Introduction
Welcome to our Team's Summer newsletter in which we hope you'll find something interesting, occasionally diverting and perhaps relevant to the work you yourself are doing.
Fixed costs in higher value cases are almost upon us, but the details remain frustratingly opaque. We can look forward to the rules themselves giving rise to yet more satellite litigation.
Interesting decisions in this area of law continue unabated including:
- FGX v Gaunt [2023] EWHC 419 (KB): first 'revenge porn' case in the civil courts (bit of a misnomer as the claimant wasn't aware that her boyfriend secretly filmed her doing things like cleaning the bathroom when naked) with damages awarded including £60K for PSLA.
https://www.judiciary.uk/judgments/fgx-v-gaunt/
- Apres Lounge Ltd v Wade [2023] EWHC 190 (KB): Successful appeal by a defendant in a slipping on liquid case involving a spilled drink in a bar. This contains an excellent overview of the authorities on slips and trips. The appellate court found that the trial judge imposed too high a burden on the Defendant.
https://www.bailii.org/ew/cases/EWHC/KB/2023/190.html
- Hetherington v Blythe [2023] EWHC 41 (KB): Pedestrian failed in claim against car driver – no negligence on part of driver when he ran into the road.
https://www.bailii.org/ew/cases/EWHC/KB/2023/41.html
The most senior and junior members of our team Charles Bagot KC and Charlotte Wilk have both appeared in the Supreme Court on different matters. You can read about the brief details in their short "What have we been up to?" sections below.
This section gives some idea of the breadth and depth of the work our team has been involved in. We have been acting in overseas jurisdictions, inquests and inquiries, dealing with cases at the cutting edge of the law, representing government departments and the most seriously injured, and dealing with cases with high profile and high importance. In addition to acting for the parties, the team have been acting in a variety of judicial, coronial and dispute resolution capacities. Mr Bagot finds himself in the possibly unique situation of appearing before the Supreme Court as advocate while also having his own judicial decision considered by the same body.
Take a look. And if something we're doing chimes with the work with which you're involved, get in touch.
This issue, we have a smorgasbord of articles on a wide variety of topics, part 36, costs, relief from sanctions and everything in between.
Charles Bagot KC writes about a recent decision on costs budgeting in which the Master disallowed solicitor time for attending on non-medical experts – a case elevated directly to the Court of Appeal.
Vanessa McKinlay writes about the dilemma facing claimant advisers in a clinical negligence or personal injury case where a Defendant makes a Part 36 offer at a stage when the Claimant's prognosis is still uncertain.
Emma Zeb writes about the current Covid-19 enquiry which continues to produce both headlines and surprises.
Jasmine Murphy writes about the perennial battle over relief from sanctions and the overriding need to make your application timeously.
Colm Nugent writes about aggravated damages in personal injury cases – apart from those decisions involving the police, are they ever recoverable?
Charlotte Wilk writes about a recent decision on the award of interest on general damages and whether it may be increased by way of a punitive measure in appropriate.
Our fortnightly open house sessions with drinks and nibbles on our large roof terrace continue every other Wednesday. If you're up in town, we'd love to see you. It's all very informal and no business development networking is required (it may even be disallowed).
This photo of Gray's Inn was taken by a recent attendee.
Colm Nugent – Editor for this edition
What have we been up to?
We asked members of the Team to pick a few highlights of their last few weeks. Once the editorial team weeded out the stuff about Love Island and their latest holidays, this is what they told us.
Do any of them chime with what you're doing? We'd love to hear from you if they do.
In recent weeks, Charles has been:
- Appearing in the Supreme Court for all the Defendants in the secondary victim appeals in Paul v Royal Wolverhampton NHS Trust & others, described by Professor Dominic Regan as "the Tort case of the century". (That might be slightly overdoing it, but the decision of the 7 Justice panel is eagerly awaited by those practising in this field).
- Charles was invited to speak at the Commonwealth Law Conference, in Goa, India, on the subject of avoiding complaints and professional negligence claims and making ethics work in practice.
- Charles has been advising and assisting with various international and cross-border claims, including a psychiatric injury claim being litigated in Hong Kong where the damages are put at the equivalent of £6m.
- He has acted in a series of fatal accident and injury claims arising out of an horrific road accident in a Birmingham underpass which resulted in 6 fatalities. Sensitive and complex issues arose in relation to drug taking and other illegality by both the tortfeasor driver and other victims of the incident.
- His decision, sitting as a Deputy Master, in HXA v Surrey County Council [2021] EWHC 250 (QB), striking out a claim for damages against a local authority for the failure to remove children from an abusive family, will be considered by the Supreme Court in the autumn of 2023.
