Journal Article

Journal of Personal Injury Law December 2016

Table of Contents

Articles Liability Social Media Evidence in Personal Injury Litigation: The Ethical Considerations Elaine Ibbotson 205 The Illegality Defence in Tort Mark Ashley 212 Emerging Technologies in Collision Investigation James Wade 220 Quantum Damages The Criminal Injuries Compensation Scheme 2012 and its Impact on Victims of Crime Neil Sugarman 231 FOIL: Presidential Reflections Duncan Rutter 237 Procedure Periodical Payment Orders Edward Tomlinson and Helen Smith 243 Due Diligence, Risk Assessment and Visibility of Caseloads in Personal Injury Zoe Holland 249 Case and Comment: Liability Campbell v Peter Gordon Joiners Ltd C181 Swift v Fred Olsen Cruise Lines C185 Daley v Bakiyev C189 London v Southampton CC C192 Committeri v Club Mediterranee SA C194 UK Insurance Ltd v Holden C198 DC v State of New South Wales C203 Warner v Scapa Flow Charters C207 Case and Comment: Quantum Damages Moreno v Motor Insurers’ Bureau C211 Pawar v JSD Haulage Ltd C216 XP v Compensa Towarzystwo SA C219 Case and Comment: Procedure Hayward v Zurich Insurance Co Plc C226 Wright v Barts Health NHS Trust C230 Howe v Motor Insurers’ Bureau C233 Barton v Wright Hassall C235 Hayden v Maidstone and Tunbridge Wells NHS trust C238 General Editor Case and Comment Editor John Spencer: John is a member of the Civil Nigel Tomkins: Legal and Training Justice Council. He is past president of Consultant. Consultant with APIL and was appointed a senior fellow in Freethcartwright Solicitors, Nottingham. May 2014. He is a past chairman of the Fellow and AC Member of APIL. Motor Accident Solicitors Society. He was Specialities: Civil Litigation, Personal awarded the "Outstanding Achievement Injury Liability and Health & Safety Law. Award" at the Eclipse Proclaim and Modern Claims Personal Injury Awards in 2012 and 2015 respectively.

Editorial Board Colin Ettinger: Solicitor and Partner with Mark Harvey: Solicitor and Partner at Hugh Irwin Mitchell, London. Past President and James, Cardiff. Fellow of APIL, member Senior Fellow of APIL. Member of the of PEOPIL and UK member of the Board Personal Injury Panel. Specialities: of AAJ Governors. Specialities: Product catastrophic injuries and occupational health liability, travel and sports law and group issues. actions.

Deborah Evans: Chief Executive of the John McQuater: Solicitor and Partner at Association of Personal Injury Lawyers. Atherton Godfrey, Doncaster. Fellow and Previous roles include Chief Executive of past President of APIL. Member of the Law the Legal Complaints Service and Practice Society Personal Injury and Clinical Director of Anthony Collins Solicitors. She Negligence Accreditation Schemes. has also worked in a management capacity Specialities: Road Traffic Accidents, at the Legal Aid Board and in the legal Employer's Liability Claims and Clinical department of Boots PLC where she Negligence. acquired an MBA.

Dr Julian Fulbrook: Dean of Graduate David Fisher: Catastrophic Injury Claims Studies and Senior Lecturer in Law at LSE. Manager for AXA Commercial Insurances. He holds law degrees from Exeter, Responsible for AXA Commercial’s Neuro Cambridge and Harvard. He was a Wright trauma team that won the PI Team of the Rogers’ Law Scholar at Cambridge; a Year (Defendant) at the 2010 PI Awards. Canon Samuel Barnett Memorial Fellow at Advocates developing a more consensual Harvard Law School; Duke of Edinburgh approach to the handling of injury claims. Scholar at the Inner Temple. Member of Trust Mediation’s Advisory Council.

Richard Geraghty: Solicitor and Partner Helen Blundell: Non-practising solicitor at with Slater & Gordon (UK) LLP, London APIL. Consulting editor of APIL’s monthly where he is also the National Practice publication, PI Focus. Specialities: Development Leader for Personal Injury Interventions and judicial reviews on behalf Training and Education. He is legal advisor of the association, the discount rate; to the Police Federation Health & Safety personal injury related HMRC issues, Committee and a member of APIL. Mesothelioma Act and related scheme; Specialities: Serious injury cases including infraction/complaints to European spinal and brain injuries, amputation and Commission; author of various responses fatal claims. to Government and judicial consultations and practical briefing notes for APIL membership.

Nathan Tavares: Barrister, Outer Temple Jonathan Wheeler: Solicitor and Partner Chambers, 222 Strand, London. Member with Bolt Burdon Kemp, London. of the Personal Injury Bar Association and Immediate past president and fellow of Professional Negligence Bar. Association APIL. Member of the Law Society's Judge of the First Tier Tribunal (Mental Personal Injury Panel. Specialities: Child Health). Specialities: Catastrophic injury, abuse compensation claims. clinical negligence. ISSN: 1352-7533

The Journal of Personal Injury Law is published by Thomson Reuters (Professional) UK Limited trading as Sweet & Maxwell, 5 Canada Square, Canary Wharf, London, E14 5AQ. (Registered in England & Wales, Company No.1679046. Registered Office and address for service: 2nd floor, 1 Mark Square, Leonard Street, London EC2A 4EG.) For further information on our products and services, visit http://www.sweetandmaxwell.co.uk. Computerset by Sweet & Maxwell. Printed and bound in Great Britain by Hobbs the Printers Ltd, Totton, Hampshire. No natural forests were destroyed to make this product: only farmed timber was used and replanted. Each article and case commentary in this volume has been allocated keywords from the Legal Taxonomy utilised by Sweet & Maxwell to provide a standardised way of describing legal concepts. These keywords are identical to those used in Westlaw UK and have been used for many years in other publications such as Legal Journals Index. The keywords provide a means of identifying similar concepts in other Sweet & Maxwell publications and online services to which keywords from the Legal Taxonomy have been applied. Keywords follow the Taxonomy logo at the beginning of each item. The index has also been prepared using Sweet & Maxwell’s Legal Taxonomy. Main index entries conform to keywords provided by the Legal Taxonomy except where references to specific documents or non-standard terms (denoted by quotation marks) have been included. Readers may find some minor differences between terms used in the text and those which appear in the index. Please send any suggestions to [email protected]. Copies of articles from the Journal of Personal Injury Law and other articles, cases and related materials can be obtained from DocDel at Sweet & Maxwell’s Yorkshire office. Current rates are: £7.50 + copyright charge + VAT per item for orders by post, DX and email. Fax delivery is guaranteed within 15 minutes of request and is charged at an additional £1.25 per page (£2.35 per page outside the UK). For full details, and how to order, please contact DocDel on: • Tel: 01422 888 019. • Fax: 01422 888 001. • Email: [email protected]. • Go to http://www.sweetandmaxwell.co.uk/our-businesses/docdel.aspx. Please note that all other enquiries should be directed to Sweet & Maxwell, 5 Canada Square, Canary Wharf, London, E14 5AQ. Tel: 020 7542 6664. Fax: 0203 285 7644. Crown copyright material is reproduced with the permission of the Controller of HMSO and the Queen’s Printer for Scotland. All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, or stored in any retrieval system of any nature without prior written permission, except for permitted fair dealing under the Copyright, Designs and Patents Act 1988, or in accordance with the terms of a licence issued by the Copyright Licensing Agency in respect of photocopying and/or reprographic reproduction. Application for permission for other use of copyright material including permission to reproduce extracts in other published works shall be made to the publishers. Full acknowledgement of author, publisher and source must be given. Thomson Reuters and the Thomson Reuters Logo are trademarks of Thomson Reuters. Sweet & Maxwell ® is a registered trademark of Thomson Reuters (Professional) UK Limited.

First, I wish a peaceful and meaningful Christmas to all our readers. I also give a warm welcome to Annette Morris and Helen Blundell to our editorial board. Annette has considerable tort credentials. She lectures in Tort at the Cardiff law school. She spent time as a pupil at 4 Pump Court with a defendant orientated practice. She was policy research officer with APIL. She has worked and written on the so called “compensation culture”. Helen needs no introduction; hugely respected inside APIL and out. We are also delighted that Helen joins us as a full board member. The proposed abolition of damages for whiplash caused injury with the accompanying fivefold increase in the small claims court limit for PI cases was, it seemed, momentarily abandoned by the Government. Fitting good news I thought for our Christmas edition; sound common sense had prevailed. The 2015 Autumn Statement of course by the then Chancellor George Osborne took everyone by surprise, including it would appear the Ministry of Justice! Insurers, having benefited from a reduction in claims even based on their own statistics in addition to a 60% slashing of fixed legal costs payable in most whiplash PI cases had singularly failed to pass the benefit on to the public It appeared to cast temporary Government scorn on the idea that proposals to abolish “whiplash” damages and to exponentially increase the “no costs” or small claims court PI jurisdiction limit would be any different! Analysis of Association of British Insurers’ own statistics demonstrated that insurers were not passing on any savings from the previous reforms in the form of reduced motor insurance premiums. It seemed that this evidence, which was the basis of a timely leader in The Times, was decisive for the Government. Injured people, and those concerned about them hoped this folly was put behind them for good. Not so! On 17 November 2016 the Government issued a consultation paper. The consultation period is short and includes Christmas, ending on 6 January 2017. Having taken the knife to representation recoverable costs, cutting damages by two thirds is considered in this consultation paper an alternative to abolition! Surely the prospect of an exponential increase in district judicial costs to the exchequer through accommodating unrepresented litigants will deter the Government from a fivefold increase in the small claims court limit? Clearly the interest of injured people has no impact. Fraud is being and must be dealt with, but here we are dealing with proposals for genuine injury claims. Nonetheless it remains imperative to look constructively forward in this edition, and with a balance of claimant and insurer representative contributions. This balanced approach could provide a useful model for future Government decision-making! We ended our last edition with an article on the use and pivotal prominence of social media in building our businesses. We start this edition with an excellent article by insurance lawyer Elaine Ibbotson, a member of the FOIL Joint Fraud Focus Team, on social media evidence. This is a new and increasingly relevant feature of modern litigation. Elaine examines the evidential challenges and pitfalls posed by social media and the importance of identifying key areas of dispute to avoid flooding courts with unnecessary detail. She usefully draws some parallels with the use of surveillance evidence. Mark Ashley, also an insurance lawyer, provides analysis of illegality in defence of tort, much less common than in contract, but his reference to key case law is invaluable. We finish the liability section with a look at the use of emerging technologies in road accident construction. James Wade demonstrates the power of event data recorder and laser scanning in providing accident construction evidence of particular use in serious injury road accident cases. We turn to APIL’s presidential concerns with regard to the Criminal Injuries Compensation Authority in our quantum section. Neil Sugarman’s excellent article highlights issues properly worthy of government attention. Neil urges the Government to not lose the restitution objective; a foundation stone of the original scheme through disadvantaging victims of crime under a very misguided application of austerity policy. He lays bare the present failings of the scheme for victims of crime under the subterfuge of appearing to

2016 J.P.I.L., Issue 4 © 2016 Thomson Reuters (Professional) UK Limited and Contributors 5 6 Journal of Personal Injury Law do more for the seriously injured. Duncan Rutter, immediate past president of FOIL, helpfully shares his reflections on his year in office from the perspective of the Forum of Insurance Lawyers. Our Procedure Section starts with an article by Edward Tomlinson on periodical payments orders, assessing whether a periodical payment is reasonably secure under the Damages Act 1996. We hope the article will be a useful resource where the issue of security arises. It underlines the advantages of tackling the issue of security at an early stage. In our last article Zoe Holland tackles the issue of visibility and risk around work in progress, vital for ongoing businesses, but so often ignored save in the context of practice disposal!

John Spencer General Editor

Social Media Evidence in Personal Injury L I

Litigation: The Ethical Considerations B A

* I

Elaine Ibbotson L

Admissibility; Civil evidence; Data protection; Ethics; Fraudulent claims; Personal injury claims; Proportionality; Social media

This article considers how social media can form part of the evidence used in personal injury litigation and the associated ethical factors. It assesses how the courts have taken such evidence into account when considering claims for damages, fraud allegations and contempt of court proceedings, as well as some of the potential pitfalls when gathering and presenting such evidence.

Social media usage has exploded in recent years. Facebook emerged in 2004 and data published in May 2016 indicated that there were 36.45 million users1 in the UK alone, equating to almost 60% of the UK population. Twitter celebrated its 10th birthday earlier this year having accumulated a staggering 313 million users worldwide with over 15 million of those being in the UK, whilst other platforms such as Instagram have seen rapid growth particularly amongst the 18–24 age group.2 It may seem like a distant memory but there was a time when, if you wanted to know what someone was doing, you would need to make a phone call or physically meet up with them. Now, through the power of social media, we are only a few keyboard strokes or tablet swipes away from seeing the lives of our friends, family, or even complete strangers, displayed online. What started as a means of keeping in touch through friendship websites such as Facebook, has grown into a new tool of communication used not only by individuals curious to know what old schoolmates are up to, but by businesses, schools, sports teams, police forces, governments and even heads of state. Within the legal profession, an understanding of the potential powers and problems associated with using social media has become an important part of the job. For all its benefits, the use of social media has brought with it a new set of problems ranging from bullying amongst schoolchildren to “trolling” of celebrities. The ability of the public to access information online and share it through social media makes something of a mockery of once-powerful tools such as injunctions to prevent publication of matters which could infringe privacy or damage reputations. As the availability of information online becomes ever more accessible, the structures of society, including the legal system, are having to adapt to keep up with the pace of change and the new challenges it brings. There is clearly scope for social media to be misused and whilst lawyers have learned to use social media as an investigative tool, they must ensure that ethical considerations are factored into their working practices.

How does social media play a part in legal proceedings? Social media can be seen as an arena in which an individual’s comments, actions or locations can be recorded either through messages or images posted in an online account. Such records have provided a useful source of information in both civil and criminal proceedings. We saw a series of well-publicised convictions following the riots of 2011 as a direct result of comments posted on Facebook which were found to be inciting violence. There was also the case of brothers Daniel and Samuel Sledden, authors of

* Elaine Ibbotson is a Partner of Keoghs LLP and member of the FOIL Joint Fraud Sector Focus Team. 1 Statista.com [Accessed 11 October 2016]. 2 We Are Social, “Digital in 2016”, http://wearesocial.com/uk/special-reports/digital-in-2016 [Accessed 11 October 2016].

2016 J.P.I.L., Issue 4 © 2016 Thomson Reuters (Professional) UK Limited and Contributors 205 206 Journal of Personal Injury Law Y T I their own misfortune when they posted comments on their Facebook accounts mocking the leniency of L

I their suspended prison sentences after being convicted of drug-dealing offences. This resulted in them

B being swiftly brought back to court where the comments caused the sentencing judge to reconsider the credit the brothers had been given for the remorse they claimed to have felt, thus lifting the suspension A

I of the sentence. The brothers were immediately sent to prison to begin their two-year sentences.

L There are numerous examples of social media being used as an investigative hunting ground. Employees being investigated by their employers to uncover lies about work absences and parties in divorce proceedings using evidence gathered from social media accounts to discredit each other. This potential for social media being used to flush-out lies makes it an equally potent weapon to use when investigating personal injury claims in a wide range of scenarios. When conducting liability investigations, social media may be helpful in any case where there are disputed circumstances but particularly major incidents. The macabre element of human nature that makes people “rubber neck” when driving past an incident on a motorway, is now frequently accompanied by an equally strong desire to tweet or post to Facebook, Instagram or YouTube about what they have witnessed, often accompanied by photographs or video. By searching social media using relevant hashtags or descriptors, or even by using appropriate tools to “Geo Fence” the locus and filter by date and time, it is possible to identify the social media activity in close proximity to the locus at the relevant time. Such information can be utilised to support investigations into the essential elements of “what”, “who” and “how”, and crucially to determine who witnessed events and may be able to provide direct testimony. Whenever there is TV news coverage of a major event, whether this be a terrorist attack or a serious incident on the roads such as the 130-vehicle collision on the Sheppey Crossing in Kent in 2013, video footage obtained via social media postings will often feature in news reports to give a contemporaneous insight of how events unfolded. Social media is therefore an incredibly useful resource which, in relation to personal injury litigation, gains most attention from fraudulent claims, as detailed below.

The claimant’s worst case scenario One of the clearest examples of how social media habits can come back to haunt a user came in the case of Loveday. Jeffrey Loveday brought a claim for damages arising from a road traffic accident in which he sustained a back injury. The insurers investigated the extent of Mr Loveday’s alleged incapacity through a combination of surveillance and online enquiries including scrutiny of his Facebook account. Mr Loveday and his wife had provided witness statements in support of his claim in which they described the difficulties he had travelling to a holiday in Lake Garda in May 2009. The statements referred to Mr Loveday having a fear of travelling by car and being unable to go caravanning with his wife as he had done prior to his accident. Mr Loveday made specific reference to how helpful the airport staff had been in assisting him using a wheelchair to pass through the airport. However, enquiries on behalf of the insurers revealed that the Lovedays had not travelled by air as demonstrated by photographs located on Facebook. This was one of a series of lies attributed to the Lovedays and referred to in contempt of court proceedings against the couple. In the judgment, Mr Justice Keith made specific reference to the photos: “They had been posted on Facebook. They show Mr and Mrs Loveday in a relaxed and happy mood, but one of the photos stood out. It was of Mrs Loveday standing by what looks like a Land Rover Discovery with a caravan attached to it. It transpired that Mr and Mrs Loveday had not travelled to Lake Garda by air at all. They had gone overland by car and Mr Loveday had done all of the driving, both there and back.”3

3 Nield v Loveday [2011] EWHC 2324 (Admin); [2011] 4 Costs L.O. 470 at [40].

2016 J.P.I.L., Issue 4 © 2016 Thomson Reuters (Professional) UK Limited and Contributors Social Media Evidence in Personal Injury Litigation: The Ethical Considerations 207 Y T I The claim brought by Mr Loveday had been riddled with lies and the evidence located in the Facebook L

postings provided a clear, visual contradiction of the Lovedays’ story which was readily accepted by the I

court. Mr Loveday was sentenced to nine months’ imprisonment and Mrs Loveday was given a six-month B suspended sentence. A

The use of Facebook evidence certainly grabbed the headlines in the Loveday case and there have been I

numerous subsequent cases in which claimants’ accounts of their purported injuries and physical limitations L have been shown to be false when compared with their online postings. Scrutiny of social media accounts has become a routine line of enquiry by those investigating personal injury claims but some may question whether delving into an individual’s life online is appropriate: is it legal and is it ethical?

Procedural considerations In the early days of social media evidence being introduced into legal proceedings, consideration was given to the admissibility of the evidence in terms of the format of its presentation, its authenticity, and the manner in which it was obtained. The US courts were amongst the first to thrash out these arguments and it soon became apparent that what was happening online was providing rich pickings for lawyers. Provided evidence could be authenticated under the Federal Rule of Evidence 901 it could be admitted as evidence. The first consideration for practitioners here is ensuring compliance with the Civil Procedure Rules. The courts have shown a willingness to accommodate the use of social media in the litigation process, not only in terms of evidence, but also from a procedural perspective with examples of permission being given for service of proceedings to be at a party’s last known address and via his Facebook page.4 Whilst much of the focus in US litigation centred on the question of the authenticity of evidence drawn from social media, in the UK the more contentious issues have been proportionality and relevance. Proportionality, as one of the cornerstones of the overriding objective enshrined within the CPR, has become an ever more important factor in personal injury litigation in recent years. Whether a practitioner is dealing with a low-value road traffic accident claim or a catastrophic injury claim, the need to ensure that evidence is relevant and proportionate in terms of both volume and cost is paramount. In the early days of social media evidence being introduced, there would be some inevitable wariness over how a court would approach such materials and what steps would need to be taken to verify its source and authenticity. Whilst it is fair to say that judicial approaches can vary, there are now some well-established methods of collating and presenting social media postings in evidence. In cases where there is a large volume of material relating to social media, the courts have given guidance on how to present such evidence. The case of Locke v Stuart5 involved an allegation of fraud against several individuals believed to have been involved in a series of staged road traffic collisions following which personal injury claims were submitted. As part of the insurers’ argument that the claims were a conspiracy to defraud the insurers, Facebook evidence was produced to demonstrate links between those involved in the claims. The Facebook evidence alone amounted to three lever-arch folders of evidence placed before the court. Recognising that the evidence was a valuable part of the defence of the claims but critical of its voluminous nature within the trial bundle, Mr Andrew Edis QC recommended that efforts could and should be made to simplify the format of the evidence, suggesting the use of Scott Schedules in cases where the extent of the materials referred to was significant: “A document can easily be devised which sets out in a short form how entries on Facebook are created and what inferences may safely be drawn from them … a significant amount of time of the court was

4 AKO Capital LLP v TFS Derivatives , unreported, February 2012, HC. 5 Locke v Stuart [2011] EWHC 399 (QB).

2016 J.P.I.L., Issue 4 © 2016 Thomson Reuters (Professional) UK Limited and Contributors 208 Journal of Personal Injury Law Y T I taken up in a debate about the strengths and weaknesses of Facebook evidence where really an L 6

I agreement should be capable of being reached on this question.”

B The use of social media postings as evidence in personal injury claims will broadly fall into two main

A categories: I

L 1) evidence to cast doubt on the credibility of a party’s account, most commonly in relation to the nature of an injury, the limitations imposed by the injury or an element of the special damages claim said to arise as a consequence of it; or 2) as part of a wider fraud investigation such as that in Locke to demonstrate links between parties or business connected to a claim where such connections have been denied and can be interpreted as being indicative of a pre-planned deception. The latter scenario will naturally be the more complex to present and the guidance issued in Locke should be borne in mind. Whatever the issue said to be shown by social media evidence, the fact of its existence will not usually be controversial. It is possible, however, that a social media account attributed to a party involved in a claim may not, in fact, belong to that person. The sheer volume of users on platforms such as Facebook can make it difficult to be sure that the correct account has been identified. What if a profile is a “spoof” account set up either as a joke or maliciously? Practitioners certainly need to be wary of being thrown off-course if there is any chance the accounts being scrutinised are not related to the relevant party in a case. Whilst in the majority of cases there will be no issue over the identity of the social media account holder, it will generally be disputed what the evidence actually means within the context of a case. The parties in a personal injury claim where such evidence arises should endeavour to agree on some of the practicalities surrounding the introduction of such evidence to ensure that the key points of dispute are made apparent to the court.

Potential pitfalls Whilst many users of social media do so with a firm intention of their content being open to all, and therefore readily accessible through a simple Google search, others are almost certainly unaware as to the level of open access they are providing to their information. More sophisticated or discerning social media users will almost certainly apply a level of control over who they are sharing their content with, whether limited to “friend only” or equivalent. The extent to which those controls have been implemented by the user impact the extent to which social media content can be legitimately accessed by the investigator. Some parallels can therefore be drawn between investigating through social media searches and the use of surveillance. The latter has been an area plagued by controversy and is now governed by the Regulation of Investigatory Powers Act 2000. Some of the problems that arose through the use of surveillance, such as gaining entry to the home address of the subject under false pretences as in Jones v Warwick University,7 can be guarded against and the suppliers providing surveillance services operate on a much tighter leash than was the case in the past. An online equivalent to such malpractice would be “faux-friending” where someone investigating a claim sets up a fake profile to seek access to a Facebook user by sending a friend request. This may give the investigator visibility on postings that were restricted by privacy settings but clearly breaches ethical standards of practice. Aside from the deceit involved in the use of a fake profile, such action, if conducted

6 Locke v Stuart [2011] EWHC 399 (QB) at [35]. 7 Jones v University of Warwick [2003] EWCA Civ 151; [2003] 1 W.L.R. 954.

2016 J.P.I.L., Issue 4 © 2016 Thomson Reuters (Professional) UK Limited and Contributors Social Media Evidence in Personal Injury Litigation: The Ethical Considerations 209 Y T I by solicitors, could also constitute an approach to a represented party contrary to the Solicitors Regulation L

Authority (“SRA”) Code of Conduct. I

Whilst it is important to adhere to professional and ethical standards when investigating claims and B dealing with the litigation process, there may be occasions where potentially useful information has been A

obtained through dubious methods. This is an issue that was considered in relation to surveillance evidence I

in the case of Jones. It was held that despite the inappropriate manner in which the surveillance evidence L was obtained, it was admissible. The defendant was penalised in costs but not prevented from relying upon the evidence. Again, the key issues of proportionality and relevance were central to the court’s decision. To exclude the evidence would have resulted in a requirement to instruct new medical experts and relevant evidence would have to be withheld from them which would clearly impact upon their ability to give an accurate diagnosis. There were therefore two conflicting public interests considered by Lord Woolf CJ: “the interests of the public that in litigation, the truth should be revealed and the interests of the public that the courts should not acquiesce in, let alone encourage, a party to use unlawful means to obtain evidence.”8 There is, therefore, a balance to be struck when courts consider such thorny issues. For a lawyer presented with useful but illegitimately obtained evidence, there is also the need to ensure that the requirement to act in the best interests of the client is adhered to.

Legal barriers The Data Protection Act 1998 came into force on 1 March 2000 and so pre-dates the advent of social media. Nevertheless, the focus of the Act in safeguarding the use of personal data is another factor to consider when conducting personal injury litigation. For businesses such as Facebook and Twitter who have accumulated a huge pool of personal data for millions of users, there is a need to comply with data protection laws in jurisdictions all around the world. The terms of use for the various social media platforms make it clear that users should apply the relevant privacy settings and that, where the visibility of accounts is not restricted, the user is forewarned that their postings will be capable of being viewed by an unlimited audience. Whilst it is therefore incumbent upon the profile owner to protect their data via appropriate privacy settings, the 1998 Act must also be considered by those investigators and lawyers that wish to use data that can be legitimately accessed via social media. The exchange of information between insurers regarding claims is an obvious example of where clearly defined processes need to be followed to ensure that any such exchange of data meets the requirements of the 1998 Act. Claims data will inevitably feature personal data relating to names, ages and addresses. Information gleaned from a trawl of a social media account may also contain such data and should be treated with the same caution. The fines imposed for data protection breaches can be significant as Check Point Claims Ltd found when they were fined £250,000 following action by the Information Commissioner’s Office for breaches of the 1998 Act as a result of their use of data to make cold calls to identify potential new claims for hearing loss.9 There is also the risk of direct action by an aggrieved data subject for damages following Vidal-Hall v Google Inc10 in which the claimant was awarded damages in tort for distress caused by the alleged misuse of their private data by Google.

8 Jones v University of Warwick [2003] EWCA Civ 151; [2003] 1 W.L.R. 954 at [2]. 9 Information Commissioners Office, “ICO fines Blackburn nuisance call firm £250,000” (16 May 2016), https://ico.org.uk/about-the-ico/news-and -events/news-and-blogs/2016/05/ico-fines-blackburn-nuisance-call-firm-250-000/ [Accessed 11 October 2016]. 10 Vidal-Hall v Google Inc [2015] EWCA Civ 311; [2015] 3 W.L.R. 409.

2016 J.P.I.L., Issue 4 © 2016 Thomson Reuters (Professional) UK Limited and Contributors 210 Journal of Personal Injury Law Y T I In the quest for truth within personal injury litigation there may well be criticisms that investigative L

I techniques could infringe art.8 of Sch.1 to the Human Rights Act 1998 which states that:

B “1. Everyone has the right to respect for his private and family life, his home and his

A correspondence. I 2. There shall be no interference by a public authority with the exercise of this right except L such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” It could be suggested that taking extracts from social media communications and using them in legal proceedings could be straying into dangerous territory in this regard. However, the second limb of art.8 does act as a form of “sanity check” in permitting interference where such action can be justified, for example in order to prevent crime. Practitioners on both sides of the fence in personal injury litigation should be able to agree on the simple principle that parties must tell the truth. If lies relevant to the issues in the case are identified by way of a legitimate search of social media accounts, there can be no meaningful challenge to such evidence being adduced.

The quirks of user behaviour An understanding of how different social media users operate their accounts is also important. For example, if a supposedly incapacitated claimant is confronted with photographs of apparently active holidays in far-flung places obtained from their social media account, they may say that the images were fabricated or doctored in some way for the purposes of showing-off; perhaps the claimant wants to project an image that they have a more adventurous life than reality allows them to have? When using social media as an investigative tool it is therefore important to watch out for “red herrings” and remember that people are capable of lying anywhere, including online. Where a connection between different individuals involved in a claim could be deemed to be evidence of a conspiracy, it must be recognised that connections via social medial usage can prove to be very flimsy. For some users of accounts such as Facebook, Twitter or Instagram, increasing the number of “friends” or “followers” is a priority and they can be added even if there is no actual knowledge of that person. It can often be the case that evidence of a “link” is in fact nothing more than evidence that someone has a lot of social media connections. Individuals may “friend” or “follow” others who appear on the accounts of mutual acquaintances. Whilst a party may ask a court to draw an inference from this at trial, if the supposed connections are too tenuous then there is a risk that such evidence could fall foul of the crucial principles of proportionality and relevance.

How valuable is social media evidence? One of the most important elements of social media evidence is that it is a contemporaneous record of someone’s life. Personal injury litigation, even in relatively modest claims, can result in trials being heard several years after the event giving rise to the claim. Humans are incredibly varied creatures and their ability to recall information and recount experiences will differ enormously from one to another and at different stages of life. People get things wrong. In personal injury litigation the question to be asked is whether this amounts to a wilful lie. Does the lie constitute fundamental dishonesty? Does the lie give grounds for criminal proceedings under the Fraud Act 2006 or can contempt of court be established? Social media evidence alone may not crack a case but it can prove to be compelling as part of the evidential package in fraud investigations. When a 13-strong stag party group left South Shields in a

2016 J.P.I.L., Issue 4 © 2016 Thomson Reuters (Professional) UK Limited and Contributors Social Media Evidence in Personal Injury Litigation: The Ethical Considerations 211 Y T I minibus for a weekend in Edinburgh they had the “misfortune” to be involved in a collision with a car L

within a few minutes of their departure. The occupants of the car and the passengers on the minibus all I

claimed to have sustained whiplash injuries. Enquiries undertaken by the insurers revealed that the occupants B of the car that collided with the minibus were not random strangers but were Facebook friends with a A

number of the minibus passengers. This link, when considered along with inconsistencies in the witness I

statements and engineering evidence, led to the civil claims being abandoned. Northumbria Police L subsequently prosecuted the individuals involved in the alleged “accident” for offences under the Fraud Act 2006 resulting in 15 convictions. When considering fraud in personal injury cases, judges will need to consider not only the oral testimony of the claimant but also any contemporaneous records that could offer a less malleable account. HH Judge Simon Brown QC made reference to the value of evidence obtained from such sources: “Emails, texts, twitter postings and the like are often the most revealing and reliable contemporaneous evidence of what someone said or thought at a particular time … Memories are notoriously false and self-serving for any fact finding judge.”11 The fact that social media accounts can act as both a diary and photo album depicting the thoughts and activities of individuals is what makes it so valuable. Whilst no self-respecting lawyer would feel comfortable snooping though a handwritten diary of someone’s innermost thoughts, what makes social media different is that it is used with the intention of being seen. The fact that the audience could include lawyers investigating a claim made by that person is no secret. Indeed, many law firms representing claimants will warn their clients that their social media postings may be subject to scrutiny by insurers or their representatives. Privacy settings are the obvious safeguard for anyone wishing to restrict who can see their profiles and postings but if these are left unchecked, then there is no reason why the information set out on social media accounts cannot be used within litigation. For legal practitioners the key is to keep enquiries relevant, proportionate and compliant with the SRA Code of Conduct. For users of social media, the message is simple: be careful what you post. It can and probably will be used against you.

11 Paper delivered by HHJ Simon Brown at Practical Law Company seminar, 18 March 2011.

L The Illegality Defence in Tort I

B *

A Mark Ashley I

L Defences; Illegality; Mens rea; Personal injury; Torts

This article discusses the evolution of the defence of illegality (ex turpi causa) in the context of a succession of recent decisions from the Supreme Court and considers the application of that defence to claims in tort, particularly claims for personal injury.

Tea Like so many things, it began with a cup of tea. In the eighteenth century, tea was a very popular but highly-taxed luxury in Britain. High demand and high tax led to smuggling of duty-free tea from continental Europe, and in the latter part of the century this smuggling was of substantial quantities carried in large, well-armed ships.1 This was the backdrop for the first major case on illegality, that of Holman v Johnson.2 The claimant, who lived in Dunkirk, sold tea to the defendant. The claimant knew that the defendant intended to smuggle the tea into England but had no direct role in doing so. The tea was delivered to the defendant, in Dunkirk. The defendant did not pay, and so the claimant sought to recover damages. The defendant argued that the contract was illegal, so no compensation should be paid. In finding for the claimant, the court identified two fundamental characteristics of the defence of illegality. The first was:3 “No court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act.” In other words, the action must be founded on illegality. In Holman’s case, because of where the contract was formed and because the claimant was not directly involved in the intended smuggling, the contract itself was not illegal notwithstanding its purpose. As the claimant’s claim was not founded on illegality the contract should be upheld. The second characteristic was the recognition that the defence4 “is founded in general principles of policy, which the defendant has the advantage of, contrary to the real justice, as between him and the plaintiff”. The interplay between these two characteristics has driven the evolution of the defence of illegality over the following 241 years.

First characteristic: Cases founded on illegality The first of the fundamental characteristics from Holman is that an action should be founded on illegality. A stark example of this is provided in Vellino v Chief Constable of Greater Manchester.5 The background is set neatly in the first instance judgment of Elias J:6

* Mark Ashley is an Associate at DAC Beachcroft LLP. 1 See, e.g. Hoh-Cheung and Lorna H. Mui, Smuggling and the British Tea Trade before 1784 (1968) 74(1) Am. Hist. Rev. 44. 2 Holman v Johnson (1775) 1 Cowp. 341 KB. 3 Holman v Johnson (1775) 1 Cowp. 341 KB at 343. 4 Holman v Johnson (1775) 1 Cowp. 341 KB at 343. 5 Vellino v Chief Constable of Greater Manchester [2001] EWCA Civ 1249; [2002] 1 W.L.R. 218. 6 Vellino v Chief Constable of Greater Manchester [2001] EWCA Civ 1249; [2002] 1 W.L.R. 218 at [2].

212 2016 J.P.I.L., Issue 4 © 2016 Thomson Reuters (Professional) UK Limited and Contributors Illegality: In defence of tort? 213 Y T I “Carlo Vellino, was something of a folk hero in his local community. He was frequently in trouble L

with the police and had a string of convictions … The claimant was frequently arrested at his flat but I

often, when the police came to arrest him, he would seek to evade arrest by jumping from the windows B of his [second floor] flat to the ground floor below. This was obviously a foolhardy and potentially A

highly dangerous activity. Generally it seems that he would descend by lowering himself from a I

balcony which adjoined the kitchen in the flat and, once by hanging from the balcony. He would L drop to the ground below. Exceptionally it seems that he had even been known to jump from the second floor window without having the benefit of first being able to reduce the risk by hanging from the balcony. It is plain from the evidence that I have heard that his propensity for escaping by this method was very well known both to neighbours and friends within the community, and to the local police.”7 The police attended Mr Vellino’s home one evening following complaints from neighbours of a noisy party. Mr Vellino was in any event due to be arrested the following day under a warrant. Several of the party guests fought with the police and Mr Vellino attempted to escape, using his customary route via a second floor window. This time it did not work, and he suffered profound injuries. He then sued the police, arguing that his attempt at escape occurred because they had failed to take reasonable care to prevent him from escaping. The Court of Appeal found that illegality served to bar the claimant from succeeding in his claim. In reaching its decision, the Court of Appeal held that for illegality to bar a claim:8 “The facts which give rise to the claim must be inextricably linked with the criminal activity. It is not sufficient if the criminal activity merely gives occasion for tortious conduct of the Defendant.” Other examples of causes of action found to be inextricably linked to criminal activity include the following. 1) Beaumont v Ferrer9 Six boys, aged between 13 and 17, called for a taxi to take them to central Manchester. They had no intention of paying. The taxi came to a stop at a set of traffic lights and the boys opened the taxi’s sliding side door, following which three of them made off without paying. The taxi driver (Mr Ferrer) who had been stabbed the year before was worried for his safety so he moved off and executed a sharp turn with the remaining boys in the taxi. The claimant was stood at the door while this happened and seemed to be calculating whether it would be safe to jump from the moving taxi. He miscalculated, hit his head on landing, and suffered brain injuries. Mr Ferrer was found to be in breach of duty for moving off with the side door open. However, the Court of Appeal held that even it if could be said that the claimant’s injuries would not have happened but Mr. Ferrer’s actions, they were in reality caused by the claimant’s own criminal acts of attempting to make off without payment. As such, there should be no recovery. 2) Joyce v O’Brien10 David Joyce and Edward O’Brien were engaged in the joint criminal act of stealing ladders from a warehouse. After they had loaded their van with stolen goods O’Brien attempted to drive away, dangerously and at speed, while Joyce stood on a footplate at the back of the

7 Quoted in the Court of Appeal judgment. 8 Vellino v Chief Constable of Greater Manchester [2001] EWCA Civ 1249; [2002] 1 W.L.R. 218 at [72]. 9 Beaumont v Ferrer [2016] EWCA Civ 768. 10 Joyce v O’Brien [2013] EWCA Civ 546; [2014] 1 W.L.R. 70.

L van. Because of O’Brien’s driving, Joyce fell and was injured. He then sought compensation I from O’Brien and from the vehicle’s insurer. B This was a case of a joint criminal enterprise. The Court of Appeal held that where the nature

A of that enterprise was such that it would foreseeably expose a participant to an increased I risk of harm and where that harm then eventuated, then the harm was caused by the criminal L act even if it resulted from the negligent driving of another party to the joint criminal enterprise. 3) AB v Chief Constable of X 11 An undercover police officer used cocaine while on duty, making it inappropriate for him to continue his undercover duties. This conduct caused him to be confronted by his employer, the police force. After being confronted AB claimed that he had developed an adjustment disorder. He argued that this injury occurred because he had received inadequate support while on undercover duty. The court found that there was no breach of duty by the police force and that the claimant’s injury occurred because he was confronted with his illegal behaviour. Even if breach of duty had been proven, the claimant’s injury occurred because of his illegal behaviour. By way of comparison, the following cases concern criminal activity which allows a tortious act to occur. 1) Delaney v Pickett12 Shane Pickett had borrowed a sports car from his uncle, a motor trader. He collected Sean Delaney to take him for a drive. Mr Pickett crashed the car while travelling at high speed, causing Mr Delaney to suffer brain injuries. At the scene, Mr Pickett was found to have a small quantity of cannabis (hidden in his sock). Mr Delaney was found to have a much larger quantity, hidden inside his coat. Mr Delaney later attempted to sue Mr Pickett (and his insurers) in respect of the injuries suffered in the crash. While it appeared that the parties were engaged in the illegal joint enterprise of possession with intent to supply, this illegality was incidental to the negligence and did not bar Mr Delaney’s claim. 2) McCracken v Smith, MIB, and Bell13 Smith and McCracken, both aged 16, were in possession of a stolen off-road motorcycle. They took it for a joyride through the streets of Carlisle and did not wear helmets. Smith drove, McCracken was the pillion passenger. During the course of their adventure they rode erratically and at speed along a cycle-path. At that time Darren Bell was driving a minibus. He turned right, crossing the cycle-path as he did so. If he had looked adequately to his right, he would have seen the speeding stolen motorbike and avoided it. He did not and a crash ensued, causing McCracken to suffer brain injuries. The Court of Appeal recognised the obvious illegality of the claimant’s activities, but found that they provided an opportunity for negligence rather than caused it. As such, Bell’s defence of illegality failed. McCracken’s damages were reduced first by 15% in respect of his failure to wear a helmet and then by 50% in respect of his conduct. Nevertheless, Bell was left with

11 B v Chief Constable of X [2015] EWHC 13 (QB); [2015] I.R.L.R. 284. 12 Delaney v Pickett [2011] EWCA Civ 1532; [2012] 1 W.L.R. 2149. 13 McCracken v Smith, Motor Insurers Bureau, and Bell [2015] EWCA Civ 380; [2016] Lloyd’s Rep. I.R. 171.

a substantial liability which would not have occurred had Smith and McCracken not been L riding a stolen motorcycle along a cycle-path. I B By formulating the defence of illegality with reference only to whether there is an inextricable link A

between the illegal conduct and the tort, one might classify illegality as a causation defence. The overlap I

between the two concepts was recently commented on by Irwin J in AB v Royal Devon and Exeter NHS L Foundation Trust.14 The judgment in this case concerned the assessment of damages payable to AB as a result of clinical negligence. AB had a long history of illegal drug use, which was likely to continue. AB argued that he lacked capacity and sought damages for costs associated with this (e.g. the costs of a professional deputy). The defendant argued that insofar as AB lacked capacity this was due, wholly or for the most part, to his illegal drug use. Thus, illegality prevented to bar his recovery of compensation for these losses. The judge found that AB’s drug use was the cause of his incapacity and that this was unrelated to the index events. Thus, issues relating to lack of capacity would have existed in any event and so the losses were not to be compensated for. This could simply be a break in the chain of causation rather than a case of illegality, and the distinction between the two was in this instance academic.

The second characteristic: Public policy

Illegality and policy To define the illegality defence simply in terms of causation would be to run the risk of ignoring the policy context in which it sits, a context which was recognised by Lord Mansfield in Holman. Issues of policy sit at the heart of most of the recent Supreme Court decisions on this topic, a point clearly illustrated in the case of Hounga v Allen.15 At age 14, Mary Hounga was brought from her native Nigeria to London to work for Mrs Allen, the wife of an oil company executive. Mrs Adenike Allen, via her brother, had promised Miss Hounga that she would pay her £50 per month and would provide her with schooling. Their arrangement was tainted by illegality from the start, Mary Hounga having sworn an affidavit to the effect that she was the granddaughter of Adenike Allen’s mother (she was not) and that she wished to visit her grandmother in the UK for a holiday (she did not, she intended to enter the UK to work illegally). The Employment Tribunal found that Mary Hounga lacked the wherewithal to arrange her illegal entry to the UK alone, that she had been assisted by Adenike Allen’s family and that Adenike Allen knew about this. As it was, Mrs Allen never paid Miss Hounga, nor did she provide her with any positive formal education. Miss Hounga was made to work as a home help; she was a slave. After about 18 months of this arrangement Mrs Allen tired of Miss Hounga’s services. She beat her and threw her out of her home and refused to let her back in. Miss Hounga took to the streets and was found by a member of the public in a Sainsbury’s carpark. Miss Hounga sought compensation for unfair dismissal, breach of contract and unpaid wages. These claims were dismissed at a lower level for reason that the claims were founded on illegality, and were not appealed. She also claimed for the statutory tort of unlawful discrimination under the Race Relations Act 1976 and it was this claim that was considered by the Supreme Court. The Supreme Court found that there was no inextricable link between the illegality and the tort. Rather, the illegality provided only the context in which the tortious conduct occurred (much as when Daniel

14 AB v Royal Devon and Exeter NHS Foundation Trust [2016] EWHC 1024 (QB). 15 Hounga v Allen [2014] UKSC 47; [2014] 1 W.L.R. 2889.

2016 J.P.I.L., Issue 4 © 2016 Thomson Reuters (Professional) UK Limited and Contributors 216 Journal of Personal Injury Law Y T I McKracken’s joyride on a stolen motorbike ended when Damian Bell turned his minibus to the right L

I without checking properly for oncoming traffic).

B Lord Wilson, giving the leading judgment, then went on to consider the policy context of the claim, formulating the nature of the enquiry thus:16 A

I “So it is necessary, first, to ask ‘What is the aspect of public policy which founds the defence?’ and, L second, to ask ‘But is there another aspect of public policy to which application of the defence would run counter?’.” The answer to the first question was that the defence of illegality was founded on a concern to preserve the integrity of the legal system. In this instance, issues such as whether an award of compensation would permit Mary Hounga to evade a penalty imposed by criminal law were relevant considerations. Lord Wilson found no relevant considerations, indeed there scarcely existed any justification for public policy defeating the claim. The second part of Lord Wilson’s formulation required the court to have regard to whether the defence of illegality might run contrary to some other public policy. In this instance, allowing the defence of illegality to succeed would run contrary to the public policy against human trafficking and slavery. As such, even if there had been an inextricable link between the illegality and the tort, the court could look behind this to assess whether the application of the illegality defence would run contrary to some other public policy and result in a manifestly unreasonable result. Given the Supreme Court’s decision, one might question whether, if an employment tribunal was faced with a similar claim for breach of contract, unfair dismissal and unpaid wages, it would now find in favour of the claimant on all grounds and not view the underlying illegality as a bar to recovery.

Illegality and intention The cases considered above share two common threads. First, the claimant has tended to have a relatively high degree of moral culpability for the illegal conduct (for instance, Mary Hounga knew that her arrangement to enter the UK was illegal). Secondly, the claimant’s illegality has come before the tortious act which gave rise to the claim. What, however, if the claimant did not fully understand that their actions were illegal? What if the criminal act was itself a consequence of a tort? One of the first major cases to consider these points was Clunis v Camden and Islington HA.17 Christopher Clunis was discharged from psychiatric hospital on 24 September 1992. His community psychiatric care was less than ideal and did not control his underlying schizoaffective disorder. On 17 December 1992, Clunis stabbed to death Jonathan Zito, a complete stranger who merely happened to be stood near him at Finsbury Park Tube Station. Clunis pleaded guilty to manslaughter by reason of diminished responsibility and he was detained in hospital indefinitely. He then brought a claim against the Islington Health Authority alleging that the psychiatric care provided to him prior to 17 December 1992 was inadequate, and but for this he would not have killed Mr Zito and suffered possibly lifelong detention. Clunis’ claim was rejected in robust terms by the Court of Appeal, which held that the fact Clunis had been convicted of manslaughter by reason of diminished responsibility (as opposed to insanity) meant that he had some responsibility for his criminal act. To compensate Clunis in such circumstances would allow for recovery of damages arising from his own illegal act. This would offend against public policy and so the claim was barred by virtue of illegality.

16 Hounga v Allen [2014] UKSC 47; [2014] 1 W.L.R. 2889 at [42]. 17 Clunis v Camden and Islington HA [1998] Q.B. 978 CA (Civ Div).

2016 J.P.I.L., Issue 4 © 2016 Thomson Reuters (Professional) UK Limited and Contributors Illegality: In defence of tort? 217 Y T I As to the second point (the tort preceding the crime), the fact remained that Clunis’ claim rested on L

illegality. The inextricable link was there, and so the claim had to fail. However, the writer observes that I

if Clunis had sought compensation for the deterioration in his psychiatric condition between 24 September B 1992 and 17 December 1992 that claim could have succeeded. A

The second major case involving impaired mens rea and a tort occurring before the illegality is Gray I 18 v Thames Trains Ltd. L Mr Gray suffered post-traumatic stress disorder (“PTSD”) as a result of the Ladbroke Grove rail crash. The crash was caused by the negligence of Thames Trains Ltd. While labouring under the effects of PTSD he stabbed to death Mr Boultwood, who earlier that day had drunkenly walked in the path of Mr Gray’s car. Mr Gray was convicted of manslaughter by reason of diminished responsibility, and was detained in hospital for treatment. Mr Gray sued Thames Trains for compensation in respect of the effects of his illegal act. His case reached the House of Lords where two issues came to be considered: first, whether he could recover compensation for loss of earnings because, irrespective of the illegal act, the defendant’s negligence had effectively destroyed his capacity to earn; and secondly, whether there was an unbroken chain of causation between the defendant’s negligence and the illegal act, which meant that the defence of illegality had no application. In his leading judgment, Lord Hoffman noted that the illegality defence could be classified in a narrow form and in a wider form. The narrow form is that one “cannot recover for damage which is the consequence of a sentence imposed upon you for a criminal act”.19 This narrow formulation had been approved by the Law Commission on the basis that it “would be quite inconsistent to imprison or detain someone on the grounds that he was responsible for a serious offence and then to compensate him for the detention”.20 The narrow form disposed of much of Mr Gray’s claim. Irrespective of the defendant’s negligence he would have been unable to earn because he had been imprisoned. Some aspects of the claim remained. For instance, should Mr Gray be compensated for the remorse he now felt? For this and similar claims Lord Hoffman turned to the wider form of the illegality defence, namely “you cannot recover for damage which is the consequence of your own criminal act”.21 Causation rears its head again, and as Gray’s claim was inextricably linked with his criminal conduct he could not recover compensation. In giving its judgment, the House of Lords placed an important marker of the potential limits of the illegality defence, this being in cases where the claimant bears no, or no significant, responsibility for their criminal conduct. The point was put as follows by Lord Phillips: “where the sentencing judge makes it clear that the defendant’s offending behaviour has played no part in the decision to impose the hospital order, it is strongly arguable that the hospital order should be treated as being a consequence of the defendant’s mental condition and not of the defendant’s criminal act. In that event the public policy defence of ex turpi causa would not apply. More difficult is the situation where it is the criminal act of the defendant that demonstrates the need to detain the defendant both for his own treatment and for the protection of the public, but the judge makes it clear that he does not consider that the defendant should bear significant personal responsibility for his crime. I would reserve judgment as to whether ex turpi causa applies in either of these situations, for we did not hear full argument in relation to them.”22

18 Gray v Thames Trains Ltd [2009] UKHL 33; [2009] 1 A.C. 1339. 19 Gray v Thames Trains Ltd [2009] UKHL 33; [2009] 1 A.C. 1339 at [32]. 20 Gray v Thames Trains Ltd [2009] UKHL 33; [2009] 1 A.C. 1339 at [38] quoting Law Commission, The Illegality Defence in Tort (HMSO, 2001) Law Com. No.160, para.4.100. 21 Gray v Thames Trains Ltd [2009] UKHL 33; [2009] 1 A.C. 1339 at [32]. 22 Gray v Thames Trains Ltd [2009] UKHL 33; [2009] 1 A.C. 1339 at [15].

2016 J.P.I.L., Issue 4 © 2016 Thomson Reuters (Professional) UK Limited and Contributors 218 Journal of Personal Injury Law Y T I How this situation might be addressed remains to be seen. The most recent case on this topic (Patel v L 23

I Mirza) provides a comprehensive analytical framework for the assessment of the illegality defence, but

B it might not provide a clear answer to the difficult problem of illegality where the actor bears little or no personal responsibility for their actions. A I

L Patel v Mirza: “I want my £620,000 back” Chandrakant Patel paid £620,000 to Salman Mirza, with the intention that Mirza would use this money to place a bet on the price of shares in Royal Bank of Scotland. He did so because Mirza believed that he was about to receive insider information about a government announcement which would affect the share price. This was a case of intended insider trading, and was therefore illegal. As it was, Mirza did not bet the money and he did not pay it back. Patel sued for unjust enrichment and breach of trust. The case was considered by nine justices of the Supreme Court bench, who held five to four in Patel’s favour. While the focus of the case was on the treatment of illegality as a defence to claims for breach of contract, the principles set out in the judgment are of direct relevance to cases brought in tort. The first point to consider was whether the action was founded on illegality (i.e. the first of the Holman characteristics). There has, for some time, been a tension in the law as to whether this should be the dominant test in determining the defence of illegality, it being argued24 that it provides greater certainty than flexible notions of public policy. The majority held that this was an unhelpful test and one which did not afford certainty. In the present case the intended use of insider information had not happened, so there was some doubt as to whether the claim was founded on illegality. As such, the principle of whether the claimant needed to rely on illegality to pursue his claim should not be followed.25 This then left the question of public policy (i.e. the second of the Holman characteristics). The majority view is largely set out in the judgment of Lord Toulson26 in which he established the following framework. 1) Would the purpose of the prohibition that had been transgressed be enhanced by denying the claim? 2) Would denying the claim have an impact on another relevant public policy? 3) Would denying the claim be a proportionate response to the illegality? In considering that framework, various factors can be taken into account, such as the seriousness of the conduct, its centrality to the contract, whether it was intentional and whether there was any disparity in the parties’ respective culpability.27 In this instance, the intended illegal conduct had not been performed. Furthermore, if Patel was denied a remedy Mirza would be unjustly enriched. As such, illegality was not a bar to Patel’s claim.

Where next? Patel appears to provide a definitive analytical framework for the assessment of the illegality defence. Cases brought for breach of contract are no longer to be assessed solely on the basis of whether the claimant has to rely on their illegal act to succeed. It seems likely that the concept of inextricable link seen in cases brought in tort is no longer determinative (although in most cases it would still seem to be a relevant factor to be taken into account within the Patel framework). It remains unclear how the limitation identified by Lord Phillips in Gray will be resolved. While there might seem to be justice in compensating a person who, by reason of mental illness, lacks any, or any

23 Patel v Mirza [2016] UKSC 42; [2016] 3 W.L.R. 399. 24 Les Laboratoires Servier v Apotex Inc [2014] UKSC 55; [2015] A.C. 430. 25 Patel v Mirza [2016] UKSC 42; [2016] 3 W.L.R. 399 at [110]. 26 Specifically, Patel v Mirza [2016] UKSC 42; [2016] 3 W.L.R. 399 at [101]. 27 Patel v Mirza [2016] UKSC 42; [2016] 3 W.L.R. 399 at [107].

2016 J.P.I.L., Issue 4 © 2016 Thomson Reuters (Professional) UK Limited and Contributors Illegality: In defence of tort? 219 Y T I significant, personal responsibility for their illegal conduct, doing so might result in at least an equivalent L

injustice to the compensator, and may undermine the criminal justice system. The point was expressed I 28

neatly by Sheller JA in the Australian decision of Hunter Area Health Service v Presland: if illegality B did not bar a claim, and a claimant killed the negligent psychiatrist who discharged him, the psychiatrist’s A

estate would have been liable to pay the claimant compensation for his consequent detention. I

Given the long history of the illegality defence and the thorny issues still to be considered, it would L only be fitting for the next set of deliberations to be over a cup of tea.

28 Hunter Area Health Service v Presland (2005) 63 N.S.W.L.R. 22.

L Emerging Technologies in Collision Investigation I

B *

A James Wade I

L Collision claims; Investigations; Personal injury; Road traffic accidents; Technology

Introduction As modern vehicles have developed, systems have been introduced to assist drivers in emergency situations. Anti-lock braking and stability control systems have assisted greatly in preventing collisions. However, both have markedly reduced the physical evidence, in the form of tyre or skid marks being left on the road surface at the scenes of collisions, which can be used to determine the circumstances of a collision. Such evidence had previously formed the basis for many road traffic accident reconstructions allowing engineers to calculate vehicle paths and speeds. As new technologies have emerged, there are now new sources of information from which to reconstruct collisions. Some of these technologies give a much better understanding of events rather than just relying on interpretation of the damage caused to vehicles or markings left on the road surface. This new information can come from a wide range of sources, from fixed CCTV cameras, dashboard cameras fitted to vehicles for the purposes of recording motoring incidents, and data from telematics systems fitted either by fleet managers or insurers. Now we are getting access to another new source of information. This information is downloaded from devices fitted in vehicles by the vehicle manufacturers themselves. This is known as vehicle crash data and the source is the event data recorder (“EDR”). New technologies are also assisting in the accurate recording of collision scenes and damage to vehicles. Laser scanning has been used for some time by police forces across the UK to survey collision scenes. Traditionally this method has also been used to record the collision damage to the exterior of a vehicle, but not the interior, but now a new form of handheld laser scanner is available and Hawkins is using it to record accurately the damaged passenger compartments of vehicles, which in turn allows more detailed analysis of how occupants might have interacted with intruding bodywork and parts of the vehicle’s interior. This approach can assist in establishing how an occupant might have received their injuries and assess the benefits of seatbelt use for those occupants who were not wearing seatbelts at the time of the collision. In this article two emerging technologies are introduced that Hawkins is trialling: crash data from vehicle EDRs and handheld 3D laser scanners.

