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Peter Barrie: Personal Injury Law 2/e: Liability, Compensation, and Procedure

Updates to Part D: PROCEDURE

Updates to Part D: PROCEDURE

View updates in a printable word document

Interim Payments
Chapter 33C CPR 25

The terms for interim payment applications have been slightly amended so that it is no longer necessary for the defendant in personal injury case to be insured.

Pre-action protocol for personal injury claims
Chapter 36.I

Paragraph 36-15

The protocol has been revised, and now incorporates the Rehabilitation Code of Practice as Annexe D. The new Code comes into force on 1 April 2005.

• The new code adds a recital of an aim of promoting rehabilitation treatment, and not just in high value claims.
• Guidance on the letter of claim has been developed, with the comment that once a letter of claim has been sent no further investigation of liability should be carried out until a response has been received.
• On the topic of experts the new Code explains more clearly that a jointly selected expert is not a jointly instructed expert.
• It also proposes that a claimant who proposes to obtain a medical report through an agency should obtain the defendant's prior consent and if requested should provide in advance the name of the proposed expert.
• The suggested letter of claim should include notice of any CFA in place and the existence (though not the level) of a success fee and insurance policy.
• Para 3.9 on the binding effect of an admission where the value is under ¦pound;15,000 is qualified by a requirement for the claimant to notify the defendant as soon as possible when further investigation shows that the value is likely to exceed this level.
• On disclosure of documents a new para 3.13. provides that no charge will be made for providing copy documents under the protocol.
• The old paragraph 3.21, which said that where liability is admitted the claimant should wait 21 days before issuing proceedings to see if the claim can be settled, has been deleted, and replaced by a new section 5 Resolution of Issues.
• A new section 4 Rehabilitation provides for the parties to consider rehabilitation, but says that the time limit of three months for insurers to investigate a claim shall not be shortened, except by consent to allow these issues to be addressed. As the Rehabilitation Code provides, the protocol confirms that a report obtained for assessment of rehabilitation needs will not be used in any litigation except by consent.
• A new section 5 Resolution of Issues repeats the former requirement that, where the defendant admits liability in whole or in part before issue, medical reports should be disclosed and the claimant should delay issuing proceedings for 21 days from disclosure of the medical report so that settlement can be considered; the section reminds parties that Part 36 allows for offers before proceedings; and the section adds a new requirement at 5.3 that "Where the defendant has admitted liability, the claimant should send to the defendant schedules of special damages and loss at least 21 days before proceedings are issued (unless that would cause the claimant's claim to become time barred)".
• The schedule of suggested disclosure for workplace claims has caught up with the recent revisions to the relevant sets of Regulations.

These revisions do not result in any major changes. The protocol still claims that it is primarily designed for cases worth less than £15,000 which are destined for the fast track but may be applicable to some higher value claims as well.

Service of the claim form
Chapter 37.GM

Collier v Williams [2006] EWCA Civ 20 [2006] PIQR P241

Another group of Court of Appeal cases, here considering the gounds on which a prospective extension of time for service might be allowed. Although the possibility of making such an application the criteria laid down by the court of appeal (a "disciplined" approach) require a good reason to be shown are hardly easier to meet than the criteria of 7.6(3) for retrospective applications.

[Added May 2007]
Chapter 40 Case Management
K Admissions paragraph 40.32

CPR Part 14 has been amended from 6 April 2007 in relation to pre-accident admissions. In cases which are covered by the three protocols - personal injury, disease/illness, and clinical disputes - a pre-action admission will be binding unless it has been withdrawn in writing, which can be done by consent or, after issue, with the permission of the court. This change applies to admissions by claimants, such as concessions on contributory negligence or quantum, as much as it applies to admissions by defendants. It follows that there is an increased need for care to be taken in the detailed wording of any admissions made in correspondence.

Admissions
Chapter 40K.

Where an agreement for the apportionment of liability had been agreed in correspondence this had resulted in a binding compromise on the issue and there were no grounds for setting it aside.

