The Practical Lawyer

Personal injury

Expert – wasted costs order

The CC has taken the unusual step of making a wasted costs order for £89,000 against a so-called expert witness. An NHS trust was the defendant in a claim for clinical negligence brought by the claimant. The expert witness was her only expert in the proceedings.
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Provisional damages – underused?

An interesting article reminds PI practitioners of the underused solution of provisional damages, which are provided for in s32A of the Senior Courts Act 1981. In PI and clinical negligence cases, damages are paid now on the assumption that some risk event will not occur, preserving the right for the claimant to return to court for further damages in the event that it does.
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Whiplash reforms – delayed?

The Gazette online reports that the start date for proposed whiplash reforms is in doubt. The proposal is to increase the small claims limit for RTA claims to £5,000 and this was due to go live in April 2020.
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Slipping claims – burden of proof

In general, the law on slipping cases is reasonably settled and straightforward. An interesting article considers a question which often arises in practice, namely whether the defendant bears an evidential burden of proving that it had in place a proper and adequate system.
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LiPs – tips for dealing

Litigants in person (LiPs) are on the increase due in part to legal aid cuts and an increase in the small claims limit. Maintaining the balance of treating LiPs fairly, while also acting in the best interests of the client can be difficult. An article provides pointers to assist when dealing with LiPs in disputes or court proceedings.
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Interim costs – requires clear application

The HC has refused an application in a clinical negligence case for interim costs of £150,000. The judge pointed out that the supporting witness statement failed to address any key issues and was just a ‘cri de coeur’ for more money. The HC accepted the need for solicitors engaged in heavy and protracted litigation to expect adequate cash flow, however, such applications must be properly argued. Helpfully the judge set out examples of the information which applicants for interim costs may wish to specify:
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Infant approval hearing – top tips

An interesting article provides some practical advice on achieving the court’s approval in infant approval hearings. This is a mechanism by which the court considers and, hopefully, approves the settlement of claims of those under 18 who have been injured. CPR 21 provides the rules relating to cases involving children and protected parties; this article gives practitioners some helpful guidance about the actual hearings.
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Anonymity orders - rare

As the name implies, an anonymity order is an order in relation to court proceedings which withholds the name of the parties but not the fact that the proceedings took place. The principle of open justice means that the press will be permitted to attend hearings and report on them in the absence of an anonymity order.

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Fixed costs - the norm

Costs disputes often revolve around whether a case should attract fixed costs or standard basis costs - often the difference between the two can make it a contentious issue. A recent case considered this point within the context of an RTA and whether the situation was sufficiently exceptional to avoid fixed costs.

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Experts - joint statement

CPR 35.12 provides for discussions between experts. These are not obligatory unless directed by the court, but such direction may be given at any stage of the proceedings. The object of the discussion is:

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