Personal Injury and Clinical Negligence Newsletter: May 2018
Welcome to the spring 2018 edition of Hardwicke’s Personal Injury and Clinical Negligence Newsletter.It has been an eventful start to the year, to say the least.
In January, Sarah Venn (now Her Honour Judge Venn) became one of the youngest ever to be appointed as a Circuit Judge hearing civil cases on the South Eastern circuit.
Then, in February, Charles Bagot QC was sworn in as Queen’s Counsel. Whilst that would be good enough for most people, Charles was then appointed as a Recorder in March.
We are delighted with their success, and wish them both many congratulations. The rest of 2018 has a tough act to follow.
We also welcome Helena Drage to the team following successful completion of her third-six pupillage. Helena came to Hardwicke from a leading commercial and common law set. She appears regularly in court, and has already secured a number of great results in liability and quantum trials. We hear more about Helena in this edition’s ‘Hardwicke Unrobed’.
In this edition: Jasmine Murphy looks at defending applications for interim payments, Nye Moloney looks at recovering the costs of attendance at inquests, and Helena Drage looks at personal injury claims against defendants who have entered into a company voluntary arrangement. Finally, Charles Bagot QC provides an Espresso Update on actionable injury.
Dates for your diaries:
On 15 May, Hardwicke will be hosting the AvMA ‘Representing Families at Inquests: A Practical Guide’ conference. Henry Slack will be chairing the full-day event, and Nye Moloney will be delivering the case law update.
On 29 June, many of our clinical negligence practitioners will be attending the AvMA annual conference in Brighton, where Charles Bagot QC will be delivering the legal update.
It would be great to see you at these events.
Jasmine Murphy: “You Can’t Always Get What You Want” – Opposing applications for interim payments
Successfully defended an employer’s liability case at trial on behalf of the Salvation Army. The claim arose out of a serious injury sustained by a member of staff at a care home.
Provided an expert report on various points of English Law and Procedure as an expert witness for a Dutch Court.
Advised (Leading Jasmine Murphy) a major airline on an ongoing claim, pleaded at £7m, arising out of a slipping accident at Munich Airport.
Represented an Ironman triathlete who sustained multiple spinal fractures in an accident whilst on a training cycle ride.
Represented the Appellant in an appeal concerning whether a duplicate claim is an abuse of process, where the same claim was previously brought as a counterclaim to earlier proceedings, but then struck out for a procedural breach. A second issue is whether service of a claim form on an address from which the serving party had evicted the recipient two years before, amounts to good service under the ‘last known address’ rules. The appeal is currently part-heard.
Advised in a through hip amputation claim, thought to be one of the highest value lower limb amputation claims ever brought.
Was instructed by a tour operator to attend a costs hearing following a dismissal of a holiday sickness claim and finding of fundamental dishonesty at trial. The judge ordered a separate hearing for submissions on whether she should exercise her discretion to make the defendant’s cost order enforceable under CPR 44.16. Following Jasmine’s written and oral submissions the Judge gave permission to the Defendant to enforce the costs order of over £12,000.
Jasmine was also recently instructed in an equine case where the claimant suffered two horse-related injuries at work. The case was valued by the claimant at over £2,000,000 but resolved at a JSM with Jasmine as part of the defendant’s team.
Has been involved in defending an appeal following a decision where a County Court Judge awarded costs outside of the fixed costs regime under the “escape clause” provisions. The claim was a employer liability action where the Judge found it was exceptional and proceeded to assess costs outside of the fixed regime. A decision is awaited. She has also appeared in numerous trials and successful applications for pre action disclosure and resisting the submission of further medical evidence.
Has been acting for insurers in trials concerning low velocity traffic accidents and gastric illness claims. A recent high point was obtaining the Claimant’s agreement, during cross examination, to having been Dolphin watching whilst on holiday in circumstances where her witness statement had suggested she was ‘room bound’ at the time due to gastric illness and there was no evidence to suggest otherwise. Robert has also found time to act on the side of the angels and obtained good results for genuine Claimants including settlement of a brain injury case (led by Colm Nugent) for over £500,000 and a clinical negligence case concerning a still birth.
