Civil Liability Bill: Update

The Civil Liability Bill was proposed by Lord Keen of Elie and formally announced by the Ministry of Justice on 20 March 2018. It is a bill intended to, according to the parliament website, “make provision about whiplash claims and the personal injury discount rate.”

More specifically, the Bill sets out reforms relating to low value claims and the discount rate. The Bill proposes to increase the small claims limit for road traffic accident claims to £5,000 and, for all other claims, to £2,000. The bill also proposes to introduce a tariff system for whiplash injury claims, which will reduce the amount of damages available to those suffering such injuries. One of the main justifications for such reforms is that it will enable a saving on insurance premiums for consumers, where the costs saving for the insurer will filter down (a story articulated before and, that I have argued, is of questionable veracity).

With regards to the discount rate, the Bill looks to make changes to the way in which the discount rate is calculated. The discount rate was lowered to -0.75% from 2.5% last year, coming into force on 20 March 2017. The discount rate refers to the percentage by which a lump sum awarded in compensation is adjusted to take account of the likely net rate of return from investing the lump sum. Almost as soon as the new rate was announced, which is a fairer rate for claimants as it reflects their position as risk-averse investors, the Ministry of Justice announced that they would reform the way that the discount rate was calculated. The proposed reforms include a review of the discount rate every three years. Part of the reasoning for this reform was that claimants do no invest as the law assumes they do; a rationale which is flawed according to a recent article by Ian Peters, a partner at Anthony Gold.

The Bill had its second reading in the House of Lords on 24 April 2018 and goes to the Committee stage on 10 and 15 May 2018, where it will be debated again. On both readings, numerous concerns were raised about the Bill. Of particular note were concerns that genuine claimants who suffer with more minor injuries will not have recourse to legal representation; that the bill lacks detail and clarity, including no set definition of “whiplash”; that the pace of the review of the discount rate is too slow (an insurer’s concern), and that there is no means of ensuring that savings to insurers would actually be passed on to consumers. Caroline Bowden describes the development of the bill to the second reading here.

Following the second reading of the Bill, Lord Keen submitted a letter to the Lords commenting on some of the concerns raised during the first two readings. He wrote that the Bill is not intended to deny genuine claimants legal representation, where lawyers will be expected to adapt and provide “unbundled” legal services and low cost advice on specific parts of the claim to claimants. Lord Keen also explicitly excludes all road users other than motor vehicle users from the whiplash tariff reforms, though the increase in the small claims limit to £5,000 will apply to all road users. It is questionable how this exclusion is justified, where the fairness of distinguishing between accident circumstances rather than the severity of the injury seems to lack logic.

Lord Keen also addressed the concern about the insurers passing on the benefit, indicated at £35 per policy holder, to consumers and said, “if the industry as a whole sought to avoid passing on any savings this would signal the competitive nature of the market had changed. If this was to happen the Financial Conduct Authority and the Competition and Markets Authority would investigate and take appropriate action and the Government would encourage them to do so”. Lord Keen’s comments regarding insurers are helpful, though whether the insurers will declare their true savings, whether this this will be reflected in insurance premiums and whether the various financial authorities will actually investigate this remains to be seen.

Regarding the review of the discount rate, Lord Keen emphasised that preparatory work considering a review of the discount rate can be completed before Royal Assent, but that an expert panel cannot be appointed until there is the power to do so. It seems that this will push the decision for the new discount rate to 2019 despite the insurers best efforts to speed things up. Interestingly, Lord Keen highlights in his letter that the courts retain the power to apply a different rate than that which is set should it deem it more appropriate to do so. He goes on to say that he does not expect courts to regularly deviate from the prescribed rate, but mention of this is noteworthy and it remains to be seen how the courts will proceed following the new rate being set.

Finally, a draft Order of the Bill put before Parliament on 8 May 2018 defines the term “whiplash” and sets out the proposed tariff rates, at a maximum of £3,725 for an injury lasting up to 24 months. Lord Keen highlighted in his letter that judicial discretion will remain where there is the possibility to apply an uplift of 20% in specific circumstances, including where psychological injury is suffered or there is a higher degree of pain, suffering and loss of amenity.

