanthad,oughtnot tobe indulged.A further unlessorderwould itself bedisproportionate.Themischiefofalosttrialdatewouldnotbeavoided.Thecourthadnoconfidenceintheclaimant’sconductandthedefendantoughtnottobefurtherobligedtodealwiththeclaimant’suncooperativeness.Shehadhadample time to do what was necessary and in various ways hadfailedtoactwithintheletterandspiritoftheCPR.Thisincludedtaking5monthstorespondtoa Part 18requestforfurtherinformationthathadbeenmadebythedefendant.

The information and opinions contained in this document are not intended to be a comprehensive study, nor to provide legal advice, and should not be relied on or treated as a substitute for specific advice concerning individual situations. This document speaks as of its date and does not reflect any changes in law or practice after that date. Plexus Law and Greenwoods Solicitors are trading names of Parabis Law LLP, a Limited Liability Partnership incorporated in England & Wales. Reg No: OC315763. Registered office: 12 Dingwall Road, Croydon, CR0 2NA. Parabis Law LLP is authorised and regulated by the SRA.

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Watch this spaceCalculatingandreservinglossofearningsclaimsforlowwageearnersTheminimumwageforworkersaged21oroverwillincreaseon1Octoberfrom£6.50to£6.70perhour.Forthosebetween18and20theincreaseisfrom£5.13to£5.30.PotentiallyofgreaterimportanceistheintroductionfromApril2016oftheLiving Wage which will see those aged 25 or over entitled to £7.20perhour.

Costs

Alsoeffectivefrom1OctoberisanamendmenttoCPR 47.6 whichdealswiththedetailedassessmentofcosts.Incaseswhere a costs management order has been made it will be necessary,whenfilingabillofcosts forassessment,alsotoprovideabreakdownofeachphaseoftheproceedings.This will enable a comparison to be made between the costs claimed and the budget as initially broken down inPrecedent Form H. This isnodoubtgoodnews forcostsdraftsmenwhonowhaveanadditionallevelofworktocarryoutwhendealingwithdetailedassessments.