This decision is plainly correct. The CPR cannot have overturned the law of contract as it applies to settlements. All the same the outcome is odd. If the defendant stipulates for some contributory negligence and the claimant agrees then the agreement amounts to a contract and is binding, but if there is no contributory negligence so that the defendant simply agrees in correspondence to accept liability in full, then there is no contract and the defendant may well be able to resile from the admission under the principles explained in the text.

Sowerby v Charlton [2005] EWCA Civ 1610

The defendant had admitted liability and correspondence, but withdrew the admission following the issue of proceedings. This was a substantial multitrack claim so it was not covered by the presumption in the Protocol that a defendant's admission is binding. The Court of Appeal held that a CPR Part 14 does not apply to a pre-action admission of liability, and the defendant was free to withdraw its admission. (Having reached this decision, the Court then get summary judgment on primary liability.)

Admissions
Page 646 chapter 40K.

Where an agreement for the apportionment of liability had been agreed in correspondence this had resulted in a binding compromise on the issue and there were no grounds for setting it aside.

This decision is plainly correct. The CPR cannot have overturned the law of contract as it applies to settlements. All the same the outcome is odd. If the defendant stipulates for some contributory negligence and the claimant agrees then the agreement amounts to a contract and is binding, but if there is no contributory negligence so that the defendant simply agrees in correspondence to accept liability in full, then there is no contract and the defendant may well be able to resile from the admission under the principles explained in the text.

Experts
Chapter 42.C

Persuasiveness of uncontradicted expert evidence

Armstrong v First York LTL 17/1/2005, The Times January 19, 2005

A biomechanics expert was jointly instructed on the issue whether the impact in a RTA had been sufficient to cause the neck and spinal injuries which were the subject of the claim. He reported that the movement had not been sufficient and the claimant's account could not be right. The claimants did not seek to contradict the report with a second expert, but gave oral evidence at trial. The judge found the claimants to be credible and honest witnesses. Either the claimants were lying or there was a flaw in the expert's evidence which cold not be identified. The claim succeeded, and the defendant's appeal failed: there is no rule of law which requires a judge to accept the view of an expert where he is unable to point to an error in it and the judge had properly directed himself about the possibility of dishonest evidence.

Expert evidence
Chapter 42.E

Jackson v Marley Davenport [2004] ECA Civ 1225, [2005] PIQR P141

An expert prepared a report for the claimant which was discussed in conference, and after the conference he prepared a second report. The second report was disclosed in the litigation but its contents revealed the fact of the earlier report. The defendant sought disclosure of the first report. The Court of Appeal held that the CPR gave the court no power to make such an order and (as in Carlson v Townsend [2001] 1 WLR 2415 for the report of an expert the instructing party decides not to call) the claimant was entitled to litigation privilege. Applying Lucas v Barking NHS [2004] 1 WLR 220 there was no reason to suppose that the expert's account of his instructions was inaccurate or incomplete.

Hearsay evidence
Chapter 43.D

Procedure before hostile cross examination on inconsistent medical records

Denton Hall v Fifield [2006] EWCA Civ 169

In a WRULD claim the defendant cross examined the claimant about inconsistent medical records purporting to record what she had said to doctors. The doctors were not called. Proof of an inconsistent statement went only to credibility and the record was not evidence of the truth of its contents. Parties intending to cross examine on medical records should give notice in advance of the intention to do so rather than ambushing the claimant during her evidence.

The case is discussed in an interesting article by David Sanderson at {2006} JPIL 207

Limitation
Chapter 44.C
Extending time under section 33

Buckler v Sheffield CC [2005] PIQR P36

The claimant was exposed to asbestos during his work between 1969 and 1974. In April 1991, pleural thickening was found, described as "lights carried" and the claimant was reassured but was told that he could claim against his former employer for the increased risk of cancer. In 1999 the claimant was told that he had pleural plaques and sought legal advice believing (wrongly) that his condition had deteriorated. Proceedings were issued in May 2003. The Court of Appeal set aside an order in favour of the claimant under s. 33. The claimant had made a conscious decision not to sue and the council had suffered prejudice from the delay because of harm to its prospects of pursuing contribution proceedings against another former employer who had also exposed the claimant to asbestos.

