Legal Watch:Personal Injury1st October 2015Issue: 078

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:

• Civil procedure/interim payments

• Costs

• From Plexus Law Scotland

Civil procedure/interim paymentsAlthoughitisafirstinstancedecisionbyamasterGlasgow (Protected Party) v Hillingdon Hospitals NHS Foundation Trust [Lawtel 29/09/2015] is the first case report on thistopic for some time. The master considered an application for a further interim payment in the light of the two-stage test in Eeles.

The claimant, who was 76, had sustained brain damageas a result of a procedure carried at a hospital run bythe defendant. He was left with significant physical andcognitive impairment and had had to move into a nursing home because his own home, which he shared with hiswife, did notmeet his needs and could not be adapted.Judgment on liability had been entered in his favour andinterimpaymentstotalling£875,000hadbeenmade.

Theclaimanthadboughtanewhouseatacostof£650,000,butneeded£317,160topayfornecessaryadaptations.Sincehe had £119,224 left from the previous interim payments, he sought £220,000 to cover the cost of the adaptations and to fund continuing therapies and case management. Thedefendantopposedtheapplicationandsubmittedthatit would be unreasonable to order an interim payment ofmore than £70,000.

The master held that the court’s task was to estimate conservativelytheamountthatwouldbeawardedonafinalhearing and then, if an interim award was appropriate, order the payment of a sum which represented no more than a reasonableproportionofthatamount.

LookingatthefirststageofthetestunderEeles the judge held that the total sum likely to be awarded for generaldamagesandpastfinancial losseswasat least£288,916.Thepartiesagreedthatdamagesforpain,sufferingandlossofamenityshouldbeassessedat£130,000withinterestof£4,673. The claim for past care exceeded £100,000 andincludedasum to reflect the fact that theclaimant’swifehadgivenupherjobasaseniormidwifetocareforhim.

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Thedefendantchallengedthequantificationofthepastcareclaimbutthejudgefoundthatonaconservativeestimate,anawardofat least£46,380was likely.For thepurposesof the instant application, travelling expenses, holiday expenses, past case management and therapy costs, and the cost of past deputyship were conceded at £17,610, £7,000, £22,659 and £20,594 respectively. Miscellaneous expenditureof£40,000wasalsolikelytobeallowed.

The master then considered what other heads of loss a trial judge might capitalise under the second stage of Eeles. As far as accommodation was concerned, the claimant argued for£560,000andthedefendant£465,000.Therewouldbea 15% reduction from average life expectancy. Applying the formula in Roberts v Johnstone at least £520,000 was likely tobeawardedforaccommodation.

‘…the defendant had cited no authority for its contention that the claimant had to give credit for both his and his wife’s beneficial share in (their existing) property...’The outstanding mortgage on the claimant’s former home was to be deducted when calculating his equity in thatproperty for the purpose of the Roberts calculation. The defendant’ssuggestionthatitwasnottobedeductedwaswrong in principle. Moreover, the defendant had cited no authority for its contention that the claimant had to give credit for both his and his wife’s beneficial share in thatproperty. The claimant only had to give credit for his own equity.

The court had already accepted that the claimant’s former home was unsuitable and could not be adapted. Theclaimant was living in a nursing home and was extremely

distressedathavingtobeseparatedfromhiswife.Itcouldconfidentlybesaidthatthetrialjudgewouldorderacapitalpaymentsignificantly inexcessof the£808,916assessedabove. Unless such an award was made, the claimant’sneedscouldnotadequatelybemet.Takingaconservativeapproach, future losseswere likely to be assessed at, atleast £385,000, comprisingdeputyshipcosts assessedat£115,000; therapy costs at £55,000; aids and equipment at £55,000; transport at £70,000 and miscellaneous expenses at £90,000.

Atotalawardofat least£1,193,916waslikely,anditwasreasonabletoaward90%ofthatfigureonaninterimbasis.

Giventheinterimawardsthathadalreadybeenmade,therewouldbeafurtherinterimpaymentof£200,000.

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CostsAlthough it is a clinical negligence claim at county court level, the case of Hahn v NHS England [Lawtel 25/09/2015] is of wider interest in relation to the issue of proportionality of costs.

The claimant/appellant had brought a low-value clinicalnegligence claim against the defendant/respondent. The claim was settled after proceedings were issued. The claimantsubmittedabillofcostsclaimingjustover£54,000.The after-the-event insurance premium sought was £14,628. The district judge dealing with the assessment of the costs commented as follows in relation to the premium: “The premium...isprettysubstantialforthepost-issuelevelthatis sought. Having determined that the costs generally are disproportionate in this claim in any event, it seems to me thatitwasnotreasonabletotakeoutapolicywithapremiumat such a level for what was, on any view, a low-value fast track claim”. He noted that the comparator premium from LawAssist,reliedonbythedefendant,wasapost-litigationpremiumof£3,975plusinsurancepremiumtax.Thedistrictjudgeaddedtothecomparatorpremiumapre-issuefigureof£3,500plusinsurancepremiumtax.Theresultingfigurewas just over £7,900.

The claimant appealed and argued that the district judge had erred in his approach: he should have engaged in a deconstructionexercisebasedontheestimatedmaximumloss which the legal expenses insurer would have faced had the claim failed, also taking into account the risk of such exposure and other elements, including brokerage andprofitmark-up.