Whatever one’s view on the Bill, it is steadily making its way through Parliament and, whilst some of the concessions are welcome, it seems unlikely that this Bill will be the end of reforms for injury claims.

How do I bring a claim for a delay in diagnosis of cancer?

Unfortunately, failing to diagnose cancer happens all too often. Things can be missed, warning signs not picked up and by the time it is eventually identified survival rates have dropped, and treatment options are limited. This was recently brought into stark reality when at the start of May the government revealed that an IT error had caused 450,000 women to fail to receive vital letters inviting them to attend the NHS breast cancer screening programme. The health secretary estimated that a possible 270 deaths may have been caused by this. According to the national press there is some dispute around the accuracy of these figures and whether the numbers stack up; but, for many families they may now face the devastating possibility that a loved one could have diagnosed sooner and the outcome could have been different.

A clinical negligence claim in principle

To bring a successful clinical negligence claim, it is necessary to prove each of the following three elements:

Duty of care

First, it is necessary to establish that a duty of care existed between the proposed defendant and the claimant. In NHS cases, it is exceptionally unlikely that there are problems in relation to this as, as such a duty of care routinely arises when a patient consults with or is treated by a doctor, nurse or other health professional (whether this on the NHS or privately).

Breach of duty

Secondly, it is necessary to prove that the treatment the claimant received fell below the standard to be expected from a reasonably competent doctor, nurse or other health professional with appropriate specialist training and experience. The conduct in question is compared against what a body of responsible equivalent practitioners would have done in the same or similar circumstances (known as the “Bolam test”).

Causation

Once a claimant can establish that there was substandard care, it is necessary to prove that any such identified breach(es) of duty caused the claimant’s injuries. The test for “causation” is that the breach of duty either caused or materially contributed to (which means by more than a merely negligible amount) the claimant’s injuries.

The burden of proof of the case is always on the claimant and the standard of proof that the claimant has to achieve is on the “balance of probabilities” (i.e. more likely than not).

In delay in cancer diagnosis cases the key issues are usually in relation to causation i.e. would the identified breaches of duty have made a difference to the overall outcome. This typically involves an investigation into the hypothetical staging of the tumour at the earlier identified point of potential diagnosis, the likely treatment options at that stage and what impact earlier treatment would have on the patient’s chances of survival. These hypothetical questions are considered by an independent medical expert.

With respect to causation of death, in delay in diagnosis of cancer cases it is necessary for the claimant to show as a starting point that the survival rate absent the negligence was above 50% because, otherwise, the courts take the view that it is not possible to prove that the claimant would have survived on a balance of probabilities (this was following a case called Gregg v Scott) i.e. because on balance the claimant would not have survived even absent the negligence.

According to statistics publishes on the Cancer Research UK website survival rates for breast cancer are above 50% for all stages bar stage IV when it drops to 15%. Based on these statistics it may be possible for potential delay in breast cancer diagnosis Claimant to fulfil the Gregg v Scott criteria.

Why should I consider a claim?

For individuals who have become seriously ill with cancer compensation may greatly assist with their quality of life, or for those who have suffered a bereavement due to the delay in treatment, compensation may greatly assist the family who have been left behind.

If relevant, compensation can be claimed for losses and expenses incurred as consequence of the negligent treatment. Such examples include:

  1. Cost of private medical treatment. Private medical treatment often includes innovative treatments not available on the NHS due to cost constraints;
  2. Compensation for loss of earnings;
  3. Care and assistance; or
  4. Where claimants have children or other family members who were dependent on them (be that financially or for services such as gardening or child care) there may be a claim to help provide for them in the future if they die/have died.

Recent CQC report identifies concerns around monitoring of risk and safety checks in some private hospitals

At the end of April this year the Care Quality Commission (CQC) published a report into the state of care in independent acute hospitals. As you may have seen in the national press, the report received a large amount of coverage as it was found that out of 206 independent hospitals 62 hospitals (30%) were rated as requiring improvement. In particular, the report expressed concerns surrounding hospital governance, clinical audits and identified a culture of failing to learn from incidents. It is the latter point which is of greatest concern to this writer.