Event data recorders and vehicle crash data An EDR is a function or device installed in a vehicle which records technical vehicle and occupant information for a brief period of time (seconds, not minutes) before, during and after a collision, for the purpose of monitoring and assessing vehicle safety system performance. EDRs have become of interest because less physical evidence is being left at collision scenes as vehicles are more commonly fitted with antilock braking systems and stability control systems. This lack of physical evidence makes it harder to reconstruct accidents. Driver or device errors are also difficult to detect without EDRs.

* James Wade graduated with a MEng in Automotive Engineering in 2006. Prior to joining Hawkins, James had a number of roles in research and manufacturing and also ran his own business specialising in the maintenance and modification of classic BMWs. James is based in Hawkins’ Reigate Office and now specialises in the reconstruction of road traffic collisions and the investigation of engineering failures.

220 2016 J.P.I.L., Issue 4 © 2016 Thomson Reuters (Professional) UK Limited and Contributors Emerging Technologies in Collision Investigation 221 Y T The development of the event data recorder in the US and Europe and the impact I L

of Brexit I

The development of the EDR has been driven by the US. In 1998 the National Highway Traffic Safety B

Administration (“NHTSA”) 49 CFR (Code of Federal Regulations) Pt 563 made the fitment of EDRs A mandatory on all cars sold in the US and Canada irrespective of the country of manufacture. The format I and a minimum standard for the type of data and sampling rates recorded by the EDR were standardised. L Europe has been slower to adopt the technology and some manufacturers do not even acknowledge that EDRs are already fitted in some European cars. A European project was setup in 2003 called VERONICA I (Vehicle Event Recording based On Intelligent Crash Assessment) as part of an EU project within the EU Road Safety Plan. Its objective was to define the technical, legal, and prevention requirements for possible mandatory introduction of accident data recording devices, including pre-requisites for automatic crash notification. VERONICA II ran from 2007–2009 with the objective of defining the technical specifications in order to harmonise EDRs in Europe and to define the legal framework for their introduction. More recently, the European Commission (“EC”) undertook a study into the use of EDRs in cars, light commercial vehicles, HGVs, buses, and coaches to “improve road safety and access to justice”. The report was published at the end of August 2014 and concluded that: • almost all new passenger cars are fitted with EDRs and have been for some time; • the data recorded is comparable to that of the mandatory specification demanded by Pt 563 in the US; and • the data provides accurate and reliable information on the timing, chronology, and actions taken by drivers in the moments before a collision. The report gave no firm conclusion on data ownership, but suggested that it would most likely be owned by the car owner, not the car manufacturer, car driver, or insurer. Whether or not a post-Brexit Britain would adopt the same European legal framework for the introduction of EDRs or try to develop its own is unknown. EDRs are not to be confused with aftermarket black boxes or telematics boxes fitted by insurers. They were not originally intended for the purposes of collision investigation, but to allow monitoring of airbag deployments, and alert if there was a fault with any of the airbag safety equipment. They have evolved over time to capture crash data.

How does an event data recorder work? Most EDRs in passenger cars are embedded within the safety restraint system module, which is commonly termed the ACM (airbag control module). The ACM’s primary function is to measure and evaluate decelerations and, if necessary, deploy the appropriate safety measures, e.g. main airbag, side airbags, pre-tensioners etc. The ACM can also inform other control units in the car of a collision by sending a “crash” signal which might turn off the fuel pump and switch on the hazard lights. As secondary functions, the ACM monitors the condition of the safety systems and records “event” data. The ACM constantly monitors decelerations using accelerometers. Every time the pre-determined deceleration threshold is met, the algorithm, which controls the deployment of the safety systems, “wakes-up”. The algorithm “waking-up” is termed an event. The algorithm continues to monitor the development of the decelerations over milliseconds and, if the deployment threshold continues to be met, the ACM will trigger the squibs (small explosive charges) to deploy the appropriate safety restraints (i.e. seatbelt pre-tensioner or airbag). Anytime there is an event, regardless of whether it results in a deployment or a non-deployment, the ACM saves the last five seconds of data recorded by the various modules around

2016 J.P.I.L., Issue 4 © 2016 Thomson Reuters (Professional) UK Limited and Contributors 222 Journal of Personal Injury Law Y T I the car and stores it in an electrically erasable programmable read-only memory (“EEPROM” or L

I “E2PROM”; a type of electronically reprogrammable non-volatile memory) chip. It is now possible to

B retrieve and analyse this data from some vehicles using crash data retrieval (“CDR”) tools. A

I The data L Unlike the US, the data available from European market cars are not standardised, and it is yet to be seen what impact European standardisation will have on the UK, particularly if Britain is no longer part of the EU. Therefore, the data varies between the different car and control module manufacturers and the age and sophistication of the cars. The EU is likely to base future legislation on the US specification and to more than likely exceed it, with the UK following suit. Typical data available from the five seconds before impact include: • longitudinal and lateral maximum changes in velocity; • longitudinal and lateral accelerations; • vehicle speed; • engine RPM; • application of the throttle; • application of the brake; • steering inputs; and • data on occupants, including which seats were occupied, the seat adjustment positions and which seatbelts were in use. The severity of damage to a car can affect the amount of data which can be retrieved. Communication between modules in a car relies upon the CANbus network (the network which allows devices around the car to communicate with each other without a host computer) being intact and a battery voltage of over 12V. In a heavily damaged car, the network might be interrupted and the battery discharged, disconnected, or missing. In these circumstances, the data stored in the ACM can be accessed directly, but might not include all the data from the pedestrian protection module (“PPM”), roll-over sensor (“ROS”), and powertrain control module (“PCM”), if fitted. While EDRs are now mandatory in the US, they are not in the UK and Europe. As such, the list of cars currently supported for data retrieval is comparatively low. As EDRs become more accepted and European legislation catches up with that in the US, the data from EDRs fitted to European cars will become available.

Hawkins’ experimentation with crash data from event data recorders Over recent months, Hawkins has been trialling the use of a CDR tool to recover crash data from vehicles which have been involved in collisions on Britain’s roads. Some police authorities have been similarly engaged, although no significant studies have yet been published. Due to the relatively low number of vehicles which carry accessible data, this trial has been performed by actively looking for candidate vehicles in salvage yards. Consequently, the precise collision circumstances are unknown, however, a great deal has been learnt about the types of vehicles which contain data and the form of that data. This trial, which is ongoing, has proved a valuable learning experience and demonstrates the power of the technology.

Examples The first example of recovered data comes from a 2015 Dodge Ram. The Dodge had collision damage to its nearside front corner in a front to rear direction. The damage was not severe and the longitudinal

2016 J.P.I.L., Issue 4 © 2016 Thomson Reuters (Professional) UK Limited and Contributors Emerging Technologies in Collision Investigation 223 Y T I structural members of the vehicle were not affected. Occupants of this vehicle would be unlikely to have L

received any serious injury. Consistent with this, inspection of the passenger compartment revealed that I

none of the vehicle’s safety systems had operated, i.e. the seatbelt pre-tensioners and airbags had not B deployed. A

Close inspection of seatbelts can often reveal loading marks which assists in establishing whether they I

were being worn during a collision. However, the damage to the Dodge suggests that the vehicle would L have been subject to a relatively minor deceleration, which in turn would have caused relatively little loading of the seatbelts from the occupants and no marks to be caused to any of the seatbelt parts. In this instance, the traditional method of identifying seatbelt usage from inspection of the seatbelts would have yielded no conclusive evidence. Being a US-manufactured vehicle, the EDR provided data in a format and to a standard which met the US NHTSA CFR Pt 563 regulations. This meant that seatbelt usage was recorded. The data showed that only the driver’s seatbelt was in use during the collision. The EDR data has provided an answer where previously one would not have been available. EDR data giving information on seatbelt usage is of particular importance in side impact and roll-over incidents. Both of these types of incident can cause significant injuries to occupants, but might not create evidential markings on seatbelts. The EDR data can prove invaluable in determining seatbelt usage in these types of incidents. Five seconds of pre-crash data was recorded by the Dodge’s EDR at 0.1 second intervals. The page of the data is shown in fig.1 below. The data show that approximately five seconds before the collision, the Dodge was travelling at 46mph. Between 3.2 and 2.5 seconds before impact, the brakes were applied and the Dodge decelerated to 42mph. At 1.0 second before the collision, the brakes were applied again, causing the ABS system to operate, indicative of emergency braking. Information was also recorded from the steering angle sensor showing that, coincident with the emergency braking, was a steering input. In the first 4.0 seconds of data, the Dodge was being steered progressively towards the left. At 1.0 second before the collision, the steering wheel turned rapidly towards the right. This suggests that, at about 1.0 second before the collision, the driver performed emergency braking and swerved towards the right. During this manoeuvre the Dodge’s stability control system “engaged”, which indicates that this was a fairly rapid emergency-type manoeuvre.

Figure 1. The five seconds of pre-crash data from the Dodge Ram

A summary of key vehicle parameters in graphical form is shown in fig.2. It illustrates the vehicle speed in combination with the engine speed, accelerator pedal and engine throttle positions as well as brake pedal applications.

Figure 2. A graphical illustration showing key parameters of the pre-crash data

Crash pulses and decelerations are also recorded by the EDR and might be of assistance to medical experts when considering the severity of injuries received by occupants. The Dodge recorded maximum

2016 J.P.I.L., Issue 4 © 2016 Thomson Reuters (Professional) UK Limited and Contributors Emerging Technologies in Collision Investigation 225 Y T I speed changes of 12.4mph in 142 milliseconds in a longitudinal direction and 14.9mph in 132 milliseconds. L

These are shown in graphical form in fig.3 below. I B A I L

Figure 3. Longitudinal and lateral crash pulses from the Dodge Ram

This second example shows the data retrieved from a 2012 Toyota Prius. The Toyota had received relatively minor collision damage to its front. With such minor collision damage, it is not always the case that the EDR will have recorded any information. However, interrogation of the vehicle’s EDR revealed that it had. Unlike the Dodge, the Toyota system (for this model and year of manufacture only), records pre-crash data in 1.0 second intervals, as shown in fig.4. The data show that approximately 4.0 seconds prior to the collision, the Toyota was travelling at 42.3mph. Sometime between 1.0–2.0 seconds prior to the collision the brakes were applied. Over the last 1.0 second, the Toyota decelerated from 37.3mph to 22.4mph, which is consistent with full emergency braking. The Toyota was travelling at 22.4mph when the collision occurred.

Figure 4. The Toyota Prius pre-crash data

While less information was recorded by the Toyota’s system—for example, unlike the Dodge, the Toyota did not record any information regarding the occupants of the vehicle, i.e. whether or not the seatbelts had been engaged—it still provides invaluable insight on some of the actions of the driver prior to the collision and the vehicle’s speed.

In use already Vehicle crash data obtained from manufacturer EDRs are widely used in North America in both criminal and civil courts. The first use of EDR evidence in the UK was in 2006 at Birmingham Crown Court during the trial of a 21-year-old man, who crashed a Range Rover Sport into a Jeep. The accident left a baby girl paralysed. The EDR evidence allowed investigators to determine the driver was speeding at 72mph in a 30mph zone. In 2010, the driver of a Chrysler 300 was prosecuted at Oxford Crown Court for causing death by dangerous driving. Investigators were able to prove that the vehicle was travelling at 74mph five seconds before the collision and the driver only applied the brakes 0.3 seconds before impact with a line of traffic on the M40. There are still hurdles to overcome in the use of EDR data in the civil realm in the UK and Europe. There is no civil precedent relating to ownership and use of crash data in the UK. There has been a precedent set in Germany that the police have a right to access EDR data in that country and while the EC commissioned a report into EDRs, they are yet to pass any laws governing its introduction and use and it is not known if any such laws would be adopted by a post-Brexit Britain. Unlike the US, investigator access to EDR data in the UK is restricted. Only certain manufacturers allow free reign access to the data, including Toyota, Volvo and US-based manufacturers. So far, it has been the voluntary sign-up by these manufacturers which allow civilian collision investigators to access the data. There is currently no single “tool” compatible with all vehicles that carry EDRs and crash data.

A summary of the potential uses for crash data from event data recorders It is anticipated that in the future, the use of crash data from EDRs will help to: • verify witness evidence and allow collision circumstances to be established quickly; • complement existing investigation techniques when undertaking collision reconstruction work; • assess third party claims and establish any contributory negligence;

2016 J.P.I.L., Issue 4 © 2016 Thomson Reuters (Professional) UK Limited and Contributors Emerging Technologies in Collision Investigation 227 Y T I • determine occupancy, seatbelt usage and seat adjustment positions; and L

• assist medical experts in establishing collision forces and thus injury mechanisms. I B

Handheld 3D laser scanners A I 3D laser scanning is a way of capturing a physical object’s exact size and shape so that it can be viewed in the “computer world” as a 3D digital representation. 3D laser scanners have become a well-established L tool in the field of surveying and more recently have been a common method adopted by police forces for recording the scenes of road traffic collisions. Historically, tripod-based laser scanners have been used for larger areas including scenes of collisions. The new handheld 3D laser scanner is used for smaller objects and it can now be used for creating permanent, accurate and detailed records of collision damaged vehicles. Primarily, it is the accuracy and certainty of recorded measurements which makes 3D laser scanning invaluable for collision investigation and reconstruction. However, computer models created from the 3D scan data can also be used to create photographic realistic visualisations. These can be as individual figures for inclusion in a report or as video files. Videos can be created giving “fly around” overviews of scenes of collisions or collision damaged vehicles. Both give the observer a better understanding of spatial arrangements than that given by conventional photography. A further advantage of a 3D model is that it can be viewed from any angle. Figure 5 is a screenshot showing the 3D model resulting from a tripod-based laser scan of a car park. All of the scanning work was carried out at ground level. However, by moving the viewing point, it has been possible to create the illusion that a photograph has been taken from an aerial platform at some position over the scene. Furthermore, by viewing a model from directly overhead, accurate scale plans can be created quickly and accurately by creating outlines and marking key features.

Figure 5. A view of a computer model created from 3D scan data

The handheld laser scanner The handheld laser scanner is compact and manoeuvrable, which allows 3D scans to be performed in confined areas, where previously it would have been unfeasible to use the traditional method of tripod-based 3D laser scanning. It is these features that have meant the handheld scanner can be used to record the interior compartments of damaged vehicles, allowing a permanent record of seat positions and intrusion damage to be recorded, measured and analysed. Unlike the tripod-based scanner, the handheld scanner does not project a laser beam. Instead it works by projecting a grid pattern of infra-red light. Two infra-red cameras then record the shape of the grid as

2016 J.P.I.L., Issue 4 © 2016 Thomson Reuters (Professional) UK Limited and Contributors 228 Journal of Personal Injury Law Y T I it distorts over the surface. The information from each scan is recorded onto a Microsoft tablet. Individual L

I scans are then registered together to create a 3D model which can then be navigated and analysed. The

B tool has a scanning range of approximately 3m, and it is accurate to within 1mm at a distance of 1m from a surface. Figures 6 and 7 show the results of a 3D laser scan performed on the interior of an undamaged A

I vehicle. Such images of an incident model of vehicle together with those generated from a scan of the

L impact damaged vehicle can help interested parties to visualise the condition of the vehicle, post collision.

Figure 6. A screenshot from the 3D laser scan model of the passenger compartment of a vehicle

Figure 7. A second screenshot from the 3D laser scan model of the passenger compartment of a vehicle as viewed from above.

A useful feature of having a navigable 3D model is the creation of cross-section views. Figure 8 shows a cross-section that was taken through the offside of the passenger compartment shown in figs 6 and 7. The cross-section was taken in line with the centre of the driver’s seat and steering wheel. A cross-section

2016 J.P.I.L., Issue 4 © 2016 Thomson Reuters (Professional) UK Limited and Contributors Emerging Technologies in Collision Investigation 229 Y T I view allows precise measurements to be taken as part of an assessment of occupant contact with the vehicle L

in an impact. As an example, a measurement was taken on fig.8 between the driver’s seat backrest and I

the steering wheel. The accuracy of measurements taken from the 3D model reduces the uncertainty when B considering seat positions or proximity of occupants to crushing damage. A I L

Figure 8. A cross-section view taken longitudinally through the driver’s side of an undamaged vehicle.

The models are also excellent when making comparisons between damaged vehicles and undamaged exemplar vehicles. Cross-sections can be taken through the 3D model of a damaged vehicle and compared with the 3D data from an undamaged exemplar vehicle. To aid in the visualisation, cross-sections can then be overlaid to help in understanding how the shape of the vehicle has changed as a result of a collision. Figure 9 shows a cross-section taken through the passenger compartment of a damaged vehicle. The vehicle had sustained a severe impact to its nearside at high level. The cross-section was taken in line with the base of the rear seat cushion and as viewed from the front of the vehicle. Despite wearing a seatbelt, the rear seat occupant received a head injury. Measurements taken from the cross-section view of the computer model combined with the known size of the occupant helped to establish that it was quite probable that their injury was the result of the collision damage and not due to their failure to wear a seatbelt correctly.

Figure 9. A cross-section view taken laterally through the rear seat area of a heavily damaged vehicle.

If you are considering how a particular occupant came to receive their injuries, being able to have the computer model from which you can take any measurement is of great assistance. A vehicle can be examined and a few key measurements can be taken. This may prove critical at a later date, once the vehicle has been disposed of: for instance, a medical expert might wish to know a measurement that was not recorded. Having a navigable dimensionally accurate model ensures that measurements of any feature of interest can be made retrospectively. Incidentally, as a result, it is no longer necessary for insurers to pay for long-term storage of damaged vehicles, as the potentially useful dimensional information has been captured and stored digitally. As a summary, 3D laser scanning can be used to: • accurately record a scene or object into the “3D computer world”; • create visualisations of scenes or objects; • give a high degree of certainty over measurements; • allow comparisons to be made between damaged and undamaged exemplar vehicles; and • save the costs associated with storing damaged vehicles

Overview As technologies emerge, they offer collision investigators new opportunities to gather and interpret information with a greater degree of certainty and to undertake more comprehensive reconstructions on the likely collision circumstances. It is important that these technologies are embraced rather than viewed with doubt. Proactive expert forensic scientists and engineers should be at the forefront of continuing to trial the use of vehicle crash data from EDRs and performing laser scans of vehicles in order to record collision damage. Practitioners need to be aware of these emerging technologies in appropriate cases to assist them in making forensic expert choices.

2016 J.P.I.L., Issue 4 © 2016 Thomson Reuters (Professional) UK Limited and Contributors The Criminal Injuries Compensation Scheme 2012 and its Impact on Victims of Crime Neil Sugarman* / S Criminal injuries compensation; Mental health; Personal injury; Sporting events; Time limits M E U This article provides a critique of the Criminal Injuries Compensation Scheme that is currently in force. G T

It compares the scheme to those that have existed historically and identifies the fundamental changes that A have occurred. The article identifies aspects of the changes made to the scheme in 2012 which are N M detrimental to injured people and why they have failed to reflect the intentions expressed at the time. The A A practical implications of those changes are considered, including the consequences of recent decisions U in both the Upper Tribunal and the Court of Appeal. Q D

Schemes to compensate injured victims of crime in Great Britain have been in existence since 1964. The social justice campaigner Margaret Fry had been active in trying to establish better rights and protections for victims of crime in post-war Britain and the first ever Criminal Injuries Compensation Scheme represented the culmination of almost ten years of active campaigning for the introduction of such a scheme, which provided financial recompense where injury had occurred. The basis of compensation for the initial schemes that existed from 1964–1996 was one of restitution, applying common law principles. It was based on a presumption that if the state had failed in its duty to protect the citizen then they were entitled to be compensated. However, in later years the view of government seems to have changed and the justification for making awards now seems to be that this is an expression of sympathy by the state, rather than recognition of its failings in law enforcement. Compensation under the early schemes was paid on an ex gratia basis since the schemes themselves were entirely voluntary in nature and not instruments of statute. The schemes were administered by the Criminal Injuries Compensation Board which was effectively a government agency and which applied common law principles of assessment. Whilst there was an appeal mechanism leading to a hearing before a panel of assessors, that panel was, somewhat strangely, not independent of the Board itself. There was no limit or “cap” on awards and consequently large sums of compensation could be paid in serious cases. The major impediment to full restitution from the point of view of the injured victim was that no interest was payable under the schemes, nor were legal costs recoverable. Everything changed radically in 1996. The then Government decided to restrict the sums available and to introduce a tariff system for assessing the amounts payable as a reflection of injury. After something of a false start resulting in judicial review proceedings brought by the Fire Brigades Union as a result of the Government’s failure to honour a commitment to introduce a statutory scheme, this did arrive through secondary legislation with the Criminal Injuries Compensation Scheme 1996. The primary enabling legislation for this scheme was the Criminal Injuries Compensation Act 1995. Thus, far from the general approach afforded by an award of common law damages, compensation was far more proscribed, comprising a tariff sum for injuries, an award for loss of earnings or earning capacity, and a further award where merited for what are known as special expenses, comprising fixed categories of loss as laid down by the scheme. Revisions followed in 2001 and 2008.

* Neil Sugarman is the Managing Partner at the Bury-based practice of GLP Solicitors and President of APIL. He can be contacted by email at [email protected].

The current version of the scheme became effective again, by statutory instrument made on 13 November 2012 from 27 November 2012. This followed a consultation process, the results of which were fairly controversial. At a time of austerity, the thrust of the consultation and the resulting draft scheme was such as to drastically reduce the number of potentially qualifying applicants and also to reduce the value of awards that many successful applicants would receive. Debate in the House of Commons Delegated Legislation Committee at its initial meeting to consider

/ and approve the statutory instrument laid before it originally in September 2012 was itself heated and S critical, resulting in the minister withdrawing the instrument with a view to pausing for thought. The M E instrument was re-introduced on 13 November to a differently constituted committee and it was narrowly U G approved, with abstentions. T

A One of the main criticisms of the large reductions made to the number of potentially qualifying applicants N and the amounts to be awarded was that these were predicated on an intention that the Government was M A determined to do more for severely injured victims at the expense of those who had perhaps suffered lesser A U injury. It was difficult to see quite how the 2012 scheme set out to achieve that when the detail was

Q D analysed. Furthermore, unfairness and injustice anticipated by some of the proposed changes had been highlighted by many in the consultation responses and, sadly, those prophecies have come to fruition. In terms of eligibility, changes in 2012 have, indeed, excluded many potential applicants. There is a mandatory withholding, i.e. no award at all unless the incident giving rise to the criminal injury has been reported to the police as soon as reasonably practicable.1 Whilst there are qualifications dictated by the age and capacity of the victim and whether they could reasonably have been expected to have reported earlier due to the effects of the incident, the absence of police reporting is an entire bar. In comparison, under predecessor schemes reporting could be to another body or person considered by the Criminal Injuries Compensation Authority (“CICA”) to be appropriate for the purpose. That might have included, for example, teachers, support workers, social workers, nurses and many others. The “all or nothing” provision removes discretion and the possibility of making a reduced award to reflect no, or late, reporting. In 2014/2015, 1,119 applications were refused under these provisions.2 This figure takes no account of anybody who actually failed to apply, having been advised that they would not qualify for this reason. Similarly, there will be no award where the applicant is deemed not to have co-operated as far as reasonably practicable in bringing the assailant to justice.3 Once again, the option of a reduction, and thus the discretion afforded to make one as dictated by the circumstances of the application, has been removed. There were 1,910 refusals for non-co-operation in 2014/2015.4 The impact of the changes made in connection with applicants who themselves have a criminal record is equally severe. It has always been the ethos of the schemes that their publicly funded nature made it appropriate to take into account criminal convictions, but a measure of discretion was always available to the CICA, or any appellate body depending on the nature of the conviction or the circumstances in which it was sustained. That changed in that the discretions were again removed in 2012. For example, an applicant with a conviction resulting in offences such as a community order or youth rehabilitation order will be precluded from receiving an award entirely.5 This is the case no matter how severe an injury has been suffered as a result of the crime. This will include serious brain and mental health injury. The difficulty is that the lack of available discretion means that no account can be taken of the fact that post-incident criminality might itself be directly attributable to, or to have been materially contributed to by, the index incident. Similarly, those brought up in care are “ten times more likely to come into contact

1 Ministry of Justice, Criminal Injuries Compensation Scheme 2012 (The Stationery Office, 2012), para.22. 2 Criminal Injuries Compensation Authority, Annual Report and Accounts 2014–15 (HMSO, 2015), HC Paper No.200. 3 Ministry of Justice, Criminal Injuries Compensation Scheme 2012, para.23 4 Criminal Injuries Compensation Authority, Annual Report and Accounts 2014–15. 5 Ministry of Justice, Criminal Injuries Compensation Scheme 2012, para.26 and Annex D.

2016 J.P.I.L., Issue 4 © 2016 Thomson Reuters (Professional) UK Limited and Contributors The Criminal Injuries Compensation Scheme 2012 and its Impact on Victims of Crime 233 with the criminal justice system”.6 In the same way, many victims of abuse are known to become abusers themselves through learned behaviours. Among males there is a positive correlation between the risk of being a perpetrator and having been a victim.7 In 2014/2015, 2,017 applications were refused as a result of convictions.8 The time limit for bringing applications continues to provide a hurdle in many cases, especially those involving historic sexual abuse. The starting provision is for an application to be made so that it is received 9 as soon as reasonably practicable after the relevant incident and in any event within two years. For children / S who were under the age of eighteen at the time of the incident, the date varies according to police reporting. M If reported before the child’s eighteenth birthday, then an application is to be made by the victim’s twentieth E U birthday; if not reported until after their eighteenth birthday, the application must be made within two G 10 T years of first reporting. Even then, an application will not be accepted unless it can be determined without A further extensive enquiries by a claims officer.11 The period can only be extended where it can be shown N M that the applicant could not have applied due to exceptional circumstances.12 Although refusal due to A A failure to report to the police (see above) is qualified by the age and capacity of the applicant and the U question of whether the effect of the incident was such that it could not reasonably have been reported Q D earlier13; there are no such general qualifications in relation to the time limit. In a recent case the Upper Tribunal provided some guidance on the correct approach to dealing with the issues that arise. Levenson J stated that a two-part approach had to be adopted to the issues arising under para.89(a) of the 2012 scheme. First, were there exceptional circumstances? This was primarily a question of fact for the decision-making body, but that body must be reasonable in reaching its conclusion. Secondly, it had to be considered whether the applicant could have applied earlier than they did. In this case the applicant had applied under the 2012 scheme on 9 April 2013, alleging abuse between the ages of nine and twelve in the 1980s. He had become a habitual user of drugs and alcohol. It was only when he was approached by the police in the course of an investigation in November 2010 that the applicant stated that memories of the abuse had come back. The decision of the First-tier Tribunal not to allow his application out of time was quashed.14 Notably, the Scottish Government is presently committed to legislation to remove limitation in civil child abuse cases and a draft bill is awaited. A delicate situation often arises in circumstances in which the prosecuting authorities in criminal proceedings pressurise victims to desist from making applications under the scheme, for fear of this being used as a line of cross examination by the defence. For obvious reasons, delay in those circumstances is fraught with danger. In 2014/2015, 754 applications were recorded as being refused for this reason.15 The 2012 scheme introduced a narrative section dealing with “Crime of Violence”.16 Whilst describing circumstances which might amount to a crime, the provisions also include specified exclusions. In particular, injury resulting from suicide unless with intent to cause injury, injury resulting from the use of a vehicle, again unless used with intent, and injury resulting from an animal attack, unless used with intent are excluded. That latter provision has had serious consequences for victims of dog attacks, including some resulting in death. Previously, recklessness as to control of the animal would have been sufficient. Injuries sustained during the usual course of sporting activity or other activity to which a person consented by

6 Prison Reform Trust, In Care, Out of Trouble (23 June 2015). 7 M. Glasser et al., “Cycle of child sexual abuse: links between being a victim and becoming a perpetrator” (2001) 179(Dec) B.J. Psych. 482. 8 Criminal Injuries Compensation Authority, Annual Report and Accounts 2014–15. 9 Ministry of Justice, Criminal Injuries Compensation Scheme 2012, para.87. 10 Ministry of Justice, Criminal Injuries Compensation Scheme 2012, para.88. 11 Ministry of Justice, Criminal Injuries Compensation Scheme 2012, para.88(2). 12 Ministry of Justice, Criminal Injuries Compensation Scheme 2012, para.89(a). 13 Ministry of Justice, Criminal Injuries Compensation Scheme 2012, para.22. 14 BC v First-tier Tribunal [2016] UKUT 155 (AAC). 15 Criminal Injuries Compensation Authority, Annual Report and Accounts 2014–15. 16 Ministry of Justice, Criminal Injuries Compensation Scheme 2012, Annex B.

taking part are excluded. That is novel. Finally, and somewhat controversially, where injury was sustained in utero as a result of harmful substances willingly ingested by the mother during pregnancy, with intent to cause or being reckless as to injury to the foetus, are excluded. A case involving foetal alcohol syndrome, sustained by a child whose birth-mother drank excessively in pregnancy having been warned about the dangers of doing so, had succeeded in a First-tier Tribunal under the 2008 scheme, but was unsuccessful in the Court of Appeal.17 The Court of Appeal found that it

/ was not possible to commit the crime of poisoning against the foetus because the relevant offence under S s.23 of the Offences against the Person Act 1861 could only be committed against a person and a foetus M E did not have that status. The provisions in Annex B would have precluded further claims after November U G 2012, even had CP been successful. T

A However, in a more recent case, the Upper Tribunal has decided that a child born with brain damage N as a result of the genetic consequences of the commission of an offence of incest is entitled to an award M A under the 2008 scheme. Levenson J found that the scheme provided for compensation to be payable to an A U “applicant” and that there is no provision in the scheme that the applicant must have been a “person” at 18 Q D the time that the crime of violence was committed. The case is being appealed to the Court of Appeal. In cases involving damage to mental health it has always been a problem that the tariff schemes have been prescriptive in requiring diagnosis or prognosis of a psychiatrist or clinical psychologist. This is carried through in the tariff requirements of the 2012 scheme in order to attract awards for disabling mental injury and the CICA is quite dogmatic about this requirement. In comparison in the armed forces’ equivalent scheme, it is acceptable for a “mental disorder to be diagnosed by a relevant accredited medical specialist”.19 The situation is compounded by virtue of the fact that due to budgetary constraints and also a degree of ignorance surrounding mental health issues within primary services, victims often never manage to be referred to see a psychiatrist or clinical psychologist. This has the “double whammy” effect of precluding them from both the treatment that they require and the evidence needed to support their application. To compound the difficulty, the onus is on the applicant to provide medical evidence20 and, in comparison with predecessor schemes, the 2012 scheme makes no provision within the awards for “special expenses” to allow for the cost of private medical treatment. This prevents an applicant from securing an interim award to fund access to a suitable medical expert, a difficult exercise in itself, and more broadly denies a much needed head of loss in times of austerity when access to many areas of treatment through the NHS is difficult and sometimes impossible. Once more, that does not seem to fit with the expressed intention of a scheme designed to do more for the more seriously injured. What has become clear is that in cases involving mental health, or indeed brain damage, if the applicant does not have mental capacity as defined by the Mental Capacity Act 2005, then only somebody acting under a valid prior power of attorney or otherwise appointed by the Court of Protection can make or continue with an application under the scheme.21 Mr Justice Charles, on appeal from a decision of Senior Judge Lush22 agreed that an appointed attorney or Court of Protection appointment by deputy or under a single order was required. He disagreed, however, with Senior Judge Lush that the Court of Protection had to approve any trust sought to be imposed by the CICA. It has the power to do so in a number of circumstances.23 What was also made clear, however, was that a deputy or appointed person is not obliged to accept the terms sought to be imposed by the CICA and was entitled to seek to negotiate those terms. That is important because the requirements of the CICA might not always be deemed to be in the best interests of the injured victim, in terms of the way in which the trust is structured and to be administered.

17 Criminal Injuries Compensation Authority v First-tier Tribunal (Social Entitlement Chamber) [2014] EWCA Civ 1554; [2015] Q.B. 459. 18 Y v First -tier Tribunal [2016] UKUT 202 (AAC). 19 Armed Forces (Compensation Scheme) Order 2011, Table 3. 20 Ministry of Justice, Criminal Injuries Compensation Scheme 2012, para.92. 21 V v Assistant Director Adult Social Care Newcastle City Council [2015] EWCOP 87; [2016] Fam. 229. 22 Re PV [2015] EWCOP 22; [2015] C.O.P.L.R. 265. 23 Ministry of Justice, Criminal Injuries Compensation Scheme 2012, para.106.

The status of decided applications brought on behalf of an applicant without capacity by somebody other than an attorney, deputy or similarly appointed person, is an interesting one. It begs the question as to whether an incorrect award accepted in those circumstances is void and whether an application could be re-made. The starting point for the largest financial impact caused by the tariff based schemes as carried through to the 2012 scheme is the “cap” imposed on awards at a maximum of £500,000.24 Any combination of tariff, loss of earnings or earning capacity, and special expenses, can thus not exceed the maximum. It has / S not been increased even to take account of inflation over the relevant period, which would have resulted M in a sum of £858,788. In comparison, sums awarded to members of the armed forces are more generous.25 E U By definition, this is more likely to affect those most seriously harmed by being victims of violent crime. G T

The financial impact is compounded by changes relating to the provisions enabling a victim to receive A an award for loss of earnings or loss of earning capacity. Qualification is subject to conditions. First, the N M applicant must have no, or very limited, capacity for paid work.26 In addition, the applicant must have A A been in paid work at the date of the incident giving rise to the injury or series of injuries, to have been in U regular paid work for at least three years immediately before the date of the incident giving rise to the Q D injury, or to have had a good reason for not having been so, such as due to being in education or being a full-time carer.27 Of devastating impact are the provisions that specify that the recoverable rate of weekly pay for both past and future losses is that of statutory sick pay, currently £88.45 per week.28 In comparison, the predecessor tariff schemes imposed far lesser restrictions. For example, the 2008 scheme stated: “where the applicant has lost earnings or earning capacity for longer than twenty eight weeks as a direct consequence of the injury no compensation for loss will be payable for the first twenty eight weeks of loss. The period for which compensation may be payable will begin after those twenty eight weeks and, subject to sub-paragraph (2) below will continue for such period as a claims officer may determine.”29 The scheme laid down multiplier/multiplicand provisions for the calculation of future losses30 with a maximum available annual sum of £38,142 in 2010 and also contained provisions for the making of a lump-sum award where appropriate.31 Inevitably, this has the greatest impact on victims whose injuries are likely to be severe enough to prevent them from working, but because of the conditions attached to the 2012 scheme, the categories of qualifying applicant are far more restricted. There have been recent examples of additional practical difficulties that have arisen in conducting applications under the scheme. A case that went to judicial review effectively decided that the scope of an appeal to the tribunal was limited to dealing with the issue under appeal and it could go no further. If, for example, an appeal is made in connection with eligibility for an award, the tribunal can only decide that issue. Attempts to be proactive and to proceed to decide on the amount of an award, or to give constructive directions for the further conduct of the application, were deemed to be unlawful and the matter had to be remitted back to the CICA. This would seem to be a costly exercise which can only cause delay, but that is what must now happen.32

24 Ministry of Justice, Criminal Injuries Compensation Scheme 2012, para.31. 25 Armed Forces and Reserve Forces (Compensation Scheme) Order 2011. 26 Ministry of Justice, Criminal Injuries Compensation Scheme 2012, para.43(1). 27 Ministry of Justice, Criminal Injuries Compensation Scheme 2012, para.43(1). 28 Social Security Contributions and Benefits Act 1992 s.157. 29 Ministry of Justice, Criminal Injuries Compensation Scheme 2008, para.30(1). 30 Ministry of Justice, Criminal Injuries Compensation Scheme 2008, paras 31 and 32. 31 Ministry of Justice, Criminal Injuries Compensation Scheme 2008, para.33. 32 R. (on the application of B) v First-tier Tribunal [2014] UKUT 497 (AAC).

In what appear to be prolonged times of austerity, it is, perhaps, too much to hope that there will ever be a return to the original principles of restitution envisaged by the campaigners and architects of the first schemes. However, it remains of concern that the Criminal Injuries Compensation Scheme 2012 continues to have harsh consequences for injured victims and, most certainly, fails to achieve its expressed objective of removing the entitlement to compensation from victims perceived to be less seriously injured or affected, with the intention of better compensating those more seriously injured or damaged. / S M E U G T A N M A A U Q D

Claims management; Clinical negligence; Fixed costs; Hearing; Legal profession; Personal injury; /

Small claims track S M E Duncan Rutter has been involved in personal injury litigation since qualifying as a solicitor in 1988. He U currently heads up DAC Beachcroft’s Catastrophic Injury Group and specialises in advising on brain G T and spinal injury cases. Duncan is also the President of the Forum of Insurance Lawyers. In this article A N he looks back on his year of office and the main issues facing the personal injury market. M A A Introduction U Q D On 12 November 2015 I became the twentieth president of the Forum of Insurance Lawyers (“FOIL”). I had three priorities for the year ahead: working with other stakeholders to improve the claims process, tackling fraud, and improving professional standards. I did not expect my year as president to run to plan. I was just 13 days into the job when the chancellor delivered his autumn statement. Whilst we had been expecting plans to increase the small claims limit for personal injury claims, the plan to remove the entitlement to general damages for low value whiplash claims took everyone by surprise. It became clear that my year as president was going to be an interesting one. This article looks at some of the main issues facing the personal injury market and the position taken by FOIL as I have tried to navigate my way through the myriad reforms of the last year.

Fixed costs The Government had planned to introduce fixed costs in clinical negligence cases by October this year. The consultation has still not been published but this has not stopped critics defending the status quo. One of the key objections is that clinical negligence claims can be complex and imposing fixed fees will reduce access to justice by discouraging more experienced practitioners from dealing with these claims (although no one suggests what rich pickings these practitioners will turn to instead). Indeed, that objection seems to be raised as a matter of principle and without any consideration for the appropriate level of fixed fees in such cases. There can be no doubt that costs are out of control in these claims. NHS Litigation Authority data shows that average claimant costs: • exceed the value of the claim in claims worth up to £50,000; • are 83 per cent of damages for claims worth between £50,000 and £100,000; and • are 57 per cent of damages for claims worth between £100,000 and £250,000. It has long been held that legal costs should be proportionate to the amount of damages in issue. As far back as 1996, Lord Wolf argued that a system which allowed claimants to recover as much in costs if not more than damages would not command public confidence. In 2009 the then President of the Queen’s Bench Division, Sir Anthony May, said:

* Duncan Rutter manages the Catastrophic Injury Group at DAC Beachcroft. He is also the President of the Forum of Insurance Lawyers. He can be contacted by email at [email protected].

“It is more important that a defendant should not be at risk of a grotesquely disproportionate costs order than that claimants should be enabled to conduct risk free litigation.”1 Insurers and the NHS Litigation Authority have successfully operated fixed fees for a number of years. I am not aware of any complaints that this has led to reduced access to justice. The advantage of fixed fees is that not only can they be used to ensure proportionality but they also give experienced practitioners dealing with large numbers of similar claims the ability to subsidise more complex cases with profits from / S the straight forward ones. M E One of the objectives of the Jackson reforms was the control of costs. The regulation of costs budgets U

G was one of the key initiatives introduced and we are seeing evidence of costs falling. Last year the Institute

T and Faculty of Actuaries identified a 65% reduction in costs in cases worth up to £122,500. However, A

N pressure on resources and the time involved in approving costs budgets has led to considerable delays and M

A steps taken to row back from this reform including suspending costs budgeting in clinical negligence cases A

U and applying the reforms more selectively. A more certain and less cumbersome approach to reducing costs would be an extension of fixed recoverable costs. Q D Jackson LJ’s speech on 28 January 2016 advocating fixed recoverable costs for all cases up to a damages value of £250,000 did not come as a surprise. He recommended fixed recoverable costs for fast track cases in his final report on civil litigation costs in December 20092 and has argued for an extension of this scheme for some time. Indeed, there is nothing new in fixed recoverable costs. We already have fixed recoverable costs for personal injury claims up to the fast track limit and for intellectual property claims up to a damages value of £500,000 in the IP Enterprise Court. Fixed costs already work successfully in other jurisdictions including Germany and New Zealand. Jackson LJ is right that high costs impede access to justice. He is also right that hourly rates encourage inefficiency and he is right to focus on proportionality as the bench mark for fixed fees. For too long fees have been determined by the cost of lawyers doing what is considered reasonably necessary in each case. On the face of it this may not seem a bad approach, but the reality is that without the restraint of proportionality this approach has allowed costs to get out of hand, and in some cases badly out of hand. Lawyers are nothing if not resourceful but rather than use our resourcefulness to find ways of charging more, we should be encouraged to use those skills to find more efficient ways of working. There is a growing consensus in favour of extending fixed recoverable costs and the Government has indicated that the fixed recoverable costs regime will be extended to as many civil cases as possible. Further proposals from the senior judiciary and a consultation will follow. It is hoped by FOIL that this proposed reform will be both significant in its scope and introduced quickly

Autumn statement The chancellor in his autumn statement in 2015 announced plans to increase the small claims track limit for personal injury claims from £1,000 to £5,000 and to remove the entitlement to compensation for pain, suffering and loss of amenity in minor whiplash claims. The Government will consult on the proposals. FOIL welcomes the consultation and will play a full role in it. FOIL is concerned about these proposals but we have yet to see the detail. This is not the first time an increase in the small claims track limit in personal injury claims has been proposed. The Government consulted on this in March 2013. FOIL did not support the increase then as we believed it would lead to claims inflation, more expensive claims handling and do nothing to address fraud. At that time the Transport Select Committee recommended the limit should not be increased. The

1 Sir Anthony May, Cardiff Seminar, 19 June 2009, quoted in Lord Justice Jackson, Review of Civil Litigation Costs: Final Report (The Stationery Office, 2009), Ch.3, paras 4.7 and 4.8. 2 Lord Justice Jackson, Review of Civil Litigation Costs: Final Report.

Government’s response to the consultation in October 2013 was that it was persuaded on balance not to increase the limit. The Government accepted it might have an adverse effect on genuine victims and that it wished to ensure safeguards were in place. The Government accepted that claims management companies might offer advice not in claimants’ best interests. Many stakeholders agree that simply increasing the small claims limit for personal injury claims is not the answer. It seems clear that the courts, as they are currently resourced, simply wouldn’t be able to cope with the increase in small claims trials. Moreover, there seems to be an acceptance by compensators that / S dealing with small injury claims brought by litigants in person in the small claims track may be expensive. M Much, of course, will also depend on the extent and effect of the Government’s plan to remove the right E U to general damages for low-value soft tissue injuries. The two reforms are interlinked and if, as a result G T of removing the right to general damages, the number of claims is significantly reduced, increasing the A small claims track limit may cause fewer problems. N M But what seems to be emerging is a consensus that a new pre-litigation process, perhaps based on the A A RTA portal process is needed for injury claims within the small claims track limit. U Q D Noise-induced hearing loss There has been a massive increase in the number and cost of noise-induced hearing loss (“NIHL”) claims in recent years. This is imposing an increasing burden on the insurance market and the commercial sector which that market serves. In 2015 the Civil Justice Council set up a working group to look at NIHL claims. The number of these claims has grown by 189 per cent since 2011. Action to control costs and to improve the claims process is expected. Fraud is also a growing problem in this area and there have been calls for the control of medical evidence in these cases using the Medco model. FOIL is hoping the review will improve the process for dealing with these claims and remove some of the costs involved.

Fraud Dealing with fraudulent claims is not straightforward. There is no magic bullet and progress will only be achieved with a range of measures aimed at discouraging fraudulent claims, identifying them and defeating them. One issue that must be tackled is the culture that seems to regard making a fraudulent insurance claim as acceptable. It is encouraging that lawyers acting for claimants worked with the Association of British Insurers (“ABI”) and the Law Society to allow them access to fraud databases to help weed out fraudulent claims at the start. In the meantime, fraud in personal injury claims contains to grow. According to the ABI, 130,000 fraudulent claims were detected in 2014 costing the insurance industry £1.3 billion. The Criminal Justice and Courts Act 2015 included a significant reform of personal injury litigation. Section 57 gives the courts the power to strike out a claim for personal injury where there has been fundamental dishonesty. There is no definition of fundamental dishonesty in the Act. It is hoped by many that the definition will include gross exaggeration, enabling many exaggerated claims to be dismissed. FOIL was part of the Insurance Fraud Taskforce. The Insurance Fraud Taskforce reported in January,3 and the report includes a wide range of recommendations aimed at tackling insurance fraud at both the proposal and claims stages. It includes a number of radical proposals for dealing with the problem of late whiplash claims, although, in the end, stopped short of recommending a reduced limitation period of 12 months. The report should be welcomed, particularly in so far as it aims to encourage the public to regard insurance fraud as criminal activity. It is hoped that the various initiatives outlined in the report get the backing of organisations supporting claimants.

3 HM Treasury, Insurance Fraud Taskforce: final report (January 2016).

In the meantime, it is not clear that the judiciary are completely on board with the programme. The Supreme Court’s decision in Versloot Dredging BV v HDI Gerling Industrie Versicherung AG4 is perfectly logical but does nothing to discourage fraud. There are three types of fraudulent first party claims: 1) claims which are wholly fabricated; 2) claims which are genuine but fraudulently exaggerated; and 3) claims which are justified but dishonestly embellished by collateral lies (so called fraudulent / S devices). M E By a majority of 4:1 the Supreme Court held the first two types only will result in the whole claim being U G defeated. In the third type, collateral lies, whatever one might think of them morally, are irrelevant and T

A cannot be relied on to defeat the claim. N Mance LJ, dissenting, questioned whether a material lie can ever be irrelevant and looked at what public M A policy demands. He argued that the fraudulent device rule, like legal responses to other types of fraudulent A U claim “serves a … role in encouraging integrity and deterring fraud in the claims process”.5 He pointed

Q D out that fraud in the claims process “will, or will almost always, be associated with … the pursuit of what the insured believes or fears to be at least a questionable claim”6 and criticises his fellow Justices for looking at the issue “with hindsight, rather than by reference to the state of mind with which a fraudulent device is usually deployed”.7 In other words, what is important is not whether the insured has a valid claim but what she/he intends when she/he tells lies to the insurer. Mance LJ concluded that collateral lies, provided they passed a threshold test of materiality, should be capable of defeating the claim. Sumption LJ noted it had been submitted to the Court that there was “little empirical evidence that the [fraudulent devices] rule was an effective deterrent to fraud”.8 Yet Mance LJ’s approach chimes with the views of the Insurance Fraud Task Force which found that many consumers perceive that “it is necessary to negotiate with insurers at … the claims stage. This can lead to consumers providing overly optimistic valuations or exaggerating claims in expectation that insurers will try to haggle down the settlement. Many consumers do not recognise that this behaviour is dishonest despite being at risk of submitting fraudulent claims. … the normalisation of fraudulent behaviour is socially corrosive and undermines social cohesion by eroding trust.”9 In other words, many consumers regard lying as a normal part of the claims process. The problem at the heart of insurance fraud is a culture which sees no wrong in telling lies to promote a claim. If Mance LJ is right, this decision by the Supreme Court will only serve to encourage the very behaviour that the Insurance Fraud Task Force is trying to stamp out.

Medco One of the key parts of the Government’s plan to address the “compensation culture” was the establishment of Medco, an organisation charged with controlling the commission of medical reports in low-value soft tissue injury claims. Medco was up and running by April 2015. There has been teething problems, including a judicial review of the methods used in the selection of experts. But as Medco turns its attention away from the method of selecting independent experts and to the accreditation of experts many involved with these claims now believe the system will deliver the benefits intended.

4 Versloot Dredging BV v HDI Gerling Industrie Versicherung AG [2016] UKSC 45; [2016] W.L.R. 453. 5 Versloot Dredging BV v HDI Gerling Industrie Versicherung AG [2016] UKSC 45; [2016] W.L.R. 453 at [125]. 6 Versloot Dredging BV v HDI Gerling Industrie Versicherung AG [2016] UKSC 45; [2016] W.L.R. 453 at [125]. 7 Versloot Dredging BV v HDI Gerling Industrie Versicherung AG [2016] UKSC 45; [2016] W.L.R. 453 at [126]. 8 Versloot Dredging BV v HDI Gerling Industrie Versicherung AG [2016] UKSC 45; [2016] W.L.R. 453 at [10]. 9 HM Treasury, Insurance Fraud Taskforce: final report, p.8

Claims management companies Claims management companies (“CMCs”) continue to be under the spotlight. In December 2015 the Claims Management Regulator imposed a record fine of £850,000 on one company specialising in noise-induced hearing loss claims for six million nuisance calls made between October 2014 and April 2015. A study by AXA Insurance reveals that the public is being bombarded by 12 million nuisance calls a / day by CMCs and that about a third of these relate to whiplash claims. Many are unsolicited encouraging S M speculative and fraudulent claims. E U

Clearly, there is a serious issue with nuisance calls and the claims these encourage. Against this G background, the report of Carol Brady on the regulation of CMCs was eagerly awaited by FOIL and the T A insurance industry. N M

FOIL welcomes the recommendations aimed at creating a tougher approach to regulation and the A A recommendation that the responsibility for regulation should pass from the Ministry of Justice to the U Financial Conduct Authority. FOIL believes that the FCA will provide a more rigorous regulatory Q D environment. The more “outcomes-focussed” approach recommended by the review should make it harder for CMCs to work around the regulations and a more transparent approach to engaging a CMC will help consumers understand what they will be charged and when they can pursue claims themselves. But merely tightening up on regulation is unlikely to go far enough. FOIL supports a cap on CMC fees. FOIL believes that taking money out of the claims process is necessary to tackle the compensation culture. That will be particularly important when the Government raises the small claims track limit. Without control of CMC fees for assisting with low-value claims there is every chance that claimants will be exploited by CMCs and that large numbers of speculative and fraudulent low value claims will be encouraged.

Briggs reforms Briggs LJ published his interim report in January 2016.10 It was clear from the beginning that a radical shake up of the civil courts was planned. In particular, Briggs LJ backed the introduction of an online court aimed at litigants without lawyers and involving a more investigative approach by judges. It seems likely this will apply in future to many claims up to the fast track limit of £25,000. What was not clear in the interim report was the type of claim which would be included. In the interim report Briggs thought that small track personal injury claims could be included in the online court. In his final report Briggs LJ acknowledges that he was “perhaps over-simplistic” in assuming injury claims below the anticipated new small claims track limit of £5,000 would fall to be dealt with by the online court. He now thinks claimants should be able to choose whether to take advantage of the online court “if they were otherwise forced into the Small Claims Track and therefore deprived of legal representation” or alternatively, were it available, some sort of adapted RTA Portal. It was always clear that the introduction of an online court would be some time down the track. 2020 is the target date but with significant IT development being necessary, this may prove optimistic. The Government is, though, committed to introducing the Briggs reforms and has committed substantial funds to implementing them.

10 Lord Justice Briggs, Civil Courts Structure Review: Interim Report (January 2016)

Professionalism For some, claims litigation is big business. The claims market is remarkably resilient and adaptable, seemingly capable of an endless identification of new claims opportunities to maintain and grow revenue and profits. When fixed fees were introduced for low-value road traffic claims, we saw an explosion of noise deafness claims. As pressure continues to be applied to the lower value market, we are seeing a significant increase in time spent on higher value claims. Some have described this effect using the / S metaphor of a balloon which when squeezed in one place bulges in another. There can be no doubt that M E the claims industry is driven by money and profit. U

G The Government and insurance industry have not been idle in the face of this burgeoning market.

T Reform and initiatives to tackle fraud and excessive costs abound. But one root cause of the problem has A

N not been given the attention it deserves and that is the increasing lack of professionalism in some parts of M

A the legal sector. Fraudulent claims and excessive costs would be much less prevalent if more in the legal A

U profession took their professionalism seriously. Until that issue is addressed, resourceful lawyers will continue to find ways around reforms and will continue to make money from the claims market. Q D The Solicitors Regulation Authority is responsible for setting the principles and the code that governs the conduct of solicitors in England and Wales. Their approach is outcomes-focussed and one of their recent initiatives is to change the way solicitors are required to maintain their professional competence. Instead of accumulating hours of continuing professional development training, solicitors, from November 2016, will be required to take a more structured and reflective approach to what skills and competencies they need to be good lawyers. The onus will be on solicitors to demonstrate that they are maintaining their professional standards in a way not previously seen in the profession. FOIL has taken the opportunity created by this change to produce a statement of the competencies needed to be a good, all round, insurance lawyer and to look afresh at the skills required to deal with the various types of insurance claims that our members deal with. We hope that this initiative will not only assist our members to deal with the changes being introduced by the Solicitors Regulation Authority but also help engender and enhance the right spirit of professionalism within the insurance law market.

Documentary evidence; Financial Conduct Authority; Handbooks; Periodical payments; Personal injury

In cases where a periodical payment (“PP”) is considered an appropriate form of settlement, whether any such PP can be said to be reasonably secure has, historically, been a relatively straightforward matter usually addressed by expert financial advisers towards the end of the litigation. However, both claimants and defendants should be aware of the complex rules regarding the various criteria which need to be met in order to establish that any PP is reasonably secure, as well as the benefits of addressing the issue at a much earlier stage in the litigation. E R

Introduction U D

In high-value personal injury claims, the preferred form of award for many claimants will often be PPs. E

It is common ground that PPs provide security for claimants with high-care needs, especially those with C uncertain life expectancies. Also incontrovertible is the requirement under ss.2(3) and 2(4) of the Damages O

Act 1996 (as amended) that before any order for PPs can be made, the court be satisfied that the continuity R of any payment under an order for PPs is “reasonably secure”. The continuity of payment will be deemed P “reasonably secure” provided that one of the following criteria is met: 1) it is protected by a guarantee given under para.6 of the Schedule to the 1996 Act; 2) it is protected by a scheme under s.213 of the Financial Services and Markets Act 2000 (compensation) (whether or not as modified by s.4 of this Act); or 3) the source of payment is a government or health service body. Criteria (2) will apply for most claims involving road traffic accidents, employers and public liability and accidents at work. The Financial Services Compensation Scheme (“FSCS”) is the “scheme under section 213 of the Financial Services and Markets Act 2000”. For an insurance company to be covered by the FSCS they must be authorised by the Financial Conduct Authority (“FCA”) and the Prudential Regulation Authority (“PRA”) at the time the insurance contract was undertaken. Historically, confirmation from the FCA (previously the Financial Services Authority)1 that the defendant insurer in question was authorised to enter into contracts of insurance at the time that the relevant insurance contract was undertaken, was considered sufficient evidence. Such confirmation was frequently obtained as a matter of course by expert financial advisors instructed by the claimant’s solicitors as part of the litigation.