Walkley overruled

Horton v Sadler [2006] UKHL 27

The House of Lords has overruled its previous decision in Walkley v Precision Forgings para 44.21 of the main text. Where a claim was issued within time, the wide power of the court under section 33 of the Act can still be exercised where that claim fails for procedural reasons and a new claim is issuedoutside the primary limitation period.

When is an action "brought" for the purpose of section 11(3) of the Limitation Act?

In St Helens MBC v Barnes [2006] EWCA Civ 1372 the Court of Appeal held that the action was "brought" when the claimant's solicitor delivered the claim form to the court office on the day before the expiry of the limitation period, even though the claim was not issued by the court office until four days later, by which date it was out of time. The claim had therefore been brought within the limitation period. This is different from the date when the proceedings are "started", which is the date of issue by the court office and is the date relevant to the time limit for service.

[Added May 2007]
Chapter 46 Settlement and Part 36

Significant changes to CPR Part 36 came into force on 6 April 2007. Following Trustees of Stokes Fund v Western Power Distribution, a defendant can now make an effective Part 36 offer by way of a formal letter, and does not have to make a payment into court. The letter must expressly refer to Part 36, and must expressly allow the usual 21 day period for acceptance. The new rules also clarify that a Part 36 offer can be withdrawn without the permission of the court at any time after the expiry of the 21 day period for acceptance, and if it has not been withdrawn an offer can be accepted at any time, even after the expiry of the 21 day period, and even if a counter-offer has been made, with the usual Part 36 consequence of liability for the other side's costs incurred after the end of the 21 day period.

Settlement offers
Chapter 46B. Part 36

Trustees of Stokes Pension Fund v Western Power Distribution [2005] EWCA Civ 854

The defendant was allowed the benefit of a written settlement offer made before the issue of proceedings in a money claim even though the amount of the offer had not been paid into court in accordance with CPR 36.10(3). This case follows the decision in Crouch v Kings Healthcare Trust [2005] 1 WLR 2015 that a written offer by a National Health Service defendant should be treated as the equivalent of a payment into court. An offer to settle a money claim should usually be treated as having the same effect as a payment into court if the offer was expressed in clear terms, was open for acceptance for at least 21 days and otherwise accorded with the substance of a Calderbank offer, was a genuine offer and if the defendant was good for the money when the offer was made.

Read v Edmed [2004] EWHC 3274 [2005] PIQR P228

In the split trial of a preliminary issue of liability in a road traffic accident claim the claimant succeeded subject to contributory negligence of 50%. CPR 36.21 allows the claimant the benefits of a successful Part 36 offer (indemnity basis costs and extra interest) where the defendant is held liable for more, or the judgment is more advantageous, than the claimant's offer. The claimant's offer had been for 50% so the judgment was the same but not more than the offer. None the less Bell J held that in the spirit of the rules the benefits of beating her own Part 36 offer should be allowed to the claimant.

Costs
Chapter 47

Multiple defendants

Irvine v Commissiner of Police [2005] EWCA Civ 129

The claimant succeeded on his strong case against one defendant but failed against other defendants against whom the case was always weaker. In spite of the fact that the unsuccessful defendant had suggested that the claim should be made against the successful defendants, the claimant was denied an order that the costs of the successful defendants should be born by the unsuccessful defendant. It is suggested that this is a surprising decision.

Moon v Garrett [2006] EWCA Civ 1121

Irvine was not followed and the Court of Appeal said that the main question is whether the claimant acted reasonably in proceeding against both defendants. If so it would be hard if the claimant ended up paying the costs of the successful defendant.

Success fees

In addition to the standard staged success fees applying to road traffic accident claims after 6 October 2003 under CPR 45.15, and the success fees applying to employers' liability accident claims after 1 October 2004 under CPR 45.20, the Civil Procedure (Amendment No 3) Rules 2005 add a rather complex system of success fees applying to employers' liability disease claims where the letter of claim is sent after 1 October 2005 under a new CPR 45.23 - 26.