UK: What Does 2023 Hold For PI Lawyers?

What does 2023 hold for PI lawyers? Here are some appeals and likely developments coming over the horizon encapsulated in Kylie Minogue songs:

"Your Body": Mixed Injury Portal cases

Judgment from the Court of Appeal is awaited in the two test cases (Rabot v Hassam, Briggs v Laditam) which have been leapfrogged together from the palais de justice which is the County Court at Birkenhead. The issue is how to deal with Portal claims where injuries include whiplash injuries for which damages are fixed by a tariff and other non-whiplash injuries where the tariff is not fixed. The appeal is from decisions of an experienced judge, District Judge Hennessey, who valued the non-whiplash injury along usual principles using the JC Guidelines, added the tariff award for the whiplash injury and then discounted down to allow for overlap along established Sadler v Filipiak [2011] EWCA Civ 1728 lines. APIL and MASS intervened and argument was heard in December 2022.

"Spinning around" Vicarious Liability BXB v Watch Tower [2021] EWCA Civ 356

The latest instalment in the development (or perhaps not) of the doctrine of vicarious liability is due to be head by the Supreme Court in February 2023. In BXB a religious organisation was found vicariously liable for the actions of an unpaid volunteer elder who raped another adult member of congregation at his home. The defendant lost at first instance and in the Court of Appeal, but the Supreme Court has given permission to appeal on both stages of the test for vicarious liability: whether the relationship was akin to employment as well as close connection.

"The Winner Takes It All": QOCS, set off and Part 36 offers

Currently claimants with QOCS protection are benefiting from two loopholes which are about to be closed. In 2022 the Ministry of Justice published a Consultation concerning potential rule changes to deal with the issue defined by the Supreme Court in Ho v Adelekun [2021] UKSC 43. The Supreme Court determined that in a QOCS case a defendant cannot set off costs ordered to be paid to it against costs it is ordered to pay a claimant. However in its meeting in October 2022 the Civil Procedure Rules Committee additionally proposed changes to CPR 44 (see the minutes of the October 2022 meeting) to plug the hole identified in Cartwright v Venduct Engineering [2018] EWCA Civ 1654 that settlements, including acceptance of Part 36 offers, are not orders of the court which allow a defendant to enforce a costs order against the claimant's damages.

The CPRC were due to consider final amendments in its December 2022 meeting, minutes of which are not available at time of writing. However it is expected that the rules will be changed in 2023, thereby changing the current favourable situation that QOCS claimants experience by bringing them in line with other types of claim in respect of costs set-off and Part 36 consequences.

"I Should be So Lucky" Mathieu v Hinds [2022] EWHC 924 (QB

In the High Court Mrs Justice Hill scythed her way through numerous issues in the TBI case of Mathieu v Hinds. Some of the issues were: (i) provisional damages and the risk of dementia following a TBI; (ii) taxation of damages where the claimant lives in a different country and; (iii) loss of chance and loss of earnings. The appeal is due to be heard in May 2023.

"Got to be Certain": Expert Evidence Griffiths v TUI (UK) Ltd [2021] EWCA Civ 1442

Practitioners will be glad to know that permission to appeal has been granted to the claimant by the Supreme Court. The issue is one of practice and procedure and how a party should challenge the expert evidence of the other party, whether by obtaining permission for its own expert evidence or cross-examining the other party's expert. The dissenting judgment of Bean LJ resonated with most practitioner's expectation that where a party chose not to obtain its own expert evidence or cross-examine the opposing party's expert, the court would generally accept uncontroverted expert evidence. However, he was in the minority. The Supreme Court's judgment will hopefully clarify the procedure to be adopted.

"Give Me Just a Little More Time": Extending fixed costs: a new intermediate track for £25,000 to £100,000 cases

The Civil Procedure Rules Committee has also been hard at work in respect of fixed costs, their October 2022 minutes revealing that they are now back in favour of a new intermediate track for all money cases (not just personal injury) valued between £25,000 and £100,000 instead of expanding the Fast Track. Again, final drafting was to be considered in their December 2022 meeting (minutes of which are awaited) but implementation of this new track has since been put back from April 2023 to October 2023.

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