* Edward Tomlinson has been a Financial Planner with IM Asset Management since 2006. He specialises in providing advice to the courts on the structure of claimants’ settlements; he also provides advice to claimants whose claims have settled. Since 2015, Edward has headed up the Financial Planning Team at IM Asset Management which now has over 600 clients for whom they manage more than £450 million. ** Helen Smith is currently a second-year Trainee Solicitor working in Irwin Mitchell’s Newcastle office within the Medical Law and Patients’ Rights Team, having previously worked in the Serious Injuries Team for over five years. In June 2016 she was jointly awarded the Trainee of the Year at the Northern Law Awards. 1 Between 1 December 2001 and 1 April 2013 the authorisation was provided via the Financial Services Authority (“FSA”).

However, the recent cases of Kotula v Eastern Power Networks Plc2 and Farrugia v Burtenshaw3 suggest that a more thorough analysis ought to be carried out to establish that the continuity of payment of any proposed PP is reasonably secure. In cases involving a non-UK-based insurer, the analysis is more complex and requires detailed consideration of the COMP rules which form part of the FCA Handbook4 and the protected claims rules which form part of the policyholder protection section within the PRA Handbook.5 Defendants’ solicitors and insurers can now expect to be asked by claimants’ solicitors for documentary evidence in order to satisfy the “reasonably secure” criteria. Whilst the CPR provisions relating to PPs are silent as to which party has the burden of proving that the “reasonably secure” criteria are met, s.2(5)(a) of the 1996 Act6 arguably puts the burden of proof on the defendant. For those representing defendants, the analysis below sets out the evidence which is required in order to satisfy the court that the continuity of payment of PPs is reasonably secure. The analysis applies to claims for personal injury arising from road traffic accidents which occurred in the UK. For claims involving employers’ liability or public liability, the procedure is largely similar, although with some differences. In employers’ or public liability cases (as in the case of Kotula mentioned above), practitioners also need to be wary of indemnity limits which are often in place on policies of insurance; this can cause

E further complications when determining the appropriateness of PPs in particularly high-value cases. R

U COMP rules D

E In considering whether or not the FSCS would meet the liabilities of a defaulting insurer who was providing

C periodical payments, the FSCS apply the COMP rules which are set out in the FCA Handbook. COMP 7

O 3.2 sets out the qualifying conditions which need to be met in order to receive compensation. In essence

R there are three key components to be considered: P 1) whether the claimant is an “eligible claimant”; 2) whether the claim is in respect of “a protected claim”; and 3) whether the claim is against a “relevant person” who is in default.

Eligible claimant Chapter 4 of the COMP rules set out the types of person who are able to claim compensation or benefit from the protection the FSCS is able to provide. The COMP rules state that an eligible claimant is any person who at any material time did not come within COMP 4.2.2R or, if he did come within COMP 4.2.2R, satisfied a relevant exception. The exceptions are listed within COMP 4.2.2 and whilst there are currently 19 exceptions, unless the claimant was a director of the insurance company that has defaulted, they have contributed to the default of the insurance company or their claim was in connection with money laundering, then they will not come within COMP 4.2.2.

2 Kotula v Eastern Power Networks Plc Unreported, 9 November 2012. 3 Farrugia v Burtenshaw [2014] EWHC 1036 (QB); [2014] Med. L.R. 153. 4 https://www.fca.org.uk/about/handbook [Accessed 9 October 2016]. 5 http://www.bankofengland.co.uk/pra/Pages/policy/handbook.aspx [Accessed 9 October 2016]. 6 The Damages Act 1996 s.2(5)(a) requires the party responsible for making the payments to use a method (selected by them) that is reasonably secure. 7 COMP 3.2.1 states: “The FSCS may pay compensation to an eligible claimant, subject to COMP 11 (Payment of compensation), if it is satisfied that: (1) an eligible claimant has made an application for compensation (but see COMP 3.2.1A R); (2) the claim is in respect of a protected claim against a relevant person (or, where applicable, a successor) who is in default; and (3) where the FSCS so requires, the claimant has assigned the whole or any part of his rights against any one or more of the person, any third party or, where applicable, a successor, to the FSCS, on such terms as the FSCS thinks fit.”

Sections 4(3) and 4(4) of the 1996 Act8 (as amended) enhance the protection available to claimants by altering the position under the COMP rules. The effect of s.4(3) is that: • where a claimant has a right to receive periodical payments from a defendant; • the defendant’s insurer is required by an arrangement entered into with the defendant to satisfy the claimant’s right; and • the claimant’s right to receive the payments would be protected by the FSCS if it arose from an arrangement of the same kind as mentioned at (2) above but made between the claimant and the defendant’s insurer; then for the purpose of the FSCS the claimant is treated as having entered into an arrangement of the same kind with the insurer. Therefore, so long as the claimant himself is an “eligible claimant” under the COMP rules then he will be treated as such and will have a direct route to claim on the FSCS should the defendant’s insurer default. For non-RTA personal injury claims the position is different, but similar.

Protected claim E R

The FCA Handbook COMP 5.2.1 sets out the criteria for a protected claim as follows: U

“A protected claim is: D (1) a claim for a protected deposit or a protected dormant account (see COMP 5.3); or E (2) a claim under a protected contract of insurance (see COMP 5.4)11; or C (3) a claim in connection with protected investment business (see COMP 5.5); or O (4) a claim in connection with protected home finance mediation (see COMP 5.6); or R P (5) a claim in connection with protected non-investment insurance mediation (see COMP 5.7).” In April 2015, the PRA issued a Policy Statement PS5/15 entitled “Policyholder Protection” and as part of the policy statement included the PRA Rulebook9 relating to policyholder protection, the provisions of which in relation to policyholder compensation took effect from 3 July 2015. Chapter 9 of the PRA Rulebook replaced COMP 5.4 of the FCA Handbook. For most personal injury cases, the defendant will need to show that their policy of insurance is a “protected contract of insurance”. Chapter 9 of the policyholder protection section within the PRA Rulebook provides the criteria10 as to whether a policy of insurance will be considered a “protected contract of insurance”.

8 Damages Act 1996 s.4(3) and (4): “(3) Subsection (4) applies where: (a) one person (‘the claimant’) has a right to receive periodical payments from another person (‘the defendant’), (b) a third person (‘the insurer’) is required by or in pursuance of an arrangement entered into with the defendant (whether or not together with other persons and whether before or after the creation of the claimant’s right) to make payments in satisfaction of the claimant’s right or for the purpose of enabling it to be satisfied, and (c) the claimant’s right to receive the payments would be wholly or partly protected by a scheme under section 213 of the Financial Services and Markets Act 2000 if it arose from an arrangement of the same kind as that mentioned in paragraph (b) but made between the claimant and the insurer. (4) For the purposes of the scheme under section 213 of that Act— (a) the claimant shall be treated as having a right to receive the payments from the insurer under an arrangement of the same kind as that mentioned in subsection (3)(b), (b) the protection under the scheme in respect of those payments shall extend by virtue of this section to the whole of the payments, and (c) no person other than the claimant shall be entitled to protection under the scheme in respect of the payments.” 9 http://www.prarulebook.co.uk/ [Accessed 10 October 2016]. 10 PRA Rulebook, SII Firms, Policyholder Protection Section rr. 9.2–9.3: “9.2 A protected contract of insurance is: (1) (if issued after 1 December 2001) a contract of insurance within 9.3; or (2) (if issued before 1 December 2001) a contract of insurance within 9.6. 9.3 A contract of insurance issued after 1 December 2001 which:

PRA Rulebook r.9.411 defines when a risk or commitment is a protected risk or commitment for the purpose of PRA Rulebook r.9.3. In summary the protected risk of commitment needs to be situated in the UK, or another EEA State, the Channel Islands or the Isle of Man. As to “situation” of risk, PRA Rulebook r.9.512 provides that for contracts of insurance relating to vehicles of any type (i.e. for road traffic accident cases) the risk or commitment is situated where the vehicle is registered. Information regarding where the defendant’s vehicle was registered can be established by making a DVLA request using Form V888/2 and requesting confirmation of where the relevant vehicle was registered at: (1) the date on which the insurance policy was incepted; and (2) on the accident date. The DVLA will provide the requested information on a Form VQ7; they may charge a small fee for this service. Where, in road traffic accident cases, the defendant driver was not insured to drive the vehicle in 13 E question, then PRA Rulebook r.9.8 applies. The effect is that where the claimant has obtained judgment

R under s.151 of the Road Traffic Act 1988 or art.98 of the Road Traffic (Northern Ireland) Order 1981 and

U the insurer is in default, this will give rise to a claim under a “protected contract of insurance”. D

E (1) relates to a protected risk or commitment as described in 9.4;

C (2) was issued by a relevant person (whether or not there is now a successor in respect of that relevant person) through an establishment in: O (a) the UK; or

R (b) another EEA State; or (c) the Channel Islands or the Isle of Man; P (3) is a contract of long-term insurance or a relevant general insurance contract; (4) is not a reinsurance contract; and (5) if it is a contract of insurance entered into by a member, was entered into on or after 1 January 2004; is a protected contract of insurance.” 11 PRA Rulebook, SII Firms, Policyholder Protection r.9.4: “A risk or commitment is a protected risk or commitment for the purpose of 9.3 if: (1) in the case of a contract of insurance falling within 9.3(2)(a), it is situated in an EEA State, the Channel Islands or the Isle of Man; (2) in the case of a contract of insurance where the relevant person is a UK firm issuing a contract of insurance through an establishment falling within 9.3(2)(b), it is situated in an EEA State; (3) in the case of a contract of insurance where the relevant person is a firm which is not a UK firm issuing a contract of insurance through an establishment falling within 9.3(2)(b), it is situated in the UK; or (4) in the case of a contract of insurance falling within 9.3(2)(c), it is situated in the UK, the Channel Islands or the Isle of Man.” 12 PRA Rulebook, SII Firms, Policyholder Protection r.9.5: “For the purpose of 9.4 and 9.6, the situation of a risk or commitment is determined as follows: (1) for a contract of insurance relating to a building or a building and its contents (in so far as the contents are covered by the same contract of insurance), the risk or commitment is situated where the building is situated; (2) for a contract of insurance relating to vehicles of any type, the risk or commitment is situated where the vehicle is registered; (3) for a contract of insurance lasting four months or less covering travel or holiday risks (whatever the class concerned), the risk or commitment is situated where the policyholder took out the contract of insurance; and (4) in cases not covered by (1) – (3): (a) where the policyholder who first took out the contract of insurance is an individual, the risk or commitment is situated where he has his habitual residence at the date when the contract of insurance commenced; (b) where the policyholder who first took out the contract of insurance is not an individual, the risk or commitment is situated where the establishment to which the risk or commitment relates is situated at the date when the contract of insurance commenced: (c) where the policyholder who first took out the contract of insurance is a trustee the risk or commitment is situated: (i) if the trustee is an individual, where the trustee has his habitual residence at the date when the insurance contract commenced; (ii) if the trustee is not an individual, where the establishment to which the risk or commitment relates is situated at the date when the contract of insurance commenced; and (d) where there are two or more policyholders, so long as one policyholder’s risk or commitment under (a) – (c) is a protected risk or commitment that shall be where the risk or commitment is situated.” 13 PRA Rulebook, SII Firms, Policyholder Protection r.9.8: “The FSCS must treat liabilities of a relevant person (or where applicable, a successor) which is in default, in respect of the following items, as giving rise to claims under a protected contract of insurance: … (4) claims by persons entitled to the benefit of a judgement under section 151 of the Road Traffic Act 1988 or Article 98 of the Road Traffic (Northern Ireland) Order 1981.”

Relevant person As to whether the defendant is a “relevant person”, COMP 6.2.114 refers to “a participant firm”. A participant firm is defined within COMP 6.2.215 and includes firms based in the UK, as well as incoming EEA firms, but only if they have, in relation to their passported activities, what is called “top-up cover”. For insurers based in the UK, what is required is documentary evidence (in the form of the defendant’s policy certificate/renewal) which confirms that the defendant’s policy was issued by an establishment, who at the time that the policy was issued, were based in the UK. For firms not based in the UK the situation is more complicated. Where the defendant insurer was authorised as an EEA insurer at the time that the insurance contract was written, this essentially means that they were based in the EEA and “passported” into the UK to write motor business. For those insurers, confirmation of the following points will also be needed in order to establish “reasonable security”. • Confirmation from the home state regulator that the insurer is authorised by them to carry out the issuing of motor insurance policies in the UK, both at the date of the index accident and the date that the defendant’s policy of insurance was issued. • Confirmation from the FSCS that the insurer was a participant firm at the time the contract E of insurance was written. R • Confirmation that they have “top-up cover” with the FSCS (passported insurers have the U option of purchasing FSCS “top-up” cover to supplement their “home state” compensation D scheme should that scheme be less beneficial than the UK scheme, or cover the circumstances E where there may not be a “home state” scheme). C O

Default R P An insurer will be deemed to be in “default”16 if it is unable to satisfy, or is likely to be unable to satisfy, protected claims against it. In practice, the FSCS is a fund of last resort and therefore where the insurer is an EEA insurer, a claimant will first need to seek redress from the insurer’s home state regulator before making any application for compensation to the FSCS.

Practical application In the Farrugia case, claimant’s counsel took the trial judge through the COMP provisions with “punctilious care”. The judgment summarises the importance of carrying out such a careful exercise in a case involving a PP.17 In Farrugia, the issue of “reasonable security” was raised because of the financial position of the defendant’s insurer, Quinn Insurance Ltd, which was put into administration in Ireland in March 2010. However, the principles outlined above apply equally to all personal injury cases where a PP is contemplated, save of course, where the source of payment is a government or health service body. The

14 FCA Handbook COMP 6.2.1: “A relevant person is a person who was, at the time the act or omission giving rise to the claim against it took place: (1) a participant firm; or (2) an appointed representative of a participant firm.” 15 FCA Handbook COMP 6.2.2(1): “An incoming EEA firm which is a credit institution, an IMD insurance intermediary or a MIFID investment firm, and its appointed representatives are not relevant persons in relation to the firm’s passported activities, unless it has top-up cover (See definition of a ‘participant firm’).” 16 FCA Handbook COMP 6.3.2R: “Subject to COMP 3.3.3 R to COMP 3.3.6 R and COMP 6.3.6 R, the FSCS (or, where COMP 6.3.1 R(2)(a) applies, the appropriate regulator) may determine a relevant person to be in default when it is, in the opinion of the FSCS or the appropriate regulator: (1) unable to satisfy protected claims against it; or (2) likely to be unable to satisfy protected claims against it.” 17 Farrugia v Burtenshaw [2014] EWHC 1036 (QB); [2014] Med. L.R. 153 at [110]–[114].

principles apply whether the insurer is based in the UK or EEA. The analysis of eligible claimant, protected claim, relevant person, ought to be carried out to establish whether, in the event of default, a claimant would be protected by the FSCS and therefore whether the continuity of PPs can be said to be “reasonably secure”. For this reason, defendants’ solicitors can expect that in future cases where a PP is anticipated, claimants’ solicitors will be more demanding when it comes to the documentary evidence required to be able to advise their client that the continuity of any PP is reasonably secure. Whereas previously the issue of security has been one which has been addressed as a case approaches settlement, there are obvious advantages in confronting the issue at an early stage. The documentary evidence that defendants’ solicitors are likely to be asked to provide includes a copy of the defendant’s policy of insurance and/or renewal. Clearly, that document is more likely to be within the defendant’s possession in the early stages following a road traffic accident. Over time, the policy can easily be misplaced and the process of tracking down duplicate copies from insurers who may have gone through mergers, changes in structure and location, becomes more difficult the longer the time that has elapsed since the date of the accident.

E Equally, when dealing with an EEA insurer, it can take some time to obtain: R • confirmation from the home state regulator that the insurer is authorised by them to carry U out the issuing of motor insurance policies in the UK; and D • confirmation from the FSCS that the insurer was a participant firm at the time the contract E

C of insurance was written. O

R Summary P The FCA Handbook and the PRA Rulebook require careful navigation to ensure that in each case the rules have been interpreted correctly. Below is a summary of the information you will need to establish that any PP will be reasonably secure. • The date the defendant’s insurance contract was effected with the insurer. This is usually established via sight of the policy document. • That the vehicle the defendant was driving was registered in the UK. This can usually be established from a DVLA search. • That the accident occurred in the UK. • Confirmation that the defendant’s insurance policy was issued through an establishment based in the UK. In the absence of any of the above information, the criteria under the PRA COMP rules cannot be said to have been met and as such it cannot be established that any PP agreed would be reasonably secure.

Costs; Due diligence; Funding; Law firms; Personal injury; Proportionality; Risk management; Work in progress

This article will look at the role of due diligence audits and caseload risk profiling in law firms active in the personal injury sector. With the continued changing landscape, key stakeholders and owners are looking for greater visibility of the business. The lifeblood of legal businesses of the future is dependent on quality, expertise, low operational risk, financial management and a healthy asset base (profitable work and valuable recoverable WIP). Independent reviews of these areas are increasingly required as part of pre-lend due diligence, but are also a key element of M&A activity in the sector. E R

The changing landscape U D

The landscape in personal injury is changing at a relentless pace. Going forward, it is the most adaptive E

and most innovative that will succeed. This requires a clear handle on financial management of work in C

progress (“WIP”), investment, leadership and clear strategy. In the face of ongoing sector reform, pressures O

from insurers, funders and new entrants focusing on the market, means that financial planning, including R getting a closer grip on WIP, and assessing operational risk for personal injury law firms is more critical P than ever. The success of a law firm of the future will depend on its business offering and how this is placed within the new era of legal services. This positioning, together with quality, client experience, expertise, low operational risk, financial management and healthy asset base (profitable work and valuable WIP), are the lifeblood of business. In particular, in personal injury, operational risk (including caseload management and assessment of risk) and a healthy WIP asset base are also areas that banks, funders, after-the-event insurers and professional indemnity insurers are looking at more closely. Assessment of that lifeblood is also the starting point for business and financial planning within law firms. It is also the focus for key stakeholders and new entrant investors. Independent law firm due diligence and caseload review auditing is increasingly on the agenda. Whether this is for internal diagnostic review purposes, business improvement, assistance with bank funding, or within mergers and acquisitions (“M&A”) transactions, the process of specialist technical due diligence has a tangible value in the current climate.

WIP due diligence and funding Banks, funders and investors have, understandably, in recent years taken stock about the approach to lending in the legal sector. The failure of some notable law firms has left banks and investors thinking more cautiously about the sector. This is not to say that there is not an appetite to fund in the market. The impact has driven the desire for a more forensic and granular view of law firms’ finance and performance. The personal injury sector has its own areas of risk which brings its own challenges. The personal injury sector has seen, and continues to see, investment to fund growth. For example, both Switalskis and Express Solicitors (both of which have been granted alternative business structure (“ABS”)

* Zoe Holland is the Managing Director of ZebraLC.

licences from the Solicitors Regulation Authority (“SRA”)) secured significant funding from high street banks, Express Solicitors being reported to have secured a £10.6 million funding package from Royal Bank of Scotland. Of primary concern to external funders within the personal injury sector is the security of the law firm’s WIP asset. Financial stability of the law firm depends upon the ability to generate cash from the WIP asset. In order to secure funding, law firms will have to demonstrate the risk profile of their WIP, coupled with cash conversion and collection procedures. Banks and funders are looking more closely at WIP (including accrued income) than previous years. Getting under the skin of a law firm’s operations and understanding what lies behind the WIP figures is invaluable. It is the market’s negative experiences that are encouraging banks to take a more forensic approach to both assessing and supporting law firm customers.

Data One of the key challenges facing personal injury law firms is the ability get behind the risk and value of its WIP. Case level data is critical in understanding the risk profile of WIP. Whilst some firms have a E

R forward-thinking approach to management information data and use case management systems to drive

U key performance indicators (“KPIs”), others are yet to grasp the importance of detailed data analysis. Such

D analysis should be undertaken to a sufficient level to demonstrate the firm’s understanding of the value,

E location, and risk to the WIP asset (e.g. litigation risk profile, quantum value, case stage, case status,

C recovery of costs, ATEI issues, last history date etc.).

O Firms must be able to demonstrate to the bank how they are tackling any anomalies in the data or

R performance results, ensuring that any management information (“MI”) reports are being used to drive

P the business, rather than simply satisfying a reporting obligation under the lending agreement. Firms can claim to have leading case management software, but many find it hard to get a detailed view of WIP to enable predictive insight into cash flow, disbursement spend and on-going value of WIP. Implementing key WIP analysis metrics at case handling level can be achieved easily, and does not necessarily require expensive software to pull accurate MI data together. Most firms can achieve this through the development of their own case management system.

Due diligence reviews and WIP valuation Specialist due diligence, outside of an accountancy-based review is now firmly on the agenda. It enables more meaningful dialogue between business and stakeholder. Banks are looking to get closer visibility of personal injury and its WIP value. Example areas of scope. • A forensic review of WIP in order to determine value and underpin recoverability. • Review of WIP recognition/value within MI and statutory accounts. • Overview of operational risk with an eye on potential professional indemnity issues, and also any factors undermining WIP value. Highly relevant in injury litigation. • The assessment of proportionality issues within the firm and its potential impact on WIP value and ultimately cash flow. • A WIP risk profile benchmark (RAG rated) can indicate whether the firm sits within a high-, medium- or low-risk profile. • A review of case management capability, together with commentary upon any areas of high risk undermining the WIP asset. This includes a review of workflows and processes within case management systems to assess movement of cases, and ultimately address any WIP lock-up issues at case handling level.

• A benchmark rating on technical capability and operational risk, separate to benchmarking of WIP valuation. • Assess the veracity and quality of the firm’s MI data to enable comfort and oversight around the management of the WIP asset and, where necessary, make recommendations for improvement. • Overview observations on quality of referrals, including headline analysis of percentage failure rates. • Focus upon WIP lock-up with a weighted sample of PI cases profiling as aged WIP. Independent technical due diligence review is often sought at a technical specialist level, and is not intended to assess/advise on areas within an accountant IBR1 or legal advisory remit. The due diligence findings assist the bank/funders in the consideration of the firm’s WIP profile in terms of value, risk and opportunity. Having the independent review can not only assist with better dialogue, but can also enable the firm to sit back, pause and consider business planning with the support of their bank.

Diagnostic review audits and risk assessments E

The injury sector has seen seismic reform and the landscape remains uncertain. R The main focus of diagnostic review audits and on-going risk assessments is to achieve clarity for the U firm’s management on the strategic and operational future of the business. Expertise, resource, processes, D cash flow and profitability will all be on the agenda. E For example, an assessment of the team structure, skill and experience of fee earners required in risk C managing and processing personal injury cases, is a key part of the process. From a financial perspective, O an understanding of the risk profile of the work, value of existing WIP and opportunity, value and R profitability is all part of the audit and risk assessment process. P The process-driven environment and tighter margins post-LASPO2 has the potential risk for under-settlement of cases. This can be from areas such as more complex pain syndromes to subtle brain injury. Underestimating quantum poses a risk for negligence (and the market is seeing firms beginning to market for this), but conversely means that potential profit and cash is being missed. Assessing systems and technical competency is central to understanding that risk. The solution is focused technical risk assessments at key stages. In other riskier areas, such as clinical negligence and group litigation cases, it is critical that management have a handle on the risk profile of this work. Often upfront investment is significant, and there is a waiting game for a return on that investment. Headline failures in actions such as Sonae, demonstrate the need for a commercial handle on case load risk and a reality check of case viability. Risk assessment procedures are a fundamental part of ensuring the management has a handle on operational and caseload risk. Often firms comply with Lexcel audits and “tick box” reviews, but this is not enough in high-risk areas. Properly prepared and timely technical risk assessments are critical. These can form part of key WIP analysis metrics also. Key areas of focus may include: • liability prospects, with a current and trend rating; • proportionality assessment; • quantum and costs to settlement banding; • disbursement requirements and timing; • case status; • case staging, with an assessment of whether the case has been conservatively managed;

1 Independent business review. 2 Legal Aid, Sentencing and Punishment of Offenders Act 2012.

• estimated time to settlement conclusion; • assessment of the quality of legal advice given to the claimant; • high-risk areas considered/challenged; and • risk rating of the recovery of WIP to date.

New entrants: Due diligence drivers Driven by a host of motivators into the sector, and already with their own consumer brands, new entrants’ approaches to due diligence in getting to the deal takes a different perspective. An accountancy-based due diligence is, of course, at the core of the process, but external investors want to understand and be excited about much more than just the bottom line. EBITDA3 calculations and independent business reviews are not enough. For example, for new entrant ABSs, the issue of brand protection is a key factor. Due diligence has to be financial and commercial, but also has to look at a more granular level than accounting figures. Getting under the skin of the firm is critical in the process. Fairpoint Group Plc has made a number of acquisitions in the personal injury sector, including the purchase of Simpson Millar and Colemans. Both deals required extensive due diligence, with technical due diligence E

R a key part of the pre-deal process.

U The investment board in such deals require reassurance that the target law firm’s asset base is suitable

D for funding, that positioning in the market and strategic future is significantly attractive, that technical

E expertise fits their own brand quality, and that operational risk is low. Added to this, their knowledge at

C ground level about the legal sector may be limited to locating potential deals. The next stage on is to get

O a much deeper view on the target’s sector area. In a niche area of injury, the investor will want a much

R more detailed understanding of that niche area. P How to evaluate WIP value and risk The starting point is the evaluation of MI data. Does it show data gaps? Is it sophisticated enough to track WIP movement and asset value? The better the data is presented and analysed, the greater the visibility around value and risk. Secondly, auditing a sample of cases with a technical commercial approach that addresses key areas, such as: • the quality of the work being generated; • how the work is managed and processed internally; • quality of IT/case management systems and how this is actually being fully utilised by fee earners; • the appropriateness of the fee earner to the task, i.e. is the work being geared to the right level; • the quality of the litigation activity; • have the fee earners got a commercial handle on the litigation risk profile of cases, i.e. have they become too emotionally invested in the case, or have they actually taken stock of prospects of success; • the accuracy of recorded chargeable time against the files; • the robustness of retainers in place; and • proportionality assessment.

3 Earnings before interest, tax, depreciation and amortization.

What can undermine WIP value? There are a number of factors that can adversely affect a firm’s WIP risk profile, including: • poor or unrealistic recording of WIP; • unrealistic valuation of WIP; • previously unidentified issues in relation to retainers and funding; • cases and WIP acquired without proper due diligence; • poor technical ability with increased indemnity risk; • poor case screening at the outset; • poor risk assessment and/or optimism bias; • delays in case progress, resulting in increased number of cases with protective issue of proceedings or adverse costs orders; and • proportionality issues.

Sampling the WIP E

In large-scale projects, due diligence surrounding the WIP will take the form of evaluation of the firm’s R

MI data and also sample auditing to review validity of data, together with key areas of technical and U

operational focus. This may follow a two-stage process to enable identification of early deal/funding D

breaking issues, before significant investment in the due diligence process. High-risk areas will be assessed E

and sampled first. C

Full technical due diligence will aim to achieve a much wider spread, and in recent projects, a sample O

between 15% and 20% of WIP in niche areas such as clinical negligence is not uncommon. R

In volume based areas such a noise-induced hearing loss (“NIHL”), gate analysis is critical in order to P understand key steps of NIHL files to develop an understanding where files are taking most time to settle (i.e. audiogram, medical reports, HM Revenue and Customs records, LOC, responses, offers, settlement). In road traffic accident cases, where fixed fees apply, WIP can be valued as the percentage of the staging of cases. In high volume process-driven firms, focus will be upon the veracity of the firm’s data.

Proportionality and WIP due diligence With a string of cases in 2016, proportionality is becoming a consideration in the assessment of value and risk in personal injury. Due diligence reviews for bank funding have seen an increasing requirement for review on proportionality risk and its impact on WIP value. Challenges due to the hardening attitudes of courts and defendants, have the potential to impact heavily on the valuation of “accrued net income” and off-balance sheet WIP. Firms relying upon historical recovery rates for financial modelling and WIP valuation, need to take heed. This is a live issue for many personal injury firms, especially those managing NIHL and clinical negligence cases. Key stakeholders such as banks, funders and accountants also need to be aware of the emerging risks and the impact on WIP valuation. Given the context of the sector, it is the average profit costs values and claimant settlement values, for example, in NIHL, which have the potential to be under downward pressure. This makes the need for operational efficiency improvements and greater visibility around limitation and proportionality trends, critical. The challenge for some firms will be the ability to maintain existing levels of average profit costs and claimant settlement values. The need to monitor the off-book WIP is now more important than it has been, compared to historical monitoring. Proportionality is also affecting M&A valuations and is increasingly a focused area of due diligence.

Background Pre-Jackson, many mainstream personal injury firms were rightly concerned about their potentially dwindling revenue streams when faced with the impending LASPO/Jackson-based reforms. The solution to this dilemma for many of them was to expand in to “niche” areas of personal injury, most particularly NIHL and clinical negligence. This is a picture that we have seen painted across dozens of firms across the jurisdiction. The rationale behind such a strategic decision was reasonably sound, as these “niche” areas were not subject to the impending restrictions on costs recoveries that other areas of mainstream PI were about to be, as costs were still payable on the standard basis. However, to place that into context, a new rule on proportionality was enacted that has, until recently, seen fairly little publicised impact on costs recovery. We are now seeing a marked hardening of approach from the courts, and therefore, defendant insurers, to the proportionality of costs incurred.

Recent cases

E In the recent cases of BNM v MGN Ltd4 and May v Wavell Group Plc,5 the respective courts made an R assessment on reasonable costs. However, the master in each case further reduced the amount of reasonable U costs by 50 per cent, based on their views of proportionality. D In the case of May, Master Rowley made clear that “the amount that can be recovered from the paying E party is not the minimum sum necessary to bring or defend the case successfully”.6 C In the case of BNM, Master Gordon-Saker in his judgment stated that “the sums which had been allowed O as reasonable on the line by line assessment were disproportionate and were about twice the sum which R would be proportionate”.7 P Firms practising in “niche” areas may well need to come to the realisation that there is a growing perception that “niche” areas are no longer rightly considered as “niche”, due to the large volume of non-specialist practices undertaking the work. A useful example of this is the case of Hobbs v Guy’s and St Thomas’ NHS Foundation Trust,8 that was a clinical negligence matter. In Hobbs, Master O’Hare makes a number of important points: • The case did not merit a grade A fee earner running the file, but rather necessitated a lower grade running the file, with the grade A touching the case at essential and necessary points. • That actions of a solicitor, such as a conference with counsel, needs to be conducted when necessary, and when most appropriate. • The denial of liability by a defendant does not put the claimant to additional work. • Apply a “what, why, whose request” approach to running a case, and this should form part of any firm’s internal on-going risk assessment process.

Impact on niche areas These cases demonstrate clearly that courts are struggling to accept the argument that formerly “niche” areas are complex, and require more extensive costs to be incurred because of the specialist nature of advice and the complex issues that exist within the case. The reality is that, in some circumstances, some aspects of these niche areas have been volumised and de-skilled. Call it what you will, but it is having a significant impact on WIP or costs recovery.

4 BNM v MGN Ltd [2016] 3 Costs L.O. 441. 5 May v Wavell Group Plc [2016] 3 Costs L.O. 455. 6 May v Wavell Group Plc [2016] 3 Costs L.O. 455 at [35]. 7 BNM v MGN Ltd [2016] 3 Costs L.O. 441 at [14]. 8 Hobbs v Guy’s and St Thomas’ NHS Foundation Trust , unreported, 2 November 2015, SCCO.

This is a warning shot to firms operating in “niche” areas who have not streamlined their process and have not provided the service that is necessary to run an efficient case. Changing of attitudes by the courts and defendant insurers is confirmed by what ZebraLC has seen on field audits. A failure to recognise these issues will ultimately lead to black holes in firms’ WIP profiles, and potential swathes of WIP that are no longer recoverable.

Summary Closer scrutiny of value and risk in managing personal injury is a key ingredient of successful and profitable personal injury firms. At the heart of this is the need, and indeed demand, for specialist due diligence reviews, together with the firm’s own internal audit and risk assessment process. E R U D E C O R P

Case and Comment: Liability

Campbell v Peter Gordon Joiners Ltd

(SC, Lady Hale DPSC, Lord Mance JSC, Lord Reed JSC, Lord Carnwath JSC, Lord Toulson JSC, 6 July 2016, [2016] UKSC 38)

Personal injury—civil liability—employees’ rights—employers’ liability insurance—Employers’ Liability (Compulsory Insurance) Act 1969—directors’ liabilities

Directors' liabilities; Directors' powers and duties; Employers' liability insurance; Insolvency; Personal injury; Scotland

William Campbell suffered an injury in June 2006 in the course of his employment as an apprentice joiner with the first defenders, Peter Gordon Joiners Ltd. The accident involved an electrically powered circular saw. The company went into voluntary liquidation in December 2009 and there were no funds of theirs available to meet his claim. In addition, the employers’ liability insurance taken out by the company excluded any legal liability arising out of the use of electrically powered woodworking machinery such as the circular saw. So the claim against the company was worthless. Accordingly, Campbell also sued the second defender, Peter Gordon, who was the sole director of the company. His case was that the company was in breach of s.11 of the Employers’ Liability (Compulsory Insurance) Act 1969 and that Mr Gordon, who as sole director arranged the insurance, was liable under Y 2 T

s.5 of that Act. Campbell also advanced a common law case against Gordon on the basis that as sole I director Gordon was in breach of his common law duties to him. L

They were alleged to include a duty to act with reasonable diligence to take reasonable care to arrange I

insurance cover insuring employees of the company against injury sustained by them in the course of their B

employment, a duty to take reasonable care to read any insurance policy to ensure that it provided such A cover and/or to take reasonable care to ensure that employees such as him did not use any machinery in I respect of which insurance cover was not in place. L Gordon sought dismissal of the action on the ground that the claim against him was irrelevant. Campbell argued that the 1969 Act allowed a director to be held civilly liable for breach of his qualified statutory duty not to permit the employer company to carry on its business without having in place an approved insurance policy insuring the employer against liability for bodily injury or disease sustained by employees in the course of their employment. At first instance3 Lord Glennie dismissed the common law case against Gordon, but held that there was no reason to conclude that a breach of the 1969 Act did not give rise to civil liability on the part of the employer, or of a director, or another officer of the employer. Gordon appealed, arguing that he was not made liable to Campbell by the terms of the 1969 Act. He submitted that no civil liability attached to him for any breach of its provisions, and that the obligation

1 “1(1) … every employer carrying on any business in Great Britain shall insure, and maintain insurance, under one or more approved policies with an authorised insurer or insurers against liability for bodily injury or disease sustained by his employees, and arising out of and in the course of their employment in Great Britain in that business.” 2 “An employer who on any day is not insured in accordance with this Act when required to be so shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding … ; and where an offence under this section committed by a corporation has been committed with the consent or connivance of, or facilitated by any neglect on the part of, any director, manager, secretary or other officer of the corporation, he, as well as the corporation shall be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.” 3 Campbell v Peter Gordon Joiners Ltd [2013] CSOH 181; 2014 S.L.T. 178.

created by the 1969 Act was imposed on the employer and not, where the employer was a corporation, on the directors. His case was that it could not be said that it was Parliament’s intention to impose civil liability on a director in the event of a corporate employer’s failure to insure and to do so would be to ”pierce the corporate veil” to an ”intolerable extent”.4 For Campbell it was submitted that the fact that Parliament had not expressed its intention in explicit terms did not relieve the court from its ”obligation” to construe the statute in question. The ”primary purpose” of the 1969 Act was to ”protect employees”, and the ”right to recover went hand in hand with the obligation to insure”.5 Delivering his opinion, Lord Brodie said:6 “The particular risk of an employee being avoidably injured in the course of his employment is part of the risks undertaken and created by the employer’s enterprise. It is rational and indeed just that the employer should bear that particular risk and all its financial consequences irrespective how substantial they may be. That is hardly the case with, say, a manager or company secretary or, indeed director of a limited company. By entering into a contract of employment or accepting appointment he is not undertaking to shoulder all the risks associated with the company’s enterprise or to act as an insurer for the company’s employees. The company can limit its liability. It can obtain insurance. The company’s officers cannot limit their liability.” Lord Malcolm agreed that the provisions of the 1969 Act did not reveal a “legislative intention” to impose civil liability upon directors saying:7 “The 1969 Act imposes a duty to insure upon employers, not upon others — see section 1. Section 5 backs this up with criminal sanctions … enforceable against both employers and any recalcitrant directors or officers. There is no mention of any intention or non-intention to make employers and/or officers liable in damages to anyone harmed by an absence of insurance.” Y

T However, in a powerful dissenting judgment, Lord Drummond Young held ss.1 and 5 of the 1969 Act I did impose civil liability upon any director who had consented to a corporation’s failure to insure, or who L had connived in or facilitated any such failure to insure. He stated:8 I

B “The statutory duty is clearly an important part of the statutory regime governing health and safety

A of employees, and I can see nothing unfair in placing the burden of securing insurance on the directors

I who are responsible for the overall management of the company.” L Nevertheless, by a 2:1 majority, the appeal was allowed and the action against the director dismissed. It proceeded to the Supreme Court. The appeal rested on the sole issue of whether civil, as well as criminal, liability could also attach to Mr Gordon, as company director, for the company’s failure to provide adequate insurance under s.1(1). The majority judgment delivered by Lord Carnwath, with whom Lord Mance and Lord Reed agreed, held that s.5, “the heart of the appeal”, failed to impose any civil liability on a director or officer for actions undertaken by the corporate employer. The majority accepted that ss.1 and 5 of the 1969 Act were indeed in place for the benefit of employees, as opposed to employers, but that was “not enough” for Mr Campbell. The majority founded their decision

4 Campbell v Peter Gordon Joiners Ltd [2015] CSIH 11; 2015 S.C. 453 at [7]. 5 Campbell v Peter Gordon Joiners Ltd [2015] CSIH 11; 2015 S.C. 453 at [8]. 6 Campbell v Peter Gordon Joiners Ltd [2015] CSIH 11; 2015 S.C. 453 at [26]. 7 Campbell v Peter Gordon Joiners Ltd [2015] CSIH 11; 2015 S.C. 453 at [61]. 8 Campbell v Peter Gordon Joiners Ltd [2015] CSIH 11; 2015 S.C. 453 at [54].

2016 J.P.I.L., Issue 4 © 2016 Thomson Reuters (Professional) UK Limited and Contributors Case and Comment: Liability C183 upon the fact that s.5 did not impose any duty to insure, directly on the director or other company officer because the duty under s.1(1) rested with the corporate employer:9 “Parliament has recognised that a director or officer may bear some responsibility for the failure to insure, but had dealt with it, not by imposing direct responsibility equivalent to that of the company, but by a special and closely defined criminal penalty, itself linked to the criminal liability of the company.” Lord Carnwath returned to this intention of Parliament in holding that no definitive wording of the Act, or any case law mentioned thereafter, persuaded him that an individual could have civil liability indirectly transferred to him for the negligent actions of another legal entity, which in this case, was the corporate employer. The approving majority stressed that the appeal did not centre on questions of “fairness”, but rather the formal contextual interpretation of the Act. The precise wording of the Act, instead of the potential for implied objectives held by the dissenting minority, is what the majority in this appeal rallied around. Additionally, they gleaned support from the particular phraseology of s.5, imposing criminal liability on directors and other officers of the company, having a long history within parliamentary legislation without any apparent corresponding attachment of civil liability. The two dissenting judgements, from Lord Toulson and Lady Hale, took a different view. They were in agreement that the appeal should be allowed. Lord Toulson felt that the 1969 Act, whether viewed formally or functionally, held Mr Gordon liable to Mr Campbell. In his role as sole director, he failed in his statutory duty under s.1 to “insure, and maintain insurance” for employees. In considering the case law referred to during the appeal, Lord Toulson was not persuaded that there was any reason that Mr Campbell could not seek redress under the Act. Lady Hale also felt that if an employer or corporate body failed in their statutory duty under ss.1 and

5, to provide adequate insurance, then their injured employees have every right to seek redress under the Y

1969 Act. If that were not to be the case, as the majority held, then this leaves the very class of people the T Act seeks to protect without that protection. The crux of the dissenting argument is that if a sole director I was, or is, in breach of his duty to adequately insure his employees, then he is liable for that breach and L I any injuries arising from it. Lord Toulson and Lady Hale held that the majority’s rigid interpretation of ss.1 and 5 of the 1969 Act B actually went some way to remove from employees the very protections the Act was meant to provide. A I They felt the onus taken by the majority on formality, as opposed to functionality in the working world, L was wrong.

Comment There is no equivalent of the Motor Insurers’ Bureau for an employee seeking to bring a claim against an uninsured employer. Whilst the Employers’ Liability (Compulsory Insurance) Act 1969 requires all employers to take out insurance, there remain occasions when cover is not put in place. Some employers may not take out any insurance. Others may take out insurance that does not cover all the activities undertaken by their employees. An employer may also fail to co-operate with their insurer or otherwise comply with essential requirements of the policy, thereby invalidating the cover. If valid insurance cover is not in place an injured employee cannot draw upon any other fund to make a payment where the uninsured employer is insolvent or impecunious. In the past some claimants have attempted to circumvent the difficulties that arise when suing an uninsured employer by instead seeking to bring a claim against an officer of the company. The argument

9 Campbell v Peter Gordon Joiners Ltd [2015] CSIH 11; 2015 S.C. 453 at [15].

advanced has been that a director or company secretary responsible for the failure to take out insurance cover should be held accountable in a civil claim for this breach of the company’s statutory obligations, particularly as they could be personally liable to criminal sanctions under the 1969 Act. Previously the Court of Appeal in the English case of Richardson v Pitt-Stanley10 held that the 1969 Act did not create civil liability against an official of a company who was responsible for a failure to take out insurance. It was concluded that the defendant’s failure to take out insurance had not been a direct cause of the injury to the claimant, it had merely left the claimant without the ability to recover damages. This had caused only pure economic loss for which no claim could be made. Now in the Scottish case of Campbell v Gordon we have a majority decision from the Supreme Court holding that the 1969 Act cannot be construed as giving rise to any civil liability on the part of the officers of a company. Despite dissenting judgments from Lady Hale and Lord Toulson, the issue would now appear to be settled, with the Supreme Court seemingly closing the door on such claims against company officials. It is worth noting that the existence of employers’ liability insurance does not mean that funds will always be available to meet a claim in full. The 1969 Act requires insurance cover to be taken out up to the value of £5 million.11 Some catastrophic injury claims can have a value in excess of this amount. It should also be noted that the 1969 Act only requires an employer to insure their employees against risks arising out of, and in the course of, their employment in Great Britain.12 An employee injured whilst working overseas is potentially at risk of being left without insurance cover unless their employers have taken it upon themselves to arrange cover beyond the statutory requirements. The introduction of an MIB-style fund to protect employees with claims against uninsured employers would undoubtedly resolve the injustice that occurs when compulsory insurance is not taken out. However, such a scheme would no doubt meet with considerable resistance from the insurance industry if they were required to fund it. What is more, its introduction would also require a rather dramatic change in attitude

Y towards the enforcement of health and safety requirements than has been demonstrated by the Government

T in recent years. I L

I Practice points

B • It does now appear to be settled law that no civil liability attaches to an officer of a company

A responsible for a failure to tact out employers’ liability insurance. I • That official may still be liable to a criminal sanction under the 1969 Act. L • There is no alternative fund available to assist a claimant injured at work whose employers are not covered by insurance.

Richard Geraghty

10 Richardson v Pitt-Stanley [1995] Q.B. 123 CA (Civ Div). 11 Employers’ Liability (Compulsory Insurance) Act 1969 s.1(2) as amended. 12 Employers’ Liability (Compulsory Insurance) Act 1969 s.1(1).

Swift v Fred Olsen Cruise Lines

(CA (Civ Div), Lord Dyson MR, Gross LJ, Christopher Clarke LJ, 29 July 2016, [2016] EWCA Civ 785)

Personal injury—liability—negligence—shipping—breach of duty of care—cruise ships—plans—viral infections—Athens Convention 1974—Merchant Shipping Act 1995 Sch.6

Breach of duty of care; Causation; Cruise ships; Infectious disease control; Personal injury; Plans; Viral infections

The passenger claimants alleged that they had contracted norovirus on a vessel run by the defendant cruise operator and which had completed four cruises between March and May 2011. They claimed that the operator was at fault within the meaning of the Athens Convention 1974,1 contained in the Merchant Shipping Act 1995 Sch.6 by failing to take reasonable steps to manage the risk of norovirus on board. The central issue was whether the operator had taken steps to ensure that its “norovirus outbreak and control plan” was correctly and effectively implemented. HH Judge Robert Owen QC found that the plan, which involved on-board cleaning, sanitising or decontamination, was appropriate and consistent with industry standards, but that it had not been adequately implemented. He concluded that the operator’s failure to adequately implement the plan caused or materially contributed to passengers being exposed to norovirus and increased the risk of contagion and the development of their illnesses. The cruise operator appealed and submitted that the judge had: • reached a conclusion that was contrary to the weight of the evidence; Y • set the standard for breach of duty too high; T

• failed to give sufficient weight to the biological nature of norovirus; and I

• erred in respect of causation. L I The operator claimed that the judge had ignored 25 files of checklist records demonstrating that the B on-board cleaning regime had been implemented in accordance with the plan. The files had been available for the judge to look at, but the operator’s witnesses had not been cross-examined on them. It also claimed A I that the judge had ignored the fact that the vessel had satisfied two Port Health Authority inspections L during the relevant period. It argued that he had based his decision on complaints from individual passengers and references in the minutes of “outbreak meetings” to isolated instances of crew members failing to comply with cleaning or sanitising measures. The Court of Appeal pointed out that it was for the operator to decide how to adduce its evidence, and the notion that the 25 files should simply be made available for the judge to dip into was “fanciful”. They held that an obvious approach would have been for the operator to prepare a summary schedule focusing on representative highlights from the files. Admissions could then have been sought, submissions made and questions put on the basis of the schedule. However, they concluded that even if copious reference had been made to the files, it would have made no difference. The totality of the evidence revealed multiple failures in implementing the plan. The judge was entitled to conclude that the passengers’ complaints and the matters recorded in the minutes of the meetings were representative of material failures in implementation.

1 Article 3.1 “The carrier shall be liable for the damage suffered as a result of the … personal injury to a passenger … if the incident which caused the damage so suffered occurred in the course of the carriage and was due to the fault or neglect of the carrier or of his servants or agents acting within the scope of their employment.”

His reasoning was legitimate and carefully recorded, and he had dealt with the case in a balanced fashion, keeping in mind that the passengers bore the burden of proof and had to show more than the mere fact of an outbreak. While there was some evidence that was favourable to the operator, the judge’s decision did not go against the weight of the evidence. The Court of Appeal also held that judge correctly identified the issues and approached them with care, recognising what did and did not evidence breaches of duty. He did not apply a higher standard than the applicable requirement to reasonable steps to implement a reasonable system for managing the risk of norovirus on board the vessel. The taking of reasonable precautions to safeguard the health of passengers was a matter of the first importance for cruise operators. Unrealistic or unreasonably high standards should not be set, and the judge had understood that. Turning to the judge’s findings on the biological nature of norovirus the Court of Appeal held that they could not be criticised. Several passages in his judgment showed that he understood the nature of norovirus, its prevalence among the general population, and the manner in which it spread. He was entitled to conclude that each passenger had proved that he or she had contracted norovirus on board the vessel. The operator also submitted that the judge should have asked himself whether, but for the operator’s breach of duty, the passengers would have suffered illness. It argued that such an inquiry would have prompted him to consider the possibility that the claimant passengers might have caught norovirus from other passengers. The Court of Appeal held that the judge was entitled to conclude that the illnesses were caused by the fault of the operator. The starting point for considering causation was the finding that there had been multiple failures in the implementation of the plan. The judge was entitled to conclude that those failures caused or materially contributed both to the spread of norovirus on board and to the passengers’ illnesses. The breakdown in the implementation of the plan removed the safeguards that the plan was designed to provide. The appeal was dismissed. Y

T Comment I

L There are some who think that holiday-related gastric illness claims are pieces of litigation with considerably I disproportionate costs. At least one recently retired High Court judge who presided over several such

B claims whilst on the circuit bench thought they were not complex group actions, merely a collection of

A small claims. By definition of the illnesses involved, if one holidaymaker contracts it, many will. Travel I companies struggle to defend the claims as they require the production of much documentary and anecdotal L evidence to satisfy a court they had proper procedures in place to prevent the occurrence and spread of the relevant infection. The cynic may say it is because they actually rarely have effective procedures or, more particularly, rarely properly enforce them. Many ship and hotel owners have often ended up settling these types of claims. An alternative approach is to argue that the illness was viral and not bacterial and therefore not preventable and certainly unrelated to a lack of hygiene or food safety as frequently alleged by the claimants. Norovirus is one such illness, frequently found in cruise liner illness claims but also in coach party and hotel package claims. It is a highly contagious viral infection which can be brought in by one tourist, but then will spread very quickly. The number of these types of group claims and the costs they cause mean it was inevitable that the tourist industry would wish to secure some assistance from the courts in their defence of the claims. It is possible that the defendants in this claim had been bolstered by a first instance decision from the previous year, Nolan v TUI UK Ltd2 where a court had decided that cruise operators (and by extension other tour

2 Nolan v TUI UK Ltd [2013] EWHC 3099 (QB).

2016 J.P.I.L., Issue 4 © 2016 Thomson Reuters (Professional) UK Limited and Contributors Case and Comment: Liability C187 operators) were not liable for norovirus outbreaks if they had implemented industry standard plans and then taken the reasonable measures to manage the illness and bring it under control. In Nolan the claimants alleged that 217 of 1,700 passengers had suffered a gastric illness caused by a bacterial infection, namely campylobacter and this had arisen as a result of a lack of hygiene on the vessel. Like Swift the claim was properly brought under the Athens Convention 19743 which had exclusive jurisdiction, it being international carriage by sea. The Convention established a regime of liability for damage suffered by passengers carried on a seagoing vessel. It declared a carrier liable for damage or loss suffered by a passenger if the incident causing the damage occurred in the course of the carriage and was due to the fault or neglect of the carrier. However, unless the carrier acted with intent to cause such damage, or recklessly and with knowledge that such damage would probably result, it may limit its liability. For the death of, or personal injury to, a passenger, this limit of liability has now reached SDR4 300,000, around £250,000 where a carrier has their place of business in the UK. It doesn’t contain strict liability but art.3 does provide a presumption of fault in cases of injury which arise from or in connection with shipwreck, collision, stranding, explosion, fire or defect in the ship The claimants argued that the contamination of the ship with norovirus from a previous cruise constituted a “defect in the ship”, thus aiming to attract the presumption of liability on the part of the carrier. They also alleged they should have been warned of this episode. The judge in fact rejected the diagnosis of campylobacter and decided it was norovirus. This in turn was most likely to have been brought onto the ship by one or more of the passengers and the sheer number of affected passengers was indicative of a person-to-person spread; epidemiological evidence demonstrated a timeline of infection that reflected the commencement of the cruise. The judge accepted the defendant’s evidence that it had implemented the systems for controlling the outbreak even beyond the levels required for the level of reported illness. In doing this the judge accepted the reports and witness evidence of an independent specialist company which audited the vessel’s implementation of its systems during the Y outbreak. He further decided that there was no duty to warn passengers of the illness on the previous T cruise, as there could be no criticism of the handling of that previous illness because the outbreak control I plan had been put into effect satisfactorily. L I On the law the judge rejected the ship defect argument deciding for it to be a “defect” there needed to be an impact to the structure of the ship. He considered there is a clear distinction between “a typical B maritime peril” and something which could have happened onshore. The claimants lost; they did not A I appeal. L The principles that made up this successful defence re-appeared in Swift. Here the first tribunal judge had accepted that the defendant’s norovirus outbreak and control plan “was consistent with industry standards…. (but that it) had not been adequately implemented” 5 on the cruises in question. In the Court of Appeal, the defendant argued the 25 files of checklist records suggested any omissions from their regime in practice had been isolated ones rather allowing the judge the finding of a failure in all material aspects. Their appeal on the law was that the court had set the standard for breach of duty too high. The court rejected any criticism of the manner the evidence was put before the judge and how it was interpreted. It said there was: “nothing in the judgment to suggest that the Judge set the standard above the duty accepted by FOCL, namely to take reasonable steps to implement a reasonable system for the management of the risk of norovirus on board the vessel.”6

3 Nolan v TUI UK Ltd [2013] EWHC 3099 (QB). 4 Special Drawing Rights: a form of international money, created by the International Monetary Fund, and defined as a weighted average of various convertible currencies. 5 Swift v Fred Olsen Cruise Lines [2016] EWCA Civ 785 at [5]. 6 Swift v Fred Olsen Cruise Lines [2016] EWCA Civ 785 at [20].

In reaching this view however the court affirmed the Nolan view that cruise operators cannot guarantee that no passenger would contract norovirus on a cruise nor of course that cruise operators could guarantee that every surface on the vessel would be clean at all times. This was always an unrealistic presumption. An unusual appeal argument was that whilst the judge understood the prevalence of norovirus among the general population and how it spreads, he had failed to take into account that these cruises occurred at the time of a “spike” in the prevalence of illness. In fact, the claimants’ microbiology expert had produced figures showing that the “spike” took place in the previous year. The Court of Appeal held therefore that, on the available evidence he was entitled to conclude “that each claimant had proved that he/she contracted norovirus on board the vessel and not otherwise”.7 On causation, the defendant had asked the court to decide the judge had not considered this adequately and specifically had not considered properly the “but for” test. It said that the judge had to have asked himself whether, but for the alleged breach of duty, would the claimants nonetheless have suffered illness? This, it was argued in appeal, should have led the judge to consider the manner of transmission and therefore the possibility that some claimants simply caught their illnesses from other passengers. Pragmatically the appeal judges said that: “however the norovirus was brought on board the vessel, the judge was entitled to conclude that the breakdown of the plan caused or materially contributed to the spread of norovirus on board the vessel and to the claimants’ illnesses.”8 So what future for these mass illness types of claims? Regardless of whether sea- or land-related it would seem clear that a defendant will always need to prove that it had an appropriate and satisfactory outbreak plan that was consistent with industry standards. However, importantly it will need to call evidence to prove the plan was properly implemented. Claimants will need to continue to obtain good evidence on the aetiology of the illness complained of. Then they will need to focus their requests for disclosure and

Y preferably pre-action protocol disclosure from the defendant on the outbreak plans and particularly any

T records of implementation. In this way a proper review of the disclosed evidence on the parties’ behalf I should lead to a narrowing of the dispute. The defendant will see how robust the claimants’ evidence of L the diagnosis and its causation is. The claimants will see how good is the evidence the court will consider I on the outbreak plan and its implementation. B A

I Practice points

L • Claimants will need clear evidence of the nature of the illness. • A successful defence will require contemporaneous evidence of the outbreak plan and its implementation. • A two-year limitation period applies to Athens Convention claims. • Unless the claim falls into art.3 as an exclusively maritime event, the burden of proof will remain on the claimant.

