UK: Discontinuance Of Claims Following Investigation

Last Updated: 8 May 2008
Article by Richard West, Partner and Andrew Caplan, Partner

Keeping adequate records and seeking disclosure at the earliest opportunity can prove vital to successfully defeating a claim. In respect of lower value fast track claims document gathering is even more important, as costs of detailed investigations and proofing of witnesses can outweigh the value of the claim, often leading to a commercial decision to make an economic settlement. Two recent cases dealt with by our Chelmsford office demonstrate that it is possible to successfully defend such cases with early review of documents, without having to run them to trial.

The first case was an employers liability claim involving a refuse collector who alleged that he had injured his back whilst lifting a heavy refuse sack, as a result of the Defendant's failure to provide adequate training and supervision. Fortunately there was documentary evidence signed by the Claimant, confirming that he had received manual handling training approximately two weeks prior to the alleged accident. The claim was discontinued by the Claimant when confronted with the evidence against him.

The second case, was a tripping claim brought against a company that had installed a water meter (1st Defendant) and the responsible Highway Authority (2nd Defendant) for whom Kennedys acted. The Claimant had allegedly tripped over a water meter cover that had fallen into a state of disrepair. Liability was in dispute. A thorough review of the Claimant's medical records revealed that he had sustained a fracture injury to his ankle playing football on the same date as the alleged accident. Furthermore, there was a record of additional injury to the ankle some four weeks later whilst out jogging. An application to strike out the claim was made based upon arguments that the claim was fraudulent. The application was successful.

In both cases we acted on behalf of Basildon District Council and successfully recovered costs against the Claimants.

LEGISLATION/CIVIL PROCEDURE

Personal Injury Multi-Track Code



A number of Claimant firms have signed up to a voluntary code of practice that will be run on a pilot basis, commencing this spring. The code has been designed for multi-track personal injury cases (excluding clinical negligence and asbestos related disease cases) with a predicted value of up to £250,000. The objective is to resolve claims as quickly as possible in a cost effective manner and within an appropriate time frame, with all sides working together in an environment of mutual trust and collaboration. Some key objectives are:

  • early notification of claims to Defendants/their insurers
  • commitment to resolve liability by agreement or trial if necessary, within six months
  • early discussion to agree care regime, rehabilitation of injured person
  • prompt disclosure of all relevant information
  • willingness to make early interim payments where appropriate
  • no part 36 offers until parties have attempted agreement of an issue through dialogue/negotiation

The Code, which has been produced by organisations such as FOIL, APIL and some major insurers working together, is backed by the Civil Justice Council and the Ministry of Justice. The pilot will include a selection of solicitors and insurers working on new claims after its commencement and there will be a formal review after six months.

Corporate Manslaughter And Corporate Homicide Act 2007

The Act, which received royal assent on 26th July 2007, comes into force on 6th April 2008. Further commentary on the impact of this Act will be covered in Liability News later this year.

Personal Injuries (NHS Charges) (Amounts) Amended Regulations 2008

Recent amendments made to the 2007 Regulations have increased charges in respect of injuries, occurring on, or after, 1st April 2008. Where the injured person has been provided with NHS ambulance services, the charge has increased to £165 for each occasion. Where the injured person receives NHS treatment, but not admitted to hospital, the charge has been increased to £547. The daily charge for NHS in-patient treatment has increased to £672. The maximum charge in respect of an injury has increased to £40,179.

The Pneumoconiosis Etc. (Workers' Compensation) (Payment Of Claims) (Amendment) Regulations 2008

Under the Pneumoconiosis etc. (Workers' Compensation) Act 1979, lump sum payments may be made to certain persons disabled by a disease to which the Act applies (pneumoconiosis, byssinosis, diffuse mesothelioma, primary carcinoma of the lung ((where accompanied by asbestosis or diffuse pleural thickening)) and diffuse pleural thickening), or to dependants of persons who were so disabled before they died.

These Regulations amend the Pneumoconiosis etc. (Workers' Compensation)(Payment of Claims) Regulations 1988 by increasing the amounts payable under the Act. The increase in each case is 3.9% rounded up/down to the nearest £1 as appropriate.

Civil Justice Council Consultation Process re General Pre-Action Protocol

Following the outcome of the Civil Justice Council's (CJC) earlier consultation regarding a Consolidated Pre-Action Protocol, the CJC is now proposing to recommend a General Pre-Action Protocol to be used in those cases to which the existing or any future subject-specific Pre-Action Protocols do not apply. It is further proposed to amend the Practice Direction on Pre-action Protocols and that this should supplement Part 3 of the Civil Procedure Rules. The CJC is making these proposals jointly with Her Majesty's Court Service.

IN DEPTH COMMENTARY ON RECENT DEVELOPMENTS

Mental Capacity Act 2005 And Amendment To CPR 21



As mentioned in last month's issue, Rob Tobin provides a detailed analysis of the Act and the amendments to the CPR. The Act seeks to protect the most vulnerable members of society and to ensure that medical treatment and welfare decisions are made in their best interests, following consultation with interested parties. To read more click here

House Of Lords Departs From Previous Decision In Stubbings v Webb

Following this landmark decision, it is now possible for victims of abuse to potentially bring a claim for compensation many years after the event. Andrew Caplan comments upon the impact of this decision upon employers in respect of claims that may be brought based upon vicarious liability. To read more click here

NEWS IN BRIEF

NHSLA Keeps Faith With Panel After Six-Month Review



Kennedys remain on the NHSLA panel for a further three years for clinical negligence work following the review. The appointment will commence from 1st April.

Legal Week 10.3.08

Coroners Face Gagging Over Troop Deaths

The Defence Secretary is trying to prevent coroners from being highly critical of the MoD over the deaths of British Troops killed in action.

Times 18.3.08

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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