All practicing medical professionals, be they at a private hospital or working within a NHS trust, are subject to the duty of candour. The duty of candour puts the principle of openness and honesty front and centre: it is a professional’s duty to be candid with patients when things go wrong and where the patient suffers harm and distress as a consequence. GMC practical guidance on the duty of candour emphasises that doctors should report errors at an early stage in order that lessons can be learned quickly so that patients are protected from harm in the future. Why then does this appear to be happening less in private practice?

In considering why it is that private hospitals are failing to learn from their mistakes, the CQC identified a number of specific factors:

  1. Some providers did not have a formalised governance process in place, instead relying on informal arrangements based on longstanding relationships;
  2. Lack of effective oversight of practising privileges with providers treating consultants as “customers” bringing business to the hospital; and,
  3. An overall informality surrounding medical governance.

Looking at those factors it appears, at least to this writer, the issue lies in the fact (and this was acknowledged by the CQC to some extent) that private hospitals are ultimately a commercial enterprise. They need to maintain their profitability and financial viability and are operating in a competitive market. It is this market and the fact that their patients and the various medical insurance companies are their “customers” that appears to be driving a culture of lack of transparency about clinical outcomes and discourages the sharing of information when things go wrong.

How then can we address this? I feel that the CQC report is a start as it is shedding light upon some of the practises within private hospitals. It is encouraging to see from the report that since the investigation out of the 13 locations that were re-inspected all four of those initially rated as inadequate had improved; and two of those are now rated as good. However, I do wonder whether this is all a PR exercise following the Ian Paterson affair and once the media storm quietens down will private hospitals return to their old habits. This writer hope that the CQC will continue to keep applying pressure on private hospitals to change their governance procedure, as ultimately until there is a positive culture shift from keep quiet and cover up to openness and transparency it may only be through the litigation process that private hospitals may learn from their mistakes.

Injury claims and the defence of “ex turpi causa”

“Ex turpi causa” is a legal doctrine which states that a claim will not succeed if it arises in connection with the claimant’s own illegal act. It is not uncommon for insurers to raise this at the slightest opportunity in order to avoid a claim.

In the recent case of Liam Clark (a protected party suing by his mother and litigation friend, Nicola Woods) v (1) Darren Lee Farley (2) Motor Insurers’ Bureau and (3) Ryan Edmonds , the court explored the circumstances in which the defence of ex turpi causa could reasonably be upheld.

The claimant in this case was a fifteen year old at the time of the accident in 2012 and aged 21 at the date of the trial on liability. He had suffered catastrophic injuries following a collision between the motorcycle on which he was a pillion passenger and another motorcycle. They were travelling in opposite directions on a path known as the “Mad Mile” which was popular with motorcyclists when the collision occurred. Neither motorcyclist was insured and the claim was initially commenced against the rider of the other motorcycle (the first defendant) and the Motor Insurers Bureau (MIB), which covers claims against uninsured drivers. However, the MIB required the rider of the motorcycle on which the claimant was travelling to be joined as the third defendant before raising the defence of ex turpi causa. Their positon was that the claim was barred on the basis that the claimant was involved in a joint illegal enterprise with the first and third defendants, in that he knowingly engaged in dangerous riding on a path that was narrow and where there was potential for an accident.

Neither motorcycle was roadworthy and both were in a dangerous condition but this did not cause or contribute to the accident. The third defendant’s motorcycle was not suitable for carrying a pillion passenger and the frame was broken but it was established the claimant could not have known that.

There were suggestions the claimant was familiar with the path and had been there before, but nothing was conclusive.

In the alternative, the MIB invited the court to make a finding of contributory negligence against the claimant if their primary defence was rejected.

The claimant was not wearing a helmet and the parties agreed that the appropriate reduction to apply for contributory negligence would be 12.5% if the helmet issue stood alone.

The first and third defendants were unrepresented and whilst the first defendant did not make any submissions, the court found the third defendant to be less than a convincing witness.

In order to determine whether the MIB could succeed with its primary defence, it was agreed that a two-stage test applied involving :-

  1. consideration of whether the claimant’s conduct amounted to “turpitude” and
  2. if so, whether the claim against each rider was founded on that turpitude.

A number of case authorities, including McCracken v Smith, MIB and Bell were considered. In that case the conduct of claimant who had been injured whilst travelling as a pillion passenger on a stolen off-road motorcycle did amount to turpitude. He had known the motorcycle was stolen and that the rider had intended to ride it dangerously. His claim against the rider failed because the claimant was jointly responsible in law for the rider’s negligence and could not bring a claim for his own negligent act. However, the ex turpi causa defence failed in the claim against Bell, the driver of the minibus which collided with the motorcycle. There were two causes of the accident, the dangerous riding of the motorcycle and the careless driving of the minibus. As the claimant was not a party to Bell’s careless driving, he could recover against Bell subject to a reduction for contributory negligence for his actions.

The question of joint enterprise was considered in light of the Supreme Court decision in R v Jogee where it was accepted that the claimant must have intended to “encourage or assist the perpetrator to do the prohibited act with knowledge of any facts and circumstances necessary for it to be a prohibited act”.

In McCracken, it was concluded that the very presence of the claimant knowingly being on a stolen bike “must have been, and have been intended to be an encouragement to [the rider] to ride as he did”.

In this case it was not obvious that the claimant intended to encourage or assist the rider to ride dangerously. Mere foresight was not enough.

In distinguishing the cases of McCracken and Jogee, the court found the claimant, whilst intending to be carried on the motorcycle, had not known the motorcycle was to be ridden dangerously. He had not encouraged the third defendant to drive dangerously “with knowledge of the facts and circumstances necessary for it to be dangerous”. As the claimant was not found to be party to a joint enterprise in respect of the third defendant’s driving, it could not be logically held that he was party to a joint enterprise in relation to the first defendant’s driving. The claimant had no previous connections with either of the riders at the time of accident.

The MIB’s defence of ex turpi causa failed, however, there was no doubt that the claimant contributed to the causing of the accident. Whilst it was suggested that any finding of contribution in respect of the blameworthiness should be added to the reduction for the claimant’s failure to wear a helmet, that was rejected. The court found the claimant 40% to blame overall with the first and third defendants being equally culpable for the accident.

This is a helpful case which summarises the legal position in relation to the ex turpi causa defence. However, it is, of course, fact sensitive.

Hourly rates and costs budgeting.

It is well known, as PD 3E.7.10 tells us: “It is not the role of the court in the cost management hearing to fix or approve the hourly rates claimed in the budget. The underlying detail in the budget for each phase used by the party to calculate the totals claimed is provided for reference purposes only to assist the court in fixing a budget.”

But what happens if rates are reduced when considered judicially at detailed assessment; does this serve as a good reason to depart from the budget?

This question was recently considered by Master Rowley in Jallow v Ministry of Defence when he rejected the defendant’s argument that the reduction in hourly rates (on the incurred parts) of the bill was a good reason to depart from the Budget.

Master Rowley confirmed that “once the phase total has been approved the underlying figures are no longer relevant”.

Some relevant paragraphs of the judgment include:

  1. The budgeting judge will not fix or approve the hourly rates claimed and the details set out in the pages behind the front page of the budget (which are used by the party to calculate the totals claimed) are provided for reference purposes.
  2. The defendant’s argument in relation to hourly rates starts from a quotation in the White Book in the notes to CPR 3.18 which also found favour with in the case of Merrix (paragraph 73) Merrix v Heart of England NHS Foundation Trust:

“As the notes to CPR 3.18 in the White Book reflect, the fact that hourly rates at the detailed assessment stage may be different to those used for the budget may be a good reason for allowing less, or more, than some of the phase totals in the budget.”

  1. In my view, the notes to the White Book do not take the defendant very far. The fact that the hourly rates allowed at the detailed assessment are different from those originally used in the budget does not, in my view, found a good reason. This case is a good example of why the make-up of the estimate on which the budgeted costs are subsequently agreed or approved is not relevant to the subsequent detailed assessment. In this case the solicitor who had conduct for the first two years (which was, more or less, up to the CMO) left the firm and the case had to be reallocated. The claimant and his solicitors took the view that a more experienced solicitor was required to deal with the difficulties in the quantum claim. Consequently, the work was done at a higher hourly rate than had been envisaged in the budget. It has always been my understanding that the approved phased total can be used by senior or junior fee earners at differing hourly rates as the party considers to be appropriate. If it were otherwise and, as in this case, the fee earner who had originally been acting was no longer able to do so, a slavish adherence to the rates set out in the calculations for the original budget would mean that an application to amend the underlying details to the budget would be required even though there may be no wish to amend the budget totals themselves. That seems to me to be an unlikely proposition and this illustration explains why I have said above that once the phase total has been approved the underlying figures are no longer relevant.
  2. As I have set out above, it is for the party and his or her solicitor to determine who exactly does the work that needs to be done. Where the costs overall are within the budget that has been set, there can be no legitimate criticism in using a senior or a junior solicitor, leading or junior counsel to carry out the work. This is true, even if the work is all carried out at ostensibly unreasonable hourly rates. If it comes within the budget that has been set, it will turn individually “unreasonable” items into a reasonable and proportionate sum overall. As I put it colloquially at the hearing, two odd numbers added together will still make an even number.
  3. My concern, and I suspect Master Campbell’s [was in RNB v London Borough of Newham], is that the lack of scrutiny at a detailed assessment of the hourly rates claimed will encourage parties to incur costs up to the budget set for each phase on the basis that they are unlikely to have to withstand scrutiny at a detailed assessment. As such there will be an inflationary element which is only kept in check by conventional detailed assessments. But this concern is something which has to yield to the aims of costs management in making detailed assessments shorter. For a long time, the work of the costs judge has been described as the compounding of “much sensible approximation” to achieve justice. Ultimately the use of CMOs is simply a further example of that pragmatism.
  4. Accordingly, I find for the claimant that there is no good reason to depart from the budget by virtue of the reduction to the hourly rates in this case.

This is the second case (the first being Nash v Ministry of Defence on such issue and will perhaps prove to be a useful tool for the claimant.

How can I find a job after my injury?

After suffering serious or life–changing injuries as a result of an accident, many individuals are understandably concerned about their jobs and future employment.

Amongst many of the issues which they will face after an accident, injured people will often ask the question when they will return to work or if they will ever be able to do so. Whether you love or hate your job, most people have to work to earn their living and their jobs provide them with an identity and purpose. Being unable to work due to injury can bring financial worries for the future, loss of identity and for some the loss of a career which they loved.

The 2015 Rehabilitation Code promotes the collaborative use of rehabilitation and early intervention in the compensation process. The Code’s purpose is to help injured claimants make the best and quickest possible medical, social, vocational and psychological recovery. This means ensuring that the need for rehabilitation is assessed and addressed as a priority.

Evidence has shown that it is beneficial for early intervention to ensure that injury claimants can achieve the best possible outcome. Whilst the most immediate needs may involve addressing the physical, psychological and social needs, even where a significant injury has occurred, it is appropriate for vocational rehabilitation providers to assess and evaluate claimants to assess their capacity for work, as soon as it reasonable. The longer a claimant is out of work, the more likely they are to develop a negative perspective about their own capabilities and about returning to work. It is therefore important for claimants, solicitors to help their clients to be positive and consider what they are still able to do rather than focus on that which they cannot do.

Solicitors representing injured claimants can utilise the services of a vocational rehabilitation provider to address vocational needs. The role of the vocational rehabilitation provider is to assist the claimant’s overall rehabilitation providing them with the best opportunities to return to work. The services provided by a vocational rehabilitation provider will typically include interview, testing and transferable skills analysis, career redirection assessments, return to work assessments, advice and research, job coaching, vocational case management and vocational employment expert reports. This may be done on an objective basis so that they are “compared to norms” by comparison to normative data.

However, for some claimants despite an obvious restriction, they may have developed techniques to work around these which may not be evidenced by normative data. The vocational rehabilitation provider therefore has to consider the capabilities as well as the limitations whilst considering the claimant’s past employment history, ambitions to retrain or study and their personal preferences to find a suitable alternative career path.

Some claimants can find it useful to try a selection of roles before deciding on their alternative career, especially if they are still young and not sure what alternative career path to choose. With the right guidance and advice, they can find an alternative career where they can utilise their transferable skills and current capabilities, despite their injury.