In recent weeks Emma has been:
- Dealing with a number of fatal mental health clinical negligence cases, including drafting Defences, Counter Schedules and Advices on Quantum.
- Representing the Defendant at a JSM arising out of a Fatal mental health clinical negligence case.
- Hearings involving prison healthcare claims.
- Assisting with cases involving road traffic accidents in the Cayman Islands, including advising on quantum.
In recent weeks, Vanessa has been:
- Advising the Claimant on a birth injury case involving cerebral palsy in which a liability offer is due to be heard by the High Court for approval.
- Settling a multi-million pound case at JSM for a Claimant who has profound disabilities as a result of critical illness myopathy following sepsis.
- Advising on a fatal accident claim following the suicide of a non-detained psychiatric patient.
- Acting as a Mediator in clinical negligence cases for Trust Mediation.
- Sitting as an Assistant Coroner in Birmingham and Solihull.
In recent weeks, Nye has:
- Settled a long-running Fatal Accidents Act case following the joint meetings of the experts.
- Been instructed in two serious birth injury cases.
- Settled a case concerning a negligently-performed hysterectomy.
- Is shortly to begin a two-week jury inquest concerning medical treatment provided in prison.
In recent weeks, Emma has been:
- Working on the Covid-19 Inquiry as part of the counsel team for the Cabinet Office including attending some of the Module 1 hearings and working on Rule 9 requests from key witnesses in Module 2.
- Dealing with a death in custody inquest over five days examining the use of Psychoactive substances in prison.
- Representing a police authority in an inquest touching the death of a man from chronic alcohol misuse who had some involvement with the police and other public bodies.
- Negotiating settlement for a Defendant at JSM in a multi-million-pound claim for damages following alleged brain injury and FND after an assault at work.
- Advising in two serious amputation cases following multiple injuries sustained in serious motorcycling accidents.
- Trudging up and down the virtual Master's (Judges) corridor at the High Court on a number of procedural matters and high value CCMCs.
In recent weeks Colm has been
- Concluding as settlement after five years of a Fatal Accident claim, in which the Inquest found no fault with the employers conduct of their workplace. The claim settled at over half a million pounds. Colm acted for the claimant.
- Finding semi-fame as a consequence of an alleged attempted murder by a landowner of a young man he had suspected of trespassing. The claim, which is yet to be heard, was covered by the Times, Telegraph, Mail and Mirror. Colm is instructed on behalf of the shooting victim. https://www.mirror.co.uk/news/uk-news/millionaire-shoots-boy-thinking-hes-29892533
- Advising a former student who fell down (allegedly) defective stairs in student accommodation and sustained partial tetraplegia and securing a substantial six figure settlement. Colm was instructed by the claimant when liability was denied by the landlord.
- Colm has been instructed on behalf of a young man who sustained a significant brain injury when thrown down a flight of stairs by a nightclub bouncer. Liability remains unresolved, but the defendant has agreed to fund immediate rehabilitation.
- Representing a motorcyclist who skidded at a worn manhole cover and lost an arm in the resulting impact with a wall, and is suing the local authority for a seven-figure sum. Colm is instructed by the claimant and liability remains contested.
- Colm is instructed by the claimant in an action against former legal advisers who are said to have under-settled his personal injury claim. The under-settlement is said to exceed £1.2m. Liability remains firmly contested although the parties are engaging in ADR.
- Gave a seminar on the evidence that can be obtained from the impact damage to cycle helmets, post-accident to assist the neurologists and similar medical experts ascertain where there is likely to have been brain injury as a result of the impact.
In recent weeks, Charlotte has been:
- Recently instructed in the Supreme Court as Second Junior Counsel for the Road Haulage Association (led by PJ Kirby KC) in the case of R (on the Application of PACCAR Inc and Others) (Appellants) v Competition Appeal Tribunal and Others (Respondents); the appeal is awaiting judgment.
- Instructed by the Cabinet Office on the Covid-19 Inquiry.
- Acted in the SCCO (High Court) in a preliminary issues hearing in a child brain injury case.
- Recently secured a successful outcome in a pro bono trial (via Advocate) in a solicitor-client dispute. Her client was being sued for costs after allegedly terminating the retainer in her Personal Injury claim, but the Judge held that the PI Firm had terminated the retainer.
- Busy with numerous application hearings in PI and clinical negligence matters, from resisting s.33 applications to allocation hearings.
- Instructed in a number of slipping accident claims as well as clinical negligence matters including a pulmonary embolism case and a claim involving negligent geriatric care.
In recent weeks Jasmine has been:
- Instructed in a case where a dog is alleged to have knocked the claimant over in his own garden.