Mark Harvey

7 Swift v Fred Olsen Cruise Lines [2016] EWCA Civ 785 at [24]. 8 Swift v Fred Olsen Cruise Lines [2016] EWCA Civ 785 at [29].

Daley v Bakiyev

(QBD, Supperstone J, 29 July 2016, [2016] EWHC 1972 (QB))

Personal injury—liability—torts—murder—attempts—Kyrgyzstan—limitation periods

Admissibility; Attempts; Civil evidence; Damages; Kyrgyzstan; Personal injury; Standard of proof

The claimant, Sean Daley, was a British businessman who, in 2006, was representing the interests of a British mining company Oxus Gold Plc. Oxus Gold, through its local entity, was the former licensee of the Jerooy gold mine in the Talas region of the Kyrgyz Republic. It was the second largest confirmed gold deposit in the country. Daley was negotiating for the restoration of the licence. In the early hours of the morning of 7 July 2006 Mr Daley was shot by an unidentified assailant outside his residence in Bishkek, the capital of the Kyrgyz Republic. Of four shots fired, three missed, but one struck him, damaging his internal organs. He was taken to hospital and received life-saving surgery. Some days later he was transferred back to the UK, via a hospital in Istanbul, where he received further treatment. Fortunately, he appeared to have made a good recovery from his injuries, but the medical evidence indicated that there were continuing psychiatric and physical effects from the attack. The defendant, Maksim Bakiyev, was the son of the then President of the Kyrgyz Republic. Daley’s case was that his shooting was an attempted murder arranged by the defendant in order to prevent him from jeopardising a fraudulent scheme to give the mining licence to a shell company called Global Gold. The ultimate beneficial owners of Global Gold were Badri Patarkatsishvili and the late Russian businessman

Boris Berezovsky. Both were close associates of the defendant and his father. The licence was repayment Y for their assistance in bringing the President to power, and the defendant and his associates stood to (and T did) reap massive financial rewards on the re-sale of the licence. This gave the defendant a motive for the I attempted murder. L I In support of his case, the claimant relied on, among other things, the witness statement of a businessman, B Mr Sin Beti, who had had dealings in the Kyrgyz Republic. Mr Sin Beti claimed that the defendant had admitted to him that he had instructed his brothers to kill the claimant. Mr Sin Beti refused to give evidence. A I Supperstone J concluded that the claimant had failed to establish that the defendant had organised and L arranged his shooting. The only specific evidence of the defendant’s involvement in the shooting was from Mr Sin Beti, whose evidence was held to be wholly implausible on its face. Among other things, the reason Mr Sin Beti said that the defendant had given for wanting to kill the claimant was that the claimant had resolved the licence issue in Oxus Gold’s favour. That was not the case. The documents showed that Global Gold had secured the licence before the shooting. No weight could be given to the evidence of Mr Sin Beti, who had deliberately decided for no good reason not to attend court. As to the other evidence, it had not been shown that Boris Berezovsky had a beneficial interest in Global Gold; Mr Patarkatsishvili was the ultimate and sole beneficiary of that company. Further, there was no reliable evidence that the defendant or his father were somehow in debt to Mr Berezovsky arising out of the bringing of the father to power. Nor was there any reliable evidence that the defendant had an interest in Global Gold obtaining the licence on the basis that he stood to make a financial gain in due course from the resale of the licence. In addition, the evidence did not support the claimant’s contention that the Global Gold proposal was a sham. On the evidence, the possibility that the claimant may have been shot for reasons unconnected with his activities on Oxus Gold’s behalf in relation to the mining licence could not be ruled out.

To make matters worse, the claim had been issued several years outside the three-year limitation period. However, had it been decided that the claim had merit, the court would have held that it would be fair and just to expect the defendant to meet the claim on the merits, notwithstanding the delay in issuing proceedings. The claim was dismissed.

Comment The claimant’s case appears to have been based mainly on rumour and innuendo, perhaps even fiction. The judgment reads like something out of a Graham Greene novel: allegations of attempted murder, bribery and corruption for gold mining rights, set in a mineral rich territory formerly a part of the Soviet Union, where business practices are murky and the rule of law questionably applied. On the face of it, this case then would appear of rather limited application to the every-day case load of your ordinary personal injury lawyer. However, the judgment does contain some rather interesting discussions on the nature and admissibility of evidence.

Admissibility of convictions On 4 April 2014, the Pervomaisky District Court of Bishkek convicted the defendant, his father (the deposed President of the Kyrgyz Republic), and the defendant’s brother and uncle, of the claimant’s attempted murder, in absentia. The claimant sought to admit these convictions as evidence in his damages claim. The defendant’s case was that the convictions were politically motivated and the evidence fabricated in an effort to smear him and his family and justify the actions of those currently in power in conducting the coup against his father. In a preliminary ruling by the trial judge, these convictions were deemed inadmissible based on the rule Y in Hollington v F. Hewthorn & Co Ltd,1 dating from 1943. That case involved a claim for personal injuries, T

I following the death of the plaintiff’s son in a road traffic accident, allegedly caused by the defendant’s negligence. The defendant had previously been convicted of careless driving in the criminal courts and L

I the plaintiff had sought to rely on the conviction in the civil claim as evidence of the defendant’s negligence.

B Whilst the court did find for the plaintiff, it rejected the submission that a criminal conviction was relevant

A in such circumstances, as it was for the judge in charge of the tribunal hearing the case in hand who had

I to decide the merits on the evidence before him. This ruling was approved in the Court of Appeal in that 2 3 L case, and subsequently too in the more recent case of Rogers v Hoyle, Clarke LJ saying: “The trial judge must decide the case for himself on the evidence that he receives, and in the light of the submissions on that evidence made to him. To admit evidence of the findings of fact of another person, however distinguished, and however thorough and competent his examination of the issues may have been, risks the decision being made, at least in part, on evidence other than that which the trial judge has heard.” In Rogers, the Court of Appeal went onto find that the rule in Hollington was not applicable to a report produced by the Department of Transport’s Air Accident Investigation Branch, as the report was not concerned with findings made in a judicial capacity, but rather related statements of fact and expressions of the authors’ opinion; the authors could be inferred to be akin to experts in the case, rather than its judges.

1 Hollington v F Hewthorn & Co Ltd [1943] K.B. 587 CA. 2 Rogers v Hoyle [2014] EWCA Civ 257; [2015] Q.B. 265. 3 Rogers v Hoyle [2014] EWCA Civ 257; [2015] Q.B. 265 at [39].

Of course since the decision in Hollington, the state has intervened, and s.11 of the Civil Evidence Act 1968 allows claimants to pray in aid relevant domestic convictions. However, as is clear by the judgment in Daley, the situation with regards to foreign convictions is still bound by the rule in Hollington.

Standard of proof Many of us who deal with civil cases for compensation arising from alleged criminal acts (in the writer’s case, the sexual abuse of children) are very interested in the interplay between the criminal and civil standards of proof. Supperstone J in Daley is in danger of misdirecting himself when he refers to Lord Nicholls speech in Re H (Minors) (Sexual Abuse: Standard of Proof):4 “the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability.” To many commentators this passage was tantamount to altering the standard of proof in cases where—for example—criminal conduct was alleged against a party. Supperstone J quotes further and with approval the judgment of Ungoed-Thomas J from the case Re Dellow’s Will Trusts:5 “The more serious the allegation the more cogent is the evidence required to overcome the unlikelihood of what is alleged and thus to prove it.” If Ungoed-Thomas J had stopped there, that would have been fine, but in fact he went on to say: “This approach also provides a means by which the balance of probability standard can accommodate one’s instinctive feeling that even in civil proceedings a court should be more sure before finding serious allegations proved than when deciding less serious or trivial matters.” Y T

As Baroness Hale pointed out in the later—and now leading—case of Re B (Children) (Sexual Abuse: I 6 Standard of Proof), Ungoed-Thomas J’s use of the words “more sure” can clearly be interpreted as altering L the standard of proof in civil proceedings and inferring a higher standard. Hence confusion, and hence I why the matter was considered and resolved by Baroness Hale and her fellow Law Lords in 2009: whilst B

Re H was followed in Re B, the latter tribunal was at pains to point out that there was no heightened civil A standard of proof. It is perhaps somewhat remiss of Supperstone J in Daley not to complete the picture I and refer to Re B and its restraining hold on the standard of proof in civil claims. L

Practice points • Remember that whilst domestic criminal convictions can be adduced as evidence of the facts so found, thanks to s.11 of the Civil Evidence Act 1968, there is no comparable statutory provision for foreign convictions and therefore the rule in Hollington applies to preclude them. • There is no higher standard of proof in civil cases even where the allegations are particularly serious and/or are based on behaviour which may be seen as criminal.

Jonathan Wheeler

4 Re H (Minors) (Sexual Abuse: Standard of Proof) [1996] A.C. 563; [1996] 2 W.L.R. 8, quoted by Supperstone J in Daley v Bakiyev [2016] EWHC 1972 (QB) at [27]. 5 Re Dellow’s Will Trusts [1964] 1 W.L.R. 451 Ch. D. at 455, again quoted in Daley v Bakiyev [2016] EWHC 1972 (QB) at [27]. 6 Re B (Children) (Sexual Abuse: Standard of Proof) [2008] UKHL 35; [2009] 1 A.C. 11.

London v Southampton CC

(QBD, May J, 20 May 2016, [2016] EWHC 2021 (QB))

Personal injury—liability—negligence—local government—breach of duty of care—causation—deep vein thrombosis—loss of amenity—damages—pain and suffering—pre-existing condition

Breach of duty of care; Causation; Deep vein thrombosis; Local authorities' powers and duties; Personal injury; Pre-existing condition; Social care; Witnesses

On 2 April 2012, Mr Geoffrey London, then aged 64, fell heavily whilst waiting to board a bus at a day care facility run by the defendant. His fall necessitated a total hip replacement from which he never fully recovered. He died 10 weeks later from a pulmonary embolism caused by a deep venous thrombosis (“DVT”). Mr London was at the time of his fall suffering from a number of health conditions. Key amongst these was his Parkinson’s disease, then at an advanced stage with associated dementia. He also had heart problems for which he had undergone a full coronary bypass some years earlier. His widow and executrix, Mrs London, brought this action against the local authority pursuant to the Law Reform (Miscellaneous Provisions) Act 1934 for the benefit of her husband’s estate and on her own behalf pursuant to the Fatal Accidents Act 1976 as his dependant, alleging that their negligence led to the DVT and death. The local authority denied liability and submitted that the accident could not have been prevented. It argued that all reasonable precautions had been taken, and in any event the DVT could not have been

Y caused by the hip replacement as Geoffrey London had been at risk of DVT because of his pre-existing

T medical conditions. I May J held that the local authority had breached its duty of care. Mr London had a physical disability L caused by Parkinson’s, and was unsteady on his feet with periods of confusion, and at high risk of falling. I The local authority was very aware of his disability. Its risk assessment stated that he was at high risk of B falling and had to be attended to at all times; that should not have been derogated from. A The normal regime was to help each person onto the bus individually. At the time of the accident, the I driver had left Mr London in order to adjust the tail lift. Unsupervised, Mr London had fallen. The driver L should have asked somebody else to fix the tail lift or should have made sure that Mr London was safe first. In leaving Mr London unattended in that moment, the local authority had failed to take reasonable steps to care for him. Turning to causation, the judge indicated that the claimant had to show that but for the fall her husband would not have died. In other words, she had to show that the DVT had been caused by the fall and not a pre-existing medical condition. The claimant’s medical expert had given evidence that the DVT was a direct result of the hip operation. The local authority’s expert said that a man with advanced Parkinson’s was more at risk of getting DVT. The court concluded that, despite Mr London’s existing medical conditions, the DVT was, on the balance of probabilities, caused by the surgery. He was at increased risk of developing DVT after his hip-replacement surgery and that was why he had been given anticoagulants. Prior to the accident, the evidence was that Mr London had been able to walk around, and did not need to use a frame or a wheelchair. His mobility was compromised but he could still walk independently. The court accepted the claimant’s evidence that her husband was much less mobile after the operation. The risk of DVT increased with immobility. Mr London had been at a higher than average risk of DVT

2016 J.P.I.L., Issue 4 © 2016 Thomson Reuters (Professional) UK Limited and Contributors Case and Comment: Liability C193 before the accident, but that risk increased afterwards. The fact that, due to pre-existing conditions, he was more immobile than a healthy 65-year old would have been after the operation did not undermine causation, but supported it. The fall, operation and consequent immobility caused the DVT which led to Geoffrey London’s death. With regard to damages for pain, suffering and loss of amenity, Mr London had required a total hip replacement and his subsequent immobility had been disproportionately severe due to his pre-existing medical conditions. The claimant’s evidence was that Mr London had been unhappy after the operation. However, the impact was relatively short-lived as he had died 10 weeks later. Damages for pain and suffering were confined to the period between the accident and death. Having regard to all those factors, the appropriate award for pain, suffering and loss of amenity was assessed at £17,000 uplifted by 10% to £18,700. The remainder of the damages had been agreed. Judgment was entered for the claimant.

Comment Witness evidence was the key in this decision in all aspects under the court’s consideration: breach of duty, causation and quantum of damages. It emphasises the necessity of ensuring that the lay witnesses and experts properly address all identified aspects of the claim, particularly where there is a pre-existing medical condition. All parties agreed that1 “at the time of his fall, Mr London suffered from a number of conditions, rendering his health precarious and limiting his mobility”. A key aspect of this claim was the defendant’s risk assessment which clearly emphasised that Mr London was at high risk of falling and required someone to be in attendance at all times when he was being transported by the defendant. The judge found that this was “the overriding instruction”2 in the risk assessment from which the defendant should not have derogated. 3

Mr London’s fall “was not the inevitable consequence of an unavoidable circumstance” —the accident Y

could have been prevented. T

Along with the risk assessment, Mrs London’s evidence was key: she attested that by reason of his I

Parkinson’s, her husband found it confusing when a person bent or stooped down in front of him. The L judge accepted her evidence here (as he did throughout the judgment) and, while the defendant did not I know about this aspect of his condition, it added to the flavour of the defendant’s “failure to remain in B 4 attendance where attendance meant seeing and being in position to steady or assist”. The breach of duty A was proved: the root cause of the accident being the failure by the driver to appreciate the risk to Mr I London and to act to eliminate or minimise it. L The judgment usefully summarises the issue of causation:5 “It is for the claimant to show on the balance of probabilities that but for the fall, Mr London would not have developed DVT and died ten weeks later.” Again, witness evidence was key due to the intervening hip surgery necessitated by the fall—surgery which in itself could have increased the risk of DVT. While the medical records were helpful in showing that post-operatively, Mr L’s clinicians were satisfied that he was “back to a baseline level of risk” of DVT, the expert evidence accepted that his post-operative reduced mobility and Mr London’s pre-existing conditions both increased the risk of DVT and caused his premature death.

1 London v Southampton CC [2016] EWHC 2021 (QB) at [2]. 2 London v Southampton CC [2016] EWHC 2021 (QB) at [11]. 3 London v Southampton CC [2016] EWHC 2021 (QB) at [10]. 4 London v Southampton CC [2016] EWHC 2021 (QB) at [8]. 5 London v Southampton CC [2016] EWHC 2021 (QB) at [16].

The defendant’s argument was that Mr London had been “extremely immobile” prior to the accident and that the fall had not been causative of his subsequent DVT. This was not only contradicted by the defendant’s own records at its care facility, but Mrs London gave crucial evidence of her husband’s mobility before the accident (he had good days and bad days, but even then, could get about independently) and his subsequent reduced post-accident, post-operative, immobility. After accepting the claimant evidence on the probabilities of developing a DVT as a result of his fall and subsequent immobility, the “but for” test provided the step to finding that the fall was causative of the claimant’s DVT and subsequent death. As for the calculation of damages, the defendant must take the claimant as he finds him. In this case, the court found that “the impact on Mr London’s mobility and state of mind was disproportionately severe by reason of his pre-existing conditions”.6 The lay evidence “told eloquently of his reduced and miserable state following his operation”.7 The defendants drew attention to the fact that the misery was short lived: Mr London suffered for 10 weeks before he died. The case law relied upon is unhelpfully not cited in full, but included a severe brain injury leading to death after 13 days and an 87-year-old with a pelvic injury where the effects lasted for two months but did not involve surgery. While giving some indication of the extent of any reduction in damages for early death, the examples related to less serious injuries, or shorter time periods of suffering.

Practice points • When dealing with claims relating to vulnerable people, careful study of any risk assessments prepared by those charged with the claimant’s care is required. • Great care should be taken to ensure that all aspects of the issue of causation are fully addressed by the experts (and lay witnesses where appropriate) to enable the court to come

Y to a sound decision on liability.

T • When addressing quantum, lawyers cannot always have “a Mrs London” whose witness

I evidence is so compelling and persuasive. But this case highlights how important it is to

L paint a picture of the claimant’s pre- and post-injury life, particularly where pre-existing I conditions have affected the severity of the injuries sustained. B

A Helen Blundell I L

Committeri v Club Mediterranee SA

(QBD, Dingemans J, 30 June 2016, [2016] EWHC 1510 (QB))

Personal injury—liability—hospitality and leisure—contracts—applicable law—choice of law—contracts— France—Package holidays—Package Travel, Package Holidays and Package Tours Regulations 1992— Directive 90/314 on package travel, package holidays and package tours—Regulation 593/2008 on the law applicable to contractual obligations (Rome I)—Regulation 864/2007 on the law applicable to non-contractual obligations (Rome II) art.4(1) and art.4(3)

Applicable law; Choice of law; EU law; France; Holiday claims; Package holidays; Personal injury

6 London v Southampton CC [2016] EWHC 2021 (QB) at [28]. 7 London v Southampton CC [2016] EWHC 2021 (QB) at [30].

On 18 February 2011 Mr Cristiano Committeri was climbing an ice wall on the Mer de Glace, Chamonix, France. He slipped and fell, causing injuries to his foot and ankle. He pursued a claim against Club Mediterranee SA (“Club Med”) and Generali Assurances Iard SA (“Generali”). The success of his claim depended on whether French law applied under which it was common ground that Mr Committeri would obtain judgment for damages to be assessed, or English law applied under which it was common ground that Mr Committeri’s claim would fail. The application of English law or French law mainly depended on whether Mr Committeri’s claim was contractual in nature and governed by Regulation 593/2008 (“Rome I”)1 or non-contractual in nature and governed by Regulation 864/2007 (“Rome II”).2 The court was required to determine whether English or French law applied. The claimant’s employer had made a contract with the first defendant to provide travel and accommodation for the claimant in France. The claimant injured his leg climbing while on a team-building exercise. The contract had a clause providing that the booking conditions would be governed by English law. The claim pursued against the defendants was made on the basis that French law applied pursuant to the Code de Tourisme (“the Code”). The Code had been enacted in France pursuant to Directive 90/314,3 which in England had given rise to the Package Travel, Package Holidays and Package Tours Regulations 1992 (SI 1992/3288). However, France’s and England’s interpretation of Directive 90/314 were different. In France an organiser of travel arrangements had strict liability for any injury suffered by a person on a package holiday, whereas English law required a breach of reasonable skill and care. There were three issues: 1) whether the claim was contractual and therefore governed by Rome I, or non-contractual and governed by Rome II; 2) if the claim was governed by Rome I whether the clause in the contract was a choice of law Y clause meaning that English law applied; and T

3) if the claim was governed under Rome II whether the general rule in art.4(1) that the law of I

the place of the accident (France) should apply was displaced by art.4(3) because the tort L

was manifestly more closely connected with England. I Mr Justice Dingemans held that the claim under the Code was contractual. The contract, between the B claimant’s employer and the defendants, conferred benefits on the claimant by providing him with A I team-building activities. The claimant was, under the Code, enforcing “the proper performance of the L obligations arising from the contract”. The Code’s wording relates to contractual obligations. French law provides that proper performance of the contract in a package holiday setting requires the absolute safety of the consumer so that when there is an injury on a package holiday the organiser is liable. Here the obligation to compensate the claimant under the Code derived from the legal obligation freely consented to by the parties when the first defendant agreed to provide travel, accommodation and activities for the claimant, and did not arise out of tort. That conclusion was consistent with the expert evidence. However, their conclusions related to French law, and the judge held that the issue of whether the obligation was contractual was an autonomous European law concept.4 In English law the equivalent provision had also been analysed in contractual terms.5 The fact that both French and English law had analysed the obligation in contractual terms provided support for the conclusion

1 Regulation 593/2008 on the law applicable to contractual obligations (Rome I) [2008] OJ L177/6. 2 Regulation 864/2007 on the law applicable to non-contractual obligations (Rome II) [2007] OJ L199/40. 3 Directive 90/314 on package travel, package holidays and package tours [1990] OJ L158/59. 4 CILFIT Srl v Ministero della Sanita (283/81) [1982] E.C.R. 3415; [1983] 1 C.M.L.R. 472 ECJ followed. 5 Hone v Going Places Leisure Travel Ltd [2001] EWCA Civ 947 considered.

that the obligation was contractual in nature. The claim was accordingly contractual and governed by Rome I. As the claim was governed by Rome I the next question was whether the clause in the contract was a choice of law clause, meaning that English law applied. The judge held that the choice of law clauses in the booking conditions and brochure were choice of law clauses which governed the whole of the contract. They contained provisions relating to payment, modification, cancellation, responsibility and performance. That left nothing to be governed by a separate or implied choice of law. Any reasonable contracting party would understand that those terms meant that English law applied to the whole contract. It was common ground that under English law the claimant did not have a claim against the defendants. Although it was not necessary, the judge confirmed that had the obligation been non-contractual and Rome II had applied, the choice of French law based on the location of the accident would not have been displaced under art.4(3). That was because there was a high hurdle in order to displace the choice of law indicated by art.4(1) and there was nothing which came close to overcoming that high hurdle. The claim was dismissed.

Comment Most personal injury lawyers are familiar with the term “Rome II” and its general provision that the damages awarded to a victim of an accident will be based upon the law of the venue of the accident. It is likely that fewer will realise this is for non-contractual claims or that there is a “Rome I”, let alone that that is for contractual claims. With this background uppermost in those same lawyers’ minds they will usually be seeking a remedy for a claimant that excludes Rome II or at least its general obligation. This case highlights that the law of the venue on some occasions carries aspects that are more beneficial for the victim than they may get in their home jurisdiction. It also reflects the need to offer up a foreign

Y accident claim for close scrutiny with the help of lawyers from all available jurisdictions or potentially

T applicable law.

I Rome I is based upon and replaces the Convention on the Law Applicable to Contractual Obligations

L 1980. It determines the applicable law for contracts made after 17 December 2009 as opposed to the I jurisdiction of the court that will hear the dispute for which one would turn to the Brussels Regulations.6

B Article 3 provides that a contract shall be governed by the law chosen by the parties. Good drafting

A would suggest this should always be specified; experience though suggests it does not. In that event art.4 I deals with the applicable law in the absence of that choice, with art.4(1)(b) determining that “a contract L for the provision of services shall be governed by the law of the country where the service provider has his habitual residence”. By contrast, Rome II applies to tort-based claims. As is well-known the general rule in art.4(1) is that the applicable law shall be the law of the country in which the damage occurred. There are some limited exceptions such as art.4(3) stating that if the tort is manifestly more closely connected with another country then that country’s law applies.7 The European Court of Justice has said that the concept “tort, delict or quasi-delict” covered all actions which seek to establish the liability of a defendant and which are not related to a contract within the meaning of art.5(1) of the Brussels Convention.8

6 “An agreement between the parties to confer on one or more courts or tribunals of a Member State exclusive jurisdiction to determine disputes under the contract should be one of the factors to be taken into account in determining whether a choice of law has been clearly demonstrated.” preamble, para.12. 7 “Where it is clear from all the circumstances of the case that the tort/delict is manifestly more closely connected with a country other than that indicated in paragraph 1, the law of that other country shall apply. A manifestly closer connection with another country might be based in particular on a pre-existing relationship between the parties, such as a contract, that is closely connected with the tort/delict in question.” 8 Kalfelis v Bankhaus Schröder, Münchmeyer, Hengst & Co (t/a HEMA Beteiligungsgesellschaft mbH) (189/87) [1988] E.C.R. 5565 ECJ.

Directive 90/314, as with all EU Directives, was intended to facilitate trade across the EU, specifically the sale of holidays across the various countries. The Directive states that the organiser of such holidays should have direct obligations towards the consumer irrespective of whether the consumer is a direct contracting party, and that the organiser should be liable for the proper performance of the contract and for damage to the consumer resulting from improper performance. As ever each EU state was required to implement the directive into its own law. In the UK this was the 1992 Regulations and in France it was the Code. The direct obligation was assumed by many to provide a strict liability on the holiday organiser. It was, but only to the extent of having a vicarious liability attached to it for the actions of its suppliers. The Court of Appeal clarified the fault-based nature of the 1992 Regulations.9 Regulation 15 provided that: “(1) the other party to the contract is liable to the consumer for the proper performance of the obligations under the contract …; (2) the other party to the contract is liable to the consumer for any damage caused to him by the failure to perform the contract or the improper performance of the contract”. By contrast, the same directive obligation of strict liability as enacted in the Code was affirmed by the French courts for the organiser of the holiday for any injury suffered by a package holiday consumer. The Court of Appeal held that the “improper performance” of the relevant part of the holiday could only be determined by reference to the terms of the contract; there was no absolute duty on the holiday organiser to keep the consumer safe. As the court here commented: “As already noted English and French law have come to different interpretations of the meaning of ‘improper performance of the contract’. English law has looked at what performance was to be expected under the contract, and if that standard of performance was reasonable care and skill, it has not imposed an absolute duty. French law appears to have taken the view that proper performance Y of the contract requires the safety of the consumer, effectively accepting the argument rejected by T

the Court of Appeal in Hone. This difference of approach between French law and English law has I

not made my task of identifying whether the obligation in L211-16 of the Code is ‘contractual’ or L 10 ‘non-contractual’ any easier.” I Here, the first defendant—Club Mediterranee—was the holiday organiser who had contracted with the B claimant’s London employer—BNP Paribas Bank—to provide its employees with travel, accommodation, A I ski guides and climbing activities for the team building events. Club Mediterranee’s contract with the L bank contained its “general booking conditions”11 and these provided that they were governed by English law and jurisdiction. Inevitably perhaps the claimant’s initial claim against Club Mediterranee and its insurer was for negligence but this action was discontinued, “in the light of the evidence about the arrangements made for the climbing activity”.12 Presumably looking at the least to avoid French damages the claimant then pursued the contractual claim and argued French law was the applicable law. In doing so he argued he would now have the benefit of strict liability by reason of the Code. This preliminary issue trial on liability contained no oral evidence and perhaps unusually but efficiently an agreed statement of facts. The judge in rejecting this argument held that the contract was governed by English law and the claim under the Code was contractual in nature as defined in Rome I; the claimant was relying on the contract to win his claim. The wording of the Code related to contractual obligations. If the court was to apply Rome I then the court would go to the contract first to find the applicable law; the conditions clearly

9 Hone v Going Places Leisure Travel Ltd [2001] EWCA Civ 947. 10 Committeri v Club Mediterranee SA [2016] EWHC 1510 (QB) at [31]. 11 Committeri v Club Mediterranee SA [2016] EWHC 1510 (QB) at [8]. 12 Committeri v Club Mediterranee SA [2016] EWHC 1510 (QB) at [3].

provided for the law of England and Wales and thus depriving the claimant of the strict liability regime in France. In a clever but ultimately unsuccessful argument the claimant suggested the contractual choice of law was for a dispute over the booking and not the overall contract. Absent that express law choice it was argued French law applied as Club Mediterranee, a contracting party, had its habitual residence in France. Perhaps unsurprisingly the court ruled that the contract and the booking conditions covered every aspect of the parties’ contractual relationship and therefore catered for every possible dispute.13 Accordingly the contract prescribed the law of England and Wales. The claimant did not get the strict liability of the Code into the claim. The claimant in pleading the alternative non-contractual claim would by reason of Rome II have faced the applicable law of France as the accident venue. The judge dismissed this argument in one paragraph.14 To try to show a different law required a much higher evidential basis than existed here. The core arguments were that the claimant, his employers and co-worker witnesses all worked and lived in London. The judge said there is a "high hurdle" in order to displace the choice of law indicated by art.4(1): “nothing (came) close to overcoming the high hurdle.” This result provides perhaps an interesting conundrum for package travel companies. At one level it must be clear to them that their contract must have a very clear choice of law provision. In doing that they are firmly nailing their colours to the mask. An English and Welsh law award of damages may in many circumstances result in a higher award than other jurisdictions; however the choice of another jurisdiction may contain other claimant friendly side effects as here with the spectre of strict liability.

Practice points • Instruct a lawyer from each and any potential jurisdiction to advise on limitation, liability

Y and quantum.

T • Ensure all contractual and ancillary documentation is secured.

I • In drafting a contract, have regard to the applicable law and jurisdiction. L

I Mark Harvey B A I

L UK Insurance Ltd v Holden

(QBD (Merc), Judge Waksman QC, 19 February 2016, [2016] EWHC 264 (QB))

Insurance liability—cars—causation—fire—policy wordings—repairs—roads—third party insurance— EU Law—Directive 72/166 art.3(1)—Road Traffic Act 1988 s.145(3)(A)—compatibility

Compulsory insurance; Fire; Insurance claims; Motor insurance; Policy wordings; Repairs; Roads

On Saturday 12 June 2010, Mr Thomas Holden, the first defendant and a mechanical fitter employed by the second defendant (“Phoenix”) was working overtime at Phoenix’s premises. The day before his car had failed its MOT due to corrosion on its underside. Having completed his first piece of work that day

13 “I have come to the clear conclusion that the claim made under article L211-16 of the Code is contractual for the purposes of Rome I and Rome II (and the Brussels I Recast). This is because the BNP Club Med contract, made between BNP and Club Med, conferred benefits on Mr Committeri by providing him with team building activities in Chamonix. Mr Committeri was, under the Code, enforcing ‘the proper performance of the obligations arising from the contract’.” Committeri v Club Mediterranee SA [2016] EWHC 1510 (QB) at [49] 14 Committeri v Club Mediterranee SA [2016] EWHC 1510 (QB) at [57].

2016 J.P.I.L., Issue 4 © 2016 Thomson Reuters (Professional) UK Limited and Contributors Case and Comment: Liability C199 he asked his employer if he could use the loading bay at the premises to do some work on the car which would hopefully enable it to pass the MOT. His employer agreed. His intention was to weld some plates onto the underside of the car to deal with the corrosion. He disconnected the car battery so there were no live circuits which the welding equipment might interfere with. He then used a fork-lift truck to push the car up on its side so that he could get at the underside. He used a grinder first to prepare the underside and then successfully welded a plate under the driver’s side. He then reconnected the battery, started the car and moved it around the other way before disconnecting it again and lifting it up once more but now with the underneath of the passenger side exposed. At this point he started to weld, but then his phone went and he stood up to take the call. As he did so, he saw flames inside the car. What had happened was that sparks from the welding had ignited flammable material inside the car including the seat covers. The fire spread and set alight some rubber mats lying close to the car. The fire then took hold in Phoenix’s premises and adjoining premises and substantial damage was caused before it was extinguished. Phoenix’s insurer was AXA. It has paid out to Phoenix and the owner of the adjoining property in excess of £2 million. Being subrogated to Phoenix’s rights, AXA made a claim against Mr Holden in the name of Phoenix for an indemnity in respect of the sums it has paid out. If Mr Holden had any insurance in respect of the claim, it was only by reason of his ordinary car insurance effected with the claimant, UK Insurance Limited. The insurer applied for a declaration that the car insurance policy it had issued to Mr Holden did not cover the damage he had caused to property belonging to Phoenix while repairing his car. The policy with the claimant provided cover for an individual who had an accident “in your vehicle” which killed or injured someone or caused damage to “their property” or “their vehicle”. It stated that it provided the minimum cover required under UK and EU law. The insurer contended that its policy did not cover accidents involving the car on private premises or while it was being repaired.

There were five issues: Y T

1) the interpretation of the policy’s coverage clause; I

2) whether cover was limited to accidents arising from using the car “on a road or other public L

place”, as in the Road Traffic Act 1988 s.145(3); I 1 3) if so, whether that was compatible with the coverage required by Directive 72/166 art.3(1); B

4) whether repairs constituted “use” of the car; and A

5) if so, whether that use caused the accident. I L On the first issue the judge held that the policy clause was poorly worded. It did not only cover damage to property belonging to someone injured or killed in the accident. It properly covered personal injury or death, or damage to someone’s property, or damage to someone’s vehicle. The phrase “an accident in your vehicle” was too narrow; the policy covered accidents caused by the vehicle even if the insured person was not in it or driving it at the time. The judge suggested that a better wording would be “an accident involving your vehicle”. Section 145(3)(a) referred to liability for damage “caused by or arising out of the use of a vehicle” and the coverage clause had to comply with that. On the second issue the judge noted that the policy did not expressly limit coverage to roads, suggesting that use of the car elsewhere was covered. It had to comply with the minimum third party cover in the 1988 Act, but it could be more generous.2 The 1988 Act contained an explicit limit to roads, which was not repeated in the policy. The policy’s certificate excluding coverage of races and track days suggested

1 Directive 72/166 on the approximation of the laws of Member States relating to insurance against civil liability in respect of the use of motor vehicles, and to the enforcement of the obligation to insure against such liability [1972] OJ L103/1. 2 British Waterways v Royal & Sun Alliance Insurance Plc [2012] EWHC 460 (Comm) QBD applied.

that other activities not on public roads were not excluded. The judge held that the policy covered the accident location. It was not necessary to decide the third issue however the judge pointed out that Vnuk v Zavarovalnica Triglav dd3 had not ruled on whether the Directive applied only to public roads, although it implied that cover could extend further than where the accident happened on a road. The key question in Vnuk had been whether the use was consistent with the normal function of the vehicle. If it was then cover was required even though private premises were involved. That definition of “use” had to be read into the 1988 Act if possible. The 1988 Act contained the word “use”, but expressly limited the coverage obligation to roads and other public places. The court rejected the submission that the word “including” could be read in before “on a road” in s.145(3)(a) saying that was a potentially significant addition to the scope of the 1988 Act. Accepting that the court should construe primary legislation to be compatible with EU law where possible, the judge concluded that it should not cross the line between interpretation and amendment.4 Nevertheless s.145(3)(a) was incompatible with art.3(1) of the Directive.5 In relation to issue 4 the court held that the definition of “use” suggested some activity performed by the vehicle qua vehicle.6 The court considered various Canadian and Australian cases on whether repairing a car constituted “use”; the Canadian cases allowed that approach, but the court found it too broad. Repair of a vehicle was held not to amount to use. While it was normal and necessary to repair a car from time to time, it was not a normal function of a car to undergo repair. The repair undertaken in this case was not “use”. The car was not being operated in any way but was immobile and partly off the ground. The judge held that the policy did not cover the claim. Had it been necessary to decide, what was caused by or arose out of “use” it was held to be a question of fact and degree in each case.7 The judge decided that it was artificial to suggest that the fire arose out of Thomas Holden’s use of the car because he had driven it into the loading bay. The fire was caused by

Y the allegedly negligent repairs, namely using grinders and welders without taking precautions regarding

T flammable materials in the car. Accordingly, the policy did not respond to this particular claim and UK I was entitled to the declaration sought. L I

B Comment

A This case has absolutely nothing to do with personal injury but relates to declaration proceedings brought I by UK Insurance Ltd, perhaps better known as the Direct Line Group, against their policyholder, Thomas L Holden. It merits inclusion in this journal by virtue of the findings in respect of Vnuk and as to what to constitute “use” of a motor vehicle. In reality this was a spat between my employer, AXA, and UK Insurance. As such, this case causes me a little embarrassment as I was not convinced that we should have pursued a subrogated claim in the first place. AXA insured the premises and business of Phoenix Engineering who was Holden’s employer. Phoenix allowed Holden to carry out repairs on his own personal car on their premises out of hours. As a consequence of that work, welding to the underside of the car, one of the seats caught fire and, amidst smoke that could be seen for miles, fire destroyed both the premises of Phoenix and those of adjoining. AXA paid out over £2 million which they sought to recover from Holden and, through him, his insurers. In reality, the matter had nothing to do with Thomas Holden and was simply a squabble between two insurers. As is sometimes the case where there are issues of policy interpretation, UK Insurance commenced

3 Vnuk v Zavarovalnica Triglav dd (C-162/13) EU:C:2014:2146, [2016] R.T.R. 10 4 Churchill Insurance Co Ltd v Wilkinson (C-442/10) [2013] 1 W.L.R. 1776 considered. 5 Vnuk v Zavarovalnica Triglav dd (C-162/13) EU:C:2014:2146, [2016] R.T.R. 10 applied. 6 Vnuk v Zavarovalnica Triglav dd (C-162/13) EU:C:2014:2146, [2016] R.T.R. 10 considered. 7 Dunthorne v Bentley [1996] R.T.R. 428 CA (Civ Div) considered.

2016 J.P.I.L., Issue 4 © 2016 Thomson Reuters (Professional) UK Limited and Contributors Case and Comment: Liability C201 proceedings for a declaration that their policy did not respond to the loss. AXA, through Phoenix, counterclaimed for the indemnity. UK Insurance contended that: • Mr Holden’s policy only insured him in respect of accidents while his vehicle was being driven or used on a road or other public place; and • the vehicle was not in any sense being “used.” As with many insurance policies, Mr Holden’s policy had been rewritten in “plain English” and perhaps as a consequence, as per HH Judge Waksman, it seemed “not altogether happily worded”. For example, the operative clause read: “We will cover you for your legal responsibility if you have an accident in your vehicle and: • You kill or injure someone; • You damage their property; or • You damage their vehicle.”8 This implies that damage to property is only covered if it belongs to someone killed or injured in an accident. On that basis, as worded, if someone’s house was damaged as a consequence of an accident but the owners of the house were uninjured, an indemnity would not be provided by the negligent driver’s insurers. That is patent nonsense. It should be noted, though, that there was no attempt to limit cover to roads and HH Judge Waksman did comment that impliedly certain off-road events that were not excluded, e.g. 4x4 off-road events, would be covered. AXA contended that: • the policy covered off road accidents as well as those on roads; • even if the policy did impliedly follow s.145(3)(a) of the 1988 Act to restrict cover for use Y on a road or other public place, that did not assist as this section must be construed in T 9

accordance with the Third European Directive as interpreted by Vnuk; and I

• repair to the car can be described as “use” and thus the fire fell within the terms of the policy L

as it was caused by the repair. I In response, UK Insurance contended that there is no basis in Vnuk to interpret s.145 as extending B beyond roads and other public places. A I Although the judge did find that as there was no limitation to roads in the policy it did cover the location L of the accident or fire, he did comment that in his judgment s.145(3)(a) is incompatible with art.3(1) of the Third Directive. That is something that many have been pointing out for a number of years. That then leads us to the question of “use”. The policy itself says “if you have an accident in your vehicle”.10 The term “use” brings us back to s.145(3)(a) and its interplay with Vnuk. While this case provides an interesting overview of the interpretation of “use” in Canada and Australia, HH Judge Waksman looked at “use” in the context of Vnuk. The European Court of Justice held that the concept of “use” needs to be considered in the light of the objectives behind the Directives of liberalising the movement of goods and people within the EU and of protecting the victims of road traffic collisions. The ECJ put forward two explanations as to what “use of a vehicle” means pursuant to art.3(1). At [35] it stated the following:

8 Emphasis added 9 Third Council Directive 90/232 on the approximation of the laws of the Member States relating to insurance against civil liability in respect of the use of motor vehicles [1990] OJ L129/33. 10 Emphasis added

“the Commission is of the opinion that that provision applies to the use of vehicles, whether as a means of transport or as machines, in any area, both public and private, in which risks inherent in the use of vehicles may arise, whether those vehicles are moving or not.” This would indicate that once something is defined as a vehicle, the scope of the compulsory insurance obligation is very wide. The alternative and preferred explanation, put forward at [59], is: “Accordingly, in the light of all of the foregoing considerations, the answer to the question referred is that Article 3(1) of the First Directive must be interpreted as meaning that the concept of ‘use of vehicles’ in that article covers any use of a vehicle that is consistent with the normal function of that vehicle.” This interpretation is not incompatible with the term “use” in the 1988 Act. The question then is: “does use include repair?” In a non-technical or non-legal sense I do have some sympathy with the proposition, heavily influenced by my early driving life which was strewn with broken down vehicles, failed MOTs and cars constantly undergoing repair! However, following Vnuk “use” has got to be part and parcel of the normal function of a vehicle. In this regard, HH Judge Waksman includes the carrying of passengers or goods, or conveying the driver to someplace of another, or towing and parking a caravan or trailer but excludes, for example, the sleeping in a car as “the normal function of a saloon car does not include providing accommodation”. However, repairing a vehicle is not part of its normal function. Taking this approach further, repairing a vehicle which is tilted up and resting on two wheels only, cannot constitute “use”. If anything was being “used” it was the welding and other equipment being used in the repair of the car. However, running the engine or test driving it after repair would amount to “use” in the context of Vnuk. So, while Mr. Holden’s policy should be interpreted as extending to include Phoenix Engineering’s premises, in no sense of the term could it be regarded that his car was being “used.” Accordingly, UK Y Insurance was granted its declaration and AXA has lost out. It seems inconsistent to me for AXA to have T

I used Vnuk in support of the contention that cover must extend beyond a road and other place, but then to

L have ignored the second half of the judgment and the interpretation of use.

I Vnuk has caused much consternation and debate. I believe that representations had been made by the

B UK and other governments to the European Commission for reform of the Directives so as to narrow their 11 A scope. I also believe that FIA has been lobbying. The clarity provided by Vnuk and this judgment may,

I in the light of Brexit prove short lived. However, in the meantime it is a welcome decision that helps to

L clarify the interplay between 1988 Act and the Directives and gives clear guidance as to what constitutes use.

Practice points • At least for the time being the Road Traffic Act 1988 must be interpreted as giving force to the relevant EU Directives. • As such, the cover provided is not restricted to a road or other public place. • A policy of insurance can provide broader cover than that required by the 1998 Act and Directives; indeed that is the case with AXA’s own motor policy. • “Use” must be interpreted in the light of the normal function of a vehicle. • Beware so called “plain English” policy wordings.

David Fisher

11 Fédération Internationale de l’Automobile is mostly known as the governing body for many car racing events including Formula 1.

DC v State of New South Wales

(CA (NSW), Basten JA, Ward JA, Sackville AJA, 10 August 2016, [2016] NSWCA 198)

Personal injury—liability—sexual abuse—state liability—New South Wales—duty of care—failing to report abuse to police—psychological harm

Child sexual abuse; Children's services; Complaints; Criminal investigations; Damages; Duty of care; New South Wales

DC and TB are sisters who, as children, suffered ongoing sexual and physical abuse by their stepfather. They commenced proceedings against the State of New South Wales and Ms Quinn, a case officer with what was then the Department of Youth and Community Services (“the Department”), claiming damages for the alleged breach of a duty of care owed to them. An extension of the limitation period was granted for the bringing of those claims. The claims relate to a period of a few months commencing from the time TB first complained of the abuse to the Department in April 1983. The sisters contended that the Department breached its duty by not reporting the abuse to the police and that, had it done so, they would have been protected from the possibility of any further abuse on the basis that the stepfather would have been charged. In 2001, the sisters reported the abuse to the police. After the commencement of the criminal trial in 2005, the stepfather pleaded guilty to nine charges. At the time of the abuse, the powers and obligations of the Department’s officers were governed by the

New South Wales Child Welfare Act 1939. Under s.148B of that Act, on notification to the Director of Y certain matters involving the abuse or neglect of children, the Director was required to cause an investigation T to be undertaken. Where satisfied that abuse had occurred, reporting to police was a possible but not I mandatory course of action. L I At trial, the sisters argued that the duty of care owed to them by the Department extended to a requirement B that their complaints should have been reported to the police, pursuant to the power conferred on the Director by s.148B(5) of the 1939 Act. The State did not contend that the statutory power relied upon A I (s.148B(5)) had not been engaged in this case and conceded that it owed a common law duty to exercise L its statutory powers with reasonable care, but disputed that the duty extended to a duty to report the abuse to the police, argued for a finding that the abuse had been reported, and denied that any abuse had occurred in the post-April 1983 period. The judge at first instance gave judgment in favour of the State and Ms Quinn. He found that the Department owed each of the sisters a duty to use reasonable care in the exercise of its powers under s.148B(5) of the 1939 Act, that the scope of that duty included a duty to report the abuse to the police, and that the complaints had not been so reported; but was not satisfied that the stepfather had, on the balance of probabilities, continued to abuse the sisters in the period after complaint was made to the Department. The claim against Ms Quinn failed on the basis that she owed no duty in relation to the s.148B(5) powers and that, even if she did, she had discharged that duty. The judge made contingent findings as to the damages he would have awarded had he given judgment for the sisters, applying a discount of 70 per cent on account of pre-notification abuse (for which the Department had no legal responsibility). On appeal, the sisters challenged the factual finding that the abuse did not continue after the complaint to the Department. There was no challenge to the findings in relation to Ms Quinn and she was not a party

to the appeal. By way of notice of contention, the State challenged the judge’s findings as to the scope and content of the duty, namely that the duty encompassed an obligation to report the abuse to the police. The State accepted that, if the appellants succeeded in establishing liability, no challenge was made to the allowance of 30 per cent of the total loss as their damages. The appeal court, by a majority (Basten JA dissenting) found that the duty of care that the State conceded was owed extended in the circumstances of this case to the notification of the abuse to the police. The majority found that, taking all the evidence together, the likelihood that the abuse continued after the complaints were made was overwhelming and that this would have made a material contribution to the appellants’ harm. Basten JA, in dissent, held that the scope of the duty of care owed by the State, through the Department, did not extend to reporting to police allegations of criminality. On the factual question, Basten JA held that the primary judge had not erred in failing to be satisfied as to the continuation of the abuse and that, in the absence of such a finding, the Department had not breached its duty of care.

Comment The court here found a common law duty of care was owed to the plaintiffs by the defendant local authority, based upon a statutory duty which had existed at the time. The court recognised that the Child Welfare Act 1939 “reflected a philosophy which has long since been abandoned”, but as with any investigation into historic or non-recent allegations of abuse, the court has to apply the laws contemporary to the facts of the case.1 Section 148B of the 1939 Act concerned the “notification of certain injuries to children”, and introduced an element of mandatory reporting to the law of the land.2 Many campaigners in England and Wales have been calling for this for years, but thus far such a law has never graced our statute book.3

Y So s.148B(2) suggested that anyone who had reasonable grounds to suspect that a child had been

T assaulted or neglected may notify the Director of the Department of Youth and Community Services of

I such a belief. However, subs.(3) mandated certain “prescribed persons” to report (emphasis added): L

I “A prescribed person who, in the course of practising his profession, calling or vocation, or in exercising the functions of his office, as the case may be, has reasonable grounds to suspect that a B child has been assaulted, ill treated or exposed4shall notify the Director.” A

I In default under subs.(4) the “prescribed person” would be guilty of an offence. L Once the Director had been so notified, the reporter enjoyed immunity from liability in defamation and other torts, and immunity from professional disciplinary action. Under subs.(5), once notified, the Director is charged with investigating the notification, and if satisfied that the report has merit he should take appropriate action, “which may include reporting those matters to a constable of police” (emphasis added). In this case the social worker Ms Quinn did report her concerns higher up the chain of command in the Youth & Community Service Department and—on appeal at any rate—she was accepted to have discharged her duty. The question for the appeal was whether the Director (by his more senior officers) should have reported matters to the police. The majority of the appeal court felt that he should have done, that he had failed to do so, and that had he done so further abuse to the plaintiffs would have been avoided: the

1 DC v State of New South Wales [2016] NSWCA 198 at [33] per Basten JA. The 1939 Act has since been repealed in full by the Children (Care & Protection) Act 1987. 2 Section 148B was added into the New South Wales Child Welfare Act 1939 by virtue of the Child Welfare (Amendment) Act 1977. 3 See for example www.mandatenow.org.uk [Accessed 6 October 2016]. HM Government is currently consulting on introducing mandatory reporting of child abuse in this country—Home Office and Department of Education, “Reporting and Acting on Child Abuse and Neglect” (21 July 2016) (consultation closed 13 October 2016). 4 “Exposed” in this context appears to be short-hand for the phrase “exposed to moral danger” which is found elsewhere in the 1939 Act—see s.72(n) which includes this phrase in its definition of a “neglected child”

2016 J.P.I.L., Issue 4 © 2016 Thomson Reuters (Professional) UK Limited and Contributors Case and Comment: Liability C205 involvement of the police would have caused the abusing stepfather to have been arrested and either remanded in custody or bailed with such restrictions placed upon him that he would not have gained access to the children. The court found that as a result the Director was in breach of his common law duty of care. On the same facts would this case have succeeded in English law? The common law in this jurisdiction already imposes a duty on the part of social services to remove a child from his abusive family in order to protect him from harm. This was established in the case of JD v East Berkshire Community Health NHS Trust in 2005,5 and the first case at trial where damages were awarded was Pierce v Doncaster in 2008.6 However on the facts of DC, social services immediately obtained a “place of safety order” and put the children into emergency care as soon as the allegations were made; they then put the case before the family courts at the earliest opportunity. It is unlikely that any claim in this country against social services would have succeeded: once the family courts become involved in making decisions over the welfare and placement of children then this is likely to absolve social services of any further responsibility. Social services would argue that it was the court—not the local authority—which directed the placements post disclosure of the abuse. Indeed, this was very much at the heart of the dissenting judgment in DC: “If … no reasonable departmental officer with appropriate authority could have failed to make such a report [of the step father’s alleged abuse of the plaintiffs to the police], it is surprising that this did not occur to the magistrate at Cobham Children’s Court, who gave extensive consideration to the appropriate orders in the course of a number of hearings … If an independent judicial officer responsible for making orders for the protection of the children and clearly intent on that exercise did not think reporting to the police essential for the purposes of protecting the victims, it reeks of hindsight for a court, 30 years later, to adopt a different view.”7 The writer suspects that the courts here would have much sympathy with that view.

There was evidence in this case that the second plaintiff, TB, felt increasingly distressed in having been Y removed from the family home, felt that she was to blame for breaking up the family and she was becoming T increasingly disruptive in her placement away from her home. The stepfather had (apparently) voluntarily I moved away. Unless it could be shown that the evidence given by members of the social services department L I to the family court was inaccurate to the extent that the court would not have made the decisions as to the children’s welfare that it did, the writer doubts that a civil court here would find for the claimants in such B circumstances. A I Had the family court not been involved—what then? Well it certainly would have been slightly easier L for the claimants, but again on these facts it would be a brave solicitor to take on such a case, as the prospects are so finely balanced. It was not in dispute that the plaintiffs were the victims of abuse at the higher end of the scale. In the plaintiffs’ favour, social services knew or should have known that the stepfather was a danger to the girls—he was a convicted paedophile and at the time of the reports by the claimants he was facing charges of raping his son’s girlfriend aged 15; he later admitted that offence to the social workers in this case. Social services knew or should have known that mum could not protect her children even though she had been aware of the abuse—her inability to stand up to the stepfather was compounded by her failure to deal effectively with her own childhood trauma of abuse. It was foreseeable that the claimants would have been subjected to further abuse had they continued to come into contact with their stepfather after they had reported his abuse of them.

5 JD v East Berkshire Community Health NHS Trust [2005] UKHL 23; [2005] 2 A.C. 373. 6 Pierce v Doncaster MBC [2008] EWCA Civ 1416; [2009] 1 F.L.R. 1189. 7 From the dissenting judgment of Basten JA in DC v State of New South Wales [2016] NSWCA 198 at [127].

That said, the social worker Ms Quinn recollected that she had considered the possibility of referring the matter to the police but she did not feel that the plaintiffs could cope with a criminal investigation—they were both highly traumatised, particularly the plaintiff TB, who was self-harming. In addition, removing the plaintiffs from their family home long-term was draconian and could be seen as “punishing” the girls for complaining. Social services and the court relied on undertakings from mum that she would exclude the stepfather from the family home. It may well be that she was given little support in doing so, and that social services should have had greater concerns about mum’s abilities in that regard. However, the writer can see a court here taking the view that the course of action adopted by the local authority was not such as to make a finding that it had acted in a way which no reasonable local authority of the time would have done.8 The writer can only wonder at the level of damages recovered in this case. If our clients were rewarded for litigating in such figures, then maybe the risks in pursuing such uncertain claims could be justified. In DC it was common ground that the local authority was only responsible for the damage caused by the stepfather’s assaults after the abuse had been reported—a matter of months (not as much as a year), in the context of psychiatric damage caused by prolific and serious abuse which had lasted for eight years prior. The court by its majority accepted that the harm caused post-reporting materially contributed to the plaintiffs’ overall psychiatric condition, and applied a 70% discount to a full award to reflect the damage for which the local authority could be held responsible. After applying that discount, the plaintiffs received awards of AUD 536,463 and AUD 939,435 respectively (not including interest), which represents in sterling, damages of £305,783 and £535,478.9 Claimants in this jurisdiction can only dream of such amounts being awarded in comparable cases here.

Practice points

Y • Whilst mandatory reporting of abuse exists in various forms in other common law

T jurisdictions, including New South Wales, it does not here in England and Wales. The

I Government is currently consulting on the issue.

L • Our common law has recognised a duty on local authorities to protect children from harm I from their own families since 2005, and the first case where such damages were awarded

B was in 2008.

A • If a case was brought in this jurisdiction on the facts of DC, it is unlikely that the courts I would find for the claimants. L • Damages for abuse appear to be so much higher in New South Wales than here and there may be much for claimant lawyers to learn about the approach to compensatory awards in Australia. In particular the courts there seem to approach the application of material contribution to damage and apportionment of damage much more simply.

Jonathan Wheeler

8 In England and Wales this test of the standard of professional negligence is often referred to as the Bolam test, after the decision in Bolam v Friern Hospital Management Committee [1957] 1 WLR 583 QBD. Although Bolam was a clinical negligence case, the test equally applies to cases involving the negligence of social workers. In New South Wales, the test is put on a statutory footing as a “special statutory power” pursuant to s.43A(3) of the Civil Liability Act 2002 (NSW): It was then necessary in the context of DC that the plaintiffs had to establish that the acts or omissions relied on were “in the circumstances so unreasonable that no local authority having the special statutory power in question could properly consider the act or omission to be a reasonable exercise of, or failure to exercise its power”, DC v State of New South Wales [2016] NSWCA 198 at [77]. 9 Exchange rate of AUD 0.57 to £1, as at 6 September 2016.

Warner v Scapa Flow Charters

(OHCS, Lord Boyd of Duncansby, 14 July 2016, [2016] CSOH 101)

Liability—personal injury—fatal accidents—limitations—time bar—Athens Convention 1974—Merchant Shipping Act 1995 Sch.6

Fatal accident claims; Limitation periods; Personal injury; Scotland

Lex Warner chartered the MV Jean Elaine for a one-week diving trip commencing 11 August 2012. On 14 August Mr Warner was killed in a diving accident off Cape Wrath. His widow alleged that her husband’s death was due to the fault and negligence of the defenders who were the owners and operators of the vessel. Mrs Warner claimed that she had not been aware that her husband’s death had been caused by an act or omission attributable to the defenders until the publication of an accident investigation report in December 2013. On 17 April 2013, a claim for damages was intimated on behalf of Mrs Warner and her child and on 14 May 2015, the action had been signetted. The Athens Convention is part of domestic law: Merchant Shipping Act 1995 s.183 and Sch.6. Both parties agreed that it applied to the circumstances of this case. Article 16 deals with time bar for actions. There was a preliminary hearing to decide whether the action had become time barred on 18 August 2014. An action for damages under the Athens Convention must be brought within two years.1 That date is calculated from the date of disembarkation.2 It was agreed that he would have disembarked no later than

18 August 2012. Y

The widow submitted that art.16.3 provided that the law of the court seized of the case ought to govern T the grounds for suspension and interruption of limitation periods. As she had not become aware that I liability was attributable to the defenders until December 2013, and in terms of s.18(2)(b) that was when L I the action had accrued. She also contended that her claim on behalf of her son had been interrupted through B nonage3 in terms of the Prescription and Limitation (Scotland) Act 1973 s.18(3). The defenders submitted that art.16 was a limitation period not a prescription. They also contended that A I the Athens Convention regulated the start dates for the running of the time period and s.18 did not apply L to it. The Lord Ordinary held that commencement of the time period was indeed governed by art.16.2 and not by s.18(2) of the 1973 Act. To hold otherwise would be to invert the rule of statutory construction.4 Section 18(2) set out commencement dates from which the three-year time period ran but did not suspend or interrupt a time period which was already in train.5 Section 18(3) related to the computation of the time period in s.18(2) and could not apply to other standalone provisions in other enactments. In any event, nonage was not a suspension or interruption of a time period already in train, and the action was time barred. The case was dismissed.

1 Athens Convention relating to the Carriage of Passengers and their Luggage by Sea (PAL) 1974 art.16.1. 2 Athens Convention relating to the Carriage of Passengers and their Luggage by Sea (PAL) 1974 art.16.2. 3 The period during which someone is under legal age. 4 Martin (Sean) v HM Advocate [2010] UKSC 10; 2010 S.C. (U.K.S.C.) 40 considered 5 Higham v Stena Sealink Ltd [1996] 1 W.L.R. 1107 CA (Civ Div) considered.

Comment The case of Swift v Fred Olsen Cruise Lines6 above illustrates well the fact that the Athens Convention 19747 has exclusive jurisdiction in actions involving international carriage by sea. The Convention was incorporated into UK law by the Merchant Shipping Act 1995. Both parties here agreed that it applied to the circumstances of this tragic case. The outcome illustrates what that actually means. The Athens Convention of 1974 was designed to consolidate and harmonise two earlier Brussels Conventions dealing with passengers and their luggage and adopted in 1961 and 1967, respectively. The Convention has been in force since 1987. The Convention established a regime of liability for damage suffered by passengers carried on a seagoing vessel. It declared a carrier liable for damage or loss suffered by a passenger if the incident causing the damage occurred in the course of the carriage and was due to the fault or neglect of the carrier. Unless the carrier acted with intent to cause such damage, or recklessly and with knowledge that such damage would probably result, he can limit his liability. More recently the Athens Protocol 2002, together with the Passenger Liability Regulation8 creates a regime of strict liability and limits of liability for the carriage of passengers by sea. The 2002 Protocol to the Athens Convention came into force on 23 April 2014 for ratifying states, which includes the UK. The 2002 Athens Protocol revised and updated the 1974 Convention; it changed the previous fault-based liability regime, to one of strict liability for “any shipping incident”.9 The 2002 Protocol also substantially increases carriers’ limits of liability in respect of such incidents. It is important to know that any action for damages arising out of the death of or personal injury to a passenger “shall be time-barred after a period of two years”. The limitation or time bar period is calculated, in the case of personal injury or death, “from the date of disembarkation of the passenger”. It is worth remembering that the convention and it’s time bar are normally built into cruise holiday terms and conditions. In England and Wales you must issue in the Admiralty Division of the High Court even with Y cruise claims. T

I This case was all about the effect of the time bar. The pursuer argued that there were two good reasons

L to hold that, although issued more than two years after “disembarkation”, it was not time barred. Her

I arguments were largely based on the content of s.18 of the Prescription and Limitation (Scotland) Act 10 B 1973 which covers actions where death has resulted from personal injuries. The relevant subsections

A state: I “(1) This section applies to any action in which, following the death of any person from personal L injuries, damages are claimed in respect of the injuries or the death. (2) Subject to subsections (3) and (4) below and section 19A of this Act, no action to which this section applies shall be brought unless it is commenced within a period of 3 years after— (a) the date of death of the deceased; or (b) the date (if later than the date of death) on which the pursuer in the action became, or on which, in the opinion of the court, it would have been reasonably practicable for him in all the circumstances to become, aware of both of the following facts— (i) that the injuries of the deceased were attributable in whole or in part to an act or omission; and

6 Swift v Fred Olsen Cruise Lines [2016] EWCA Civ 785. 7 Athens Convention relating to the Carriage of Passengers and their Luggage by Sea (PAL) 1974 art.3.1 “The carrier shall be liable for the damage suffered as a result of the … personal injury to a passenger … if the incident which caused the damage so suffered occurred in the course of the carriage and was due to the fault or neglect of the carrier or of his servants or agents acting within the scope of their employment.” 8 Regulation 392/2009 on the liability of carriers of passengers by sea in the event of accidents [2009] OJ L131/24. This EU Regulation implements the key provisions of the Athens Convention 1974 as amended by the 2002 Protocol and 2006 IMO Reservation and Guidelines. 9 “Shipping incidents” are defined as: shipwreck, capsize, collision, allusion, stranding of the ship, explosion, fire or any similar defect of the ship. 10 This version has been in force from 7 July 2011 to the present.

(ii) that the defender was a person to whose act or omission the injuries were attributable in whole or in part or the employer or principal of such a person. (3) Where the pursuer is a relative of the deceased, there shall be disregarded in the computation of the period specified in subsection (2) above any time during which the relative was under legal disability by reason of nonage or unsoundness of mind.” In effect she was arguing that the law of Scotland applied to the claim and was not overridden by the Convention rules, in particular it’s two-year time bar. There is no doubt that the wording of s.18, if it applied, supported her case. However it is not that simple. The Convention has exclusive jurisdiction over relevant accidents. It is settled law that the domestic courts should follow international interpretation of Conventions. This was acknowledged many years ago by Lord Denning in Corocraft v Pan American Airways Ltd.11 There are many other cases confirming this. In addition exclusivity comes into play. In the context of the Warsaw Convention this was examined in Sidhu v British Airways,12 where Lord Hope of Craighead said:13 “[The Convention] was designed … to define those situations in which compensation was to be available … A balance was struck in the interests of certainty and uniformity. … The domestic courts are not free to provide a remedy according to their own law, because to do this would be to undermine the Convention. It would lead to the setting alongside the Convention of an entirely different set of rules which would distort the operation of the whole scheme. … I see no escape from the conclusion that, where the Convention has not provided a remedy, no remedy is available.” This approach was followed in Higham v Stena Sealink Ltd14 in which the plaintiff had suffered personal injuries while on board the defendant’s ferry. She disembarked later on the same day. More than two years Y later she issued proceedings claiming damages for negligence and/or breach of statutory duty against the T

defendant. The defendant applied for an order striking out the claim on the basis that the proceedings were I

issued outside the time limit laid down in art.16 of the Convention. L

The Court of Appeal held that the Limitation Act 1980 s.39 did not operate to exclude the application I of that Act to the Athens Convention. As far as s.33 was concerned, although it gave the court a discretion B

to wholly exclude a period which had already expired, it could not be construed as governing “grounds A of suspension and interruption” within art.16(3) of the Convention. In addition, the Court of Appeal held I that it was not possible to substitute in s.33(1), which specifically referred to sections of the 1980 Act to L exclude the time bar from the Convention. In other words, they confirmed that local limitation law is trumped by the Convention. In the context of this case the outcome was always bound to be the same.

Practice points In cases where the Athens Convention applies: • In the case of personal injury the limitation period is two years. • For personal injury, the limitation period starts from the date of the passenger’s disembarkation.

11 Corocraft v Pan American Airways Inc [1969] 1 Q.B. 616 CA (Civ Div). 12 Sidhu v British Airways Plc [1997] A.C. 430 HL. 13 Sidhu v British Airways Plc [1997] A.C. 430 HL at 453–454. 14 Higham v Stena Sealink Ltd [1996] 1 W.L.R. 1107 CA (Civ Div).

• In the case of death occurring during carriage, the limitation period starts from the date on which the passenger should have disembarked. • In the case of personal injury occurring during carriage and resulting in the death of the passenger after disembarkation, the limitation period starts from the date of death, provided that the period does not exceed three years from the date of disembarkation. • The date on which the pursuer/claimant had knowledge that the injuries were attributable in whole or in part to an act or omission does not assist and the two-year limitation period still applies. • The fact that the pursuer/claimant is an infant and/or lacks capacity does not impact and the two-year limitation period still applies.

Nigel Tomkins Y T I L I B A I L

Moreno v Motor Insurers’ Bureau

(SC, Lord Mance JSC, Lord Clarke JSC, Lord Sumption JSC, Lord Toulson JSC, Lord Hodge JSC, 3 August 2016, [2016] UKSC 52)

Damages—personal injury—road traffic accidents—compensation—measure of damages—uninsured drivers—Motor Insurers’ Bureau—conflict of laws—applicable law—Motor Vehicles (Compulsory Insurance) (Information Centre and Compensation Body) Regulations 2003 reg.13 and reg.13(2)(b)— Directive 2000/26 relating to insurance against civil liability in respect of the use of motor vehicles, and the enforcement of the obligation to insure against such liability art.7

Applicable law; Compensation; EU law; Greece; Measure of damages; Motor Insurers' Bureau; Personal injury; Road traffic accidents

On 17 May 2011 the claimant Tiffany Moreno, who was then aged 25, and who lives in England and Wales, was on holiday on the island of Zakynthos in Greece. She was on the verge of a road on that island when a car left the road and struck her. She suffered grievous injury to her legs including amputation of her right leg. The car in question was registered in Greece. The claimant’s solicitors wrote to the Motor Insurers’ Bureau (“MIB”) to obtain insurer details for the vehicle. Upon enquiry, its Greek equivalent considered that the vehicle was uninsured, and that the driver (who was of Albanian extraction and perhaps nationality) was responsible for the accident The claimant has made a claim against the MIB under reg.13(2) of the Motor Vehicles (Compulsory Insurance) (Information Centre and Compensation Body Regulations) 2003 (SI 2003/37) (“2003 Regulations”). The defence admitted that the driver was liable under the law of Greece for the accident. It was admitted that, under the law of Greece, the Greek Guarantee Fund for the purposes of the relevant EU Motor Insurance Directives (the Greek “MIB”) would be liable to compensate the claimant. Liability /

was therefore admitted under reg.13. However it was contended that the measure of compensation payable S

should be assessed in accordance with the law of Greece. The level of damages available to a claimant M E

for personal injuries would be higher if assessed according to the laws applying in England and Wales U than in Greece. G T

Judgment was entered for the claimant by consent on 9 July 2014, and, without prejudice to the MIB’s A N arguments on the applicable law, an interim payment made under CPR r.25. The court was required to M determine a preliminary issue in relation to the applicable law for the assessment of compensation payable A A by the defendant MIB to the claimant following a road traffic accident in Greece. U In a reg.13 claim1 the law by which the assessment of compensation was to be made was England and Q D Wales, the state where the court dealing with the claim was situated.2 The Court of Appeal in Jacobs v Motor Insurers’ Bureau3 addressed the effect of the coming into force of Rome II4 on that issue. It stated

1 Regulation 13 applies where a person from the UK has suffered an injury in another EU state at the hands of a culpable but uninsured or unidentified driver, but was claiming in Great Britain. 2 Jacobs v Motor Insurers’ Bureau [2010] EWCA Civ 1208; [2011] 1 W.L.R. 2609 followed 3 Jacobs v Motor Insurers’ Bureau [2010] EWCA Civ 1208; [2011] 1 W.L.R. 2609 considered. 4 Regulation 864/2007 on the law applicable to non-contractual obligations (Rome II) [2007] OJ L199/40.

that the law applying to the existence of tortious liability had, since Rome II, been the law of the country where the injury was caused, but that the law by which the court assessed compensation remained English law. That approach had also been subsequently Bloy v Motor Insurers’ Bureau.5 The court was bound by Jacobs and Bloy on the interpretation of the Regulations. The court concluded that the effect of regs 13 and 16 of the 2003 Regulations was to create a cause of action enforceable as a civil debt, in which the compensation would be assessed on the basis of English law. The preliminary issue was determined in favour of claimant.6 The MIB appealed to the Supreme Court who held that in construing the 2003 Regulations, the starting point was that they should, so far as possible, be interpreted in a sense which was not in any way inconsistent with the Directives which they were intended to implement. There was no suggestion in the 2003 Regulations or the explanatory note or elsewhere of any intention on the part of the domestic legislator to do anything other than faithfully implement and give effect to those Directives. On that basis, two questions were central to the appeal. The first was whether the Directives prescribed any particular approach to the scope or measure of recovery applicable in a claim against a compensation body under Directive 2000/26 art.7. The second was whether, if they did, the language of reg.13(2)(b) of the 2003 Regulations reflected that approach or mandated some different approach. The Supreme Court held that the scheme of the Directives was clear. They did not leave it to individual Member States to provide for compensation in accordance with any law that such states might choose. On the contrary, they proceeded on the basis that a victim’s entitlement to compensation would be measured on a consistent basis, by reference to the law of the state of the accident, whichever of the routes to recovery provided by the Directives he or she invoked. In addition, they concluded that the language of reg.13(2)(b) of the 2003 Regulations reflected that approach and did not mandate a different approach.7 Accordingly, the scope of the MIB’s liability to Tiffany Moreno was to be determined in accordance with the law of Greece. The appeal was allowed.

Comment The preliminary issue which was the subject of this appeal was whether the scope of her claim to damages was to be determined in accordance with English or Greek law. In very simple terms this appeal reflected the then position that if the defendant had been insured it was clear that Rome II applied and it would be Greek law that would apply to the assessment of the damages being the country where the accident occurred. However here where there was no insurance the claimant would receive the damages of their / S country. This was the position as a result of reg.13 of the 2003 Regulations. M E There has been a series of EU Directives relating to motor law dating back to 1972, the last of which 8 U was the codifying Sixth Directive of 16 September 2009. These Directives are largely incorporated into G

T the law of England and Wales by the 2003 Regulations. The 2003 Regulations were enacted prior to the A

N codifying Sixth Directive and therefore refer to the earlier Directives. The Directives and Regulations M

A state that they are to ensure that compensation is available for victims of motor accidents occurring A

U anywhere in the EU and to enable the recovery of it. Under reg.13 of the 2003 Regulations an injured party who resides in the UK may make a claim for Q D compensation from a compensation body (such as the MIB) where an accident, caused by the use of a vehicle which is normally based in an European Economic Area (“EEA”) state:

5 Bloy v Motor Insurers’ Bureau [2013] EWCA Civ 1543; [2014] Lloyd’s Rep. I.R. 75 followed 6 Moreno v Motor Insurers’ Bureau [2015] EWHC 1002 (QB); [2015] Lloyd’s Rep. I.R. 535. 7 Jacobs v Motor Insurers’ Bureau [2010] EWCA Civ 1208; [2011] 1 W.L.R. 2609 and Bloy v Motor Insurers’ Bureau [2013] EWCA Civ 1543; [2014] Lloyd’s Rep. I.R. 75 overruled. 8 Directive 2009/103 relating to insurance against civil liability in respect of the use of motor vehicles, and the enforcement of the obligation to insure against such liability [2009] OJ L263/11.

• occurs in an EEA state other than the UK; • the injured party has made a request for information in accordance with the 2003 Regulations; and • it has proved impossible to identify an insurance undertaking which insures the use of the vehicle within two months of the request for information. Regulation 13(2) of the 2003 Regulations states that the MIB shall compensate the injured party as if the accident had occurred in Great Britain. However, Rome II had changed the law of EU countries, including of course the UK, such that “compensation shall be awarded, in accordance with the law of the country in which the damage occurs, irrespective of where it is being assessed or the injury suffered”. In 2010 the Court of Appeal gave its decision in Jacobs9 holding that victims who are resident in Great Britain and were injured by uninsured motorists in other EU and EEA states were to be awarded damages by the MIB assessed by reference to English law and not by the law of the place where the accident occurred. Moore-Bick LJ in Jacobs had said: “The scheme [of arts 6 and 7 of the Fourth Directive] appears to proceed on the assumption that the existence of the driver’s liability and the determination of the amount of compensation payable to the injured party will be governed by the same principles at all stages of the process, but the Fourth Directive does not go so far as to provide that such questions are to be determined by reference to the law of the country in which the accident occurred.”10 He said there was no universal rule governing the question what law should govern liability and damages in tort, and so:11 “issues of liability and heads of recoverable damages were normally determined by reference to the law of the place where the accident occurred, but the assessment of damages was determined by English law as the lex fori, as subsequently confirmed by the decision of the House of Lords in Harding v Wealands.”12 He did recognise that this interpretation did mean that one victim could recover from the compensation body in their country more than they might have done from the tortfeasor driver or their insurer. However, “this anomaly, such as it is, provides sufficient grounds” for giving a domestic regulation “a meaning it does not naturally bear”.13 Obviously this interpretation was questionable however attractive that may be to victims of such accidents / and indeed the Supreme Court granted the MIB permission to appeal. However, before this appeal was S M heard the Court of Justice of the European Union (“CJEU”) gave judgment in a subsequent case dealing E 14 with the date on which Rome II came into force, Homawoo v GMF Assurances SA. The court there held U G

that Rome II applies to determine the governing law of non-contractual obligations only where the events T A

giving rise to damage occurred after 11 January 2009. Consequently, it did not apply in the Jacobs case N

and the MIB’s appeal in that case was abandoned. As mentioned in the summary above the Court of M A Appeal repeated this view in Bloy.15 A U Q D

9 Jacobs v Motor Insurers’ Bureau [2010] EWCA Civ 1208; [2011] 1 W.L.R. 2609. 10 Jacobs v Motor Insurers’ Bureau [2010] EWCA Civ 1208; [2011] 1 W.L.R. 2609 at [21]. 11 Jacobs v Motor Insurers’ Bureau [2010] EWCA Civ 1208; [2011] 1 W.L.R. 2609 at [22]. 12 Harding v Wealands [2006] UKHL 32; [2007] 2 A.C. 1. 13 Jacobs v Motor Insurers’ Bureau [2010] EWCA Civ 1208; [2011] 1 W.L.R. 2609 at [30]. 14 Homawoo v GMF Assurances SA (C-412/10) [2011] E.C.R. I-11603; [2012] I.L. Pr. 2. 15 Bloy v Motor Insurers’ Bureau [2013] EWCA Civ 1543; [2014] Lloyd’s Rep. I.R. 75.

Unsurprisingly in Moreno the judge felt bound by Court of Appeal jurisprudence to hold that English law was applicable, but granting a leapfrog appeal certificate to the Supreme Court where permission to appeal was subsequently granted. Lord Mance gave the lead judgment, with which the other justices agreed. It found that the directives proceeded on the basis that a victim’s compensation was to be measured on a consistent basis, by reference to the law of the state where the accident occurred. Lord Mance considered that EU law was clear on this issue and for example the 2003 Regulations were consistent with those Directives. The reference in reg.12(2)(b) to recovery “under the laws applying in the part of the United Kingdom in which the injured party resided at the date of the accident” was to determine which of the UK’s three legal systems should apply. It did not refer to how the sums were calculated. The court considered the Fourth Directive16 took this along in particular by giving victims of foreign motor accidents various avenues to a remedy in their home states of residence. Article 1(1) stated that: “The objective of this Directive is to lay down special provisions applicable to injured parties entitled to compensation in respect of any loss or injury resulting from accidents occurring in a member state other than the member state of residence of the injured party which are caused by the use of vehicles insured and normally based in a member state.” “Injured party” was by art.2(d) defined as stated in art.1(2) of the First Directive, that is as “any person entitled to compensation in respect of any loss or injury caused by vehicles”, a definition repeated in art.1(2) of the Sixth Directive. The special provisions included the following: • A provision that injured parties should enjoy a direct right of action against the insurer covering the responsible person against civil liability—art.3 (now art.18 of the Sixth Directive). • A requirement on member states to ensure that motor liability insurers “appoint a claims representative in each member state” other than that in which they received their authorisation, to be responsible for handling and settling accident claims—art.4 (now art.21(1) of the Sixth Directive). • A requirement that each member state establish or approve an information centre responsible for keeping a register containing information including the registration numbers of vehicles normally based in that state, the numbers of the insurance policy covering their use and their expiry date, if past—art.5(1) (now art.23(1) of the Sixth Directive). • A requirement that each member state “establish or approve a compensation body responsible /

S for providing compensation to injured parties in the cases referred to in article 1”—art.6(1) M

E (now art.24(1) of the Sixth Directive), coupled with a provision entitling such injured parties

U to present a claim to the compensation body in their member state of residence if within G

T three months the insurer or its claims representative has not provided a reasoned reply to A

N their claim, or the insurer has not appointed a claims representative in the injured party’s

M state of residence (unless the injured party has taken legal action directly against the insurer). A • A provision entitling an injured party to apply for compensation to the compensation body A U in the Member State if “it is impossible to identify the vehicle or if, within two months Q D following the accident, it is impossible to identify the insurance undertaking”—art.7 (now art.25(1) of the Sixth Directive). Article 7 goes on to provide that “The compensation shall be provided in accordance with the provisions of article 1” of the Second Directive (as to which see para.7 above). Article 25(1) says that it will be provided “in accordance with the provisions of articles 9 and 10” of the Sixth Directive, which relate respectively to the

16 Directive 2000/26 on the approximation of the laws of the Member States relating to insurance against civil liability in respect of the use of motor vehicles and amending Directives 73/239 and 88/357 (Fourth motor insurance Directive) [2000] OJ L181/65.

requirements on Member States to ensure compulsory insurance in minimum amounts and to set up or authorise a compensation body to cover property damage or personal injuries caused by an unidentified or uninsured vehicle (see para.7 above). Articles 6 and 7 of the Fourth Directive had been incorporated into the domestic law by the 2003 Regulations using s.2(2) of the European Communities Act 1972. The explanatory note to this states simply that “These Regulations give effect to articles 5, 6 and 7 of the Fourth Motor Insurance Directive”. Thus the court considered that there was no indication anywhere that it was intended to do anything other than implement the UK’s obligations imposed by the Directives. In direct contrast to Moore-Bick LJ and his brethren’s combined views below he said: “The inference is that, to whichever special provision of the Fourth Directive the victim of a motor accident may have to have recourse, the compensation to which he or she is entitled is and remains the same. It is the same compensation as that to which the victim is entitled as against the driver responsible, or his or her insurer, or, that failing, as against the guarantee fund of the state of the accident. The compensation remains the same if and when the victim has recourse instead to the compensation body established in his own state of residence under article 6 or 7. … I conclude, in these circumstances, that the scheme of the Directives is clear, and that they do not leave it to individual member states to provide for compensation in accordance with any law that such states may choose. On the contrary, they proceed on the basis that a victim’s entitlement to compensation will be measured on a consistent basis, by reference to the law of the state of the accident, whichever of the routes to recovery provided by the Directives he or she invokes. In consequence, it also makes no difference to the measure of liability of the body or person ultimately responsible, which route is chosen. Since the position as a matter of European Union law is in all these respects clear, there is no need to contemplate a reference to the Court of Justice.”17 Thus we have a consistent picture now, albeit that for most UK citizens this may result in lower compensation; but that has been the effect of Rome II for insured victims. Of course the country’s decision to indicate its marginal preference to leave the EU means that we may only have this for two to three years. After Brexit it is presumed that the common law will overtake the redundant Rome II and Harding v Wealands will become the law again and reversing the position on compensation. Maybe the best effect of Brexit? / Practice points S M • In foreign accidents identify the insurer promptly through the MIB database. E U • In the absence of an insurer, register the claim with the MIB. G T

• Take the advice of a competent lawyer from the jurisdiction where the accident occurred, A with particular emphasis on limitation and quantum. N M A A Mark Harvey U Q D

17 Moreno v Motor Insurers’ Bureau [2015] EWHC 1002 (QB); [2015] Lloyd’s Rep. I.R. 535 at [31] and [39].

Pawar v JSD Haulage Ltd

(CA (Civ Div), Sharp LJ, Hamblen LJ, Thirlwall J, 22 June 2016, [2016] EWCA Civ 551)

Damages—personal injury—accidents at work—failure to mitigate—loss of amenity—loss of earnings— loss of services—pain and suffering

Accidents at work; Loss of earnings; Loss of services; Measure of damages; Neck; Pain and suffering; Personal injury

This claim arose out of an accident at work. Gurtej Pawar was an HGV driver. He was driving a tipper lorry when the hydraulic ramp collapsed. The resulting impact forced him upwards at speed and his head collided with the roof of his cab causing serious vertical compression injuries to his neck. The recorder awarded the following damages: • pain, suffering and loss of amenity—£19,100; • past loss of earnings—£54,300; • past care (agreed)—£1,817.10; • prescriptions (agreed)—£25; and • travel (agreed)—£50. The recorder made no award for any future losses. After deduction of an interim payment and compensation recovery unit benefits she gave judgment in the sum of £72,417.14. Pawar appealed, submitting that: • the award of damages for pain, suffering and loss of amenity was far too low; • there was no award for past or future loss of services when both were recoverable; • the award for past loss of earnings was too low; • there was no award for future loss of earnings when they were recoverable; and • there was no award for the cost of future therapy when that too was recoverable. When dealing with pain, suffering and loss of amenity the recorder concluded that the injuries came 1

/ within Ch.7 of the Judicial College Guidelines, s.A, Neck Injuries, category (b) moderate, subpara.(i), S which was the highest section of the category. The range of damages within that bracket was M E £18,350–£28,300. The lower category, (ii), included “injuries which had accelerated a pre-existing condition U

G … usually by five years or more.” T

A The court noted that category (i) made no reference to acceleration of symptoms. The focus was on N injuries sustained by a previously uninjured person. In placing the claimant’s case in (b)(i) they held that M A the recorder took account of the serious nature of the injuries but was bound to place it at the lower end A U of the bracket given pre-existing degenerative changes in his neck.

Q D Turning to loss of services, they noted that neither a claim for past loss of services or future loss of services was made when the proceedings began. The claimant later said that he was unable to do as much as he used to and estimated that the award should be between £600 and £700 per year. The recorder did not accept that figure. The court confirmed that even where the sum sought was modest and the claim conventional, the burden of proof remained on the claimant. It was not discharged in this case.

1 Judicial College, Guidelines for the Assessment of General Damages in Personal Injury Cases, 13th edn (Oxford: Oxford University Press, 2015).

On the issue of past loss of earnings, the recorder had initially assessed past loss of earnings at £56,300 to which she added £2,000 which she thought was payable. However, she had misunderstood the defendant’s submissions about compensation awarded by the employment tribunal for loss of earnings and when that was explained to her again she deducted the £2,000. In effect, she made a mistake and corrected it. The recorder found that the claimant had done nothing to mitigate his loss. That was a finding she was entitled to make in light of the agreed medical evidence. That meant that the claimant was not entitled to recover in damages sums which he would have earned had he mitigated his loss. They held that it was reasonable to allow a period of eight months for the claimant to have found work. Therefore, he was entitled to recover damages of £11,700 for his loss of earnings for the period from March 2013 to November 2013 at the rate of £15,600 per annum. Thereafter he could have secured employment at the minimum wage, £12,000 per annum and so his recoverable loss from December 2013 to trial was six months’ earnings at the annual rate of £3,600 to trial, namely £1,800. The fourth item was future loss of earnings. The recorder had concluded that the claim for loss of earnings from trial to March 2017 was extinguished because of the claimant’s failure to mitigate. The Court of Appeal held that she was wrong to do so and it had not been open to her to conclude that the claimant would have earned more in sedentary work than as an HGV driver. That he would have started at the minimum wage was agreed. In those circumstances, the loss was the difference between his pre-accident earnings and the minimum wage, namely £3,600 per annum. Adopting a multiplier of three, the correct award for loss of earnings to March 2017 was £10,800. The position beyond March 2017 was much more uncertain. The experts agreed that from that date the claimant would not have been able to work as a HGV driver in any event. They also said that his continuing symptoms were more severe than they would have been had the accident not occurred. There was no evidence of, or thought given to, whether and to what extent that meant that there was a residual and enduring loss of earning capacity attributable to the accident over and above the loss attributable to his pre-existing condition. In those circumstances the court held that it would not be right for the court to try and assess it. In the absence of any evidence, assessment would be entirely speculative. The recorder was right to make no award for that period. As for therapy, there was no evidence that private physiotherapy had been obtained in the past or that it would be of any use in future. None had been prescribed. It was dismissed as a hopeless claim.

Comment This case is an extremely good example of why it is necessary to prove your case. It is clear that had the / claimant produced more evidence to support the various heads of loss, he would have recovered more by S M way of damages. Perhaps the irony of it is that there was an effort to introduce fresh evidence before the E hearing. The Court of Appeal considered this new evidence but rejected its introduction. U G T A

Pain, suffering and loss of amenity N M There was an appeal against the award of damages for this. The appellant (claimant) relied on the evidence A A of Stewart Tucker, a consultant spinal surgeon. The claimant may have done better had they adduced U evidence regarding the injuries from witnesses who would be able to say that they had seen the claimant Q D struggle in various ways as a result of the injuries.

Past loss of earnings Part of the argument here was there should have been award to take into account pay rises and loss of overtime. However, the Court of Appeal commented that “the evidence on this issue was unclear and

there is no basis for interfering with that decision”.2 Again, an example of where a lack of evidence cost the claimant in terms of securing an increase in his past loss of earnings claim.

Mitigation of loss An important point to note, and is made by the Court of Appeal, is that the fact that the claimant does not mitigate his/her loss does not mean automatically that they recover nothing. It means that the claimant is not entitled to recovering damages sums that they would have earned had they mitigated their loss. The burden of proof in respect of this is always on the defendant. However, the defendants argue that on the basis of a joint statement from the doctors, there was a certain point when account should be taken that the claimant would have secured employment at the minimum wage. On the basis of the reported decision, there is actually no evidence as to how the defendants arrived at the £12,000 per annum based on the minimum wage. There was no argument that the claimant could only do part-time work, or indeed any discussion as to where such work was available for him to secure. These aspects really should have been investigated as the claimant may have been able to have demonstrated that it would have been a little while before he would have secured any type of employment even if you were on the open labour market.

Future loss of earnings In respect of the claimants, in March 2017 there was an argument as to the level of earnings that the plaintiff could have achieved. The defendant argued that the claimant could have obtained better paid work. However, they adduced no evidence in order to support this. It was a matter of speculation as to the type of work that the claimant could have achieved in any event. The court worked on the basis that he had not mitigated his loss but would take into account a claim on the basis of the minimum wage. Again, it has to be said that there was no evidence adduced as to the difficulty, or otherwise, of securing employment at that sort of level with the type of injury that the claimant had.

Loss of earning capacity beyond March 2017 From this day it was accepted that the claimant could not work as an HGV driver, his pre-accident job. As the Court of Appeal said, there was no evidence of, or thought given to, whether, and to what extent, this meant that there was a residual and enduring loss of earning capacity attributable to the accident over

/ and above the loss attributable to his pre-existing condition. The Court of Appeal did not want to assess S it. The Court of Appeal went on “In the absence of any evidence, assessment would be entirely speculative”.3 M E Accordingly, no award was made. U G T

A Past loss of services N M

A Neither of the heads for past loss of services and future loss of services were claimed when proceedings A

U began and, in any event, no evidence was given in support of the figures before the court. As a result, the court was prepared to make no award and made the comment that this was a two-person household. On Q D appeal, the decision at first instance was upheld. The Court of Appeal said:4 “Even where the sum sought is modest and the claim conventional the burden of proof remains on the claimant. It was not discharged in this case.”

2 Pawar v JSD Haulage Ltd [2016] EWCA Civ 551 at [25]. 3 Pawar v JSD Haulage Ltd [2016] EWCA Civ 551 at [32]. 4 Pawar v JSD Haulage Ltd [2016] EWCA Civ 551 at [35].

Practice points • As is abundantly clear from these comments, it is essential for claimants to prove their case in respect of any aspect advanced. • Evidence is needed whether documentary, witness, or expert, (sometimes a combination of all three) in order to establish any head of loss.

Colin Ettinger

XP v Compensa Towarzystwo SA1

(QBD, Whipple J, 13 July 2016, [2016] EWHC 1728 (QB))

Personal injury—damages—road traffic accidents—miscarriage—causation—successive causes—in vitro fertilisation—future loss—loss of earnings—measure of damages—PTSD

Apportionment; Loss of earnings; Measure of damages; Miscarriage; Personal injury; Road traffic accidents; Special damages

The claimant was a 40-year-old Polish national who had moved to the UK as a student in 2000. She found work immediately when she finished her studies and steadily progressed with each job. In 2009 she began working as a civil servant. In January 2011 she became pregnant. Her relationship with the baby’s father had broken down but she wanted a child and welcomed the pregnancy. In April 2011 she suffered the first car accident, which caused a particularly traumatic miscarriage. She developed post-traumatic stress disorder (“PTSD”) and struggled to cope around pregnant women and mothers with children when she returned to work. She resigned in March 2012 but could not find alternative work and became isolated and depressed. She launched an online company selling jewellery and moved house for a fresh start, but on the moving day in March 2013 she experienced the second car accident, which exacerbated her PTSD. By 2015 her PTSD had given way to depression. Her company failed and she could not find a permanent job. She wanted a baby but had had no relationship since 2011 and was anxious to attempt fertility treatment. /

Having assessed the general damages for pain, suffering and loss of amenity regarding each accident, the S

judge considered the disputes relating to special damages. M E

There were three issues: U G

1) the quantum for past loss of earnings and how it should be apportioned between the T A

defendants—the second defendant argued that it was not liable at all as the claimant would N M have been unemployed anyway owing to the first accident; A A 2) the first defendant’s liability as to fertility treatment—the first defendant argued that the U

claimant remained fertile and her problem was her lack of partner, not the first accident; Q D and 3) the quantum of loss of future earnings, for which the first defendant was liable. Whipple J called the claimant’s work record up to April 2011 “impressively industrious”. She held that but for the first accident, the claimant would have remained in gainful employment, either in her civil

1 First defendant, Compensa Towarzystwo SA; second defendant, Mr Przeyslaw Bejger.

service job or with an equivalent employer. Faced with being a single mother, it was probable that she would have returned to her secure, family-friendly civil service employment rather than set up her own business. On that basis, her loss of earnings up to the trial totalled £84,106. As to apportionment the judge concluded that it could not be said that the second accident had made no difference or that the claimant would have been unemployed regardless. It was not possible to separate neatly the effects of the first and second accidents. It could only be said that their combined effect had led to the claimant being unemployed for a further two years. The just conclusion was that the two tortfeasors should share the losses. A broad brush approach was adopted and translated into percentages that reflected the causative potency of each accident.2 Consequently, 75% of the past loss of earnings was attributable to the first defendant and 25% to the second defendant. Whipple J found the claim for fertility treatment was, at its most basic, to enable the claimant to be put back in the position in which she should have been in 2011, by having a baby. It was consequent on the loss of the baby by miscarriage, which was a physical injury. Properly characterised, the claim was a normal consequence of that physical injury: the claimant sought to restore what was lost in the first accident. Her fertility was reducing with time and age and she could not afford to wait for a partner. That was a genuine reason for seeking treatment. The first defendant could not rely on her inability to find a new partner where she was psychiatrically unwell, struggling financially and socially isolated. The judge held those were all good reasons for her inability, and all had resulted directly from the first accident. Therefore, she was awarded the costs of three cycles of fertility treatment. Whipple J accepted that the claimant would clearly suffer loss of earnings in the future. She would not be available for work while undergoing fertility treatment, she was likely to have periods of recurrence of her depression, which was likely to lead to periods of unemployment, and her history suggested that she was likely to take longer to find work even when fit. Further, her career had been set back and she would not get back to her old earning capacity. There was an ongoing, lifelong shortfall compared with her earnings but for the first accident. In all, the appropriate award, against the first defendant, was assessed at £150,000. The total damages to be paid by the first defendant amounted to £447,380. The claimant did not claim any future losses against the second defendant Mr Bejger. The judge agreed that the second accident was not responsible for any of her ongoing losses. His liability to the claimant amounted to £25,080.

Comment /

S Introduction M E Like many judgments dealing with quantum this decision deals with a number of fact sensitive issues but U

G also highlights some matters of general principle, from which useful practice points can be derived.

T The ground covered by this judgment includes: dealing with issues of foreign law; assessing damages A

N for future loss of earnings; apportionment between defendants where there is a degree of overlap in the M A damage caused to the claimant; and some useful insights into potential heads of claim (even though some A U of these are very specific to the facts of the case).

Q D It is worth considering these topics in turn.

Foreign law The rules of private international law mean the domestic courts do, from time to time, have to apply the law of another jurisdiction when determining issues between parties. Following the introduction of “Rome

2 Rahman v Arearose Ltd [2001] Q.B. 351 CA (Civ Div) applied.

II”,3 courts in the UK have more frequently had to apply foreign law when assessing damages in personal injury claims. When considering applicable foreign law on quantum the domestic court as is likely to need expert evidence, to assist in determining how that law should be applied to the facts found. The judgment is a useful reminder of the guidance given, by the Court of Appeal, to dealing with issues of foreign law in Bumper Development Corporation v Commissioner of Police of the Metropolis4 where Purchas LJ said:5 “It is trite law that foreign law in our courts is treated as a question of fact which must be provided in evidence. In the absence of any evidence to the contrary, it is to be assumed to be the same as English law. It is however the duty of the judge when faced with conflicting evidence from witnesses about a foreign law to resolve those differences in the same way as he must in the case of other conflicting evidence as to facts.” Purchas LJ went on to approve an extract from Dicey & Morris6 confirming some general principles relating to foreign law, namely:7 “(1) In any case to which foreign law applies, that law must be pleaded and proved as a fact to the satisfaction of the judge by expert evidence or sometimes certain other means. (2) In the absence of satisfactory evidence of foreign law, the court will apply English law to such a case.” The judge, in this case, had to decide which expert evidence should be preferred and hence the proper approach to Polish law. The judge was more ready to accept the views of the claimant’s expert partly because she had over 20 years’ experience of bringing personal injury claims in the Polish courts whilst the corresponding expert was an academic lawyer less familiar with the practicalities of professional life. This is a reminder of the need, when selecting an expert on foreign law, that the most suitable expert is likely to be someone with the knowledge of how, on a practical level, relevant foreign law should be applied. The approach in this case, in that sense, very much reflects the view taken of expert evidence on foreign law in Japp v Virgin Holidays Ltd.8

Future loss of earnings When assessing damages for future loss of earnings there are often uncertainties. There are also a number of different ways which may form the basis for assessing the loss of future earnings. The judge found that, statistically, the majority of lone mothers return to work, hence it was likely the / claimant in this case would continue working in the event she had a child, and also rejected an argument S M the claimant was likely to have “sat back and lived off benefits”, on the basis such a lifestyle was not E attractive to those who had other choices. U G

Both findings, though specific to this particular claimant, might well be of wider application in a number T A of cases and reflect the need to have regard, though perhaps in the context of statistics, to the character N M and aptitude of the individual claimant. A A

This was one of those cases where the judge concluded, so far as the claim for future loss of earnings U was concerned, that there was too much uncertainty about the claimant’s plans to adopt a Q D multiplier/multiplicand approach. Consequently, the claimant was awarded a lump sum of £150,000 which the judge noted reflected loss of earnings over three to four years.

3 Regulation 864/2007 on the law applicable to non-contractual obligations (Rome II) [2007] OJ L199/40. 4 Bumper Development Corp v Commissioner of Police of the Metropolis [1991] 1 W.L.R. 1362 CA (Civ Div). 5 Bumper Development Corp v Commissioner of Police of the Metropolis [1991] 1 W.L.R. 1362 CA (Civ Div) at 1368. 6 Dicey, Morris & Collins on the Conflict of Laws, edited by Lord Collins of Mapesbury et al., 11th edn (London, Sweet & Maxwell, 2012). 7 Bumper Development Corp v Commissioner of Police of the Metropolis [1991] 1 W.L.R. 1362 CA (Civ Div) at 1369. 8 Japp v Virgin Holidays Ltd [2013] EWCA Civ 1371; [2014] P.I.Q.R. P8.

If the claimant has a continuing loss of earnings a multiplier/multiplicand approach will, however, usually be appropriate.9 Furthermore, if the injuries mean that the claimant is now “disabled” the court may well approach the calculation on the basis of the methodology set out in the Ogden tables. Where it is not appropriate to approach future loss of earnings in that way the award in this case is a further indication, following cases such as Billett v Ministry of Defence10 and Murphy v Ministry of Defence11 and whether on the basis of Blamire v South Cumbria HA12 or Smith v Manchester Corp,13 a claimant who had suffered injuries which have ongoing consequences in the employment context is likely to get a lump sum award reflecting loss of earnings over at least two years and perhaps up to four or five years.

Apportionment The judgment and the factual background underpinning that judgment, is a reminder of the legal complexities that arise when damage suffered by the claimant has been caused by more than one tortfeasor. If the claimant has suffered divisible damage, each caused by a separate tortfeasor, matters are relatively straightforward: each tortfeasor is liable only for the damage that tortfeasor has caused. In most personal injury claims, however, the damage suffered is wholly, or at least partly, indivisible even if caused by tortfeasors acting separately. In these circumstances, at least so far as the indivisible damage is concerned, those defendants are likely to be regarded as concurrent tortfeasors so each is fully liable for the whole of that damage. The boundaries of indivisible damage, and hence limits on the concept of concurrent tortfeasors was considered, in the specific context of personal injury claims by the Court of Appeal in Rahman v Arearose Ltd,14 a decision the judge in this case applied. In Rahman, Laws LJ regarded the key characteristic of concurrent tortfeasors as being the logical impossibility of apportioning the damage suffered by the claimant between those tortfeasors and observed:15 “The reason for the rule that each concurrent tortfeasor is liable to compensate for the whole of the damage is not hard to find. In any such case, the claimant cannot prove that either tortfeasor singly caused the damage, or caused any particular part or portion of the damage. Accordingly his claim would fall to be dismissed, for want of proof of causation. But that would be the plainest injustice; hence the rule.” Laws LJ went on to analyse the concept of concurrent tortfeasors when he explained that this was:16 “referring to a class of case where there is simply no rational basis for an objective apportionment

/ of causative responsibility for the injury between the tortfeasors; and the expression “single indivisible S injury” is a shorthand description for that class of case. Now, the clearest instance of concurrent torts M E is one where the injury in question would not have occurred but for both torts: where, if only one U G had been committed, the injury would not have occurred at all.” T A

N Additionally, Laws LJ noted that a second type of concurrent tort was “where either cause would be M

A sufficient of itself to produce the consequence, as where two persons independently shoot at another at 17 A

U the same time, both shots being fatal”. Q D

9 Ward v Allies & Morrison Architects [2012] EWCA Civ 194; [2013] P.I.Q.R. Q1. 10 Billett v Ministry of Defence [2015] EWCA Civ 773; [2016] P.I.Q.R. Q1. 11 Murphy v Ministry of Defence [2016] EWHC 3 (QB). 12 Blamire v South Cumbria HA [1993] P.I.Q.R. Q1 CA (Civ Div). 13 Smith v Manchester Corp (1974) 17 K.I.R. 1 CA (Civ Div). 14 Rahman v Arearose Ltd [2001] Q.B. 351 CA (Civ Div). 15 Rahman v Arearose Ltd [2001] Q.B. 351 CA (Civ Div) at [18]. 16 Rahman v Arearose Ltd [2001] Q.B. 351 CA (Civ Div) at [19]. 17 Rahman v Arearose Ltd [2001] Q.B. 351 CA (Civ Div) at [17].

But Laws LJ then posed the following question:18 “Is there a third kind of instance? I have in mind a case where it is shown that (a) each tortfeasor caused some part of the damage, but (b) neither caused the whole, and (c) some part (but not all) of the damage would therefore have been occasioned to the claimant if only one tort—either of them—had been committed, but (c) on the evidence it is impossible to identify with any precision what part or element of the damage had been caused by which defendant.” Laws LJ answered his own question when he said:19 “there is I think an objection in principle to the inclusion of this kind of case within the class of concurrent torts. I would express it thus. It would plainly be unjust to proceed on the footing that a defendant is responsible for the whole of the claimant’s damage when, demonstrably, he is not.” Laws LJ, for reasons which have a real resonance to the facts of this case, concluded that this potential third category of case should not properly be characterised as a concurrent tort, with each tortfeasor liable for the whole of the damage, as the respective torts were causes of distinct aspects of the injuries which the claimant had suffered. That ruling then raised the question of how to approach the apportionment of damage between tortfeasors where the facts fell within the “third kind of instance” identified by Laws LJ. The solution to this problem was, Laws LJ concluded, causation, explaining:20 “The law is that every tortfeasor should compensate the injured claimant in respect of that loss and damage for which he should justly be held responsible.” Causative potency was, specifically, the guiding principle for apportionment in this type of case. Here, the judge accepted the facts fitted the mould of Rahman. In reaching that view the judge rejected an argument by the second defendant there could be no liability for loss that would have occurred in any event as a result of the first accident and, when developing that argument, placing reliance on the Court of Appeal ruling in Reaney v University Hospital of North Staffordshire NHS Trust.21 The basis for the judge’s decision on this point was that here it was not possible to separate neatly the effects of the first accident and those of the second accident. It is worth noting that Reaney considered a rather different situation to that which prevailed here: there the question was whether the claimant could establish causation, consequent on a breach of duty, when some of the damage which was an inevitable result of that breach would have been suffered in any event.

In this case the claimant could prove that without the breaches of duty that occurred all the damage / would probably have been avoided, so the issue was not so much one of establishing liability, at all, for S M the damage but dealing with apportionment. To apportion which damage was specifically attributable to E U a particular breach of duty would indeed have needed the ability, rooted in the evidence, to make a neat G T

separation of the consequences of each breach. A Accordingly, again adopting the approach in Rahman, the judge made an apportionment between the N M defendants on the “broad-brush” basis identified by Laws LJ and, again following that approach, on the A A basis that this apportionment was then “translated into percentages”. U

Even then the judge was able to divide up some specific aspects of the claim for damages between the Q D defendants, where it was possible to do so on the basis such damage could effectively be regarded as being divisible.

18 Rahman v Arearose Ltd [2001] Q.B. 351 CA (Civ Div) at [20]. 19 Rahman v Arearose Ltd [2001] Q.B. 351 CA (Civ Div) at [21]. 20 Rahman v Arearose Ltd [2001] Q.B. 351 CA (Civ Div) at [29]. 21 Reaney v University Hospital of North Staffordshire NHS Trust [2015] EWCA Civ 1119; [2016] P.I.Q.R. Q3.

Specific heads of claim Turning from general principles to specifics, some of the heads of claim allowed by the judge in this case do, nevertheless, hint at points of principle which, in similar cases, might be of application. • The judge allowed the claimant’s claim for fertility treatment, rejecting an argument the problem was not the claimant’s reduced fertility but lack of a partner on the basis, at its most basic, this claim was made simply to put the claimant in the position she would have been, prior to the first accident, and was restorative in nature. • The claim for the cost of careers counselling put at £3,000 was allowed in full, and in addition to the claim for future loss of earnings. • The judge was prepared to make an award “in the round” for loss of pension which was assessed at £25,000 reflecting a degree of uncertainty about the path the claimant’s working life would have followed but for the accidents. • The claimant made a modest claim for care and attendance, reflecting care provided by friends over a period of six weeks. That claim was alleged to be excessive, disproportionate and irrecoverable. It was, however, allowed in full, endorsing the view that where there has been a need for care, even at a modest level over a short period of time, that is properly claimable. • A point that might be queried in the judgment is the observation that claims for travel expenses in making visits to solicitors and experts were costs and hence not claimable as damages. There is, however, authority that such items cannot be recovered as part of the costs of the claim,22 so perhaps these items were properly claimable as damages and should have been allowed.

Practice points • Great care is required if the claim may involve any element of foreign law. The starting point is that domestic law will apply, but if the defendant alleges the court should take account of foreign law then expert evidence is likely to be required to assist the court in deciding how that law should be applied to the facts. • If expert evidence is required again care is necessary to ensure, so far as possible, the expert is likely to have not just knowledge of relevant law in the abstract but experience of how that law is applied in practice to the facts which are likely to be found, as that is likely to be / S of most value to the court. M E • Where the claimant suffers, as a result of the injuries, ongoing or potential future loss of U

G earnings the starting point is likely to be the multiplier/multiplicand approach.

T • Even with a lump sum award this is likely to be, in effect, a multiplier of current earnings A

N over at least two years (and often more). M A • Where separate tortfeasors have caused damage, but not the whole of indivisible damage, A U to the claimant, the court will, even if it is impossible to identify with precision which part

Q D of the damage is caused by which defendant, make an apportionment on a “broad-brush” basis which is “translated into percentages”, so that is a factor the claimant needs to take into account when deciding which defendants to proceed against.

22 See London Scottish Benefit Society v Chorley (1884) 13 Q.B.D. 872 CA.

• Care is required, in every case, to properly identify, formulate and pursue all relevant heads of claim even if these are for relatively modest sums and/or claims of a kind that may not be applicable save for the particular facts of the case.

John McQuater / S M E U G T A N M A A U Q D

Hayward v Zurich Insurance Co Plc

(SC, Lord Neuberger PSC, Lady Hale DPSC, Lord Clarke JSC, Lord Reed JSC, Lord Toulson JSC, 27 July 2016, [2016] UKSC 48)

Civil procedure—personal injury—torts—contracts—settlement—deceit—setting aside—fraudulent misrepresentation

Fraudulent misrepresentation; Personal injury claims; Reliance; Setting aside; Settlement

In 1998, Colin Richard Hayward was injured in the course of his employment with David S. Smith Packaging Ltd (the employer). Their employers’ liability insurer was Zurich Insurance Company Plc (Zurich). A claim against the employer was intimated and there was some correspondence and exchange of medical reports between solicitors for the parties. Liability remained in dispute. At an early stage, Zurich and its solicitors became suspicious that Mr Hayward might be exaggerating his injuries and, in October 1999, they instructed enquiry agents to undertake video surveillance of him. In 2001, Mr Hayward issued proceedings against the employer. In the particulars of claim, dated 11 September 2001, it was alleged that he had suffered a spinal injury involving damage to two dorsal vertebrae. He was suffering from continuing physical disabilities and was fit for only light work. He was also suffering from a depressive disorder of moderate severity. Attached to the pleading were two reports from Mr J. Bracegirdle, an orthopaedic surgeon and one from a consultant psychiatrist, Dr R. O’Flynn. The schedule of loss claimed damages amounting to just under £420,000. This included a claim for loss of earnings on the basis that Mr Hayward was and would remain unfit for any work. Zurich conducted the defence on the employer’s behalf. Relying on video evidence which showed Mr Hayward undertaking heavy work at home, it argued that he had exaggerated the consequences of his injury. Nevertheless, the parties reached an agreement under which Zurich agreed to pay £134,973 in full and final settlement of the claim. About two years later Mr Hayward’s neighbours, Mr and Mrs Ian Cox, approached the employer to say that from their observation of his conduct and activities they believed that he had entirely recovered from his injury at least a year before the settlement was reached. The insurer claimed damages for deceit, asserting that the statements which Mr Hayward had made about the extent of his injury in his particulars of claim and witness statements constituted fraudulent misrepresentations. The judge at first instance set the settlement agreement aside. Mr Hayward was awarded damages of £14,720 and he was ordered to repay the settlement sum, less that amount. The Court of Appeal reversed that decision. It held that for a fraudulent misrepresentation to be the basis of a claim to rescind a contract, the claimant had to have been induced into making the contract by a perception that it was true; for that

E reason, where a defendant entered into an agreement to settle a claim, having positively asserted that

R statements in the claimant’s particulars of claim and witness statements were dishonestly advanced (being U the insurer’s stance in the instant case on the basis of the video evidence), it implicitly agreed not thereafter D to seek to have the settlement set aside on the basis that statements made in support of the claim were E false. Zurich appealed. C O R

The main issue was whether, in order to show the requisite influence by or reliance on the misrepresentation in a claim to set aside a compromise on the basis of fraudulent misrepresentation, the defrauded representee had to prove that it settled because it believed that the misrepresentation was true. The Supreme Court held that the answer to that question was no. It was not necessary, as a matter of law, to prove that the representee believed that the representation was true. There was no clear authority to the contrary. However, that was not to say that the representee’s state of mind might not be relevant to the issue of inducement. Indeed, it could be very relevant. If the representee did not believe that the representation was true, he might have serious difficulty in establishing that he had been induced to enter into the contract or that he had suffered loss as a result. However, inducement was a question of fact. They held that the judge at first instance had been entitled to adopt the proposition in Clerk and Lindsell on Torts1 that “the claimant must have been influenced by the misrepresentation”.2 The judge found that the representations made by Mr Hayward did influence the insurer in its decision on how much to pay him in settlement. He found that although Zurich might not have believed the representations to be true, it did believe that they would be put before the court as true and that there was a real risk that the court would accept them in whole or part and consequently make a larger award than it (Zurich) would otherwise have considered appropriate. The judge had been correct to make those findings. The fact that the representee (here, Zurich) did not wholly credit the fraudster (Mr Hayward) and carried out its own investigations did not preclude it from having been induced by the representations in question. Qualified belief or disbelief did not rule out inducement, particularly where those investigations were never going to find out the evidence that subsequently came to light. That depended only on the Mr Hayward’s neighbours coming forward. Only then did Zurich find out the true position. As Mr Hayward knew, Zurich was settling on a false basis. The court had also been asked to rule on a second issue, namely whether suspicion by the defendant of exaggeration for financial gain by the claimant would preclude unravelling a settlement when fraud was subsequently established. The answer followed from the conclusions above. The court held that it was difficult to envisage any circumstances in which mere suspicion that a claim was fraudulent would preclude unravelling a settlement when fraud was subsequently established. The appeal was allowed.

Comment The Supreme Court has dealt with another fraudulently exaggerated personal injury claim, this time raising some important points about unravelling a “full and final settlement” obtained by deception, and in doing so advancing a restitutionary principle allied to the tort of deceit. As Lord Clarke indicates, the facts were strikingly similar to Summers v Fairclough Homes.3 The distinction is that in Summers the employer was held liable for the injury at work, whereas in Hayward there was a settlement based on an admission of 80 per cent liability, with the claimant accepting he was contributorily negligent to a limited extent. The reality, as subsequently found, was that Colin Hayward had dishonestly embroidered his case in the original claim for serious lumbar pain, depressive illness and loss of earnings amounting to over £800,000. While suspicious throughout, and even armed with their video surveillance, the insurers were not in a position to prove duplicity until Mr Hayward’s neighbours in Newmarket came forward. Subsequent undercover surveillance showed conclusively that this was a dishonest claim. The truth then led to the “modest” £14,720 eventually awarded.4 E R U

1 Clerk and Lindsell on Torts, edited by Professor Michael Jones, Professor Anthony Dugdale, Mark Simpson, QC, 20th edn (London: Sweet & D

Maxwell, 2014). E 2 Hayward v Zurich Insurance Co Plc [2016] UKSC 48; [2016] 3 W.L.R. 637 at [14]. 3 Summers v Fairclough Homes Ltd [2012] UKSC 26; [2012] 1 W.L.R. 2004. C 4 Katie Morley, “Judges overturn fraudulent claim appeal”, Daily Telegraph, 28 July 2016. O R

The vital question was whether “fraud can unravel” a settlement, here reached by the parties and incorporated in a Tomlin order that—”All further proceedings in this action be stayed”. On gaining compelling evidence of the false amplification of the original claim, Zurich moved in fresh proceedings claiming damages in the tort of deceit for the recovery of the balance between the settlement figure and the true claim, with an alternative claim for rescission of the settlement agreement and repayment of sums paid under that. The counter-argument on behalf of Mr Hayward was that the Tomlin order created an estoppel which entitled him to apply for a strike out on the basis of the new proceedings being an abuse of judicial process. Procedural issues were dealt with in proceedings before Deputy District Judge Bosman refusing to strike out, a reversal by Judge Yelton, and then a decision in the Court of Appeal (Mauric Kay, Smith and Moore-Bick LJJ) that the settlement did not give rise to an estoppel or an abuse of process.5 In a compelling judgment Smith LJ was of the view that “the public interest in the integrity of the administration of justice and the private interests of Zurich in seeking the investigation of these allegations of fraud far outweigh the public interest in the finality of litigation”.6 The substantive issues on deceit then came on for trial before HH Judge Moloney QC, with a finding that Mr Hayward had deliberately and dishonestly exaggerated the effects of his injury throughout the whole process. On appeal, the judge’s findings of fact were never challenged, a factor which Lord Clarke in the Supreme Court found to be “critical”.7 However, despite this factual clarity, the Court of Appeal had allowed an appeal on their review of the case law on the tort of deceit, although Underhill LJ admitted that “the result is unattractive because it means the Appellant retains the benefit of a settlement far in excess of the value of his actual loss”.8 The reasoning for this result was that “there is a wider principle at stake, that parties who settle claims with their eyes wide open should not be entitled to revive them only because better evidence comes along later”.9 With respect, the “eyes wide open” analogy seemed difficult to square with the commercial nature of insurers settling a case despite lingering suspicions. A hunch that someone is lying is hardly a basis for risking a costly challenge in a courtroom alleging fraud. The Supreme Court draws a different conclusion from the case law, and strongly endorsed the view of HH Judge Moloney that while the employer or insurer may have suspicions they must inevitably weigh up not just their own view but “what view the court may take in due course”.10 Zurich had been “suspicious” but until the advent of the neighbours coming forward two years after the case had been settled “no very clear allegations were, or could be, made”.11 Dealing with Clerk and Lindsell, Lord Clarke suggests a reversion to the earlier enunciation that there must have been inducement by a misrepresentation but that need not be the sole cause.12 Indeed, in this frontier area between contract and tort, and with multiple causes, Lord Clarke points to Chitty that “it is sufficient for the misrepresentation to be an inducing cause and that it is not necessary for it to be the sole cause”.13 And it is Lord Clarke’s view that “Zurich did as much as it reasonably could to investigate the accuracy and ramifications of Mr Hayward’s representations before entering into any settlement”.14 Lord Clarke’s judgment is unanimously supported in the Supreme Court, but Lord Toulson adds some interesting points, and along the way pays testimony to HH Judge Moloney’s decision-making “as a model

5 Zurich Insurance Co Plc v Hayward [2011] EWCA Civ 641; [2011] C.P. Rep. 39. 6

E Zurich Insurance Co Plc v Hayward [2011] EWCA Civ 641; [2011] C.P. Rep. 39 at [34]. 7 Hayward v Zurich Insurance Co Plc [2016] UKSC 48; [2016] 3 W.L.R. 637 at [12]. R 8 Hayward v Zurich Insurance Co Plc 2015] EWCA Civ 327; [2015] C.P. Rep. 30 at [25]. 9

U Hayward v Zurich Insurance Co Plc 2015] EWCA Civ 327; [2015] C.P. Rep. 30 at [25]. 10 Hayward v Zurich Insurance Co Plc [2016] UKSC 48; [2016] 3 W.L.R. 637 at [19]. D 11 Hayward v Zurich Insurance Co Plc [2016] UKSC 48; [2016] 3 W.L.R. 637 at [22]. 12 E See Clerk and Lindsell on Torts, edited by Professor Michael Jones, Professor Anthony Dugdale, Mark Simpson, QC, 20th edn (London: Sweet & Maxwell, 2014), Ch.18, para.18-34. C 13 Chitty on Contracts, edited by Hugh Beale QC, 32nd edn (London: Sweet & Maxwell, 2015), para.7-37. 14 O Hayward v Zurich Insurance Co Plc [2016] UKSC 48; [2016] 3 W.L.R. 637 at [39]. R

P 2016 J.P.I.L., Issue 4 © 2016 Thomson Reuters (Professional) UK Limited and Contributors Case and Comment: Procedure C229 of clarity and cogency”.15 He quotes with approval the statement by Lord Bingham in HIH Casualty & General Insurance Ltd v Chase Manhattan Bank that “fraud is a thing apart” and “unravels all”, noting that, once proved, “it vitiates judgments, contracts and all transactions whatsoever”.16 That clearly now can include overturning settlements. The extent of fraudulent claims is, of course, a matter of huge debate. Lord Toulson wryly notes the memoirs of the former Attorney-General Sir Patrick Hastings, and how as a young barrister before World War I he built up a practice defending insurance companies, commenting that “Now as then, they present a serious problem … and the ultimate cost is borne by other policy holders through increased premiums”.17 Lord Toulson might have added that Herbert Easton, the solicitor who briefed Hastings in many of those cases, supported the advocacy by a “genius in unravelling the bare-faced and often cunning frauds which dishonest claimants practised”.18 More sophisticated frauds are now being met by more modern investigative techniques, such as the video surveillance in Hayward. In the same month as the decision in Hayward, July 2016, a former railway worker who claimed an accident left him with a “crippling thumb injury” suddenly discontinued his case in the High Court when faced with a surveillance video that he was playing bass guitar with that thumb in a “very energetic heavy metal band”. The court referred the case for proceedings to be brought for contempt of court.19 The ubiquity of CCTV also suggests that fraudsters should take care where they feign their “slip and trips”; a chef who attempted to sue Lambeth College was shown on camera to have “shamelessly fabricated a fall”.20 The advent of extensive social media has also claimed “casualties”; tweeting of prowess in a 10km race, of signing up for a half marathon and then posting a triumphal photo of climbing up Mount Snowdon was perhaps not the wisest decision for one would-be whiplash claimant.21 Of course with a camera on every mobile device it is not always apparent who might be filming; having leapt into floodwater as a result of “messing” around with friends, and then claiming against Newcastle City Council for a defective drain cover to have caused a broken ankle and ruptured tendons, a putative claimant against Zurich had eventually to plead guilty to fraud and received an 18-month community order. District Judge Earl commented that “Websites such as Youtube, Facebook and Twitter are becoming a great tool for prosecutors”.22 The Insurance Fraud Enforcement Department, set up by the insurance industry, suggests that one in seven personal injury claims can now be linked to variations of “crash for cash”, which is one of the most frequent settings for deception. There is of course little doubt that there are fraudulent claims, but considerable dispute as to how many. Motor insurance frauds are estimated at 40,000 per annum,23 although the increasing use of telematics in cars may be staunching the flow.24 There have certainly been some spectacular instances of uncovering fraud; in the largest criminal case so far on “crash for cash”, in Cardiff in December 2015, some 82 members of a gang who had staged some 28 fraudulent crashes were convicted after a four-year investigation in “Operation Dino”, and received varying prison sentences. A key part of the evidence was the CCTV obtained from the gang’s own car repair yard, showing a Land Rover repeatedly driven into the rear of a forklift truck.25

15 Hayward v Zurich Insurance Co Plc [2016] UKSC 48; [2016] 3 W.L.R. 637 at [54]. 16 HIH Casualty & General Insurance Ltd v Chase Manhattan Bank [2003] UKHL 6; [2003] 1 All E.R. (Comm) 349 at [15], endorsing the view of Denning LJ in Lazarus Estates Ltd v Beasley [1956] 1 Q.B. 702 at 712. 17

Hayward v Zurich Insurance Co Plc [2016] UKSC 48; [2016] 3 W.L.R. 637 at [51]. E 18 H. Montgomery Hyde, Sir Patrick Hastings: His Life and Cases (London; Heinemann, 1960), pp.29–30. 19 “Playing Rock Guitar on Stage, Man who claimed £300K for thumb injury”, Daily Mail, 22 July 2016. R 20

“Chef convicted of fraud after video of fake fall emerges”, The Independent, 3 December 2015. U 21 “Insurance cheats discover social media is the real pain in the neck”, The Observer, 18 July 2016. 22 “Most stupid thing I have seen in a while”, Newcastle Evening Chronicle, 28 January 2015. D 23 “Allianz says claim scams have doubled”, Financial Times, 8 November 2011. E 24 “Fraudsters snared”, Daily Mail, 14 October 2015. 25 “Fraudsters sentenced for their part in crash scam”, South Wales Echo, 30 January 2016. See also on “crash for cash”, Julian Fulbrook, “Tasneem C v Morley” [2014] J.P.I.L. C91, the commentary on Tasneem v Morley , unreported, 30 September 2013, CC (Central London). O R

Practice points • Hayward v Zurich Insurance is another recent example of a retaliatory response by insurers on a fraudulent claim, on this occasion using the tort of deceit to reclaim “unjust enrichment” after a Tomlin order. That “full and final” settlement would of course never have been obtained if the true position had been known. • The Supreme Court endorses the view that a subsequently discovered fraud or exaggeration can “unravel” judgments and negotiated agreements. • Serendipity is often a factor in discovering duplicity, as with the neighbours of Mr Hayward coming forward in this case, which led to further video surveillance. But the widespread availability of CCTV and the use of social media is increasingly being used to uncover fraud. • Due diligence on the part of solicitors acting for claimants in personal injury cases necessarily includes not only asking pertinent questions in the pre-trail investigative process, but also in making appropriate enquiry of electronic information that may have captured an event.

Julian Fulbrook

Wright v Barts Health NHS Trust

(QBD, Edis J, 26 July 2016, [2016] EWHC 1834 (QB))

Civil procedure—personal injury—torts—clinical negligence—abuse of process—compromise agreements— contributory negligence—double recovery—several tortfeasors—striking out—CPR r.3.4—CPR r.24

Abuse of process; Accidents at work; Clinical negligence; Double recovery; Joint tortfeasors; NHS trusts

The claimant was a roofer. He was working as a sub-contractor for a roofing company. He was involved in an accident at work on 30 November 2011 when he fell through a skylight. He sustained multiple injuries, including a series of fractures at different levels of the spine as well as in the hip and pelvis. He was taken to the defendant’s hospital for treatment. At the end of his hospital treatment he had suffered a complete spinal cord injury and was a paraplegic. He initiated proceedings against the roofing company for the whole of his loss. The company began negotiations on the basis that he was liable in contributory negligence as he was the senior supervisor on site and was involved in the job’s risk assessment. In the meantime, the claimant sent a letter of claim for damages to Barts Health NHS Trust, claiming that he had suffered negligent treatment that had caused the outcome of his accident to be much worse than it should have been. In September 2014, he reached a compromise agreement in his claim against the roofing company. A substantial discount for contributory negligence was made in agreeing the settlement sum. In November 2014, he informed the trust of the compromise agreement and sent it details of it. He then issued proceedings

E against the trust.

R The defendant trust issued an application seeking an order that the claim be struck out under CPR r.3.4 U or, in the alternative, that summary judgment be entered for the defendant under CPR r.24. It is submitted D that the claim is an abuse of process because the claimant has already accepted settlement in another claim E for the injuries which form the subject matter of this action. Alternatively, it is submitted that the settlement C operated to extinguish the loss and therefore as a defence to the claim. It said that the claimant had been O R

P 2016 J.P.I.L., Issue 4 © 2016 Thomson Reuters (Professional) UK Limited and Contributors Case and Comment: Procedure C231 compensated in full for his loss by the agreement with the roofing company and there should be no double recovery. The judge pointed out that there was a pre-clinical negligence element of the damage caused to the claimant for which only the roofing company was liable. That element included the loss which occurred after the clinical negligence but which would have occurred anyway. After the clinical negligence, there was an additional loss which would not have occurred but for the clinical negligence. Both the NHS trust and the roofing company were liable for that additional loss as, by causing the injury, the roofing company had exposed the roofer to the hazard of imperfect medical treatment. However, the roofing company was liable only for the proportion of the additional loss that remained due after the reduction for the claimant’s contributory negligence. The trust however was liable for all of it. The roofing company and the trust had each made a contribution to the additional loss by a different tortious act in breach of different duties to the claimant. They were therefore concurrent tortfeasors, and the release of one concurrent tortfeasor did not have in law the effect of releasing another.1 The proper approach to a compromise case was to focus primarily on the construction of the agreement in its appropriate factual context.2 The test was whether the agreement represented the full measure of the claimant’s estimated loss.3 Edis J held that in the claimant’s case, he had not been fully compensated. Because of the contributory negligence discount, the roofing company was not liable for the whole of the additional loss. It had neither paid nor purported to pay the whole loss caused by the hospital (on the assumption that the roofer’s claim against the latter would succeed). It was therefore impossible to construe the compromise agreement in its true factual context as providing full compensation for the loss being claimed against the trust. The judge found that settlement with one concurrent tortfeasor did not release the others, unless it was clear that it was intended to have that effect, or unless the payment clearly satisfied the whole claim. There was no risk of double recovery as the claimant had agreed that appropriate credit would have to be given for the sum he had received from the roofing company if his claim succeeded. The application was dismissed.

Comment It is not uncommon for a claimant injured by the actions one tortfeasor to suffer further injury at the hands of the medical staff who have stepped in to provide treatment. Sadly, it is also not uncommon for that further injury to have been caused by imperfect medical treatment. Indeed, imperfect medical treatment is now (and probably always was) an accepted and foreseeable hazard of life. Any injury can be regarded as carrying some risk that medical treatment might be negligently given. It is for this reason that incompetent medical treatment will rarely break the chain of causation between the initial tortious act and the full extent of injury and loss suffered by the claimant. The Court of Appeal clarified the position in a not dissimilar case from the present, namely Webb v Barclays Bank Plc,4 where it was held that medical treatment would only break the chain of causation if it were “so grossly negligent as to be a completely inappropriate response to the injury inflicted by the [original tortfeasor]”.5 Such “gross negligence” would need to eclipse the original wrongdoing.6 There was no suggestion in the present case that the actions of the defendant hospital trust were so grossly negligent as to break the chain of causation applicable to the roofing company. As such, the roofing company was probably going to be held liable for all of the consequences of the claimant’s fall, subject E R U 1 Heaton v Axa Equity & Law Life Assurance Society Plc [2002] UKHL 15; [2002] 2 A.C. 329 applied. 2 Heaton v Axa Equity & Law Life Assurance Society Plc [2002] UKHL 15; [2002] 2 A.C. 329 applied. D 3 Appleby v Northern Devon Healthcare NHS Trust [2012] EWHC 4356 (QB) applied. E 4 Webb v Barclays Bank Plc [2001] EWCA Civ 1141 5 Webb v Barclays Bank Plc [2001] EWCA Civ 1141 at [55]. C 6 Webb v Barclays Bank Plc [2001] EWCA Civ 1141 at [57]. O R

to primary liability—which was not conceded—and any discount for contributory negligence. The claimant accepted that there were significant risks on both issues and settled with the roofing company on the basis of an 80 per cent discount on liability. Edis J found that this discount reflected both the liability risk and contributory negligence. The net sum accepted by the claimant in the settlement was £400,000 against a claim pleaded in excess of £3 million. The central issue in the application before Edis J was whether the compromise (which did not involve the trust or make any reference to the claimant’s claim against the trust) represented the full measure of the claimant’s loss. If it did, any subsequent claim by the claimant against the trust would offend the rule against double recovery (which the rule in Heaton was aimed at preventing). However, upon construing the terms of the settlement it was plain that the roofing company had not paid 100 per cent of the injury and loss suffered by the claimant. There was an 80 per cent discount, part of which was to represent contributory negligence. As the trust could not rely upon the contributory negligence relied upon by the roofing company, it was plain that the trust would be liable for an element of loss which was not included in the settlement. Edis J put it thus: “CCRL has neither paid nor purported to pay the whole loss caused by the hospital”,7 and concluded that the settlement had not provided the claimant with full compensation. The judge also stated:8 “A collateral attack on a compromise is not an abuse of process. A collateral attack even on a judgment in civil proceedings is not necessarily an abuse of process… an assertion that substantial sums remain due from the defendant to the claimant does not mean that the claimant settled his claim against [the roofing company] for too little.” The decision of the court in this case was entirely logical and the judge appeared to have no doubts about the correctness of it. The trust’s argument that the claimant had already been fully compensated by the roofing company was untenable. It had a secondary argument which was that the claimant would be unable to prove any loss arising purely from the trust’s negligence. As a matter of fact, establishing the proper extent of the loss caused by the trust was likely to prove something of a challenge, but assessment was nevertheless technically possible albeit a matter for another judge on another day. Such assessment can be made more straightforward by a detailed breakdown of precisely what damages the claimant was compensated for in the first settlement. This is something parties ought to do whenever proceedings are to be pursued against concurrent or successive tortfeasors (or contract-breakers) at a later stage. We are used to taking such steps (or ought to be) when recording settlements to which provisional damages will apply so that the loss can be readily quantified if further damages are applied for.

Practice points • Construction of the compromise agreement in its appropriate factual context is clearly the key to determining what has been compromised. As such, it is vital to record a detailed and comprehensive memorandum of agreement in all cases, but particularly if a claim is still to be pursued against other defendants. It would be as well to record, for the avoidance of doubt, what loss suffered by the claimant is not covered by the agreement. If the claimant E were, in the memorandum of agreement, to expressly reserve his right to pursue another R defendant for aspects of his loss, this would fortify the inference that he is not treating the U sum recovered in the settlement as the full measure of loss. However, absence of such a D E

C 7 Wright v Barts Health NHS Trust [2016] EWHC 1834 (QB) at [19]. 8 O Wright v Barts Health NHS Trust [2016] EWHC 1834 (QB) at [18]. R

reservation will not strictly matter as he does not need to expressly reserve a right to which he is entitled by law. • Clear memoranda of agreement are important not just to the claimant but to the paying party as well (in this case the roofing company) in case they seek a contribution against a concurrent tortfeasor liable for the same damage, or are subject to contribution claim. • The release of one concurrent tortfeasor does not have the effect in law of releasing another concurrent tortfeasor. Ditto with successive contract-breakers. By contrast, the release of one joint tortfeasor by way of accord and satisfaction will generally release all of the others.

Nathan Tavares

Howe v Motor Insurers’ Bureau

(QBD, Stewart J, 22 March 2016, [2016] EWHC 884 (QB))

Personal injury—civil procedure—road traffic accidents—compensation—Motor Insurers’ Bureau— damages—interpretation—qualified one-way costs shifting—CPR r.44.13—Motor Vehicles (Compulsory Insurance) (Information Centre and Compensation Body) Regulations 2003 reg.13

Costs; Motor Insurers' Bureau; Personal injury claims; Qualified one-way costs shifting; Road traffic accidents; Untraced drivers

On 30 March 2007, Michael Howe was rendered paraplegic. He was driving in France and collided with a wheel, which came off a lorry ahead of him. Investigation by the French authorities drew a blank as to the identity of the lorry from which came the wheel, or its driver, or its insurer. Mr Howe informed the Motor Insurers’ Bureau (“MIB”) of the accident later in the year. The MIB handled the driver’s claim on behalf of its equivalent French organisation (the FDG). Negotiations between the parties continued for some years, with the driver being medically examined and the FDG making interim payments. In 2014, the FDG refused an interim payment as the amount the driver had already received matched its overall offer to him. The driver issued proceedings in December 2014. On 22 March 2016 Stewart J held1 that that the requirement under the Motor Vehicles (Compulsory Insurance) (Information Centre and Compensation Body) Regulations 2003 (SI 2003/37) reg.13(1)(b) for a driver to make a request for information from the MIB under reg.9(2) was not a necessary ingredient in the cause of action to found a statutory claim against the MIB. However, the claim was dismissed as being time-barred. The claimant was ordered to pay 85 per cent of the MIB’s costs. The issue was whether his claim was for damages for personal injury within the meaning of CPR r.44.13 so as to limit the costs recoverable by the MIB. The judge held that the rationale for the qualified one-way costs shifting (“QOCS”) regime was to protect those who had suffered injuries from the risk of facing adverse costs orders obtained by insured or well-funded parties, which would deter injured persons from making compensation claims.2 The purpose E had to be borne in mind when interpreting the words of CPR r.44.13.3 R U D E 1 Howe v Motor Insurers’ Bureau [2016] EWHC 640 (QB); [2016] 1 W.L.R. 2707. 2 Wagenaar v Weekend Travel Ltd (t/a Ski Weekend) [2014] EWCA Civ 1105, [2015] 1 W.L.R. 1968 considered. C 3 Bloomsbury International Ltd v Sea Fish Industry Authority [2011] UKSC 25, [2011] 1 W.L.R. 1546 followed. O R

Stewart J referred to McGregor on Damages4 and stated that it made it clear that “damages” were simply an award of money for a civil wrong. To retain the requirement of a wrong was entirely necessary as it was an essential feature of damages. He pointed out that actions claiming money under statute, where the claim was made independently of a wrong, were not actions for damages. The judge held that as no breach of duty or any other wrong had been alleged against the MIB, a claim based on reg.13 of the 2003 Regulations was not a claim for damages for personal injury within the meaning of CPR r.44.13. Regulation 16 of the 2003 Regulations was consistent with that analysis; it enabled recourse to the court to recover a sum due under the Regulations as a civil debt, which was recoverable by statute independently of any breach of duty or other wrong by the MIB. Stewart J held that on the clear construction of CPR r.44.13, the claimant’s claim was not one for damages for personal injury. Whether the non-applicability of the qualified costs regime offended the EU principles of equivalence and effectiveness was not for the instant court to determine. Accordingly, the claimant did not have protection under the qualified costs regime.

Comment The introduction of QOCS in 2013 changed the law of costs in personal injury litigation in a fundamental way. Whilst traditionally costs would “follow the event” so that the loser would pay, under the new rule a defendant who successfully defends a claim is no longer able to recover their own costs save for a few specific exceptions. The new rules have been in place for over three years but we have only recently started to receive judicial guidance on the scope and application of QOCS in practice. CPR r.44.13(1) provides that QOCS only apply in proceedings which: “include a claim for damages — (a) for personal injuries; (b) under the Fatal Accidents Act 1976; or (c) which arises out of death or personal injury and survives for the benefit of an estate by virtue of section 1(1) of the Law Reform (Miscellaneous Provisions) Act 1934”. Here the court was concerned with the issue of whether or not a claim could be characterised as a personal injury action. More specifically, it had to consider the narrow issue of whether a claimant has the benefit of QOCS in a claim brought against the MIB under reg.13(1) of the 2003 Regulations. The 2003 Regulations permit a claim to be made in this country to the MIB where someone has been injured in a road traffic accident in another country within the EU involving an uninsured or untraced motorist. Stewart J concluded that such a claim could not be construed as one for damages for personal injuries as it was a claim for money under a statute brought against a party that had not breached any duty of care or permitted any wrong. Consequently, QOCS did not apply to the action. The question of what amounts to personal injury proceedings for the purposes of QOCS was previously addressed in Wagenaar v Weekend Travel Ltd.5 Here a defendant in a personal injury claim that arose out of a skiing accident brought a CPR Pt 20 claim against a ski instructor. The Pt 20 claim was dismissed and the question arose as to whether QOCS were applicable to the third party claim. The Court of Appeal found that QOCS did not apply to Pt 20 claims arising out of personal injury actions. Vos LJ took the view that:6 E R U D E 4 McGregor on Damages, edited by Harvey McGregor QC, 19th edn (London: Sweet & Maxwell, 2016). C 5 Wagenaar v Weekend Travel Ltd (t/a Ski Weekend) [2014] EWCA Civ 1105; [2015] 1 W.L.R. 1968. 6 O Wagenaar v Weekend Travel Ltd (t/a Ski Weekend) [2014] EWCA Civ 1105; [2015] 1 W.L.R. 1968 at [38]. R

“The whole thrust of CPR Rules 44.13 to 44.16 is that they concerned Claimants who are themselves making a claim for damages for personal injuries, whether in the claim itself or in a counterclaim or by an additional claim.” He reasoned that QOCS were never intended to apply to the costs of disputes between those liable to injured parties as to how those personal injury damages should be funded amongst themselves. The question arises as to what other types of claim involving injured parties may fall beyond the scope of the QOCS Rules? There are certainly circumstances where a claim for an injured party can be brought against a different party to the tortfeasor. For example, reg.3 of the European Communities (Rights against Insurers) Regulations 2002 (SI 2002/3061) permits a party injured in a road traffic accident to sue either the motorist responsible for the accident or their insurer. Would a claim brought solely against that insurer (who is directly liable for the claim) amount to a claim for damages for personal injuries within the meaning of CPR r.44.13, such that QOCS would apply? In a case decided prior to the introduction of QOCS, the Court of Appeal found in Nemeti v Sabre Insurance Co Ltd7 that such a claim against an insurer under the 2002 Regulations was not a claim for damages for personal injuries and was in effect a claim for an indemnity under statute limited to the insurance company’s liability to their insured. Whilst Nemeti was actually concerned with the application of the Limitation Act 1980 and is not therefore a clear authority on the application of QOCS, it does perhaps illustrate potential scope for further uncertainty over when an action is or is not a personal injury claim to which QOCS apply. Further litigation will no doubt follow in this area.

Practice points • QOCS apply only to proceedings for damages for personal injury (including disease and clinical negligence claims) and fatal accident claims. • Claims on behalf of an injured party seeking to enforce a statutory right where the defendants have not themselves breached a duty or caused the injury are unlikely to be covered by QOCS. • Contribution proceedings arising out of a personal injury claim are not covered by QOCS but a personal injury claim brought by way of a counterclaim or an additional claim would be.

Richard Geraghty

Barton v Wright Hassall

(CA (Civ Div), Black LJ, Floyd LJ, Moylan J, 23 March 2016, [2016] EWCA Civ 177

Civil procedure—claim forms—litigants in person—reasons—service—service by alternative permitted method—service by other electronic means—validation—CPR r.6.15(2) E

Claim forms; Litigants in person; Service by alternative permitted method R U

The claimant, Mr Mark Barton, was a litigant in person. He wished to bring professional negligence D proceedings against the defendant and respondent Wright Hassall LLP in respect of their conduct in E C

7 Nemeti v Sabre Insurance Co Ltd [2013] EWCA Civ.1555; [2014] C.P. Rep. 16. O R

refusing to continue to act on his behalf in separate professional negligence proceedings which he had commenced against other solicitors. The claim form was issued in February 2013. Its validity expired at midnight on 25 June 2013. In March 2013, solicitors instructed by the defendant’s insurers emailed the claimant asking for future correspondence to be sent to them. They indicated an awareness that he might seek an extension of time for service of the claim form and said that they would not consent. In April 2013, they emailed again to say that they awaited service of the claim form and particulars. On 24 June 2013, Mr Barton served the relevant documents on them by email. The solicitors replied on 4 July 2013 that, under CPR Pt 6 and the associated Practice Direction, email was not a permitted method of service unless the defendant had agreed to be served by email, which it had not. Mr Barton applied to validate the email service, explaining that the defendant’s website said nothing about email service not being acceptable, and that the solicitors should have told him there was a problem before the expiry of the period for service. The district judge found that there were no indulgences granted to litigants in person and there was no obligation on the solicitors to notify him before the claim form expired of their challenge to service. The district judge concluded that there was no “good reason” to exercise discretion under CPR r.6.15 to permit service by alternative means. Mr Barton’s appeal against that decision was dismissed, HH Judge Godsmark QC finding that there was no good reason why he had not served the claim form during its validity. This was a second appeal. Mark Barton submitted that the judge had been wrong to focus on why the claim form had not been served in time and should instead have asked whether there was a good reason to validate service. He argued that there was a good reason because the solicitors had waited until the expiry of the service period before alerting him to the fact that service had been defective, which was the type of technical game-playing which the court had deprecated in Abela v Baadarani1 and Power v Meloy Whittle Robinson Solicitors.2 The Court of Appeal held that if the judge had looked only at the reason why the claim form had not been served during its validity, there would be strength in the claimant’s argument. But the judge had also made clear that a critical consideration in deciding whether there was a good reason to validate service was whether the claim form had come to the attention of the proposed recipient. He knew that that point would go in the claimant’s favour, but had recognised that a “good reason” required something more. That was why he had gone on to consider whether there were other circumstances pointing towards there being a good reason to validate service. It had been open to the judge to find that there were none. The service rules were straightforward and easy to find and the claimant had taken no steps to inform himself about them. He had simply not taken advantage of the generous time period allowed for service when no obstacles had stood in his way.3 The court made it clear that technical game-playing by defendants would count against them. However here, the defendant’s conduct could not be criticised. The claimant had received correspondence with the correct address for service. He had been told from the outset that an extension would not be granted. He had also been reminded in April that service was still awaited. The solicitors would have appreciated fairly quickly that service was irregular, but they needed to take their client’s instructions before expressly alerting the claimant. Their conduct had done nothing to encourage the claimant to believe that he had effected good service. The judge had not erred in placing 4

E weight on the parties’ conduct.

R The appeal was dismissed. U D

1 E Abela v Baadarani [2013] UKSC 44, [2013] 1 W.L.R. 2043. 2 Power v Meloy Whittle Robinson Solicitors [2014] EWCA Civ 898. C 3 Abela v Baadarani [2013] UKSC 44, [2013] 1 W.L.R. 2043 and Power v Meloy Whittle Robinson Solicitors [2014] EWCA Civ 898 applied. 4 O Kaki v National Private Air Transport Co [2015] EWCA Civ 731; [2015] 1 C.L.C. 948 applied. R

Comment Service cases continue to provide tales of woe for all too many claimants. Much always depends on the specific facts. However, this case is useful as the court summarised the effect of the authorities and the current state of the law regarding validation of service. Floyd LJ summarised the effect of the authorities in the following way. • In deciding whether steps should be validated under the rule the court should simply ask itself whether there is “good reason” to do so.5 • A critical factor in deciding whether to validate service under the rule is that the document has come to the attention of the party intended to be served.6 That is the whole purpose of service.7 • However, it is not by itself sufficient that the document was brought to the attention of the opposite party: something more must be present before there is a “good reason”.8 • In deciding whether there is a “good reason”, there will inevitably be a focus on the reason why the claim form cannot or could not be served within the period of its validity, although this is by no means the only area of inquiry.9 • The conduct of the claimant and of the defendant is relevant.10 It is not necessary, however, for the claimant to show that he has taken all the steps he could have reasonably taken to effect service by the proper method.11 • The mere fact that one party is a litigant in person cannot on its own amount to a good reason, although it may have some relevance at the margins.12 • If one party or the other is playing technical games, this will count against him.13 • An appellate court will only interfere with the judge’s evaluation of the various factors in the assessment of whether there is a good reason if he has erred in principle or was wrong in reaching the conclusion which he did.14 At [10] of his judgment, HH Judge Godsmark QC’s finding appeared to pose the question “why was it that the claim form could not have been served?” as a threshold question, before asking himself whether there was a good reason to make the order sought. If he had left the matter there, he would have failed to have regard to all the various factors which were relevant and focused too much attention on the paucity of reasons for non-service. But the judge did not leave it there. He pointed out next, correctly, that the critical consideration in deciding whether there was a good reason to validate service was whether or not the claim form and its contents had come to the attention of the proposed recipient. He went on to refer to [33]–[38] of Abela, pointing out, again correctly, that this critical consideration was not itself enough. He reminded himself in particular of the fact that the purpose of service of proceedings was to bring the proceedings to the attention of the defendant, and that in considering the conduct of the claimant the relevant focus was on why the claim form could, or could not, be served within the period of its validity.

5 Abela v Baadarani [2013] UKSC 44, [2013] 1 W.L.R. 2043 at [35]. 6 Abela v Baadarani [2013] UKSC 44, [2013] 1 W.L.R. 2043 at [36]. 7 Abela v Baadarani [2013] UKSC 44, [2013] 1 W.L.R. 2043 at [37] and [38]. 8 Abela v Baadarani [2013] UKSC 44, [2013] 1 W.L.R. 2043 at [36]. 9

Abela v Baadarani [2013] UKSC 44, [2013] 1 W.L.R. 2043 at [48]; Kaki v National Private Air Transport Co [2015] EWCA Civ 731; [2015] 1 E C.L.C. 948 at [33]. 10 Kaki v National Private Air Transport Co [2015] EWCA Civ 731; [2015] 1 C.L.C. 948 at [33]. R 11

Power v Meloy Whittle Robinson Solicitors [2014] EWCA Civ 898 at [39]. U 12 R. (on the application of Hysaj) v Secretary of State for the Home Department [2014] EWCA Civ 1633; [2015] 1 W.L.R. 2472 at [44]–[45] (the case considered relief from sanctions under the CPR and whether the fact that a party was unrepresented was relevant to whether there was a good D reason for granting that relief). Nata Lee Ltd v Abid [2014] EWCA Civ 1652; [2015] 2 P. & C.R. 3 at [53] (a case concerned with the admission of E late evidence). 13 Abela v Baadarani [2013] UKSC 44; [2013] 1 W.L.R. 2043 at [38]. C 14 Abela v Baadarani [2013] UKSC 44; [2013] 1 W.L.R. 2043 at [23]. O R

So when HH Judge Godsmark QC said that the whole focus of the appeal boiled down to whether there was any reason why Mr Barton was not able to serve the claim form, he already had in mind that the critical question of whether the claim form had come to the attention of the defendant was to be decided in the claimant’s favour. What he was looking for was whether there was anything in the other circumstances which could be advanced on the claimant’s behalf to allow the conclusion that there was a good reason to validate service. He concluded that there was nothing in the way the claimant had conducted himself that could be weighed in his favour. There was no reason why he could not have served within the generous time limit allowed for doing so. It is difficult to see how he could have reached any other conclusion. The claimant also placed reliance on the proposition derived from Power that the court may in principle grant relief under CPR r.6.15(2) notwithstanding the fact that all reasonable steps have not been taken to effect service. In this case it got him nowhere. The claimant had simply not taken advantage at all of the generous time period allowed for service, when no obstacles stood in his way. HH Judge Godsmark QC had also considered whether the claimant should be excused from complying with the rules because of his status as a litigant in person, and concluded that he should not be. The Court of Appeal agreed. The “very clear terms of the rules about electronic service”, the fact that the claimant was aware that some solicitors did not accept service by email, and the fact that the claimant did nothing to check directly with the defendant’s solicitors—Berrymans Lace Mawer—about whether he could serve by email. There was no evidence that Mr Barton had even looked at the rules. Unsurprisingly the Court of Appeal confirmed that the judge was entitled to take the view that this was not a case where any special indulgence needed to be afforded to a litigant in person, as might, for example, be appropriate where the rule in question was difficult to find or ambiguous to a non-lawyer.

Practice points • The eight steps set out above should provide the framework for the court’s approach to any application for validation of service. • Litigants in person should not expect the rules on service to be applied more generously than would be the case for a litigant with legal representation. • Avoid leaving the issue of proceedings until the end of the limitation period. • Never leave the service of proceedings to the end of the four/six-month period. • Pay proper attention to the specific requirements of the rules. • If you never leave service to the last minute you should avoid any difficulties.

Nigel Tomkins

Hayden v Maidstone and Tunbridge Wells NHS trust

(QBD, Edis J, 2 August 2016, [2016] EWHC 1962 (QB))

E Personal injury—procedure—civil evidence—accidents at work—causation—default judgments—defences— R expert evidence U D Accidents at work; Admissibility; Default judgments; Late filing; Personal injury claims; Surveillance; E Video evidence C O R

This claim for damages for personal injury arose following an accident at work. The claimant was employed as a cardiac physiologist by the defendant and suffered a back injury when attempting to help in the transfer of a patient from a trolley on to a cardiac investigation table on the 23 March 2007. Liability was admitted in April 2009. Proceedings were issued just before the expiry of the primary limitation period. Judgment in default of acknowledgement of service was entered on 15 July 2010. Half a decade then passed before the case was fixed for trial in April 2016. However, the Trust’s expert witness in pain medicine had stated by May 2015 that he thought the claimant might be exaggerating her physical impairment. In January 2016 the Trust’s solicitors asked the NHS Litigation Authority for authority to obtain surveillance evidence; four weeks later it was granted. The Trust obtained surveillance evidence in February and March 2016, close to the start of the trial window. It sent the claimant’s solicitors edited video footage without warning over a long weekend. The claimant’s solicitors asked the Trust’s solicitors to confirm that the surveillance material would not be made available to the experts until the court had given permission to rely on it. The Trust’s pain medicine expert, however, had already seen it and produced a supplemental report stating that it was supportive of his view. Consequently, the trial date was vacated to give the claimant an opportunity to consider her position. The defendant NHS Trust applied to rely on the surveillance evidence. The trial date was vacated by Foskett J1 and the defendant was given permission to rely on covertly recorded video surveillance evidence after a hotly disputed application. This decision deals with further consequences of that decision. Next the defendant applied for permission to serve a defence which pleaded that the claimant had exaggerated the consequences of her accident. The claimant wished to rely on the evidence of a video evidence analysis consultant who had stated that there were irregularities with the recordings. Edis J held that there was no difference between the defendant’s case as set out in its defence and that which it had proposed to advance at the trial which had been vacated. The defendant was entitled to run its case on the issue exactly as it wanted. The decision to allow a defendant to apply for permission to serve a defence alleging fraudulent exaggeration after default judgment had been entered was a bespoke solution to a particular problem.2 The judgment meant that the claimant was injured in an accident at work which was entirely the fault of the defendant and that she had suffered some damage as a result of that injury. She was therefore entitled to recover all the loss which she could show had been caused by the accident. What loss and damage was caused by the defendant’s negligence was part of the exercise of assessing damages.3 The defendant’s application to serve a defence was granted. The judge confirmed that expert evidence was only necessary to the extent that it assisted the court.4 He held that the video evidence analysis consultant principally sought to give evidence of what he had seen when viewing the video footage and reading the surveillance logs. All he said in addition to his factual analysis was that the operatives chose what to film and when to film. He concluded that no knowledge or skill was involved in that exercise.5 It was factual evidence and the claimant already had permission to adduce factual evidence. The claimant’s application was refused.

Comment In this particular decision the court was concerned with two points. The first was the defendant’s application to amend their defence. What was unusual about this was that the amendment was sought after judgment and default had been entered. the court allowed the amendments. This was after having considered the E R U

1 See Hayden v Maidstone and Tunbridge Wells NHS trust [2016] EWHC 1121 (QB); [2016] 3 Costs L.R. 547. D 2 Symes v St George’s Healthcare NHS trust [2014] EWHC 2505 (QB) applied. E 3 Turner v Toleman [1999] EWCA Civ 580 followed. 4 Kennedy v Cordia (Services) LLP [2016] UKSC 6; [2016] 1 W.L.R. 597 followed. C 5 Samson v Ali [2012] EWHC 4146 (QB) considered. O R

claimant’s submission that, in effect, a default judgement in the personal injury action meant that the claimant was entitled to recover for the injuries pleaded in consequence of the defendant’s negligence. Edis J rejected this and pointed out that this had already been considered some years ago in the court of Appeal decision Turner v Toleman.6 In that decision, Simon Brown LJ held that “what loss and damage was caused by this Defendant’s negligence must be part of the exercises of accessing damages”. He said that this accorded with his own experience in these cases over many years: “No doubt Defendants must acknowledge some injury to a Plaintiff before judgement could probably be entered again them … that is a far cry from saying that they are necessarily liable for each and every aspect of loss and injury which the Plaintiff in his pleaded claim asserts he suffered.” The second issue that concerns the court was the video “expert”. For some time now Jeffrey Simm has been preparing reports for claimants on surveillance evidence disclosed by defendants. He describes himself as a video evidence analysis consultant. Essentially, he formed the view in this case that the DVD evidence disclosed by the defendants could not be taken at face value. Edis J dealt with the evidence from Mr Simm at length. He also dealt with his qualifications, noting that he did not have any technical qualifications. Mr Simm made a number of observations on the film and the judge came to the conclusion that everything which he said was “simply setting out the contents of the recordings and other documents and identifying areas where they do not correlate. This is work that could be done by anybody”. There was also a matter of opinion expressed by Mr Simm which touched upon the veracity of one of the individuals taking surveillance. The courts pointed out that this was not an opinion he was entitled to hold bearing in mind that such opinions were a matter for the court to decide. The court then considered whether or not Mr Simm was actually an expert. Reference was made to two cases. The first was the Supreme Court decision in Kennedy v Cordia which defined expert or skill evidence as involving two matters. The first, the necessity and the existence of a reliable body of opinion; the second, whether the witness is a member of that reliable body of opinion. Edis J found that Mr Simm gave evidence which was really just the viewing of the video footage and reading the surveillance logs. He gave a factual analysis and was able to show that the operatives chose what to film and had the ability to decide when to film and when not to. Edis J did not consider that there was any knowledge or skill involved in this exercise such as to subject it to an appropriate expert evidence threshold saying:7 “It is a routine task of investigation such as is performed by police officers or data analysts in almost every significant criminal case where video footage or telephone data is involved. Whether the suggested inference should be drawn from the raw material is a matter for the Judge, not the witness.” Having found on the basis of this case that Mr Simm was not an expert, Edis J still found that the report that he prepared, minus the opinion evidence, would be useful if included amongst the evidence that should go before the court. He also commented that it may be more efficient for Mr Simms to become involved in preparing such analysis of surveillance for preparation of a case rather than the lawyers. He would be cheaper and more informed, however, that would not make him an expert witness. Edis J had already dealt with the decision of Stadlen J in Samson v Ali.8 In that case Mr Simm was allowed to give evidence as an expert. Edis J drew a distinction. In that case there was some evidence that

E the film disclosed on the behalf of the defendants had been speeded up. Edis J accepted that in those

R circumstances there may be expertise required to explain why the film was speeded up. However, such

U contentions were not made in this case. Edis J went on to say that he did not consider that the judgment D E 6 Turner v Toleman [1999] EWCA Civ 580. C 7 Hayden v Maidstone and Tunbridge Wells NHS Trust [2016] EWHC 1962 (QB) at [48]. 8 O Samson v Ali [2012] EWHC 4164 (QB). R

P 2016 J.P.I.L., Issue 4 © 2016 Thomson Reuters (Professional) UK Limited and Contributors Case and Comment: Procedure C241 in Samson meant that Mr Simm should be considered an expert in these issues and his reports on any case should be admitted. He considered that, in effect, Stadlen J had adopted a pragmatic approach in that he felt that the evidence that Mr Simm had would assist the court. Stadlen J had compared Mr Simm’s evidence with that of an accountant who analyses documents and financial records to produce a distillation of the meaning of large quantities of disparate material. However, Edis J also pointed out that Mr Simm was not able to test his own methods against the acknowledged methods of his colleagues in order to ensure that the conclusions had been drawn in a proper and reliable way. Whilst Edis J was quite hostile to the evidence of Mr Simm, it is worthwhile revisiting the Samson case and noting a comment made by Stadlen J:9 “I do not have any doubt at all that this is material [Mr Simm’s report] which the claimant ought to be entitled to deploy. It is a frequent practice that in a claim such as this insurers will engage private investigators to privately film the claimant with a view to trying to show that the claimant is deliberately lying or exaggerating the extent of her injuries, in particular, from the point of mobility. Where the insurer seeks to rely on video footage and the claimant wishes to challenge that video footage on the basis that it has been selectively filmed, is misleading or has left out bits that are helpful to the claimant, it seems to be that this is a central issue in the case and it does not lie in the mouth of the insurer to say that this is a collateral issue or likely to spoil collateral issues.” Bearing in mind that in Hayden Edis J did allow the written evidence to be included, and taking into account the approach by Stadlen J in Samson, it does appear that the evidence of Mr Simm, and people with similar experience, is still relevant. In both cases it was considered that his evidence would assist the court, at least to some extent, and the written material should be included.

Practice point • As has already been observed, defendants regularly obtain surveillance evidence to challenge the credibility of the claimant. The claimant is entitled to defend themselves against such evidence. The Hayden case should not be interpreted as ruling out of question the use of a video surveillance operative to review and analyse such film in order to see whether or not the film has been unfairly tampered with.

Colin Ettinger E R U D E C

9 Samson v Ali [2012] EWHC 4164 (QB) at [29]. O R

Journal of Personal Injury Law

2016 This volume should be cited as [2016] J.P.I.L. 00 Published in 2016 by Thomson Reuters (Professional) UK Limited trading as Sweet & Maxwell, 5 Canada Square, Canary Wharf, London, E14 5AQ. (Registered in England & Wales, Company No.1679046. Registered Office and address for service: 2nd floor, 1 Mark Square, Leonard street, London, EC2A 4EG.) For further information on our products and services, visit http://www.sweetandmaxwell.co.uk. Computerset by Sweet & Maxwell. No natural forests were destroyed to make this product: only farmed timber was used and re-planted. A CIP catalogue record for this book is available from the British Library. ISBN 978-0-414-05881-1

Each article and case commentary in this volume has been allocated keywords from the Legal Taxonomy utilised by Sweet & Maxwell to provide a standardised way of describing legal concepts. These keywords are identical to those used in Westlaw UK and have been used for many years in other publications such as Legal Journals Index. The keywords provide a means of identifying similar concepts in other Sweet & Maxwell publications and online services to which keywords from the Legal Taxonomy have been applied. Keywords follow the Taxonomy logo at the beginning of each item. The index has also been prepared using Sweet & Maxwell’s Legal Taxonomy. Main index entries conform to keywords provided by the Legal Taxonomy except where references to specific documents or non-standard terms (denoted by quotation marks) have been included. Readers may find some minor differences between terms used in the text and those which appear in the index. Please send any suggestions to [email protected].

Orders to: Sweet & Maxwell, PO Box 1000, Andover, SP10 9AF. Tel: 0845 600 9355. Email: [email protected]. Copies of articles from the Journal of Personal Injury Law and other articles, cases and related materials can be obtained from DocDel at Sweet & Maxwell’s Yorkshire office. Current rates are: £7.50 + copyright charge + VAT per item for orders by post, email and DX. Fax delivery is guaranteed within 15 minutes of request and is charged at an additional £1.25 per page (£2.35 per page outside the UK). For full details and how to order please contact DocDel on: · Tel: 01422 888 019; · Fax: 01422 888 001 · Email: [email protected]. · Go to http://www.sweetandmaxwell.co.uk/our-businesses/docdel.aspx. Please note that all other enquiries should be directed to Sweet & Maxwell, 5 Canada Square, Canary Wharf, London, E14 5AQ. Tel: 020 7542 6664. Fax: 020 3285 7644. Thomson Reuters and the Thomson Reuters logo are trademarks of Thomson Reuters. Sweet & Maxwell ® is a registered trademark of Thomson Reuters (Professional) UK Limited. Crown copyright material is reproduced with the permission of the Controller of HMSO and the Queen’s Printer for Scotland. All rights reserved. No part of this publication may be reproduced, or transmitted in any form, or by any means, or stored in any retrieval system of any nature, without prior written permission, except for permitted fair dealing under the Copyright, Designs and Patents Act 1988, or in accordance with the terms of a licence issued by the Copyright Licensing Agency in respect of photocopying and/or reprographic reproduction. Application for permission for other use of copyright material, including permission to reproduce extracts in other published works, shall be made to the publishers. Full acknowledgement of the author, publisher and source must be given. © 2016 Thomson Reuters (Professional) UK Limited and contributors General Editor Case and Comment Editor John Spencer: John is a member of the Civil Nigel Tomkins: Legal and Training Justice Council. He is past president of Consultant. Consultant with APIL and was appointed a senior fellow in Freethcartwright Solicitors, Nottingham. May 2014. He is a past chairman of the Fellow and AC Member of APIL. Motor Accident Solicitors Society. He was Specialities: Civil Litigation, Personal awarded the "Outstanding Achievement Injury Liability and Health & Safety Law. Award" at the Eclipse Proclaim and Modern Claims Personal Injury Awards in 2012 and 2015 respectively.

Table of Contents

Articles

Liability The Richard Davies QC Memorial Lecture 2015: “Standards of Proof in Law and Science: Distinctions Without a Difference?” Sir Robert Jay ...... 1 Asbestos in Schools. Michael Lees ...... 14 The Extension of Fairchild to Lung Cancer David Allan QC...... 61 Airbnb: An Elusive Defendant in the Cyberworld. Julian Fulbrook ...... 66 The Apologies (Scotland) Act 2016: An Innovative Opportunity in the Twenty-First Century or an Unnecessary Development? Douglas S.K. Maxwell ...... 79 Vicarious Liability: There’s an App for That. Nigel MacKay ...... 90 Abuse Claims: Criminal Injuries Compensation. Ben Collins QC and Katherine Fudakowski ...... 105 Asbestos Caused Lung Cancer: An Issue Ripe for Review. Alan McKenna ...... 114 Fundamental Dishonesty: Guidance for Practitioners. Brett Dixon and John McQuater ...... 121 The Deregulation Act 2015: The Health and Safety Duties of the Self Employed. Brett Dixon ...... 134 Social Media Evidence in Personal Injury Litigation: The Ethical Considerations. Elaine Ibbotson ...... 205 The Illegality Defence in Tort. Mark Ashley ...... 212 Emerging Technologies in Collision Investigation. James Wade ...... 220 Quantum/Damages Rehabilitation and Use of the Case Managers: Rehabilitation Code 2015 and Supporting Guide to Case Managers and Those Who Commission Them. David Fisher ...... 32 Fatal Accidents in the European Union. Bjarte Thorson...... 40 What Price Parenthood? The Value We Place on a Family. Chris Thorne ...... 95 Adding Insult to Injury. Andrew Lewis QC ...... 141 Causation in Clinical Negligence Claims After Williams v Bermuda Hospitals Board. Tim Trotman ...... 154 The Criminal Injuries Compensation Scheme 2012 and its Impact on Victims of Crime. Neil Sugarman ...... 231 FOIL: Presidential Reflections. Duncan Rutter ...... 237 Procedure What to do when After-the-Event Insurers Refuse to Indemnify. Sarah Naylor ...... 56 What Relevance do Damages Based Agreements have to Personal Injury cases? Stuart Kightley ...... 100 The Future of CPR Part 36 (Part 10). John McQuater ...... 164 Direct Rights Against Insurers: What Europe Ever Did for Us. Sarah Crowther ...... 180 Using Technology to stay in the Personal Injury Market. Tony Arnold ...... 189 Should your firm embrace social? Donna Beckett ...... 195 Periodical Payment Orders. Edward Tomlinson and Helen Smith ...... 243 Due Diligence, Risk Assessment and Visibility of Caseloads in Personal Injury. Zoe Holland ...... 249

Case and Comment Sections

Liability...... C1, C59, C126, C181 Quantum Damages...... C14, C94, C144, C211 Procedure...... C37, C105, C156, C226

vii

Table of Cases

AB v CD [2011] EWHC 602 (Ch)...... 173, C116 AB v Main [2015] EWHC 3183 (QB)...... C3 AB v Royal Devon and Exeter NHS Foundation Trust [2016] EWHC 1024 (QB)...... 215, C144 AB (A Protected Party by his Litigation Friend, CD) v Pro-Nation Ltd [2016] EWHC 1022 (QB)...... C137, C138, C139 Abela v Baadarani [2013] UKSC 44; [2013] 1 W.L.R. 2043; [2013] 4 All E.R. 119; [2013] 2 C.L.C. 92; [2013] I.L.Pr. 40...... C236, C237 Abnett v British Airways Plc [1997] A.C. 430; [1997] 2 W.L.R. 26; [1997] 1 All E.R. 193; [1997] 2 Lloyd’s Rep. 76; 1997 S.C. (H.L.) 26; 1997 S.L.T. 492; 1997 S.C.L.R. 114; (1997) 94(2) L.S.G. 26; (1996) 146 N.L.J. 1851; (1997) 141 S.J.L.B. 26 HL...... C209 AC Billings & Sons v Riden [1958] A.C. 240; [1957] 3 W.L.R. 496; [1957] 3 All E.R. 1; (1957) 101 S.J. 645 HL...... C132 Aklagaren v Fransson (C-617/10); sub-nom. Aklagaren v Akerberg Fransson (C-617/10) [2013] S.T.C. 1905; [2013] 2 C.M.L.R. 46; 15 I.T.L. Rep. 698 ECJ (Grand Chamber)...... 48 AKO Capital LLP v TFS Derivatives, unreported...... 207 Aktas v Adepta [2010] EWCA Civ 1170; [2011] Q.B. 894; [2011] 2 W.L.R. 945; [2011] 2 All E.R. 536; [2011] C.P. Rep. 9; [2011] P.I.Q.R. P4...... C171 Albakova v Russia, 15 January 2015...... 54 Alker v Collingwood Housing Association [2007] EWCA Civ 343; [2007] 1 W.L.R. 2230; [2007] H.L.R. 29; [2007] L. & T.R. 23; [2007] 2 E.G.L.R. 43; [2007] 25 E.G. 184...... C127, C129, C130 Allen v British Rail Engineering Ltd (BREL) [2001] EWCA Civ 242; [2001] I.C.R. 942; [2001] P.I.Q.R. Q10...... 142 Allen v Hounga [2014] UKSC 47; [2014] 1 W.L.R. 2889; [2014] 4 All E.R. 595; [2014] I.C.R. 847; [2014] I.R.L.R. 811; [2014] H.R.L.R. 23; 39 B.H.R.C. 412; [2014] Eq. L.R. 559...... 215, 216, C145 Allianz Australia Ltd v Sim [2012] NSWCA 68...... 118, 119 Allison v London Underground Ltd [2008] EWCA Civ 71; [2008] I.C.R. 719; [2008] I.R.L.R. 440; [2008] P.I.Q.R. P10; (2008) 105(8) L.S.G. 24; (2008) 152(8) S.J.L.B. 34...... 137, C141 Allonby v Accrington and Rossendale College (C-256/01) [2004] E.C.R. I-873; [2004] 1 C.M.L.R. 35; [2005] All E.R. (EC) 289; [2004] I.C.R. 1328; [2004] I.R.L.R. 224; [2004] O.P.L.R. 83; [2004] Pens. L.R. 199 ECJ...... 93 Alphacell Ltd v Woodward [1972] A.C. 824; [1972] 2 W.L.R. 1320; [1972] 2 All E.R. 475; 70 L.G.R. 455; [1972] Crim. L.R. 41; (1972) 116 S.J. 431 HL...... C35, C36 Amaca Pty Ltd v Booth [2011] HCA 53...... 118 Amaca Pty Ltd v Ellis [2010] HCA 5...... 117, 163, C85 AMH v Scout Association, unreported...... C41, C42 Andrews, unreported...... 77 Appleby v Northern Devon Healthcare NHS Trust [2012] EWHC 4356 (QB)...... C231 Armagas Ltd v Mundogas SA (The Ocean Frost) [1986] A.C. 717; [1986] 2 W.L.R. 1063; [1986] 2 All E.R. 385; [1986] 2 Lloyd’s Rep. 109; (1986) 2 B.C.C. 99197; (1986) 83 L.S.G. 2002; (1986) 130 S.J. 430 HL...... C28 Armitage v Nurse [1998] Ch. 241; [1997] 3 W.L.R. 1046; [1997] 2 All E.R. 705; [1997] Pens. L.R. 51; (1997) 74 P. & C.R. D13 CA (Civ Div)...... 126 Armitage v Nurse (Assessment of Costs) [2000] 2 Costs L.R. 231 Ch D...... 126 Armstrong v First York Ltd [2005] EWCA Civ 277; [2005] 1 W.L.R. 2751; [2005] C.P. Rep. 25; [2005] R.T.R. 19...... 12 Artegodan GmbH v European Commission (T-429/05) [2010] E.C.R. II-491 GC...... 47 Associated Newspapers Ltd v Dingle; sub-nom. Dingle v Associated Newspapers Ltd [1964] A.C. 371; [1962] 3 W.L.R. 229; [1962] 2 All E.R. 737; (1962) 106 S.J. 488 HL...... 160 AT v Dulghieru [2009] EWHC 225 (QB)...... C152 Aydin v Turkey (25660/94) (2006) 42 E.H.R.R. 44 ECHR...... 52 B v Chief Constable of X; sub-nom. AB v Chief Constable of X [2015] EWHC 13 (QB); [2015] I.R.L.R. 284...... 214 B v Croatia, 18 June 2015...... 46, 53 B v Ministry of Defence; sub-nom. Ministry of Defence v AB; AB v Ministry of Defence [2012] UKSC 9; [2013] 1 A.C. 78; [2012] 2 W.L.R. 643; [2012] 3 All E.R. 673; [2012] P.I.Q.R. P13; [2012] Med. L.R. 306; (2012) 125 B.M.L.R. 69; (2012) 109(22) L.S.G. 19; (2012) 156(11) S.J.L.B. 31...... 157, 158, 159 160

ix x Table of Cases

B v Nugent Care Society; sub-nom. GR v Wirral MBC; AB v Nugent Care Society [2009] EWCA Civ 827; [2010] 1 W.L.R. 516; [2010] 1 F.L.R. 707; [2010] P.I.Q.R. P3; [2009] LS Law Medical 524; [2009] Fam. Law 1045; (2009) 153(30) S.J.L.B. 28...... C82 B (Children) (Sexual Abuse: Standard of Proof), Re; sub-nom. Local Authority X v B [2008] UKHL 35; [2009] 1 A.C. 11; [2008] 3 W.L.R. 1; [2008] 4 All E.R. 1; [2008] 2 F.L.R. 141; [2008] 2 F.C.R. 339; [2008] Fam. Law 837; [2008] Fam. Law 619...... C82, C191 Badger v Ministry of Defence [2005] EWHC 2941 (QB); [2006] 3 All E.R. 173; (2006) 91 B.M.L.R. 1; (2006) 156 N.L.J. 65...... 115, 116 Bailes v Bloom, unreported...... 174 Bailey v Ministry of Defence [2008] EWCA Civ 883; [2009] 1 W.L.R. 1052; [2008] LS Law Medical 481; (2008) 103 B.M.L.R. 134...... 142, 152, 154 155, 156, 158, 159, 160, 161, 162, C15, C16, C19, C76, C78, C79 Baker v Quantum Clothing Group Ltd [2011] UKSC 17; [2011] 1 W.L.R. 1003; [2011] 4 All E.R. 223; [2011] I.C.R. 523; [2011] P.I.Q.R. P14; (2011) 108(17) L.S.G. 13; (2011) 155(15) S.J.L.B. 38...... C60 Baker v Willoughby [1970] A.C. 467; [1970] 2 W.L.R. 50; [1969] 3 All E.R. 1528; 7 K.I.R. 457; (1970) 114 S.J. 15 HL...... 143, 144, 145 147, C15 Barker v Corus UK Ltd; sub-nom. Barker v Saint Gobain Pipelines Plc [2006] UKHL 20; [2006] 2 A.C. 572; [2006] 2 W.L.R. 1027; [2006] 3 All E.R. 785; [2006] I.C.R. 809; [2006] P.I.Q.R. P26; (2006) 89 B.M.L.R. 1; (2006) 103(20) L.S.G. 27; (2006) 156 N.L.J. 796; (2006) 150 S.J.L.B. 606; [2006] N.P.C. 50...... 9, 61, 63 65, 115, 116, 117, 160, C86, C87 Barnett v Chelsea and Kensington Hospital Management Committee [1969] 1 Q.B. 428; [1968] 2 W.L.R. 422; [1968] 1 All E.R. 1068; (1967) 111 S.J. 912 QBD...... 141 Bates van Winkelhof v Clyde & Co LLP [2014] UKSC 32; [2014] 1 W.L.R. 2047; [2014] 3 All E.R. 225; [2014] I.C.R. 730; [2014] I.R.L.R. 641...... 93 Baysayeva v Russia (74237/01) (2009) 48 E.H.R.R. 33 ECHR...... 52 Bazley v Curry (1999) 174 D.L.R. (4th) 45 Sup Ct (Can)...... C70, C74 BC v First-tier Tribunal [2016] UKUT 155...... 233 Beaumont v Ferrer [2016] EWCA Civ 768...... 213 Beesley v New Century Group Ltd [2008] EWHC 3033 (QB)...... C98, C99 Bell v Havering LBC [2010] EWCA Civ 689...... 129, C48 Belmont Finance Corp Ltd v Williams Furniture Ltd [1979] Ch. 250; [1978] 3 W.L.R. 712; [1979] 1 All E.R. 118; (1978) 122 S.J. 743 CA (Civ Div)...... 126 Berg v Blackburn Rovers Football Club & Athletic Plc [2013] EWHC 1070 (Ch); [2013] I.R.L.R. 537...... C48 Bianco v Bennett [2015] EWHC 626 (QB); [2015] I.L.Pr. 24...... 187 Billett v Ministry of Defence [2015] EWCA Civ 773; [2016] P.I.Q.R. Q1...... C101, C103, C222 Bilta (UK) Ltd (In Liquidation) v Nazir; sub-nom. Jetivia SA v Bilta (UK) Ltd (In Liquidation) [2015] UKSC 23; [2016] A.C. 1; [2015] 2 W.L.R. 1168; [2015] 2 All E.R. 1083; [2015] 2 All E.R. (Comm) 281; [2015] 2 Lloyd’s Rep. 61; [2015] B.C.C. 343; [2015] 1 B.C.L.C. 443; [2015] B.V.C. 20...... C145 Bingham v Abru Ltd, unreported...... 178 Blamire v South Cumbria HA [1993] P.I.Q.R. Q1 CA (Civ Div)...... C32, C33, C34 C222 Bljakaj v Croatia (74448/12) (2016) 62 E.H.R.R. 4; 38 B.H.R.C. 759 ECHR...... 45 Bloomsbury International Ltd v Sea Fish Industry Authority; sub-nom. Bloomsbury International Ltd v Department for the Environment, Food and Rural Affairs [2011] UKSC 25; [2011] 1 W.L.R. 1546; [2011] 4 All E.R. 721; [2011] 3 C.M.L.R. 32; (2011) 161 N.L.J. 883...... C233 Bloy v Motor Insurers’ Bureau [2013] EWCA Civ 1543; [2014] Lloyd’s Rep. I.R. 75; [2014] P.I.Q.R. P9; (2013) 157(47) S.J.L.B. 37...... C25, C26, C212 C213 BNM v MGN Ltd [2016] 3 Costs L.O. 441 Sen Cts Costs Office...... 254 Bolam v Friern Hospital Management Committee [1957] 1 W.L.R. 582; [1957] 2 All E.R. 118; [1955-95] P.N.L.R. 7; (1957) 101 S.J. 357 QBD...... C206 Bolton MBC v Municipal Mutual Insurance Ltd [2006] EWCA Civ 50; [2006] 1 W.L.R. 1492; [2006] 1 C.L.C. 242; [2007] Lloyd's Rep. I.R. 173; (2006) 103(9) L.S.G. 31; (2006) 150 S.J.L.B. 226...... 31 Bonnington Castings Ltd v Wardlaw; sub-nom. Wardlaw v Bonnington Castings Ltd [1956] A.C. 613; [1956] 2 W.L.R. 707; [1956] 1 All E.R. 615; 1956 S.C. (H.L.) 26; 1956 S.L.T. 135; 54 L.G.R. 153; (1956) 100 S.J. 207 HL...... 9, 62, 63 Table of Cases xi

154, 155, 156, 157, 158, 159, 160, C76, C77, C78, C79, C84, C85 Booth v Amaca Pty Ltd [2010] NSWDDT 8...... 118 Boyle v Kodak [1969] 1 W.L.R. 661; [1969] 2 All E.R. 439; 6 K.I.R. 427; (1969) 113 S.J. 382 HL...... C92 Brasserie du Pecheur SA v Germany (C-46/93) [1996] Q.B. 404; [1996] 2 W.L.R. 506; [1996] E.C.R. I-1029; [1996] 1 C.M.L.R. 889; [1996] All E.R. (EC) 301; [1996] C.E.C. 295; [1996] I.R.L.R. 267 ECJ...... 47 Bratty v Attorney General of Northern Ireland [1963] A.C. 386; [1961] 3 W.L.R. 965; [1961] 3 All E.R. 523; (1962) 46 Cr. App. R. 1; (1961) 105 S.J. 865 HL...... C53 Brighton and Hove Bus and Coach Co Ltd v Brooks [2011] EWHC 2504 (Admin)...... 122, 124 Brincat v Malta, 24 July 2014...... 45, 46 Briody v St Helens and Knowsley AHA (Claim for Damages and Costs) [2001] EWCA Civ 1010; [2002] Q.B. 856; [2002] 2 W.L.R. 394; [2001] 2 F.L.R. 1094; [2001] 2 F.C.R. 481; (2001) 62 B.M.L.R. 1; [2001] Fam. Law 796; (2001) 98(33) L.S.G. 32...... 99 Bristow v Princess Alexandra Hospital NHS Trust, unreported...... 131 British Gas Trading Ltd v Oak Cash and Carry Ltd; sub-nom. Oak Cash & Carry Ltd v British Gas Trading Ltd [2016] EWCA Civ 153; [2016] C.P. Rep. 27; [2016] 2 Costs L.O. 289...... C160 British Waterways v Royal & Sun Alliance Insurance Plc [2012] EWHC 460 (Comm); [2012] Lloyd’s Rep. I.R. 562...... C199 Broadhurst v Tan [2016] EWCA Civ 94; [2016] 1 W.L.R. 1928; [2016] C.P. Rep. 22; [2016] 2 Costs L.O. 155...... 132, 166, C111 C112, C113, C114, C118 Broome v Cassell & Co Ltd (No.1) [1972] A.C. 1027; [1972] 2 W.L.R. 645; [1972] 1 All E.R. 801; (1972) 116 S.J. 199 HL...... C150 Brownlie v Four Seasons Holdings Inc [2015] EWCA Civ 665; [2016] 1 W.L.R. 1814; [2015] C.P. Rep. 40; [2016] P.I.Q.R. P2...... 185 Bubbins v United Kingdom (50196/99) (2005) 41 E.H.R.R. 24; [2005] Inquest L.R. 24 ECHR...... 49 Buldan v Turkey, 20 April 2004...... 53 Bumper Development Corp v Commissioner of Police of the Metropolis [1991] 1 W.L.R. 1362; [1991] 4 All E.R. 638; (1991) 135 S.J. 382 CA (Civ Div)...... C221 Burrell v Clifford [2016] EWHC 294 (Ch)...... 172 C v D; sub-nom. Middlegreen LP v Dominion Developments (2005) Ltd [2011] EWCA Civ 646; [2012] 1 W.L.R. 1962; [2012] 1 All E.R. 302; [2011] C.P. Rep. 38; 136 Con. L.R. 109; [2011] 5 Costs L.R. 773; [2011] 2 E.G.L.R. 95; [2011] 23 E.G. 86 (C.S.); (2011) 161 N.L.J. 780...... 166, 169, 171 C v D [2006] EWHC 166 (QB)...... C29, C30 C v WH [2015] EWHC 2687 (QB); [2016] E.L.R. 1; [2016] P.I.Q.R. Q2...... C30 Cakici v Turkey (23657/94) (2001) 31 E.H.R.R. 5 ECHR...... 50, 52 Campbell v Peter Gordon Joiners Ltd; sub-nom. Campbell v Gordon [2016] UKSC 38; [2016] 3 W.L.R. 294; 2016 S.L.T. 887; 2016 S.C.L.R. 434; [2016] I.C.R. 862; 2016 G.W.D. 21-380...... C182, C183 Canadian Pacific Railway Co v Lockhart [1942] A.C. 591 PC (Can)...... 77, C73 Canning-Kishver v Sandwell & West Birmingham Hospitals NHS Trust [2008] EWHC 2384 (QB)...... 155 Carillion JM Ltd v PHI Group Ltd; sub-nom. PHI Group Ltd v Robert West Consulting Ltd [2012] EWCA Civ 588; [2012] C.P. Rep. 37; [2012] B.L.R. 329; [2012] T.C.L.R. 5; 142 Con. L.R. 96; [2012] 4 Costs L.O. 523; [2012] C.I.L.L. 3180...... 166, 167 Cartledge v E Jopling & Sons Ltd [1963] A.C. 758; [1963] 2 W.L.R. 210; [1963] 1 All E.R. 341; [1963] 1 Lloyd’s Rep. 1; (1963) 107 S.J. 73 HL...... C12 Catnic Components Ltd v Hill & Smith Ltd (No.2) [1983] F.S.R. 512 Ch D (Patents Ct)...... C152 Cave v Bulley Davey (A Firm) [2013] EWHC 4246 (QB)...... 179 Cavell v Transport for London [2015] EWHC 2283 (QB)...... C46, C48 Cecil v Bayat; sub-nom. Bayat v Cecil [2011] EWCA Civ 135; [2011] 1 W.L.R. 3086; [2011] C.P. Rep. 25...... C168, C170 Çelikbilek v Turkey, 31 May 2005...... 52 Century Insurance Co Ltd v Northern Ireland Road Transport Board [1942] A.C. 509; [1942] 1 All E.R. 491; (1942) 72 Ll. L. Rep. 119 HL (NI)...... 77, C73 Cercato-Gouveia v Kyprianou [2001] EWCA Civ 1887...... 77, C73 Ceva Logistics Ltd v Lynch (t/a SW Lynch Electrical Contractors); sub-nom. Lynch v Ceva Logistics Ltd [2011] EWCA Civ 188; [2011] I.C.R. 746...... 138, 139 CH v Criminal Injuries Compensation Authority, unreported, 6 April 2016...... 108 xii Table of Cases

Chartbrook Ltd v Persimmon Homes Ltd [2009] UKHL 38; [2009] 1 A.C. 1101; [2009] 3 W.L.R. 267; [2009] 4 All E.R. 677; [2010] 1 All E.R. (Comm) 365; [2009] Bus. L.R. 1200; [2009] B.L.R. 551; 125 Con. L.R. 1; [2010] 1 P. & C.R. 9; [2009] 3 E.G.L.R. 119; [2009] C.I.L.L. 2729; [2009] 27 E.G. 91 (C.S.); (2009) 153(26) S.J.L.B. 27; [2009] N.P.C. 86; [2009] N.P.C. 87...... C127 Churchill Insurance Co Ltd v Wilkinson (C-442/10); sub-nom. Evans v Equity Claims Ltd (C-442/10) [2013] 1 W.L.R. 1776; [2012] R.T.R. 10; [2012] C.E.C. 934; [2012] Lloyd’s Rep. I.R. 544 ECJ (4th Chamber)...... C200 CILFIT Srl v Ministero della Sanita (283/81); sub-nom. CILFIT Srl v Ministro della Sanita (283/81) [1982] E.C.R. 3415; [1983] 1 C.M.L.R. 472 ECJ...... C195 City of Santa Barbara v Superior Court (2007) 41 Cal. 4th 747...... 78 Clare v Perry (t/a Widemouth Manor Hotel) [2005] EWCA Civ 39; (2005) 149 S.J.L.B. 114...... C131, C133 Clarke v Maltby (Costs) [2010] EWHC 1856 (QB)...... 131 Clunis v Camden and Islington HA [1998] Q.B. 978; [1998] 2 W.L.R. 902; [1998] 3 All E.R. 180; (1997-98) 1 C.C.L. Rep. 215; (1998) 40 B.M.L.R. 181; [1998] P.N.L.R. 262; (1998) 95(2) L.S.G. 23; (1998) 142 S.J.L.B. 38 CA (Civ Div)...... 216, C146 Coll v Tattum (2002) 99(3) L.S.G. 26 Ch D...... C44 Collier v Williams [2006] EWCA Civ 20; [2006] 1 W.L.R. 1945; [2007] 1 All E.R. 991; [2006] C.P. Rep. 22; [2006] P.I.Q.R. P18; (2006) 103(7) L.S.G. 23; (2006) 150 S.J.L.B. 128...... C168, C169, C170 Collins v Wilcock [1984] 1 W.L.R. 1172; [1984] 3 All E.R. 374; (1984) 79 Cr. App. R. 229; (1984) 148 J.P. 692; [1984] Crim. L.R. 481; (1984) 81 L.S.G. 2140; (1984) 128 S.J. 660 DC...... C30 Comet BV v Produktschap Voor Siergewassen (45/76) [1976] E.C.R. 2043 ECJ...... 44 Commission of the European Communities v Greece (C398/98); sub-nom. Emergency Stocks of Petroleum Products, Re (C398/98) [2001] E.C.R. I-7915; [2001] 3 C.M.L.R. 62 ECJ (5th Chamber)...... 47 Committeri v Club Mediterranee SA [2016] EWHC 1510 (QB)...... C197, C198 Constantine v Imperial Hotels Ltd [1944] K.B. 693; [1944] 2 All E.R. 171 KBD...... 71 Cooke v Plauen Holdings Pty Ltd [2001] FMCA 91...... 81 Cookson v Knowles [1979] A.C. 556; [1978] 2 W.L.R. 978; [1978] 2 All E.R. 604; [1978] 2 Lloyd’s Rep. 315; (1978) 122 S.J. 386 HL...... C94, C95, C96 Cooley v Ramsey [2008] EWHC 129 (QB); [2008] I.L.Pr. 27...... 185 Coopers Payen Ltd v Southampton Container Terminal Ltd [2003] EWCA Civ 1223; [2004] 1 Lloyd's Rep. 331...... 12 Corocraft Ltd v Pan American Airways Inc; sub-nom. Corocraft v Pan American World Airways Inc; Corocraft and Vendome Jewels v Pan American Airways Inc [1969] 1 Q.B. 616; [1968] 3 W.L.R. 1273; [1969] 1 All E.R. 82; [1968] 2 Lloyd’s Rep. 459; (1968) 112 S.J. 903 CA (Civ Div)...... C209 Cox v Ministry of Justice [2016] UKSC 10; [2016] 2 W.L.R. 806...... 91, 92, 94 C68, C72 Creech v Apple Security Group Ltd (Costs), unreported...... 123 Criminal Injuries Compensation Authority v First-tier Tribunal (Social Entitlement Chamber); sub-nom. CP (A Child) v Criminal Injuries Compensation Authority [2014] EWCA Civ 1554; [2015] Q.B. 459; [2015] 2 W.L.R. 463; [2015] 4 All E.R. 60; [2015] 1 Cr. App. R. 19; [2015] 2 F.L.R. 1163; [2015] P.I.Q.R. P12; (2015) 142 B.M.L.R. 18; [2015] Fam. Law 123...... 107, 108, 109 234 Criminal Proceedings against Bernaldez (C-129/94) [1996] E.C.R. I-1829; [1996] 2 C.M.L.R. 889; [1996] All E.R. (EC) 741 ECJ (5th Chamber)...... C53 Crooks v Hendricks Lovell Ltd [2016] EWCA Civ 8; [2016] 1 Costs L.O. 103...... 168, C106, C107 Cross v Kirkby, The Times, 5 April 2000 CA (Civ Div)...... C146 Cruz v Chief Constable of Lancashire [2016] EWCA Civ 402...... C141 Daley v Bakiyev [2016] EWHC 1972 (QB)...... C189, C191 Dass v Dass [2013] EWHC 2520 (QB)...... 129, C159 Daubert v Merrell Dow Pharmaceuticals Inc [1994] 5 Med. L.R. 131 US Court...... 4 DC v State of New South Wales [2016] NSWCA 198...... C204, C205, C206 Delaney v Pickett [2011] EWCA Civ 1532; [2012] 1 W.L.R. 2149; [2012] R.T.R. 16; [2013] Lloyd’s Rep. I.R. 24; [2012] P.I.Q.R. P10...... 214 Dellow’s Will Trusts, Re; sub-nom. Lloyds Bank v Institute of Cancer Research [1964] 1 W.L.R. 451; [1964] 1 All E.R. 771; (1964) 108 S.J. 156 Ch D...... C191 Dennis v London Passenger Transport Board [1948] 1 All E.R. 779; 64 T.L.R. 269; (1948) 92 S.J. 350 KBD...... C97 Table of Cases xiii

Denton v TH White Ltd [2014] EWCA Civ 906; [2014] 1 W.L.R. 3926; [2015] 1 All E.R. 880; [2014] C.P. Rep. 40; [2014] B.L.R. 547; 154 Con. L.R. 1; [2014] 4 Costs L.R. 752; [2014] C.I.L.L. 3568; (2014) 164(7614) N.L.J. 17...... 128, 129, C44 C156, C157, C158, C159, C160, C161 Denton Hall Legal Services v Fifield [2006] EWCA Civ 169; [2006] Lloyd’s Rep. Med. 251...... 125 Dickins v O2 Plc [2008] EWCA Civ 1144; [2009] I.R.L.R. 58; (2008) 105(41) L.S.G. 19...... 160 DIL v Commissioner of Police of the Metropolis [2014] EWHC 2184 (QB)...... 127 Dimov v Bulgaria, 6 November 2012...... 53, 54 Dodd v Raebarn Estates Ltd [2016] EWHC 262 (QB); [2016] H.L.R. 12...... C128, C129, C130 Dölek v Turkey, 28 April 2015...... 46, 53 Dolphin Maritime & Aviation Services Ltd v Sveriges Angfartygs Assurans Forening; sub-nom. Dolphin Maritime & Aviation Services Ltd v Sveriges Angartygs [2009] EWHC 716 (Comm); [2010] 1 All E.R. (Comm) 473; [2009] 2 Lloyd’s Rep. 123; [2009] 1 C.L.C. 460; [2009] I.L.Pr. 52...... C121 Donoghue v Folkestone Properties Ltd [2003] EWCA Civ 231; [2003] Q.B. 1008; [2003] 2 W.L.R. 1138; [2003] 3 All E.R. 1101; (2003) 100(17) L.S.G. 29; (2003) 147 S.J.L.B. 265; [2003] N.P.C. 28...... C132 Dorchester Group Ltd (t/a Dorchester Collection) v Kier Construction Ltd [2015] EWHC 3051 (TCC); [2016] C.I.L.L. 3753...... C47 Douglas v O’Neill [2011] EWHC 601 (QB)...... C172, C174 Downs v Chappell [1997] 1 W.L.R. 426; [1996] 3 All E.R. 344; [1996] C.L.C. 1492 CA (Civ Div)...... C148 Dubai Aluminium Co Ltd v Salaam [2002] UKHL 48; [2003] 2 A.C. 366; [2002] 3 W.L.R. 1913; [2003] 1 All E.R. 97; [2003] 2 All E.R. (Comm) 451; [2003] 1 Lloyd’s Rep. 65; [2003] 1 B.C.L.C. 32; [2003] 1 C.L.C. 1020; [2003] I.R.L.R. 608; [2003] W.T.L.R. 163; (2003) 100(7) L.S.G. 36; (2002) 146 S.J.L.B. 280...... C66, C71, C72 Dubjakova v Slovakia, 10 October 2004...... 50 Dunthorne v Bentley [1996] R.T.R. 428; [1996] P.I.Q.R. P323 CA (Civ Div)...... C200 Duran v Turkey, 8 April 2008...... 52 Durham v BAI (Run Off) Ltd; sub-nom. Fleming v Independent Insurance Co Ltd; Edwards v Excess Insurance Co Ltd; Thomas Bates & Son Ltd v BAI (Run Off) Ltd; Municipal Mutual Insurance Ltd v Zurich Insurance Co; Akzo Nobel UK Ltd v Excess Insurance Co Ltd [2012] UKSC 14; [2012] 1 W.L.R. 867; [2012] 3 All E.R. 1161; [2012] 2 All E.R. (Comm) 1187; [2012] I.C.R. 574; [2012] Lloyd's Rep. I.R. 371; [2012] P.I.Q.R. P14; (2012) 125 B.M.L.R. 137; (2012) 162 N.L.J. 502; (2012) 156(13) S.J.L.B. 31...... 18, 31 E v English Province of Our Lady of Charity; sub-nom. JGE v Portsmouth Roman Catholic Diocesan Trust; JGE v English Province of Our Lady of Charity [2012] EWCA Civ 938; [2013] Q.B. 722; [2013] 2 W.L.R. 958; [2012] 4 All E.R. 1152; [2013] P.T.S.R. 565; [2012] I.R.L.R. 846; [2012] P.I.Q.R. P19...... 90, 92, 94 C66 Edgson v Vickers [1994] I.C.R. 510 QBD...... 18 Embassy Limousines & Services v European Parliament (T203/96) [1998] E.C.R. II-4239; [1999] 1 C.M.L.R. 667 CFI (4th Chamber)...... 49 English Heritage v Taylor [2016] EWCA Civ 448...... C133 Everett v Comojo (UK) Ltd (t/a Metropolitan) [2011] EWCA Civ 13; [2012] 1 W.L.R. 150; [2011] 4 All E.R. 315; [2011] P.I.Q.R. P8; (2011) 108(5) L.S.G. 19; (2011) 161 N.L.J. 172; (2011) 155(3) S.J.L.B. 39...... C73 Factortame Ltd v Secretary of State for the Environment, Transport and the Regions (Costs) (No.1); sub-nom. R. v Secretary of State for Transport Ex p. Factortame Ltd (Costs: Part 36 Payments) [2002] EWCA Civ 22; [2002] 1 W.L.R. 2438; [2002] 2 All E.R. 838; [2002] C.P.L.R. 385; (2002) 152 N.L.J. 171...... 174 Fairchild v Glenhaven Funeral Services Ltd (t/a GH Dovener & Son) [2002] UKHL 22; [2003] 1 A.C. 32; [2002] 3 W.L.R. 89; [2002] 3 All E.R. 305; Daily Telegraph, June 27, 2002; [2002] I.C.R. 798; [2002] I.R.L.R. 533; [2002] P.I.Q.R. P28; [2002] Lloyd’s Rep. Med. 361; (2002) 67 B.M.L.R. 90; (2002) 152 N.L.J. 998...... 9, 11, 5 61, 63, 64, 65, 115, 117, 120, 142, 163, C11, C80, C84, C85, C86, C87 Fanziyeva v Russia, 18 June 2015...... 51, 53 Farrugia v Burtenshaw [2014] EWHC 1036 (QB); [2014] Med. L.R. 153...... 244, 247 FBTO Schadeverzekeringen NV v Odenbreit (C-463/06); sub-nom. Odenbreit v FBTO Schadeverzekeringen NV (C-463/06) [2008] 2 All E.R. (Comm) 733; [2007] E.C.R. I-11321; [2008] I.L.Pr. 12; [2008] Lloyd's Rep. I.R. 354 ECJ (2nd Chamber)...... 42, 181, 183 184 Fennelly v Connex South Eastern Ltd [2001] I.R.L.R. 390 CA (Civ Div)...... C70 Ferguson v John Dawson & Partners (Contractors) Ltd [1976] 1 W.L.R. 1213; [1976] 3 All E.R. 817; [1976] 2 Lloyd’s Rep. 669; 8 B.L.R. 38; [1976] I.R.L.R. 346; (1976) 120 S.J. 603 CA (Civ Div)...... 92 xiv Table of Cases

Finanzamt Koln-Altstadt v Schumacker (C-279/93); sub-nom. Schumaker v Finanzamt Koln-Altstadt (C-279/93) [1996] Q.B. 28; [1995] 3 W.L.R. 498; [1995] S.T.C. 306; [1995] E.C.R. I-225; [1996] 2 C.M.L.R. 450; [1995] All E.R. (E.C.) 319; [1995] Pens. L.R. 209 ECJ...... 77 Fleet v Fleet [2009] EWHC 3166 (QB)...... C99 Foran v Secret Surgery Ltd [2016] EWHC 1029 (QB)...... C170 Ford v GKR Construction Ltd [2000] 1 W.L.R. 1397; [2000] 1 All E.R. 802; [1999] C.P.L.R. 788 CA (Civ Div)...... 173, 174 Former Owners of the Melissa K (now named Jasmine I) v Former Owners of the Tomsk (subsequently named Pure Energy and now named Thayer) [2015] EWHC 3445 (Admlty); [2016] 1 Lloyd’s Rep. 503...... 169, 170, 171 Foskett v Mistry [1984] R.T.R. 1; (1983) 80 L.S.G. 2683 CA (Civ Div)...... C1 Fox v Foundation Piling Ltd [2011] EWCA Civ 790; [2011] C.P. Rep. 41; [2011] 6 Costs L.R. 961...... C106, C107 FP v Taunton and Somerset NHS Trust [2011] EWHC 3380 (QB); [2012] Med. L.R. 195...... 96 Francovich v Italy (C-6/90) [1991] E.C.R. I-5357; [1993] 2 C.M.L.R. 66; [1995] I.C.R. 722; [1992] I.R.L.R. 84 ECJ...... 46, 47 French v Groupama Insurance Co Ltd [2011] EWCA Civ 1119; [2012] C.P. Rep. 2; [2011] 4 Costs L.O. 547...... 175 Froom v Butcher [1976] Q.B. 286; [1975] 3 W.L.R. 379; [1975] 3 All E.R. 520; [1975] 2 Lloyd’s Rep. 478; [1975] R.T.R. 518; (1975) 119 S.J. 613 CA (Civ Div)...... C154 Fytche v Wincanton Logistics Plc [2004] UKHL 31; [2004] 4 All E.R. 221; [2004] I.C.R. 975; [2004] I.R.L.R. 817; [2005] P.I.Q.R. P5; (2004) 101(31) L.S.G. 25; (2004) 148 S.J.L.B. 825...... C63 Gammell v Wilson [1982] A.C. 27; [1981] 2 W.L.R. 248; [1981] 1 All E.R. 578; (1981) 125 S.J. 116 HL...... C97 Garritt-Critchley v Ronnan [2014] EWHC 1774 (Ch); [2015] 3 Costs L.R. 453...... 131 Garzilli v Howard Johnson’s Motor Lodge Inc 419 F. Supp. 1210...... 71 Gavin Edmondson Solicitors Ltd v Haven Insurance Co Ltd [2015] EWCA Civ 1230...... C51 GB v Stoke City Football Club Ltd [2015] EWHC 2862 (QB)...... C81, C82 Gentry v Miller [2016] EWCA Civ 141; [2016] 1 W.L.R. 2696; [2016] C.P. Rep. 25...... 128, 129, C159 Gestmin SGPS SA v Credit Suisse (UK) Ltd [2013] EWHC 3560 (Comm)...... 123, 124, C139 Gibbon v Manchester City Council [2010] EWCA Civ 726; [2010] 1 W.L.R. 2081; [2011] 2 All E.R. 258; [2010] C.P. Rep. 40; [2010] 5 Costs L.R. 828; [2010] P.I.Q.R. P16; [2010] 3 E.G.L.R. 85; [2010] 36 E.G. 120; [2010] 27 E.G. 84 (C.S.)...... 179 Glasgow Corp v Muir; sub-nom. Muir v Glasgow Corp [1943] A.C. 448; [1943] 2 All E.R. 44; 1943 S.C. (H.L.) 3; 1944 S.L.T. 60 HL...... 83 Gosling v Hailo, unreported...... 124 Graham v Dodds [1983] 1 W.L.R. 808; [1983] 2 All E.R. 953; (1983) 147 J.P. 746 HL (NI)...... C94, C95, C96 Gravil v Carroll; sub-nom. Gravil v Redruth Rugby Football Club [2008] EWCA Civ 689; [2008] I.C.R. 1222; [2008] I.R.L.R. 829; (2008) 105(26) L.S.G. 26; (2008) 158 N.L.J. 933...... C74 Gray v Thames Trains Ltd [2009] UKHL 33; [2009] 1 A.C. 1339; [2009] 3 W.L.R. 167; [2009] 4 All E.R. 81; [2009] P.I.Q.R. P22; [2009] LS Law Medical 409; (2009) 108 B.M.L.R. 205; [2009] Po. L.R. 229; [2009] M.H.L.R. 73; (2009) 159 N.L.J. 925; (2009) 153(24) S.J.L.B. 33...... 217, 218, C145 C146, C147 Green v United States 355 U.S. 184...... C56 Greene Wood McLean LLP (In Administration) v Templeton Insurance Ltd [2010] EWHC 2679 (Comm); [2011] 2 Costs L.R. 205; [2011] Lloyd’s Rep. I.R. 557...... C119, C121 Greenway v Johnson Matthey Plc [2014] EWHC 3957 (QB); [2015] P.I.Q.R. P10...... C12 Gregg v Scott [2005] UKHL 2; [2005] 2 A.C. 176; [2005] 2 W.L.R. 268; [2005] 4 All E.R. 812; [2005] P.I.Q.R. P24; [2005] Lloyd's Rep. Med. 130; (2005) 82 B.M.L.R. 52; (2005) 149 S.J.L.B. 145...... 8, 10, 64 65, C17, C36, C47 Grieves v FT Everard & Sons Ltd [2007] UKHL 39; [2008] 1 A.C. 281; [2007] 3 W.L.R. 876; [2007] 4 All E.R. 1047; [2007] I.C.R. 1745; [2008] P.I.Q.R. P6; [2008] LS Law Medical 1; (2008) 99 B.M.L.R. 139; (2007) 104(42) L.S.G. 34; (2007) 157 N.L.J. 1542; (2007) 151 S.J.L.B. 1366...... C12 Grifoni v European Atomic Energy Community (Euratom) (C-308/87) [1990] E.C.R. I-1203; [1992] 3 C.M.L.R. 463 ECJ (6th Chamber)...... 49 Gulati v MGN Ltd [2015] EWHC 1805 (Ch); [2015] 4 Costs L.R. 659...... 174, 175, 176 Gunay v Turkey (51210/99) (2010) 50 E.H.R.R. 19 ECHR...... 54 H (Minors) (Sexual Abuse: Standard of Proof), Re; sub-nom. H and R (Child Sexual Abuse: Standard of Proof), Re; H (Minors) (Child Abuse: Threshold Conditions), Re [1996] A.C. 563; [1996] 2 W.L.R. 8; [1996] 1 All E.R. 1; Table of Cases xv

[1996] 1 F.L.R. 80; [1996] 1 F.C.R. 509; [1996] Fam. Law 74; (1995) 145 N.L.J. 1887; (1996) 140 S.J.L.B. 24 HL...... 130, C82, C191 Haasova v Petrik (C-22/12) [2014] R.T.R. 15 ECJ (2nd Chamber)...... 44 Halliwells LLP v Austin [2012] EWHC 3140 (Ch)...... 131 Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ 576; [2004] 1 W.L.R. 3002; [2004] 4 All E.R. 920; [2004] C.P. Rep. 34; [2004] 3 Costs L.R. 393; (2005) 81 B.M.L.R. 108; (2004) 101(22) L.S.G. 31; (2004) 154 N.L.J. 769; (2004) 148 S.J.L.B. 629...... 144, C15, C17 Hanks v Ministry of Defence [2007] EWHC 966 (QB)...... C101, C103 Harding v Wealands [2006] UKHL 32; [2007] 2 A.C. 1; [2006] 3 W.L.R. 83; [2006] 4 All E.R. 1; [2006] 2 C.L.C. 193; [2006] R.T.R. 35; (2006) 156 N.L.J. 1136; (2006) 150 S.J.L.B. 917...... 182, C213, C215 Hashtroodi v Hancock [2004] EWCA Civ 652; [2004] 1 W.L.R. 3206; [2004] 3 All E.R. 530; [2005] C.P. Rep. 17...... C168, C169 Hawksford Trustees Jersey Ltd v Stella Global UK Ltd [2012] EWCA Civ 987; [2012] 1 W.L.R. 3581; [2012] C.P. Rep. 41; [2012] 5 Costs L.R. 886; [2013] Lloyd’s Rep. I.R. 337...... C176 Hayden v Maidstone and Tunbridge Wells NHS Trust [2016] EWHC 1121 (QB); [2016] 3 Costs L.R. 547...... 129, C173, C174 C239 Hayden v Maidstone and Tunbridge Wells NHS Trust [2016] EWHC 1962 (QB)...... C240, C241 Hayward v Zurich Insurance Co Plc [2015] EWCA Civ 327; [2015] C.P. Rep. 30; [2015] 1 C.L.C. 581; [2015] Lloyd’s Rep. I.R. 585...... 132, C161, C228 Hayward v Zurich Insurance Co Plc [2016] UKSC 48; [2016] 3 W.L.R. 637; [2016] C.I.L.L. 3865...... C226, C227, C228 C229, C230 Heaton v Axa Equity & Law Life Assurance Society Plc [2002] UKHL 15; [2002] 2 A.C. 329; [2002] 2 W.L.R. 1081; [2002] 2 All E.R. 961; [2002] C.P. Rep. 52; [2002] C.P.L.R. 475; [2003] 1 C.L.C. 37...... C231, C232 Heneghan v Manchester Dry Docks Ltd [2016] EWCA Civ 86...... 5, 61, 62 63, 64, 65, 117, 142, 163, C85, C86 Herskovits v Group Health Cooperative of Puget Sound 664 P. 2d 474...... 157 Hertel v Saunders [2015] EWHC 2848 (Ch); [2015] 5 Costs L.R. 825...... 165, 167, 169 Higham v Stena Sealink Ltd [1996] 1 W.L.R. 1107; [1996] 3 All E.R. 660; [1996] 2 Lloyd’s Rep. 26; [1996] C.L.C. 1193; [1996] P.I.Q.R. P351 CA (Civ Div)...... C207, C209 HIH Casualty & General Insurance Ltd v Chase Manhattan Bank [2003] UKHL 6; [2003] 1 All E.R. (Comm) 349; [2003] 2 Lloyd’s Rep. 61; [2003] 1 C.L.C. 358; [2003] Lloyd’s Rep. I.R. 230; (2003) 147 S.J.L.B. 264...... C229 Hobbs v Guy’s and St Thomas’ NHS Foundation Trust, unreported...... 254 Hockley v North Lincolnshire and Goole NHS Foundation Trust, unreported...... C159 Hoddinott v Persimmon Homes (Wessex) Ltd [2007] EWCA Civ 1203; [2008] 1 W.L.R. 806; [2008] C.P. Rep. 9; (2007) 104(47) L.S.G. 25...... C169, C170 Hodgson v Trapp [1989] A.C. 807; [1988] 3 W.L.R. 1281; [1988] 3 All E.R. 870; (1988) 138 N.L.J. Rep. 327; (1988) 132 S.J. 1672 HL...... 150, 151, C21 Holdich v Lothian Health Board [2013] CSOH 197; 2014 S.L.T. 495; 2014 G.W.D. 10-182...... 98, 99 Hollington v F Hewthorn & Co Ltd [1943] K.B. 587; [1943] 2 All E.R. 35 CA...... C190, C191 Holman v Johnson 98 E.R. 1120; (1775) 1 Cowp. 341 KB...... 212, 218 Holtby v Brigham & Cowan (Hull) Ltd [2000] 3 All E.R. 421; [2000] I.C.R. 1086; [2000] P.I.Q.R. Q293; [2000] Lloyd’s Rep. Med. 254; (2000) 97(19) L.S.G. 44; (2000) 150 N.L.J. 544; (2000) 144 S.J.L.B. 212 CA (Civ Div)...... 157 Homawoo v GMF Assurances SA (C-412/10) [2011] E.C.R. I-11603; [2012] I.L.Pr. 2 ECJ (4th Chamber)...... C213 Hone v Going Places Leisure Travel Ltd [2001] EWCA Civ 947...... C195, C197 Horton v Sadler [2006] UKHL 27; [2007] 1 A.C. 307; [2006] 2 W.L.R. 1346; [2006] 3 All E.R. 1177; [2006] R.T.R. 27; [2006] P.I.Q.R. P30; (2006) 91 B.M.L.R. 60; (2006) 103(26) L.S.G. 27; (2006) 156 N.L.J. 1024; (2006) 150 S.J.L.B. 808...... C171 Hoteles Pinero Canarias SL v Keefe; sub-nom. Keefe v Mapfre Mutualidad Compania de Seguros y Reaseguros SA; Mapfre Mutualidad Compania de Seguros y Reaseguros SA v Keefe [2015] EWCA Civ 598; [2016] 1 W.L.R. 905; [2015] C.P. Rep. 39; [2016] Lloyd’s Rep. I.R. 94...... 182, 183, 184 Hotson v East Berkshire HA; sub-nom. Hotson v Fitzgerald [1987] A.C. 750; [1987] 3 W.L.R. 232; [1987] 2 All E.R. 909; [1955-95] P.N.L.R. 330; (1987) 84 L.S.G. 2365; (1987) 131 S.J. 975 HL...... 8, 10, 64 156, 157, 159, 162, C17, C19, C76, C78 Howe v Motor Insurers’ Bureau [2016] EWHC 640 (QB); [2016] 1 W.L.R. 2707; [2016] Lloyd’s Rep. I.R. 359...... C233 xvi Table of Cases

Huck v Robson [2002] EWCA Civ 398; [2003] 1 W.L.R. 1340; [2002] 3 All E.R. 263; [2002] C.P. Rep. 38; [2002] C.P.L.R. 345; [2003] 1 Costs L.R. 19; [2002] P.I.Q.R. P31...... C112, C116, C117 C118 Hughes v Lord Advocate; sub-nom. Hughes v Postmaster General [1963] A.C. 837; [1963] 2 W.L.R. 779; [1963] 1 All E.R. 705; 1963 S.C. (H.L.) 31; 1963 S.L.T. 150; (1963) 107 S.J. 232 HL...... C135 Hunter Area Health Service v Presland (2005) 63 N.S.W.L.R. 22...... 219 Hussain v Amin [2012] EWCA Civ 1456...... 127 Hussain v Hussain [2012] EWCA Civ 1367; [2013] R.T.R. 11...... 129, 130 Hyde v Milton Keynes Hospital NHS Foundation Trust; sub-nom. Milton Keynes NHS Foundation Trust v Hyde [2016] EWHC 72 (QB)...... C38, C39, C40 C42 Hyde v SARA Assicurazioni SPA [2014] EWHC 2881 (QB)...... 182 Industrie- en Handelsonderneming Vreugdenhil BV v Minister van Landbouw en Visserij (22/88) [1989] E.C.R. 2049; [1991] 2 C.M.L.R. 461 ECJ (6th Chamber)...... 47 Insurance Company of the Bahamas Ltd v Antonio [2015] UKPC 47...... C25 International Energy Group Ltd v Zurich Insurance Plc UK; sub-nom. Zurich Insurance Plc UK v International Energy Group Ltd [2015] UKSC 33; [2015] 2 W.L.R. 1471; [2015] 4 All E.R. 813; [2016] 1 All E.R. (Comm) 114; [2015] Lloyd’s Rep. I.R. 598...... 63, C85 Iqbal v Whipps Cross University Hospital NHS Trust; sub-nom. Whipps Cross University NHS Trust v Iqbal [2007] EWCA Civ 1190; [2008] P.I.Q.R. P9; [2008] LS Law Medical 22...... C22 Islamova v Russia, 30 April 2015...... 52 Jackson v Murray [2015] UKSC 5; [2015] 2 All E.R. 805; 2015 S.C. (U.K.S.C.) 105; 2015 S.L.T. 151; 2015 S.C.L.R. 235; [2015] R.T.R. 20; [2015] P.I.Q.R. P16; 2015 Rep. L.R. 42; 2015 G.W.D. 7-141...... C131, C133 Jacobi v Griffiths (1999) 174 D.L.R. (4th) 71 0...... C74 Jacobs v Motor Insurers’ Bureau [2010] EWCA Civ 1208; [2011] 1 W.L.R. 2609; [2011] 1 All E.R. 844; [2011] 1 All E.R. (Comm) 445; [2011] R.T.R. 2; [2011] Lloyd’s Rep. I.R. 355...... 181, 186, C25 C26, C211, C212, C213 Jaloud v Netherlands (47708/08) (2015) 60 E.H.R.R. 29; 38 B.H.R.C. 414 ECHR (Grand Chamber)...... 53 Japp v Virgin Holidays Ltd [2013] EWCA Civ 1371; [2014] P.I.Q.R. P8...... C221 JD v East Berkshire Community Health NHS Trust; sub-nom. MAK v Dewsbury Healthcare NHS Trust; D v East Berkshire Community NHS Trust [2005] UKHL 23; [2005] 2 A.C. 373; [2005] 2 W.L.R. 993; [2005] 2 All E.R. 443; [2005] 2 F.L.R. 284; [2005] 2 F.C.R. 81; (2005) 8 C.C.L. Rep. 185; [2005] Lloyd’s Rep. Med. 263; (2005) 83 B.M.L.R. 66; [2005] Fam. Law 615; (2005) 155 N.L.J. 654...... C205 JL v Bowen, unreported...... C29 Jobling v Associated Dairies [1982] A.C. 794; [1981] 3 W.L.R. 155; [1981] 2 All E.R. 752; (1981) 125 S.J. 481 HL...... 144, 145 Jockey Club Racecourse Ltd v Willmott Dixon Construction Ltd [2016] EWHC 167 (TCC); [2016] 4 W.L.R. 43; [2016] 1 Costs L.R. 123; [2016] C.I.L.L. 3790...... 166, 172, C117 Joel v Morison 172 E.R. 1338; (1834) 6 Car. & P. 501 Assizes...... 77, C73 Johnston v Chief Constable of the Royal Ulster Constabulary (222/84) [1987] Q.B. 129; [1986] 3 W.L.R. 1038; [1986] 3 All E.R. 135; [1986] E.C.R. 1651; [1986] 3 C.M.L.R. 240; [1987] I.C.R. 83; [1986] I.R.L.R. 263; (1987) 84 L.S.G. 188; (1986) 130 S.J. 953 ECJ...... 44 Jolley v Sutton LBC [2000] 1 W.L.R. 1082; [2000] 3 All E.R. 409; [2000] 2 Lloyd’s Rep. 65; [2000] 2 F.C.R. 392; (2001) 3 L.G.L.R. 2; [2000] B.L.G.R. 399; [2000] P.I.Q.R. P136; (2000) 97(23) L.S.G. 42 HL...... C135 Jones v Secretary of State for Energy and Climate Change [2012] EWHC 2936 (QB)...... 8, 62, 65 117, 157, 158, C85, C87 Jones v University of Warwick; sub-nom. Jones v Warwick University [2003] EWCA Civ 151; [2003] 1 W.L.R. 954; [2003] 3 All E.R. 760; [2003] C.P. Rep. 36; [2003] P.I.Q.R. P23; (2003) 72 B.M.L.R. 119; (2003) 100(11) L.S.G. 32; (2003) 153 N.L.J. 231; (2003) 147 S.J.L.B. 179...... 208, 209 Joyce v O’Brien [2013] EWCA Civ 546; [2014] 1 W.L.R. 70; [2013] Lloyd’s Rep. I.R. 523; [2013] P.I.Q.R. P23...... 213 JT v First-tier Tribunal [2015] UKUT 478...... 110, 112, 113 Kaki v National Private Air Transport Co [2015] EWCA Civ 731; [2015] 1 C.L.C. 948...... C236, C237 Kalfelis v Bankhaus Schroder Munchmeyer Hengst & Co (t/a HEMA Beteiligungsgesellschaft mbH) (189/87) [1988] E.C.R. 5565 ECJ (5th Chamber)...... C196 Keenan v United Kingdom (27229/95) (2001) 33 E.H.R.R. 38; 10 B.H.R.C. 319; [2001] Inquest L.R. 8; [2001] Prison L.R. 180 ECHR...... 49 Table of Cases xvii

Kennedy v Cordia (Services) LLP [2016] UKSC 6; [2016] 1 W.L.R. 597; 2016 S.L.T. 209; [2016] I.C.R. 325; 2016 G.W.D. 4-97...... C62, C63, C239 C240 Keppel Bus Co v Sa'ad bin Ahmad [1974] 1 W.L.R. 1082; [1974] 2 All E.R. 700; [1974] R.T.R. 504; 17 K.I.R. 90; (1974) 118 S.J. 531 PC (Sing)...... C70, C74 Khans Solicitors v Chifuntwe [2013] EWCA Civ 481; [2014] 1 W.L.R. 1185; [2013] 4 All E.R. 367; [2013] 4 Costs L.R. 564; [2013] P.N.L.R. 29; (2013) 157(19) S.J.L.B. 35...... C49, C50, C51 Khava Aziyeva v Russia, 23 April 2015...... 52, 53, 54 Kilic v Turkey (22492/93) (2001) 33 E.H.R.R. 58 ECHR...... 53 Knauer v Ministry of Justice [2016] UKSC 9; [2016] 2 W.L.R. 672...... C95, C96 Koonjul v Thameslink Healthcare Services [2000] P.I.Q.R. P123 CA (Civ Div)...... C141, C143 Kotula v EDF Energy Networks (EPN) Plc [2011] EWHC 1546 (QB)...... 244 Kuddus v Chief Constable of Leicestershire [2001] UKHL 29; [2002] 2 A.C. 122; [2001] 2 W.L.R. 1789; [2001] 3 All E.R. 193; (2001) 3 L.G.L.R. 45; [2001] Po. L.R. 181; (2001) 98(28) L.S.G. 43; (2001) 151 N.L.J. 936; (2001) 145 S.J.L.B. 166...... C151 Kukayev v Russia, 15 November 2007...... 52 Kuwait Airways Corp v Iraqi Airways Co (No.6); sub-nom. Kuwait Airways Corp v Iraq Airways Co (No.6) [2002] UKHL 19; [2002] 2 A.C. 883; [2002] 2 W.L.R. 1353; [2002] 3 All E.R. 209; [2002] 1 All E.R. (Comm) 843; [2003] 1 C.L.C. 183...... 143 Laboratoires Pharmaceutiques Bergaderm SA v Commission of the European Communities (C-352/98 P) [2000] E.C.R. I-5291 ECJ...... 47 Ladd v Marshall [1954] 1 W.L.R. 1489; [1954] 3 All E.R. 745; (1954) 98 S.J. 870 CA...... C109, C110 Lazar v Allianz SpA (C-350/14) EU:C:2015:802; [2016] 1 W.L.R. 835; [2016] R.T.R. 7; [2016] C.E.C. 990; [2016] I.L.Pr. 5...... 186 Lazăr v Romania, 16 February 2010...... 46 Lazarus Estates Ltd v Beasley [1956] 1 Q.B. 702; [1956] 2 W.L.R. 502; [1956] 1 All E.R. 341; (1956) 100 S.J. 131 CA...... C229 Les Laboratoires Servier v Apotex Inc [2014] UKSC 55; [2015] A.C. 430; [2014] 3 W.L.R. 1257; [2015] 1 All E.R. 671; [2014] Bus. L.R. 1217; [2015] R.P.C. 10...... 218, C145 Leussink v Commission of the European Communities (169/83) [1986] E.C.R. 2801 ECJ...... 48 Lim Poh Choo v Camden and Islington AHA [1980] A.C. 174; [1979] 3 W.L.R. 44; [1979] 2 All E.R. 910; (1979) 123 S.J. 457 HL...... 142 Limpus v London General Omnibus Co 158 E.R. 993; (1862) 1 Hurl. & C. 526 Ex Ct...... 77, C73 Lincolnshire CC v Mouchel Business Services Ltd [2014] EWHC 352 (TCC); [2014] B.L.R. 347; [2014] T.C.L.R. 3; [2014] C.I.L.L. 3484...... C168 Lindheim v Norway (13221/08) (2015) 61 E.H.R.R. 29 ECHR...... 50 Liptrot v Charters [2005] J.P.I.L. C174...... 131 Liquid Gas Tankers Ltd v Forth Ports Authority 1974 S.L.T. (Notes) 35 OH...... 82 Lister v Hesley Hall Ltd [2001] UKHL 22; [2002] 1 A.C. 215; [2001] 2 W.L.R. 1311; [2001] 2 All E.R. 769; [2001] I.C.R. 665; [2001] I.R.L.R. 472; [2001] Emp. L.R. 819; [2001] 2 F.L.R. 307; [2001] 2 F.C.R. 97; (2001) 3 L.G.L.R. 49; [2001] E.L.R. 422; [2001] Fam. Law 595; (2001) 98(24) L.S.G. 45; (2001) 151 N.L.J. 728; (2001) 145 S.J.L.B. 126; [2001] N.P.C. 89...... 94, C66, C70 C71, C72, C74, C75, C83 Littlestone v MacLeish [2016] EWCA Civ 127; [2016] C.P. Rep. 26; [2016] 2 Costs L.O. 275...... 176, 177, 178 Livingstone v Rawyards Coal Co (1880) 5 App. Cas. 25; (1880) 7 R. (H.L.) 1 HL...... 142, C15, C20 Lloyd v Grace Smith & Co [1912] A.C. 716 HL...... C71 Locke v Stuart [2011] EWHC 399 (QB)...... 129, 208 London CC v Cattermoles (Garages) Ltd [1953] 1 W.L.R. 997; [1953] 2 All E.R. 582; (1953) 97 S.J. 505 CA...... 77 London Scottish Benefit Society v Chorley (1884) 13 Q.B.D. 872 CA...... C224 London Steam Ship Owners Mutual Insurance Association Ltd v Spain; sub-nom. London Steamship Owners’ Mutual Insurance Association Ltd v Spain [2015] EWCA Civ 333; [2015] 2 Lloyd’s Rep. 33; [2015] C.P. Rep. 31; [2015] 1 C.L.C. 596...... 185 Loughlin v Singh; sub-nom. Loughlin v Dal Singh [2013] EWHC 1641 (QB); [2013] Med. L.R. 513...... 35, 39 Loveday v Renton (No.1) [1989] 1 Med. L.R. 117 QBD...... 2, 6 LXM v Mid Essex Hospital Services NHS Trust, unreported...... C39, C42 xviii Table of Cases