Acted on behalf of the family in an inquest into the death of a newborn baby where a finding of neglect was made. He has settled a series of clinical negligence cases including claims for allegedly negligent cancer treatment, 2 delays in diagnosing cancer cases, and a Fatal Accidents Act claim arising out a fall in hospital.
Has been busy in trials, including resisting a finding of fundamental dishonesty, and successfully defending a slip/trip claim for Network Rail.
Gordon Exall, Colm Nugent, Jasmine Murphy and Gemma Witherington delivered their seminar ‘Persuasion’ to defendant solicitors.
Article - “You Can’t Always Get What You Want” – Opposing applications for interim payments - Jasmine Murphy
This article takes a look at the evidence required if a defendant seeks to oppose an application for an interim payment. It forms part of a lecture that the Hardwicke PI & Clin Neg Team gave on 18.04.2018 about making successful applications.
Do you really want to oppose it?
An interim payment can be a good weapon in a defendant’s arsenal. If the claimant has a claim for expensive future pain management treatment, see whether they spend the interim payment on that or a home tanning salon. If they spend it on the treatment then there may be improvement in their condition. On the other hand, if the claimant turns up at the JSM with a Trumpesque tan then you have the basis for alleging a failure to mitigate/challenging need for the pain management treatment.
Article - Recovering The Costs Of Attending Inquests - Aneurin Moloney
Since Roach & Anor v Home Office  EWHC 312 (QB), there has been greater certainty that inquest costs may be recoverable by way of costs in subsequent civil proceedings.
However, both appeals in Roach concerned cases where there had been no admission of liability before the inquests took place. Roach was also decided before the post-March 2013 proportionality test came into play.
In Douglas v Ministry of Justice and Care UK  EWHC B2 (Costs), Master Leonard considered the recoverability of inquest costs where there had been admissions before the inquest was held.
Article - Company Voluntary Arrangements and PI Proceedings: What’s the position? - Helena Drage
You have instructions to commence proceedings for damages for personal injury against a defendant company only to find that the company has entered in to a Company Voluntary Arrangement (“CVA”). What procedural issues arise and what steps should be taken?
What is a CVA?
A CVA is an arrangement made under Part 1, section 5(2) of the Insolvency Act 1986 (“the 1986 Act”) between a company and its creditors under which the creditors agree that the company will not be wound up, the creditors will not pursue the company for its debts and that instead the creditors will receive a dividend under the arrangement.
The CVA will be in place for a period of time following which the CVA will either come to an end and the company will continue trading or the company will be wound up.
Article - Espresso Update; ‘Actionable Injury’ - Charles Bagot QC
Injury and Clinical Negligence lawyers who do not practise in the industrial disease field may have overlooked the Supreme Court’s recent decision in Dryden v Johnson Matthey PLC  UKSC 18. But I suggest its importance in clarifying the law on the threshold for actionable injury goes much wider than merely disease cases.
This edition of unrobed is answered by Helena Drage.
What would you be if you weren’t a barrister? I’d probably be in academia. I was an academic philosopher before coming to the Bar. In another life I may have chosen floristry.
What has been the highlight of your career so far? Without a doubt being taken on as a tenant at Hardwicke.
I am a huge fan of … Jonathan Meades, dachshunds, puzzles.
My biggest pet hates are … Unkindness and gazpacho soup.
What was your first ever job? I was a barista at Starbucks from 16 to 18. No joke.
Random fact: Not many people know that… I worked in film production for a year. I worked on Creep (horror film about London Underground).
What are the best/worst things about being a barrister? Best: Getting results for clients, making submissions in court, meeting incredibly clever and interesting people, every day being different. Worse: Getting up at 4.45am to get to Swansea for a 10am hearing.
Outside the law, what do you like doing? Acting, sailing and tending to my tiny balcony garden.
What is the best piece of advice you’ve been given as a lawyer? To draft pleadings as if I am making submissions incourt.
If you would like to discuss any of the topics in this newsletter, please contact a member of our Practice Management Team: