All posts by Ryans

Appeal: judge went ‘too far’ in applying fundamental dishonesty

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The county court has overturned a decision to penalise a failed personal injury claimant with an order of fundamental dishonesty against her.

His Honour Judge Hodge QC, sitting at Manchester Civil Justice Centre (pictured), said District Judge Khan ‘went too far’ in penalising a woman who had made a claim against the restaurant chain La Tasca after claiming to have suffered a fall at its Trafford Centre branch in 2014.

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Government figures reveal whiplash claims in freefall

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A freedom of information request by the Association of Personal Injury Lawyers (APIL) reveals that the government’s compensation recovery unit recorded 335,365 claims in 2015/16 where the compensator had used the term ‘whiplash’ within the injury description field. In 2014/15, a total of 376,513 claims were identified in the same criteria – meaning a fall this year of 11%.

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‘Deadline slips’ for clinical negligence fixed fees

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Personal injury lawyers have welcomed claims that the government has conceded that it cannot meet its timetable for introducing fixed fees for clinical negligence cases.

Earlier this year, health minister Ben Gummer (pictured) said it was the Department of Health’s intention to introduce fixed recoverable costs for clin neg claims from 1 October. The government has been expected to consult on the plan since last autumn.

However, the Association of Personal Injury Lawyers said today that it had received ‘welcome confirmation’ from Gummer that the introduction of fixed costs will not be implemented on 1 October.

The association said: ‘The Department of Health has acknowledged that the delay in publication of its consultation on this matter means an October implementation is not achievable. This will be a considerable relief to our members who will need time to prepare their businesses, and provide clarity and certainty for clients about changes to how cases are to be costed and conducted.’

The association added that it will ‘continue ongoing talks’ with the department ‘about how the NHS can save money without compromising on access to justice for injured patients’.

A spokesperson for the Department of Health told the Gazette a consultation will be published ‘later this year’.

Law Society chief executive Catherine Dixon said the Society was ‘supportive’ of APIL’s request to move the 1 October implementation date, especially given the consultation had not been issued yet.

Dixon said: ‘We have always stated that any new regime involving fixed costs for clinical negligence cases should enable practitioners to appropriately plan and implement any changes. We suggested 18 months as a minimum from when the changes are agreed. However, much will depend on the impact of the changes.

‘We continue to work closely with APIL, the Society for Clinical Injury Lawyers, Action against Medical Accidents and the Forum of Insurance Lawyers to ensure that people who have been harmed through no fault of their own by negligent NHS care are able to receive compensation to help them and their families get back on their feet.’

Julie Say, partner and head of clinical negligence at London law firm Hodge Jones & Allen, said: ‘Ever since the October deadline was announced it was obvious that any implementation was going to be too tight.

‘It would be very ill-advised if not downright irresponsible for the government to introduce a fixed-costs regime without adequate consultation, particularly given that the impact of the Jackson reforms is still to be assessed.’

Say said lawyers’ fees were already ‘tightly controlled, capped and limited’ as a consequence of the Jackson reforms.

She added: ‘To seek to introduce further and somewhat draconian changes without waiting to see whether the introduction of costs budgeting will lead to the necessary improvement must, from any angle, be considered to be somewhat misguided and misconceived.’

The Forum of Insurance Lawyers expressed regret at news of the consultation delay.

Mike McKenna, a member of the forum’s clinical negligence sector focus team and partner in Hill Dickinson’s health litigation team, said: ‘It’s a pity that other issues appear to have delayed the [consultation] but it’s obviously a topic still very high on the government’s agenda and we look forward to debating this important issue later this year.’

Lord Dyson, the master of the rolls, last week voiced concern about the prospect of the Department of Health heading the move towards fixed fees.

He told an event at Leeds Law Society that, while he had been ‘convinced for some time’ that the scope of fixed fees should be extended, it was ‘wrong in principle’ that the department ‘should steal a march over all other bodies in leading the way here’.

Dyson said: ‘I think [the department] is suggesting and consulting on a proposal to extend [fixed fees] to claims up to £250,000. But it just seemed to me wrong in principle that clinical negligence litigation should be treated as a special case.

‘Defendants in all sorts of other litigation are just as concerned and exercised by the cost of litigation, and have just as much a keen interest in knowing what their liability for costs is likely to be capped at by a fixed-costs regime as is the Department of Health.’


Fundamental Dishonesty Defence Fails

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Since the defence of fundamental dishonesty was introduced in April 2015, defendants have utilised it as a strategy to persuade claimants to drop or settle their claims.

Section 57 of the Criminal Justice and Courts Act 2015 provides that a court must dismiss a claimant’s whole claim where it is satisfied that the claimant has been fundamentally dishonest, unless by doing so there would be substantial injustice. This would result in the claimant having to pay the defendant’s costs.

This defence recently failed to deter Carol Ravenscroft in her personal injury claim against Swedish furniture giant Ikea. This is one of the first cases where the fundamental dishonesty defence has been rejected by the court.

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