A good vocational rehabilitation provider can help them to integrate and adjust into the working world again. It is important for solicitors representing claimants to discuss the vocational rehabilitation needs with their clients as early as is possible to ensure the correct expert assistance is obtained to allow their clients to regain their confidence and independence by returning to suitable employment.

The start of the brave new technological era for the court system?

The first virtual court case has been held with a claimant appearing via a home laptop camera, while an extremely patient judge sat in a London tribunal and lawyers presented evidence from Belfast”, so says the Guardian newspaper heralding the new era of technologically advancement in the Ministry of Justice.

I can feel the cynicism of the lawyers who deal with the courts daily even as the achievement is announced.

This hearing was and is part of a new pilot by the MOJ in an effort to modernise. It allows for those not located next to a court to be able to deal with matters without the need for extensive travel. As a principle it cannot be faulted and if it is true that £1billion is to be spent on it, all well and good.

Actually, the ability to deal with things without attendance at court is well established. I have had clients give evidence by video link and prisoners do it all the time. However, the court system itself it not exactly set up for this and at one point the High Court in London could only arrange this through the one court room which had facilities. It was a logistical nightmare arranging any video link.

If the courts are to update their technology then those who deal with them day in and day out would be delighted. Take the current issue that if you email some judges at the court you can only attach so many documents to the email. Don’t think about pdf type documents. Sometimes they can be opened and sometimes not. It can be hit and miss as to whether the judge gets it, can open it, has the time to print it out if she or he so wishes and indeed in any event has a file in which to put it.

I have lost count of the number of hearings at the High Court where the judge indicates that they received the email but they could do very little with it since some of the documents would not open or could not be read.

Or the black hole which is the Court IT system where you email but no response is received. It is not clear whether it ever reached its destination so solicitors end up doing what the court specifically does not want – sending it all in paper form again.

Most lawyers want more technology. I am quite happy to deal with matters by email and telephone if it saves me waiting for half an hour in a draughty corridor with my opponent to discuss matters with a judge which are already agreed and can be resolved without wasting time.

Moreover, when most firms have accounts for court fees with the court service – why is it that some applications still need to be sent in paper form? Why can they not be emailed and the fee deducted from the account? It isn’t as if they need a cheque physically.

Before the MOJ starts with the cases involving tax and finance, perhaps they could start with the basics. The ordinary claimants who have smaller but nonetheless important cases in front of their local courts. Perhaps we could have some investment in technology which means we can deal with most issues by email. Perhaps documents could arrive on time and be accessible to the person who must read them and decide upon them. Perhaps someone physically does not have to attend the court two or three times a week simply to drop off or collect paper documents which surely must be capable of electronic transfer.

Technology is great. Investment in it by the MOJ is to be applauded. How about using the funds for the vast majority of the people actually using the court to reduce costs, waste less time and run a system fit for the century we are in?

£298,000 awarded to husband and wife following serious road traffic collision

On 16 August 2013 a collision occurred on the A14 slip road for Brompton between my clients’ car and a larger car driven by the Defendant. My clients’ car had broken down on the slip road and was parked off the carriageway. Both my clients had exited their car in order to try and fix the problem when, as they were both standing at the front of the car, another vehicle collided with it.

The high-speed impact between the vehicles forced my clients away from their car and down the slip road. Fortunately, they escaped major physical injury in the sense that neither sustained any fractures, but the psychological impact was significant.

I issued proceedings in the High Court and judgment was entered for my clients following a formal admission of liability. The matters in dispute concerned the extent to which their injuries were caused by the accident and the amount of compensation appropriate for these.

The husband sustained multiple lacerations and soft tissue injuries to his face, right hand, left shoulder and elbow, left lower back/loin, both knees and the second toe of his left foot. There was residual scarring over his face, particularly around the left eye and below the chin, as well as to other parts of his body including the low back/left hip, left elbow, left shoulder and right hand. In addition, there was redness and a mild hammer toe deformity of the left second toe.

Significantly, he also suffered from depression, anxiety and post-traumatic stress disorder following the collision. He undertook cognitive behavioural therapy sessions, but psychological factors continued to impact negatively upon him resulting in difficulties with concentration, attention, information processing and memory.

Symptoms in his back and right knee continued, together with stress related sweating and fatigue following everyday activity which resulted in a diagnosis of Chronic Fatigue Syndrome. The insurers sought to argue this diagnosis was established pre-accident following a pulmonary embolism suffered two years prior, and therefore the cause remained a live issue with the amount of compensation disputed throughout.

My other client, who had been the passenger driven by her husband, sustained concussion and soft tissue injuries to her neck, back, shoulders and knees along with lacerations/abrasions to her face and some dental damage in the form of chipped teeth. There was residual scarring on the ear, lip, hands, wrists, elbows and left shin, with mild discolouration on the right shin.

She also sustained post-traumatic stress disorder with depression and anxiety for which several sessions of cognitive behavioural therapy were recommended and undertaken.

Ongoing symptoms in the knees and inter-scapular region were expected to resolve, but my client went on to develop myofascial pain syndrome leading to an established diagnosis of Fibromyalgia which was not expected to resolve. In disputing this claim, the insurers relied upon on the poor statistical link between Fibromyalgia and trauma related to road traffic collisions.

Though amount of compensation due remained in dispute, the claims were compromised by way of joint settlement meeting between the parties shortly before trial.

My first client received an award for past and future loss of earnings, as well as for past care, treatment, travel and medication. It was also agreed that he would be compensated in the cost of paying for home help in the future, to include gardening and heavy DIY.

His wife, who was a teacher and had reduced to part-time work by the time of the settlement meeting, recovered her past and future loss of earnings, associated pension loss, claims for past care, treatment and travel, as well as future allowances for home help and gym membership, after it was agreed that exercise is universally recommended for Fibromyalgia sufferers.

The settlement represented a very good outcome for both clients. Special thanks followed on Twitter and I know that both clients are now looking forward, while putting the accident behind them.

Often referred to as a “diagnosis of exclusion”, pain conditions can be diagnosed in the absence of a physical problem causing the symptoms complained of. However, this doesn’t make the symptoms any less real for the sufferer and if accident-related can result in a substantial award of damages as in the present case.

Application of QOCS in third party claims

It is almost five years since the Jackson Reforms and the introduction of qualified one-way costs shifting (QOCS) in CPR 44.13 – 44.17, but the issues surrounding the applicability of QOCS still persist.

QOCS was implemented to protect claimants in injury claims against adverse costs after the end of recoverability of premiums for insuring against this risk from defendants in successful cases. If claimants are ordered to pay the defendant’s costs, their liability cannot exceed their damages and therefore losing claimants, save in exceptional circumstances, are not required to pay anything towards the successful defendant’s costs.

That is straightforward in cases that are undertaken on conditional fee agreements (CFAs) post April 2013. It is not so clear in cases which are undertaken on pre-April 2013 CFAs but additional claims are then brought by way of Part 20 proceedings post April 2013.

The Court of Appeal in the recent case of Corstorphine (an infant who proceeds by his mother and ligation friend Ellis) v Liverpool City Council had to determine whether the claimant who brought an injury claim under a pre-April 2013 CFA with an insurance policy, but lost was liable to pay the substantial costs incurred by the second and third defendants in the additional claim which the first defendant was ordered to pay.

The claimant had brought the claim initially against the first defendant, Liverpool City Council and the CFA terms contained reference to the “matter” which was the personal injury claim. Subsequently, the first defendant brought a Part 20 claim against the second and third defendants, who were respectively the manufacturers and sellers of the defective tyre swing which was the subject of the proceedings. Later the claimant joined the second and third defendants as parties to the main action. These claims were all commenced post April 2013. Both cases were ordered to be tried together.

The main case brought by claimant was dismissed and, in consequence, the Part 20 claim brought by the first defendant against the others was also dismissed. The judge held that there was no reason to depart from the general principle that costs follow the event and that the unsuccessful party (the claimant) should pay the other parties’ costs, including those which the first defendant had been ordered to pay to the second and third defendants.