‘…the district judge had been entitled to take the broad-brush approach that he had when ruling on the after-the-event insurance premium...’Dismissing the appeal, the county court judge held that the district judge had been entitled to take the broad-brushapproach thathehadwhen rulingon theafter-the-event insurance premium, rather than engaging in the deconstructionexercisearguedforbytheappellant.Whilehehadbeengiveninformationaboutthepotentialexposureto costs with the suggested estimated maximum loss of £30,000, there was no information about the risk to thatexposurewhichwouldhaveenabledhimtoundertakethekindofexercisesuggestedbytheclaimant.Hisapproachindetermining that the policy premium was excessive, while allowing an additional element for the post-issue period, wasnotunreasonable.Further,thedefendanthadsuppliedmaterial which satisfied the low evidential threshold forestablishing a comparator policy. The district judge hadampleevidencethattheclaimant’spolicywassignificantlyoutside the norm for this type of case, and there was a distinct lack of evidence to justify what he saw as an excessive premium. His decision could not therefore beimpugned.

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From Plexus Law ScotlandScottish Courts: Biggest reforms for 100 years come into forceOn22September 2015 significant changes toScotland’scivilcourtscameintoeffect,markingthestartofaperiodofreform that is set to continue well into 2016, as many of the provisions in the Courts Reform (Scotland) Act 2014 come into force.

A new lower limit for the Court of Session

The lower limit for claims in the Court of Session (the equivalent of the High Court in Scotland) has risen dramatically from£5,000 to£100,000.Whilstcatastrophicinjury and fatal claims will continue to litigate in the Court of Session, the majority of injury claims will now litigate in the sheriffcourts(Scotland’scountycourts).

InallnewCourtofSessionactions thepartybringing theclaim will have to set out in the pleadings why the claim is worthmorethan£100,000.Therewilldoubtlessbehearingsonwhetherthatvaluationisachievable.Ifnotthenthecaseswillbetransferredtothelower,sheriffcourts.

An all Scotland sheriff personal injury court

A new sheriff court is now dealing solely with personalinjury litigation. It will deal with personal injury and clinical negligence cases worth more than £5,000, and also claims arising from workplace accidents worth more than £1,000. ThecourtwillsitinEdinburgh.

Claimants will have the option to litigate personal injury and clinicalnegligencecases ineither their localsheriffcourtsaround the country, or the new personal injury court. The advantages of the new court are:

• sixspecialistpersonalinjurysheriffs

• theoptionofajurytrialinsteadoftrialbyjudge,withthelikelihood of higher damages awards

• electronicinterlocutoryapplicationswhichwillbeprocessed at greater speed

• active case management for more complex cases

A contentious issue is likely to be the use of counsel inthenew regime.Whereascounsel couldbe instructedbyclaimants’ solicitors in the Court of Session without court approval,thesheriffcourtsmustapproveacaseassuitableforcounselbeforeapartycanrecovercounsel’sfees.Earlyindicationsarethatapprovalwillbegrantedforcounselinmore complex and higher value cases in the new personal injurycourtbutweanticipatefrequenthearingsonthepointuntilasettledpictureemergesaboutwhenclaimantswillbeabletorecovercounsel’sfees.Thereisaclearopportunityfor insurers to challenge the involvement of counsel byclaimants and as a result reduce claimant costs.

A new sheriff appeals court

AScotlandwidesheriffappealscourthasbeencreatedtodeal with appeals from sheriffs around the country. Thisreplaces the previous system under which sheriff courtappealswere heard by the sheriff principal (circuit judge)in each area, binding only those sheriffs in that area.Onoccasion this resulted in different approaches affectingclaimants who lived a matter of miles apart, and could result inuncertaintywheretherewasnosheriffprincipalauthorityin a particular area.

ThesheriffappealscourtwillbindallsheriffsacrossScotlandleading to greater consistency. It will consist of specialist appeal sheriffswhich should also result in greater qualityappeal decisions. It is anticipated that the court will start hearing appeals in 2016.

Other upcoming changes

Thereare further changesahead, expected to takeeffectin 2016:

• Simple procedure for claims worth less than £5,000 – Thiswillbe“flexible”and“interventionist”,andeasyforlitigants in person to use. The Scottish government can increase the limit to £10,000 in future in line with the smallclaimslimitinEnglandandWales

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.

www.plexuslaw.co.ukwww.greenwoods-solicitors.com

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Geoff Owen, Consultant

T: 01908 298216E: gro@greenwoods-solicitors.com

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• Summarysheriffs–Thisnewtypeofjudgewillpresideover simple procedure

• New rules for vexatious litigants – If a defendant secures a vexatious litigant order then the litigant will require the consent of a judge to raise an action

• RewriteofallofScotland’scivilprocedurerulesincluding review of the Voluntary Pre-action Protocol for Personal Injury claims–ThiswillbeundertakenbytheScottishCivilJusticeCouncilanditistobehopedthatthey will make the Protocol compulsory

Impact of the changes on insurers

The court reforms should bring benefits to claimants andinsurers, with greater certainty and quality of decisions as a result of specialist personal injury judges. There is an opportunity for insurers to seek to reduce claimant costs inmodestvalueclaims if thesheriffcourtsarepersuadedto allow counsel’s fees in only the higher value and more complex claims, and sheriffs embrace their new casemanagement and “interventionist” powers to bring aboutearlier resolutions to litigation. The new interlocutory regime in the all Scotland injury court should on its own speed up cases. However, with reform on-going well into 2016 it may bemanymonthsyetbeforetherealimpactofthechangeswillbeclear.

For further information please contact Julie Fisher:

E:julie.fisher@plexuslaw.co.ukT: 0844 245 4804