- Instructed to defend a claim where the claimant alleges she fell from her horse because it was frightened by loose materials blowing in to the horse riding arena from a neighbouring construction site.
- Presented a webinar for MBL about the challenges of valuing scarring injuries https://www.mblseminars.com/Outline/Scarring-Claims—Key-Issues-_-Valuation-for-Personal-Injury-Lawyers—Webinar/17408.
- Edited the Animals volume in Halsbury's Laws of England.
- Settled a claim at a mediation involving four defendants where an employee suffered serious injuries as a result of being electrocuted.
- Continued acting for the defendant driver and insurer in relation to a road traffic accident as long ago as 2009 when the claimant was a child. The claimant was involved in several road traffic accidents as a child and his various claims were brought on the eve of limitation and case managed together. The Claimant claimed a significant six figure sum in damages claiming he had suffered serious and ongoing physical and psychological issues. There were serious issues of causation, both in relation to low velocity issues as well as medical issues. Jasmine represented the defendant RTA insurer 10 years previously in proceedings brought by the claimant's mother as well as these later proceedings which involved several interlocutory hearings to seek unless orders against the claimant as well as applications by the claimant for relief from sanctions. Eventually the Claimant accepted an offer out of time for just over 1% of the pleaded value of his claim.
In recent weeks, Rob has been:
- Acting for the claimant against leading counsel in a complex high court RTA liability trial involving accident reconstruction expert evidence.
- Involved in the settlement of a substantial six-figure fatal accident claim with three dependants and a widow.
- Involved in the resolution of a 'nervous shock' claim of a mother following stillbirth in a clinical negligence claim. Husband's claim was stayed pending the outcome of the Supreme Court decision in Paul and another v Royal Wolverhampton NHS Trust (in which Charles Bagot KC acted).
"The Sky at Night", the budget version, starring Master McCloud
Apart from a strong contender for 'opening line of a judgment of the year', Master McCloud's decision in Hadley v Przybylo [2023] EWHC 1392 (KB), is a rare example of costs budgeting giving rise to an interesting legal point.
Click here to read the full article by Charles Bagot KC.
Part 36 offers when the prognosis is unclear
This article explores the following issues:
What happens in a clinical negligence or personal injury case where a Defendant makes a Part 36 offer at a stage when the Claimant's prognosis is still uncertain?
If a Claimant waits until the picture becomes clear and then accepts the offer late, will the Defendant be able to recover its costs, or will the court consider that to be unjust in the circumstances?
Read the full article by Vanessa McKinlay here.
Relief from sanctions: too little too late
Applications for relief from sanctions continue to trouble the courts, the latest judgment being given by the Court of Appeal in ELO Trustees Ltd v (1) Bonhams 1793 Ltd (2) HNW Lending Ltd [2023] EWCA Civ 664. One of the take away points from this case concerns the need to make an application for RFS promptly. In this case, 18 days was considered too late.
Read the full summary by Jasmine Murphy here.
Interest-ing time warp? High Court considers link between conduct and conventional interest rate
Charlotte Wilk explores the recent case of Phillip Smout v Wulfrun Hotels Limited [2023] EWHC 1128 (KB) ("Smout"). In Smout, Mr Justice Ritchie considered whether the conventional interest rate on awards on pain, suffering, and loss of amenity could be increased by a judge at trial as a result of the conduct of the Defendant.
Read the full article by Charlotte Wilk here.
Informed consent: what is the test for reasonable alternative or variant treatments?
The Supreme Court in Montgomery imposed (or perhaps clarified) a duty to ensure that any patient is aware of the material risks involved in any recommended treatment. They also extended the duty to obtain informed consent to informing the patient of "any reasonable alternative or variant treatments."
Click here to read the latest article by Aneurin Moloney.
Public inquiries and a little on Covid-19
As we enter the early weeks of the Public Inquiry into the Covid-19 pandemic, it is hard to believe that in three years from now we will still be seeing snippets of evidence on the news, as the whole Inquiry itself is set to run until summer 2026. What the public is seeing now is Module 1 of the Inquiry which is set to examine whether the UK was properly prepared for and able to respond to a civil emergency of the type seen in the United Kingdom in 2020 and 2021.
Read the full article by Emma Zeb here.
Aggravated damages in personal injury claims: are they ever recoverable?
Outside of those cases involving false imprisonment or torture, aggravated damages in personal injury claims are vanishingly rare. A recently issued claim in the High Court called Frearson, claims aggravated damages for what is alleged to be deliberate assault with a deadly weapon. But that claim is at an early stage and – even if it goes to trial – is unlikely to provide any definitive answers for some time.
Click here to read the case summary by Colm Nugent.
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.