This was appealed on the grounds that the judge erred in finding the pre-Jackson CFA also covered the claims against the second and third defendants in the main action, though the claimant later agreed to pay their costs. The claimant also argued that the judge had erred in exercising his discretion in directing that the first defendant was entitled to recover as part of its own claim for costs from the claimant the costs which it had been ordered to pay the second and third defendants in respect of the part 20 claim.

It was contended by the claimant that the “matter” referred to in the CFA was the claim being brought against the first defendant and not the additional claims against the second and third defendants. The first defendant argued the “matter” meant the “underlying dispute” which was the personal injury claim and included the primary and additional claims and the pre-Jackson CFA covered all claims. This therefore meant QOCS did not apply.

It was held on appeal that proceedings involving additional parties were commenced post the introduction of the Jackson reforms on 1 April 2013 and after the QOCS regime came into effect. There was no CFA or ATE that applied to the additional claims and therefore the claimant was not liable to meet the defendants’ costs in respect of the additional claims.

The court made a point referring to the case of Wagenaar v Weekend Travel Ltd, that if QOCS had applied to the main proceedings in this matter then the claimant would not have been ordered to pay the costs ordered against the defendant in respect of third party proceedings. It would be surprising if a different rule was to be applied in the present case.

Claimants are therefore protected by QOCS in respect of third party claims as well in the post Jackson era.

Personal injury claims reform gathers pace

The Ministry of Justice announced on Tuesday 20 March 2018 their intention to proceed with the Civil Liability Bill which mainly looked to implement reforms to low value personal injury claims (especially whiplash claims) and the method of calculation of the discount rate. The expected implementation date is April 2019.

The reforms to low value personal injury claims will raise the small claims limit for road traffic accident claims to £5,000 and for all other claims to £2,000. This will mean that there no legal costs will be recoverable for those claims and as a result injured claimants will have in general will have to make claims without legal representation. There will also be measures to reduce the level of damages paid for whiplash injuries by reference to a tariff system. The levels of damages will be much lower than currently awarded. This is all against a background that the level of whiplash cases has been steadily reducing since the introduction of the Jackson costs reforms in April 2013. The Ministry of Justice’s research indicated that £32 million will be saved by insurers from claims which no longer proceed (because claimants do not wish or are unable make claims without legal assistance) and claimant personal injury firms will lose £49 million in revenue. The whole basis is that the insurance industry will save significant sums and that this will be passed onto consumers with reductions in the levels of premiums. The writing has been on the wall for low personal injury claims for some time. If any firms continue to rely on those claims as their main work source then their viability will be seriously tested.

As a catastrophic injury lawyer, my focus has been on the proposed reforms to the calculation of the discount rate. The personal injury sector has had to deal with significant uncertainty since the rate was reduced from 2.5% to minus 0.75% in March 2017. As soon as the new rate was announced the Ministry of Justice confirmed that they would undertake reform to change the way it was calculated. Practitioners on both sides of the claimant and defendant divide have been left dealing with the uncertainty of not knowing what the rate could be at the time of settlement or trial. A claim for future loss could be reduced by as much as 35% with a rate change from minus 0.75% to say 1%.

The Ministry of Justice consider that research shows that the current rate is leading to over compensation as claimants do not invest as the law assumes they do. That contention ignores the views of the select committee who say that their needs to be more proof and research before reaching this conclusion.

In my view the Ministry of Justice’s rationale for the reform is flawed. Historically injured claimants have had to ensure that their settlements last for life and they have had to deal with two significant obstacles in achieving this. Firstly, that it was assumed for many years they were able to obtain a risk-free rate of return on their settlements of 2.5% per annum. Secondly, that their settlements do not take into account inevitable inflationary increases in the costs of their care packages and other needs for example aids and equipment. A claimant would be starting at a disadvantage and would have to invest more aggressively to try and ensure they have enough money to meet their ongoing basic needs.

The basis and the speed of the reforms to the calculation of the discount rate are in my view motivated to placate the insurance industry who have had to pay significant additional funds to injured claimants since the rate was reduced.

The proposed reforms are what were announced last year. Claimants will be assumed to be “low risk” rather than “very low risk” investors. The rate will be reviewed every 3 years by an independent expert panel. The reforms are expected to result in a rate increase to 0.5% or 1%.