Maher v Groupama Grand Est [2009] EWCA Civ 1191; [2010] 1 W.L.R. 1564; [2010] 2 All E.R. 455; [2010] 2 All E.R. (Comm) 843; [2009] 2 C.L.C. 852; [2010] R.T.R. 10; [2010] Lloyd’s Rep. I.R. 543...... 183, 185 Majrowski v Guy’s and St Thomas’s NHS Trust; sub-nom. Majorowski v Guy’s and St Thomas’s NHS Trust [2006] UKHL 34; [2007] 1 A.C. 224; [2006] 3 W.L.R. 125; [2006] 4 All E.R. 395; [2006] I.C.R. 1199; [2006] I.R.L.R. 695; (2006) 91 B.M.L.R. 85; (2006) 156 N.L.J. 1173; (2006) 150 S.J.L.B. 986...... C73 Manfredi v Lloyd Adriatico Assicurazioni SpA (C-295/04) [2007] Bus. L.R. 188; [2006] E.C.R. I-6619; [2007] R.T.R. 7; [2006] 5 C.M.L.R. 17; [2007] All E.R. (EC) 27 ECJ (3rd Chamber)...... 49 Manning v Stylianou [2006] EWCA Civ 1655...... C132 Marks & Spencer Plc v BNP Paribas Securities Services Trust Co (Jersey) Ltd [2015] UKSC 72; [2015] 3 W.L.R. 1843; 163 Con. L.R. 1; [2016] 1 P. & C.R. 13; [2016] C.I.L.L. 3779...... C119 Marshall (Deceased) v Motor Insurers Bureau [2015] EWHC 3421 (QB)...... C25, C26, C27 Martin (Sean) v HM Advocate; sub-nom. Martin v Most [2010] UKSC 10; 2010 S.C. (U.K.S.C.) 40; 2010 S.L.T. 412; 2010 S.C.L. 476; 2010 S.C.C.R. 401...... C207 Mattis v Pollock (t/a Flamingos Nightclub) [2003] EWCA Civ 887; [2003] 1 W.L.R. 2158; [2004] 4 All E.R. 85; [2003] I.C.R. 1335; [2003] I.R.L.R. 603; [2004] P.I.Q.R. P3; [2003] L.L.R. 718; (2003) 147 S.J.L.B. 816...... C70, C73 May v Wavell Group Plc [2016] 3 Costs L.O. 455 Sen Cts Costs Office...... 254 McCann v United Kingdom (A/324) (1996) 21 E.H.R.R. 97 ECHR...... 51 McCracken v Smith [2015] EWCA Civ 380; [2016] Lloyd’s Rep. I.R. 171; [2015] P.I.Q.R. P19...... 214 McEwan v Ayrshire & Arran Acute Hospitals NHS Trust [2009] CSOH 22; 2009 G.W.D. 13-208...... 98 McFarlane v Tayside Health Board; sub-nom. Macfarlane v Tayside Health Board [2000] 2 A.C. 59; [1999] 3 W.L.R. 1301; [1999] 4 All E.R. 961; 2000 S.C. (H.L.) 1; 2000 S.L.T. 154; 2000 S.C.L.R. 105; [2000] 1 F.C.R. 102; [2000] P.I.Q.R. Q101; [2000] Lloyd’s Rep. Med. 1; (2000) 52 B.M.L.R. 1; (1999) 149 N.L.J. 1868; 1999 G.W.D. 39-1888 HL...... 95, 96, 99 McGee, unreported...... 159 McGhee v National Coal Board [1973] 1 W.L.R. 1; [1972] 3 All E.R. 1008; 1973 S.C. (H.L.) 37; 1973 S.L.T. 14; 13 K.I.R. 471; (1972) 116 S.J. 967 HL...... 10, 11, 63 64, 155, C11, C76, C78, C84, C85, C87 McGivney v Golderslea Ltd (2001) 17 Const. L.J. 454 CA (Civ Div)...... C137 McManus v Crickett (1800) 1 East 105...... C73 McTear v Imperial Tobacco Ltd; sub-nom. McTear’s Executrix v Imperial Tobacco Ltd 2005 2 S.C. 1; 2005 G.W.D. 20-365 OH...... C36 Medcalf v Mardell (Wasted Costs Order); sub-nom. Medcalf v Weatherill [2002] UKHL 27; [2003] 1 A.C. 120; [2002] 3 W.L.R. 172; [2002] 3 All E.R. 721; [2002] C.P. Rep. 70; [2002] C.P.L.R. 647; [2002] 3 Costs L.R. 428; [2002] P.N.L.R. 43; (2002) 99(31) L.S.G. 34; (2002) 152 N.L.J. 1032; (2002) 146 S.J.L.B. 175; [2002] N.P.C. 89...... 132 Melnichuk v Romania, 5 May 2015...... 51 Mendes v Hochtief (UK) Construction Ltd [2016] EWHC 976 (QB); [2016] 3 Costs L.O. 429...... C165, C166 Mersey Docks and Harbour Board v Coggins & Griffith (Liverpool) Ltd; sub-nom. McFarlane v Coggins & Griffiths (Liverpool) Ltd [1947] A.C. 1; [1946] 2 All E.R. 345; (1946) 79 Ll. L. Rep. 569; 62 T.L.R. 533; 115 L.J. K.B. 465; 175 L.T. 270 HL...... 91, 92 Mezhiyeva v Russia, 16 April 2015...... 51 Middleton v Fowler & Al. 91 E.R. 247; (1698) 1 Salk. 282 KB...... C73 Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1537; [2014] 1 W.L.R. 795; [2014] 2 All E.R. 430; [2014] B.L.R. 89; [2013] 6 Costs L.R. 1008; [2014] E.M.L.R. 13; [2014] C.I.L.L. 3452; (2013) 163(7587) N.L.J. 20...... C156, C157, C159 C160 Mocanu v Romania (10865/09) (2015) 60 E.H.R.R. 19; 39 B.H.R.C. 222 ECHR...... 53 Mohamud v WM Morrison Supermarkets Plc [2016] UKSC 11; [2016] 2 W.L.R. 821...... 91, C72, C73 C74, C75, C82, C83 Mohidin v Commissioner of Police of the Metropolis [2015] EWHC 2740 (QB)...... C148, C150, C151 C152 Mohidin v Commissioner of Police of the Metropolis [2016] EWHC 105 (QB); [2016] 1 Costs L.R. 71...... C150, C151, C152 Montgomery v Lanarkshire Health Board; sub-nom. NM v Lanarkshire Health Board [2015] UKSC 11; [2015] A.C. 1430; [2015] 2 W.L.R. 768; [2015] 2 All E.R. 1031; 2015 S.C. (U.K.S.C.) 63; 2015 S.L.T. 189; 2015 S.C.L.R. 315; [2015] P.I.Q.R. P13; [2015] Med. L.R. 149; (2015) 143 B.M.L.R. 47; 2015 G.W.D. 10-179...... C42 Moreno v Motor Insurers’ Bureau [2015] EWHC 1002 (QB); [2015] Lloyd’s Rep. I.R. 535...... C26, C27, C212 Table of Cases xix

C214, C215 Morton v William Dixon Ltd 1909 S.C. 807; (1909) 1 S.L.T. 346 IH (Ct of 5 judges)...... C60, C62, C63 Mosson v Spousal (London) Ltd [2016] EWHC 53 (QB); [2016] 4 W.L.R. 28...... C98, C99, C100 Mulder v Council of the European Communities (No.1) (C104/89) [1992] E.C.R. I-3061 ECJ...... 49 Mullarkey v Broad; sub-nom. Southill Finance Ltd (In Liquidation), Re [2009] EWCA Civ 2...... 130 Murphy v Ministry of Defence [2016] EWHC 3 (QB)...... C102, C103, C222 Nata Lee Ltd v Abid [2014] EWCA Civ 1652; [2015] 2 P. & C.R. 3...... C237 Nemeti v Sabre Insurance Co Ltd [2013] EWCA Civ 1555; [2014] C.P. Rep. 16; [2014] P.I.Q.R. P12...... C235 NGM Sustainable Developments Ltd v Wallis [2015] EWHC 2089 (Ch)...... 126, 127 Nield v Loveday [2011] EWHC 2324 (Admin); [2011] 4 Costs L.O. 470; (2012) 123 B.M.L.R. 132; [2012] A.C.D. 2...... 206, 207 Nizami v Butt; sub-nom. Butt v Nizami; Butt v Kamuluden [2006] EWHC 159 (QB); [2006] 1 W.L.R. 3307; [2006] 2 All E.R. 140; [2006] 3 Costs L.R. 483; [2006] R.T.R. 25; (2006) 103(9) L.S.G. 30; (2006) 156 N.L.J. 272...... C165 Nolan v TUI UK Ltd [2013] EWHC 3099 (QB)...... C186, C187, C188 O v A; sub-nom. O (A Child) v Rhodes; Rhodes v OPO; OPO v MLA; OPO v Rhodes [2015] UKSC 32; [2015] 2 W.L.R. 1373; [2015] 4 All E.R. 1; [2015] E.M.L.R. 20; [2015] H.R.L.R. 11...... 187, C29, C30 Oana v O’Duinn, unreported...... 126 O’Connor v Stuttard [2011] EWCA Civ 829...... C1 O’Leary v Tunnelcraft Ltd [2009] EWHC 3438 (QB)...... C173, C174, C175 Oliver v Williams [2013] EWHC 600 (QB); [2013] Med. L.R. 344...... C18 Oneryildiz v Turkey (48939/99) (No.2) (2005) 41 E.H.R.R. 20; 18 B.H.R.C. 145; [2004] Inquest L.R. 108 ECHR (Grand Chamber)...... 51, 52, 53 Opuz v Turkey (33401/02) (2010) 50 E.H.R.R. 28; 27 B.H.R.C. 159 ECHR...... 45 Osmanoglu v Turkey (48804/99) (2011) 53 E.H.R.R. 17 ECHR...... 52 Otkritie International Investment Management Ltd v Urumov; sub-nom. Otkritie International Investment Management Ltd v Urumov (Georgy) (also known as Urumov (George)) [2013] EWCA Civ 1196...... 128 Overseas Tankship (UK) Ltd v Miller Steamship Co Pty Ltd (The Wagon Mound); sub-nom. RW Miller & Co Pty Ltd v Overseas Tankship (UK) Ltd; Miller Steamship Co Pty Ltd v Overseas Tankship (UK) Ltd [1967] 1 A.C. 617; [1966] 3 W.L.R. 498; [1966] 2 All E.R. 709; [1966] 1 Lloyd’s Rep. 657; (1966) 110 S.J. 447 PC (Aus)...... C135 Owens v Noble [2010] EWCA Civ 284; [2010] 4 Costs L.R. 540; (2010) 107(13) L.S.G. 17...... C161 Ozturk v Turkey (19684/92) (2003) 37 E.H.R.R. 5 ECHR...... 46, 54 Paragon Finance Plc v DB Thakerar & Co [1999] 1 All E.R. 400; (1998) 95(35) L.S.G. 36; (1998) 142 S.J.L.B. 243 CA (Civ Div)...... 126 Paris v Stepney BC [1951] A.C. 367; [1951] 1 All E.R. 42; (1950) 84 Ll. L. Rep. 525; [1951] 1 T.L.R. 25; (1951) 115 J.P. 22; 49 L.G.R. 293; (1950) 94 S.J. 837 HL...... 147 Parker v Butler [2016] EWHC 1251 (QB); [2016] 3 Costs L.R. 435...... C178, C179 Parkinson v St James and Seacroft University Hospital NHS Trust [2001] EWCA Civ 530; [2002] Q.B. 266; [2001] 3 W.L.R. 376; [2001] 3 All E.R. 97; [2001] 2 F.L.R. 401; [2002] 2 F.C.R. 65; [2001] P.I.Q.R. Q12; [2001] Lloyd’s Rep. Med. 309; (2001) 61 B.M.L.R. 100; [2001] P.N.L.R. 43; [2001] Fam. Law 592; (2001) 98(22) L.S.G. 35; (2001) 145 S.J.L.B. 118...... 95, 96, 99 Patel v Mirza [2016] UKSC 42; [2016] 3 W.L.R. 399; [2016] Lloyd’s Rep. F.C. 435...... 218 Paul v Germany (C-222/02) [2004] E.C.R. I-9425; [2006] 2 C.M.L.R. 62 ECJ...... 48 Pawar v JSD Haulage Ltd [2016] EWCA Civ 551...... C218 Pepper (Inspector of Taxes) v Hart; sub-nom. Pepper v Hart [1993] A.C. 593; [1992] 3 W.L.R. 1032; [1993] 1 All E.R. 42; [1992] S.T.C. 898; [1993] I.C.R. 291; [1993] I.R.L.R. 33; [1993] R.V.R. 127; (1993) 143 N.L.J. 17; [1992] N.P.C. 154 HL...... 136, C113 Performance Cars v Abraham [1962] 1 Q.B. 33; [1961] 3 W.L.R. 749; [1961] 3 All E.R. 413; (1961) 105 S.J. 748 CA...... 143, 146, C15 C17 Petillo v Unipol Assicurazioni SpA (C-371/12) [2014] 3 C.M.L.R. 1 ECJ (2nd Chamber)...... C25, C26 Pettersson v Royal Oak Hotel [1948] N.Z.L.R. 136 0...... C71 Pierce v Doncaster MBC [2008] EWCA Civ 1416; [2009] 1 F.L.R. 1189; [2009] 3 F.C.R. 572; [2009] Fam. Law 202...... C205 Pitsayeva v Russia, 9 January 2014...... 45 PM Law Ltd v Motorplus Ltd [2016] EWHC 193 (QB); [2016] 1 Costs L.R. 143...... C120, C121 Pollock v Cahill [2015] EWHC 2260 (QB)...... C138 xx Table of Cases

Popple v Birmingham Women’s NHS Foundation Trust [2012] EWCA Civ 1628; [2013] Med. L.R. 47...... 155 Power v Meloy Whittle Robinson Solicitors [2014] EWCA Civ 898...... C236, C237, C238 Pruller-Frey v Brodnig (C-240/14) EU:C:2015:567; [2015] 1 W.L.R. 5031; [2015] 2 Lloyd’s Rep. 645...... 187 P’s Curator Bonis v Criminal Injuries Compensation Board; sub-nom. A’s Curator Bonis v Criminal Injuries Compensation Board; P’s C B v Criminal Injuries Compensation Board; Millar v Criminal Injuries Compensation Board 1997 S.L.T. 1180; 1997 S.C.L.R. 69; (1998) 44 B.M.L.R. 70; 1997 Rep. L.R. 3 OH...... 109 Purser v Hibbs [2015] EWHC 1792 (QB)...... C159, C160 PV, Re; sub-nom. Newcastle City Council v PV [2015] EWCOP 22; [2015] C.O.P.L.R. 265...... 234 Quick v Taff Ely BC [1986] Q.B. 809; [1985] 3 W.L.R. 981; [1985] 3 All E.R. 321; (1986) 18 H.L.R. 66; [1985] 2 E.G.L.R. 50; (1985) 276 E.G. 452 CA (Civ Div)...... C127 R. v Barnsley Supplementary Benefits Appeal Tribunal Ex p. Atkinson [1977] 1 W.L.R. 917; [1977] 3 All E.R. 1031; (1977) 121 S.J. 239 CA (Civ Div)...... C47 R. v Criminal Injuries Compensation Board Ex p. Warner [1987] Q.B. 74; [1986] 3 W.L.R. 251; [1986] 2 All E.R. 478; (1986) 136 N.L.J. 536; (1986) 130 S.J. 468 CA (Civ Div)...... 106 R. v Drew (Anthony James) [2003] UKHL 25; [2003] 1 W.L.R. 1213; [2003] 4 All E.R. 557; [2003] 2 Cr. App. R. 24; [2004] 1 Cr. App. R. (S.) 8; (2004) 75 B.M.L.R. 34; [2003] M.H.L.R. 282; (2003) 100(26) L.S.G. 35; (2003) 153 N.L.J. 749; (2003) 147 S.J.L.B. 597...... C146 R. v Green (Bryan Gwyn) [1993] Crim. L.R. 46; (1992) 136 S.J.L.B. 260 CA (Crim Div)...... C56 R. v Ireland (Robert Matthew) [1998] A.C. 147; [1997] 3 W.L.R. 534; [1997] 4 All E.R. 225; [1998] 1 Cr. App. R. 177; (1997) 161 J.P. 569; [1998] 1 F.L.R. 105; [1997] Crim. L.R. 810; [1998] Fam. Law 137; (1997) 161 J.P.N. 816; (1997) 147 N.L.J. 1273; (1997) 141 S.J.L.B. 205 HL...... C30 R. v J; sub-nom. R. v JFJ [2013] EWCA Crim 569; [2014] Q.B. 561; [2014] 2 W.L.R. 701; [2013] 2 Cr. App. R. 10; (2013) 177 J.P. 588; [2013] Crim. L.R. 988...... C56 R. v Secretary of State for the Home Department Ex p. Fire Brigades Union [1995] 2 A.C. 513; [1995] 2 W.L.R. 464; [1995] 2 All E.R. 244; (1995) 7 Admin. L.R. 473; [1995] P.I.Q.R. P228; (1995) 145 N.L.J. 521; (1995) 139 S.J.L.B. 109 HL...... 105 R. v Souter, unreported, 1 May 2014...... C53 R. (on the application of A (A Child)) v Criminal Injuries Compensation Appeals Panel; sub-nom. R. v Criminal Injuries Compensation Appeals Panel Ex p. B (A Child); R. v Criminal Injuries Compensation Appeals Panel Ex p. A (A Child) [2001] Q.B. 774; [2001] 2 W.L.R. 1452; [2001] 2 All E.R. 874 CA (Civ Div)...... 107, C29 R. (on the application of B) v First-tier Tribunal [2014] UKUT 497...... 235 R. (on the application of Countryside Alliance) v Attorney General [2007] UKHL 52; [2008] 1 A.C. 719; [2007] 3 W.L.R. 922; [2008] 2 All E.R. 95; [2008] Eu. L.R. 359; [2008] H.R.L.R. 10; [2008] U.K.H.R.R. 1; (2007) 104(48) L.S.G. 23; (2007) 157 N.L.J. 1730; (2007) 151 S.J.L.B. 1564; [2007] N.P.C. 127...... 113 R. (on the application of Hysaj) v Secretary of State for the Home Department [2014] EWCA Civ 1633; [2015] 1 W.L.R. 2472; [2015] C.P. Rep. 17; [2015] 2 Costs L.R. 191...... C237 R. (on the application of Jones) v First-tier Tribunal (Social Entitlement Chamber); sub-nom. Jones v First-tier Tribunal (Social Entitlement Chamber) [2013] UKSC 19; [2013] 2 A.C. 48; [2013] 2 W.L.R. 1012; [2013] 2 All E.R. 625; [2013] R.T.R. 28; [2013] P.I.Q.R. P18...... 106 R. (on the application of MA) v Secretary of State for Work and Pensions [2014] EWCA Civ 13; [2014] P.T.S.R. 584; [2014] Eq. L.R. 426; [2014] H.L.R. 19...... 112 R. (on the application of MD (Afghanistan)) v Secretary of State for the Home Department; sub-nom. MD (Afghanistan) v Secretary of State for the Home Department [2012] EWCA Civ 194; [2012] 1 W.L.R. 2422; [2012] C.P. Rep. 24...... C222 Rahman v Arearose Ltd [2001] Q.B. 351; [2000] 3 W.L.R. 1184; (2001) 62 B.M.L.R. 84 CA (Civ Div). . . . . C20, C220, C222 C223 Rall v Hume [2001] EWCA Civ 146; [2001] 3 All E.R. 248; [2001] C.P. Rep. 58; [2001] C.P.L.R. 239; (2001) 98(10) L.S.G. 44; (2001) 145 S.J.L.B. 54...... C172, C173, C174 Ratcliffe v Sandwell MBC [2002] EWCA Civ 6; [2002] 1 W.L.R. 1488; [2002] H.L.R. 17; [2002] B.L.G.R. 305; [2002] 2 P. & C.R. 23; [2002] L. & T.R. 35; [2002] 1 E.G.L.R. 103; (2002) 99(10) L.S.G. 31; (2002) 146 S.J.L.B. 46; [2002] N.P.C. 12; [2003] Env. L.R. D3...... C127, C129 Reaney v University Hospital of North Staffordshire NHS Trust [2015] EWCA Civ 1119; [2016] P.I.Q.R. Q3; [2016] Med. L.R. 23...... 141, 142, 145 146, 147, 148, 149, 150, 151, 152, 161, C18, C19, C22, C223 REEF Trade Mark; sub-nom. South Cone Inc v Bessant (t/a REEF); Bessant v South Cone Inc [2002] EWCA Civ 763; [2003] R.P.C. 5...... C132 Table of Cases xxi

Rees v Darlington Memorial Hospital NHS Trust [2003] UKHL 52; [2004] 1 A.C. 309; [2003] 3 W.L.R. 1091; [2003] 4 All E.R. 987; [2004] 1 F.L.R. 234; [2003] 3 F.C.R. 289; [2004] P.I.Q.R. P14; [2004] Lloyd’s Rep. Med. 1; (2004) 75 B.M.L.R. 69; [2004] Fam. Law 22; (2003) 153 N.L.J. 1599...... 96, 99 Regency Rolls Ltd v Carnall, unreported...... C158 Regione Piemonte v Dexia Crediop Spa [2014] EWCA Civ 1298...... C158 Rehbock v Slovenia (29462/95) (1998) 26 E.H.R.R. CD120 Eur Comm HR...... 51 Reid v Buckinghamshire Healthcare NHS Trust, unreported...... 131, C114 Revill v Newberry [1996] Q.B. 567; [1996] 2 W.L.R. 239; [1996] 1 All E.R. 291; (1995) 92(44) L.S.G. 31; (1996) 146 N.L.J. 50; (1995) 139 S.J.L.B. 244 CA (Civ Div)...... C147 Rewe Zentralfinanz eG v Landwirtschaftskammer fur das Saarland (33/76) [1976] E.C.R. 1989; [1977] 1 C.M.L.R. 533 ECJ...... 44 Rhesa Shipping Co SA v Edmunds (The Popi M) [1985] 1 W.L.R. 948; [1985] 2 All E.R. 712; [1985] 2 Lloyd’s Rep. 1; (1985) 82 L.S.G. 2995; (1985) 129 S.J. 503 HL...... C124, C125 Rich v Hull and East Yorkshire Hospitals NHS Trust [2015] EWHC 3395 (QB); [2016] Med. L.R. 33...... 161, 162 Richardson v Pitt-Stanley [1995] Q.B. 123; [1995] 2 W.L.R. 26; [1995] 1 All E.R. 460; [1995] I.C.R. 303; [1994] P.I.Q.R. P496 CA (Civ Div)...... C184 Rizan v Hayes [2016] EWCA Civ 481...... C124, C125 Rodgers v George Blair & Co 11 K.I.R. 391; (1971) 116 S.J. 77 CA (Civ Div)...... C61 Rogers v Hoyle; sub-nom. Hoyle v Rogers [2014] EWCA Civ 257; [2015] Q.B. 265; [2014] 3 W.L.R. 148; [2014] 3 All E.R. 550; [2014] C.P. Rep. 30; [2014] 1 C.L.C. 316; [2014] Inquest L.R. 135...... C190 Rookes v Barnard (No.1) [1964] A.C. 1129; [1964] 2 W.L.R. 269; [1964] 1 All E.R. 367; [1964] 1 Lloyd’s Rep. 28; (1964) 108 S.J. 93 HL...... C150, C151, C152 Rose v Plenty; sub-nom. Rose v Plenty and Cooperative Retail Services [1976] 1 W.L.R. 141; [1976] 1 All E.R. 97; [1976] 1 Lloyd’s Rep. 263; [1975] I.C.R. 430; [1976] I.R.L.R. 60; (1976) 18 Man. Law 148; (1975) 119 S.J. 592 CA (Civ Div)...... C75 Rouse v Aviva Insurance Ltd, unreported...... 128 Rowlands v Chief Constable of Merseyside [2006] EWCA Civ 1773; [2007] 1 W.L.R. 1065; [2006] Po. L.R. 187; (2007) 151 S.J.L.B. 28; (2007) 151 S.J.L.B. 64...... C151, C152 Royal Bank of Scotland Plc v Hicks [2011] EWHC 287 (Ch)...... 92, 93, 94 Royal Bank of Scotland Plc v Highland Financial Partners LP [2013] EWCA Civ 328; [2013] 1 C.L.C. 596...... C157 Royal Wolverhampton Hospitals NHS Trust v Evans [2015] EWCA Civ 1059...... C6, C7 Rust-Andrews v First-tier Tribunal [2011] EWCA Civ 1548; [2012] P.I.Q.R. P7...... 105 S v Criminal Injuries Compensation Appeal Panel; sub-nom. DJS v Criminal Injuries Compensation Board [2007] CSIH 49; 2007 S.C. 748; 2007 S.L.T. 575; 2007 S.C.L.R. 502; 2007 G.W.D. 21-350...... 110, 111 Samson v Ali [2012] EWHC 4146 (QB)...... C239, C240, C241 Sarwar v Alam; sub-nom. Sawar v Alam [2001] EWCA Civ 1401; [2002] 1 W.L.R. 125; [2001] 4 All E.R. 541; [2002] 1 Costs L.R. 37; [2002] R.T.R. 12; [2002] Lloyd’s Rep. I.R. 126; [2002] P.I.Q.R. P15; (2001) 151 N.L.J. 1492...... C37, C39 Saunderson v Sonae Industria (UK) Ltd [2015] EWHC 2264 (QB)...... 5, 130, C12 C13 Saydulkhanova v Russia, 25 June 2015...... 46, 51, 53 Sayğı v Turkey, 15 January 2015...... 53 Shaw v Merthyr Tydfil County Borough [2014] EWCA Civ 1678; [2015] P.I.Q.R. P8...... 166 Shortell v BICAL Construction Ltd, unreported...... 8, 9, 62 115, 116 Sienkiewicz v Greif (UK) Ltd; sub-nom. Willmore v Knowsley MBC; Costello (Deceased), Re [2011] UKSC 10; [2011] 2 A.C. 229; [2011] 2 W.L.R. 523; [2011] 2 All E.R. 857; [2011] I.C.R. 391; [2011] P.I.Q.R. P11; (2011) 119 B.M.L.R. 54; (2011) 108(12) L.S.G. 21; (2011) 155(10) S.J.L.B. 30...... 8, 9, 11 13, 18, 26, 30, 61, 63, 64, 157, 159, C18, C19, C125 Sim v Allianz Australia Ltd [2010] NSWDDT 19...... 119 Simmons v Castle [2012] EWCA Civ 1039; [2013] 1 W.L.R. 1239; [2013] 1 All E.R. 334; [2012] C.P. Rep. 43; [2012] 5 Costs L.R. 931; [2013] E.M.L.R. 3; [2012] P.I.Q.R. P22; [2013] Med. L.R. 1...... C37, C41 Simmons v Castle [2012] EWCA Civ 1288; [2013] 1 W.L.R. 1239; [2013] 1 All E.R. 334; [2013] C.P. Rep. 3; [2012] 6 Costs L.R. 1150; [2013] E.M.L.R. 4; [2013] P.I.Q.R. P2; [2013] Med. L.R. 4; (2012) 162 N.L.J. 1324; (2012) 156(39) S.J.L.B. 31...... C37, C40, C41 C42 xxii Table of Cases

Sklair v Haycock [2009] EWHC 3328 (QB)...... 141, 142, 145 146, 148, 150, 151, 152, C15, C21, C22 Smith v Manchester Corp; sub-nom. Smith v Manchester CC (1974) 17 K.I.R. 1; (1974) 118 S.J. 597 CA (Civ Div)...... C33, C34, C100 C101, C103, C222 Smith v Trafford Housing Trust (Costs) [2012] EWHC 3320 (Ch); (2012) 156(46) S.J.L.B. 31...... 131 Smithurst v Sealant Construction Services Ltd [2011] EWCA Civ 1277; [2012] Med. L.R. 258...... C17 Solomou v Turkey, 24 June 2008...... 53, 54 South Wales Fire and Rescue Service v Smith [2011] EWHC 1749 (Admin)...... C162 SOVAG - Schwarzmeer und Ostsee Versicherungs-Aktiengesellschaft v If Vahinkovakuutusyhtio Oy (C-521/14) EU:C:2016:41; [2016] 3 W.L.R. 136; [2016] R.T.R. 11; [2016] I.L.Pr. 12...... 184 Sowden v Lodge; sub-nom. Crookdake v Drury [2004] EWCA Civ 1370; [2005] 1 W.L.R. 2129; [2005] 1 All E.R. 581; [2005] Lloyd’s Rep. Med. 86; (2004) 148 S.J.L.B. 1282...... 34 ST v Maidstone and Tunbridge Wells NHS Trust [2015] EWHC 51 (QB); [2015] Med. L.R. 70...... 156 Stec v United Kingdom (65731/01) (2006) 43 E.H.R.R. 47; 20 B.H.R.C. 348 ECHR (Grand Chamber)...... 111, 112 Steel, unreported...... 144 Sternbaum v Dhesi [2016] EWCA Civ 155; [2016] H.L.R. 16; [2016] 2 P. & C.R. 4...... C128, C130, C138 Stewart v Glaze [2009] EWHC 704 (QB); (2009) 153(16) S.J.L.B. 28...... C1 Stokes Pension Fund Trustees v Western Power Distribution (South West) Plc; sub-nom. Trustees of the Stokes Pension Fund v Western Power Distribution (South West) Plc [2005] EWCA Civ 854; [2005] 1 W.L.R. 3595; [2005] 3 All E.R. 775; [2005] C.P. Rep. 40; [2005] B.L.R. 497; [2006] 2 Costs L.R. 226; (2005) 102(30) L.S.G. 28...... 175 Summers v Fairclough Homes Ltd; sub-nom. Fairclough Homes Ltd v Summers [2012] UKSC 26; [2012] 1 W.L.R. 2004; [2012] 4 All E.R. 317; [2012] 4 Costs L.R. 760; [2013] Lloyd’s Rep. I.R. 159; (2012) 162 N.L.J. 910; (2012) 156(26) S.J.L.B. 31...... 122, C162, C227 Surrey v Barnet and Chase Farm Hospitals NHS Trust, unreported...... C39, C40, C41 C42 Swift v Fred Olsen Cruise Lines [2016] EWCA Civ 785...... C187, C188, C208 Symes v St George’s Healthcare NHS Trust [2014] EWHC 2505 (QB); [2014] Med. L.R. 449; (2014) 140 B.M.L.R. 171...... C239 Syred v Powszecnny Zaklad Ubezpieczen (PZU) SA [2016] EWHC 254 (QB)...... 187 T v Archbishop of Liverpool [2008] EWHC 3531 (QB)...... C82 T v North Yorkshire CC [1999] I.R.L.R. 98; (1999) 1 L.G.L.R. 61; [1999] B.L.G.R. 584; (1998) 10 Admin. L.R. 573; [1999] Ed. C.R. 353; [1998] E.L.R. 625; (1999) 49 B.M.L.R. 150; (1998) 95(32) L.S.G. 29; (1998) 142 S.J.L.B. 218 CA (Civ Div)...... C74 Tahir v Haringey HA [1998] Lloyd’s Rep. Med. 104 CA (Civ Div)...... 163, C18 Tahsin Acar v Turkey (26307/95) (2004) 38 E.H.R.R. 2 ECHR...... 52 Tanfern Ltd v Cameron-MacDonald [2000] 1 W.L.R. 1311; [2000] 2 All E.R. 801; [2001] C.P. Rep. 8; [2000] 2 Costs L.R. 260; (2000) 97(24) L.S.G. 41 CA (Civ Div)...... C132 Tanis v Turkey (65899/01) (2008) 46 E.H.R.R. 14 ECHR...... 51 Tanseem v Morley, unreported, 30 September 2013...... C152, C229 Taylor v Giovani Developers Ltd [2015] EWHC 328 (Comm)...... C43 Temple Legal Protection Ltd v QBE Insurance (Europe) Ltd [2009] EWCA Civ 453; [2010] 1 All E.R. (Comm) 703; [2009] 1 C.L.C. 553; [2009] Lloyd’s Rep. I.R. 544; (2009) 153(14) S.J.L.B. 27...... C119 Thompson v Commissioner of Police of the Metropolis [1998] Q.B. 498; [1997] 3 W.L.R. 403; [1997] 2 All E.R. 762; (1998) 10 Admin. L.R. 363; (1997) 147 N.L.J. 341 CA (Civ Div)...... C151, C152 Threlfall v Hull City Council; sub-nom. Threlfall v Kingston upon Hull City Council [2010] EWCA Civ 1147; [2011] I.C.R. 209; [2011] P.I.Q.R. P3; (2010) 107(42) L.S.G. 18...... 138 Tinsley v Milligan [1994] 1 A.C. 340; [1993] 3 W.L.R. 126; [1993] 3 All E.R. 65; [1993] 2 F.L.R. 963; (1994) 68 P. & C.R. 412; [1993] E.G. 118 (C.S.); [1993] N.P.C. 97 HL...... C146 Titmus v General Motors UK Ltd [2016] EWHC 2021 (QB)...... C193, C194 Tomasic v Croatia (46598/06) [2012] M.H.L.R. 167; [2011] Inquest L.R. 175 ECHR...... 45 Tomlinson v Congleton BC [2003] UKHL 47; [2004] 1 A.C. 46; [2003] 3 W.L.R. 705; [2003] 3 All E.R. 1122; [2004] P.I.Q.R. P8; [2003] 32 E.G. 68 (C.S.); (2003) 100(34) L.S.G. 33; (2003) 153 N.L.J. 1238; (2003) 147 S.J.L.B. 937; [2003] N.P.C. 102...... C131, C133 TQ, unreported...... 112, 113 Turberville v Savage 86 E.R. 684; (1669) 1 Mod. 3 KB...... C30 Table of Cases xxiii

Turner v Toleman, unreported...... C239, C240 Uwug Ltd (In Liquidation) v Ball [2015] EWHC 74 (IPEC)...... 173 V v Assistant Director Adult Social Care Newcastle City Council; sub-nom. PJV v Assistant Director Adult Social Care Newcastle City Council [2016] EWCOP 7; [2016] Fam. 229; [2016] 2 W.L.R. 1327; [2016] C.O.P.L.R. 394; [2016] W.T.L.R. 705...... 234 Vadera v Shaw (1999) 45 B.M.L.R. 162 CA (Civ Div)...... 6 Vaickuviene v J Sainsbury Plc [2013] CSIH 67; 2014 S.C. 147; 2013 S.L.T. 1032; [2013] I.R.L.R. 792; 2013 Rep. L.R. 106; 2013 G.W.D. 25-512...... C72, C74 Van Klaveren v Servisair (UK) Ltd [2009] CSIH 37; 2009 S.L.T. 576; 2009 G.W.D. 18-280...... 82 Various Claimants v Institute of the Brothers of the Christian Schools; sub-nom. Various Claimants v Catholic Child Welfare Society; Catholic Child Welfare Society v Various Claimants [2012] UKSC 56; [2013] 2 A.C. 1; [2012] 3 W.L.R. 1319; [2013] 1 All E.R. 670; [2013] I.R.L.R. 219; [2013] E.L.R. 1; [2013] P.I.Q.R. P6; (2012) 162 N.L.J. 1505; (2012) 156(45) S.J.L.B. 31...... 91, 92, C65 C66, C67, C68, C71, C73, C83 Vasey v Surrey Free Inns Plc [1996] P.I.Q.R. P373 CA (Civ Div)...... C70, C73 Velikova v Bulgaria (41488/98), unreported...... 52 Vellino v Chief Constable of Greater Manchester [2001] EWCA Civ 1249; [2002] 1 W.L.R. 218; [2002] 3 All E.R. 78; [2002] P.I.Q.R. P10; [2001] Po. L.R. 295; (2001) 151 N.L.J. 1441...... 212, 213, C147 Vento v Chief Constable of West Yorkshire; sub-nom. Chief Constable of West Yorkshire v Vento (No.2) [2002] EWCA Civ 1871; [2003] I.C.R. 318; [2003] I.R.L.R. 102; [2003] Po. L.R. 171; (2003) 100(10) L.S.G. 28; (2003) 147 S.J.L.B. 181...... C32, C33, C150 Versloot Dredging BV v HDI Gerling Industrie Versicherung AG [2016] UKSC 45; [2016] 3 W.L.R. 543; [2016] 2 Lloyd’s Rep. 198; [2016] Lloyd’s Rep. I.R. 468...... 240 Viasystems (Tyneside) Ltd v Thermal Transfer (Northern) Ltd [2005] EWCA Civ 1151; [2006] Q.B. 510; [2006] 2 W.L.R. 428; [2005] 4 All E.R. 1181; [2006] I.C.R. 327; [2005] I.R.L.R. 983; [2005] 42 E.G. 235 (C.S.); (2005) 102(44) L.S.G. 31; [2005] N.P.C. 114...... 92, C66 Vidal-Hall v Google Inc; sub-nom. Google Inc v Vidal-Hall [2015] EWCA Civ 311; [2015] 3 W.L.R. 409; [2016] 2 All E.R. 337; [2015] C.P. Rep. 28; [2015] 1 C.L.C. 526; [2015] 3 C.M.L.R. 2; [2015] E.M.L.R. 15; [2015] F.S.R. 25...... 209 Vilnes v Norway (52806/09) 36 B.H.R.C. 297; (2014) 139 B.M.L.R. 199 ECHR...... 46, 52 Vnuk v Zavarovalnica Triglav dd (C-162/13) EU:C:2014:2146; [2016] R.T.R. 10; [2015] Lloyd’s Rep. I.R. 142...... C200, C201, C202 Vorarlberger Gebietskrankenkasse v WGV-Schwabische Allgemeine Versicherungs AG (C-347/08) [2010] 1 All E.R. (Comm) 603; [2009] E.C.R. I-8661; [2010] C.E.C. 377; [2010] I.L.Pr. 2; [2010] Lloyd’s Rep. I.R. 77 ECJ (3rd Chamber)...... 184 Wagenaar v Weekend Travel Ltd (t/a Ski Weekend) [2014] EWCA Civ 1105; [2015] 1 W.L.R. 1968; [2016] 1 All E.R. 643; [2014] C.P. Rep. 46; [2014] 5 Costs L.O. 803; [2014] P.I.Q.R. P23...... C176, C178, C179 C233, C234 Wall v Mutuelle de Poitiers Assurances [2014] EWCA Civ 138; [2014] 1 W.L.R. 4263; [2014] 3 All E.R. 340; [2014] C.P. Rep. 23; [2014] 1 C.L.C. 253; [2014] R.T.R. 17; [2014] I.L.Pr. 18; [2014] P.I.Q.R. P15...... 187 Warren v Henlys Ltd [1948] 2 All E.R. 935; [1948] W.N. 449; (1948) 92 S.J. 706 KBD...... C70, C71, C74 Webb v Barclays Bank Plc [2001] EWCA Civ 1141; [2002] P.I.Q.R. P8; [2001] Lloyd’s Rep. Med. 500...... C231 Webb v Liverpool Women’s NHS Foundation Trust [2016] EWCA Civ 365; [2016] C.P. Rep. 30; [2016] 2 Costs L.R. 411...... 166 Weddall v Barchester Healthcare Ltd [2012] EWCA Civ 25; [2012] I.R.L.R. 307...... C70 Wells v Wells [1999] 1 A.C. 345; [1998] 3 W.L.R. 329; [1998] 3 All E.R. 481; [1998] I.R.L.R. 536; [1998] 2 F.L.R. 507; [1998] P.I.Q.R. Q56; (1998) 43 B.M.L.R. 99; [1998] Fam. Law 593; (1998) 95(35) L.S.G. 35; (1998) 148 N.L.J. 1087; (1998) 142 S.J.L.B. 245 HL...... C95 Wharton v Bancroft [2012] EWHC 91 (Ch); [2012] W.T.L.R. 727...... C116 Wheat v E Lacon & Co Ltd [1966] A.C. 552; [1966] 2 W.L.R. 581; [1966] 1 All E.R. 582; [1966] R.A. 193; [1966] R.V.R. 223; (1966) 110 S.J. 149 HL...... C129 Widlake v BAA Ltd [2009] EWCA Civ 1256; [2010] C.P. Rep. 13; [2010] 3 Costs L.R. 353; [2010] P.I.Q.R. P4; (2009) 153(45) S.J.L.B. 29...... 124, 125 Wilkinson v Downton [1897] 2 Q.B. 57 QBD...... C29, C30 Willame v Commission of the European Atomic Energy Community (110/63) [1965] E.C.R. 649; [1966] C.M.L.R. 231 ECJ (1st Chamber)...... 49 xxiv Table of Cases

Williams v Bermuda Hospitals Board [2016] UKPC 4; [2016] 2 W.L.R. 774; [2016] Med. L.R. 65...... 141, 142, 149 154, 156, 157, 158, 159, 162, 163, C78, C79 Williams v Jervis [2009] EWHC 1837 (QB)...... 131 Williams v Mapfre Emprass Compania de Seguros y Reaseguros SA, unreported...... 184 Williams v University of Birmingham; sub-nom. Williams (Deceased), Re [2011] EWCA Civ 1242; [2012] E.L.R. 47; [2012] P.I.Q.R. P4...... 26, 29, 30 Willmore v Knowsley MBC [2009] EWCA Civ 1211; [2010] E.L.R. 227...... 18, 19, 26 30 Wilsher v Essex AHA [1988] A.C. 1074; [1988] 2 W.L.R. 557; [1988] 1 All E.R. 871; (1988) 138 N.L.J. Rep. 78; (1988) 132 S.J. 418 HL...... 64, 156, C76 C78, C87 Wilson v Pringle [1987] Q.B. 237; [1986] 3 W.L.R. 1; [1986] 2 All E.R. 440; (1986) 83 L.S.G. 2160; (1986) 136 N.L.J. 416; (1986) 130 S.J. 468 CA (Civ Div)...... C81 Wink v Croatia Osiguranje DD [2013] EWHC 1118 (QB)...... 185 Winrow v Hemphill [2014] EWHC 3164 (QB); [2015] I.L.Pr. 12...... 186 Wood v Ministry of Defence [2011] EWCA Civ 792...... 2, C13 Woodland v Maxwell [2015] EWHC 820 (QB)...... C48 Woodland v Stopford [2011] EWCA Civ 266; [2011] Med. L.R. 237...... C46 Woodland v Swimming Teachers Association; sub-nom. Woodland v Essex CC [2013] UKSC 66; [2014] A.C. 537; [2013] 3 W.L.R. 1227; [2014] 1 All E.R. 482; [2014] E.L.R. 67; (2013) 16 C.C.L. Rep. 532; [2014] P.I.Q.R. P6; (2013) 163(7582) N.L.J. 15; (2013) 157(41) S.J.L.B. 39...... C48 Wright v Barts Health NHS Trust [2016] EWHC 1834 (QB)...... C232 Wright v Sullivan [2005] EWCA Civ 656; [2006] 1 W.L.R. 172; [2005] C.P. Rep. 37; [2006] R.T.R. 10; [2006] P.I.Q.R. Q4; (2005) 84 B.M.L.R. 196; (2005) 155 N.L.J. 938...... 36, 38 X v Schering Health Care Ltd; sub-nom. XYZ v Schering Health Care Ltd [2002] EWHC 1420 (QB); (2003) 70 B.M.L.R. 88...... 7, 8 Y v First-tier Tribunal [2016] UKUT 202...... 109, 234 Yearworth v North Bristol NHS Trust [2009] EWCA Civ 37; [2010] Q.B. 1; [2009] 3 W.L.R. 118; [2009] 2 All E.R. 986; [2009] LS Law Medical 126; (2009) 107 B.M.L.R. 47; (2009) 153(5) S.J.L.B. 27...... 97, 98, 99 Young v AIG Europe Ltd [2015] EWHC 2160 (QB)...... C34, C36 Zavoloka v Latvia, 7 July 2009...... 50 Zurich Insurance Co Plc v Hayward [2011] EWCA Civ 641; [2011] C.P. Rep. 39...... 131, C228 Table of Statutes

1861 Offences Against the Person Act (c.100) s.1(3)...... C177 s.20...... 108, 109 s.1A...... 182 s.23...... 107, 108, 234 s.3(3)...... C94 s.58...... 108 s.4...... C94 1929 Infant Life (Preservation) Act (c.34) 1976 Race Relations Act (c.74)...... 215 s.1...... 108 Pt IV s.32...... C148 1934 Law Reform (Miscellaneous Provisions) Act 1978 Civil Liability (Contribution) Act (c.41)...... C83, C96, C97, C192 (c.47)...... C20, C45, C46, C148, C149 s.1(1)...... C177, C234 s.1...... C148 1947 Crown Proceedings Act (c.44) s.2...... C148 Pt I s.2(1)(a)...... C149 1980 Limitation Act (c.58)...... C82, C209, C235 1956 Sexual Offences Act (c.69) Pt II s.33...... C83, C171, C209 Pt I s.15(1)...... C82 (1)...... C209 1957 Occupiers’ Liability Act Pt III s.39...... C209 (c.31)...... C126, C129, C133, C138, C139 1981 Senior Courts Act (c.54) s.2...... C126, C130, C131, C133, C136 Pt II s.33...... C177 C137 1984 County Courts Act (c.28) (2)...... C129, C133, C138, C139 Pt III s.52...... C177 (3)...... C138 Pt V s.85...... 59 1965 Factories Act (Northern Ireland) (c.20). . . . . C61 1988 Road Traffic Act (c.52). . . 181, C199, C200, C202 1968 Civil Evidence Act (c.64) Pt VI s.145...... C201 Pt II s.11...... C191 (3)...... C199 1969 Employers’ Liability (Compulsory Insurance) Act (a)...... C198, C199, C200, C201 (c.57)...... C181, C182, C183, C184 s.151...... 246, 246 s.1...... C181, C182, C183 1990 Courts and Legal Services Act (c.41)...... 101 (1)...... C182, C183, C184 1992 Social Security Contributions and Benefits Act (c.4) (2)...... C184 Pt XI s.157...... 235 s.5...... C181, C182, C183 1995 Merchant Shipping Act (c.21)...... C208 1969 Administration of Justice Act (c.58) Pt II s.18(2)(b)...... C207 Pt II s.12...... C26, C94 Pt VII s.183...... C207 1972 Defective Premises Act Sch.6...... C185, C207 (c.35)...... C126, C127, C130, C138 1995 Private International Law (Miscellaneous Provisions) s.4...... C126, C127, C129 Act (c.42)...... 188 (3)...... C129 1995 Criminal Injuries Compensation Act 1972 European Communities Act (c.68) (c.53)...... 105, 111, 231 Pt I s.2(2)...... C215 1996 Police Act (c.16)...... C149 1973 Greater London Council (General Powers) Act. . 68 Pt I s.2...... C149 1973 Prescription and Limitation (Scotland) Act (c.52) Pt IV s.88...... C148, C149 Pt II s.18...... C207, C208, C209 1996 Damages Act (c.48) (2)...... C207 s.2(3)...... 243 (3)...... C207 (4)...... 243 s.19A...... C208 (5)...... 244 1974 Health and Safety at Work etc. Act s.4(3)...... 245 (c.37)...... 134, 135, C62 (4)...... 245 Pt I s.2...... 136 Sch.1 para.6...... 243 s.3...... 135 1997 Civil Procedure Act (c.12)...... 122 (1)...... 136 1997 Social Security (Recovery of Benefits) Act (2)...... 134, 135, 136, 137 (c.27)...... 167, 168, 188, C106, C108 s.47...... C92 s.17...... 188 s.53...... 136 1998 Data Protection Act (c.29)...... 209 1976 Fatal Accidents Act (c.30). . 185, 186, C83, C94, C96 1998 Human Rights Act (c.42)...... 46, 105, 112, 113 C177, C192, C234 Sch.1...... 210

xxv xxvi Table of Statutes

1998 Scotland Act (c.46)...... 88 Sch.22 para.1(1)...... 111 Pt I s.29(4)(a)...... 88 2011 Children’s Hearings (Scotland) Act (c.1). . . . . 80 Sch.5 Pt II para.A3...... 88 2011 Damages (Scotland) Act (c.7) 1999 Contracts (Rights of Third Parties) Act (c.31). . C120 s.7(1)(d)...... C96 s.1...... C120 2012 Welfare Reform Act (c.5)...... 68 2000 Financial Services and Markets Act (c.8) 2012 Legal Aid, Sentencing and Punishment of Offenders Pt I s.4...... 243 Act (c.10)...... 251, 254, C37, C38, C40 Pt XV s.213...... 243, 245 C41, C42 Pt XVI s.228(5)...... 59 Pt 2 s.44(6)...... C41 Sch.17 Pt III para.16(a)...... 59 2013 Prevention of Social Housing Fraud Act (c.3). . . 68 2000 Regulation of Investigatory Powers Act (c.23). . 208 s.1...... 68 2005 Mental Capacity Act (c.9)...... 234 2013 Enterprise and Regulatory Reform Act 2005 Inquiries Act (c.12) (c.24)...... C92, C93 s.1...... 80 Pt 5 s.69...... C92 2006 Compensation Act (c.29)...... 115, 119, 120 2015 Criminal Justice and Courts Act (c.2)...... 239 Pt 1 s.1...... C133 Pt 3 s.57...... 121, 122, 130, 239 s.2...... 83 (1)...... 128 s.3...... 5, 61, 65, 115, 120 (2)...... 121, 133 C86, C87 s.63...... C26 Pt 3 s.17...... 83 2015 Deregulation Act (c.20). . . . 69, 134, 136, 137, 138 2006 Fraud Act (c.35)...... 210, 211 139, 140 2010 Third Parties (Rights against Insurers) Act s.1...... 134, 135 (c.10)...... C88, C89, C90 2016 Inquiries into Fatal Accidents and Sudden Deaths etc. s.5...... C88 (Scotland) Act (c.2)...... 80 2010 Equality Act (c.15)...... C100, C101, C103 2016 Apologies (Scotland) Act (c.5)...... 79, 80, 89 Pt 3 s.29...... 110 s.5...... 79 (6)...... 111 2016 Health (Tobacco, Nicotine etc. and Care) (Scotland) Pt 11 s.149...... 110, 111 Act (c.14) Sch.3 Pt 1 para.2(3)...... 111 Pt 2...... 80 para.3...... 111 Table of Statutory Instruments

1925 Grinding of Metals (Miscellaneous Industries) Pt 16...... 127 Regulations (SI 1925/904)...... 155 r.16.4(1)(c)...... C150, C151 1969 Asbestos Regulations (SI 1969/690)...... 29, 30 Pt 20...... C24, C148, C176, C234 1981 Road Traffic (Northern Ireland) Order (SI 1981/154) Pt 35...... 4, C159 art.98...... 246 Pt 36...... 131, 132, 133, 164, 165 1992 Manual Handling Operations Regulations (SI 166, 167, 168, 169, 170 1992/2793)...... C141 171, 172, 173, 174, 175 1992 Personal Protective Equipment at Work Regulations 176, 177, 178, 179, C38 (SI 1992/2966)...... C59, C61 C40, C41, C105, C106, C107 reg.4(1)...... C59, C60, C61 C108, C111, C112, C113, C114 (3)(d)...... C61 C115, C116, C117, C155 1992 Workplace (Health, Safety and Welfare) Regulations r.36.2(2)...... 167 (SI 1992/3004)...... 138, C140, C141 (c)...... 167 reg.3...... 139 (d)...... 165, 166 reg.4(2)...... 138 r.36.3(1)(c)...... 167 reg.5...... C140, C141, C142 (2)...... 166 reg.6...... C140 r.36.5(1)...... 167 reg.17...... 138, C140, C142 (4)(d)...... 165 (2)...... C142 r.36.6(2)...... 178 1992 Package Travel, Package Holidays and Package Tours r.36.7...... 175 Regulations (SI 1992/3288). . . C194, C195, C197 r.36.8...... 173 reg.15...... C197 r.36.10...... 167, 176 1998 Provision and Use of Work Equipment Regulations (2)...... 165, 166 (SI 1998/2306)...... C92 r.36.11...... 176, 178 Pt II reg.20...... C91, C92 (6)...... 177, 178, 179 1998 Civil Procedure Rules (SI r.36.13...... 167 1998/3132)...... 34, 121, 122, 130, 132 r.36.14...... 176, C106, C111, C113 164, 178, 181, 185, 207 (1)...... C105, C106 244, C48, C51, C57, C95 (a)...... 177 C107, C156, C159, C167, C168 (2)...... C106 C169, C170, C173, C174, C211 (3)...... C111, C113, C114 C230, C237 (a)...... C112 Pt 3 r.3.4...... C230 (b)...... C112 r.3.9...... C157, C158 r.36.15...... 167, C106 Pt 6...... C236 (3)(a)...... 168, C105 (II) r.6.15...... C236 (6)(a)...... 168 (2)...... C235, C238 r.36.17...... 133, 174, C106 Pt 7...... C165 (4)...... 132, 172 r.7.5...... C167, C168, C169 r.36.20...... 167 (1)...... C167 r.36.22...... 167, 169, C106, C107, C108 (2)...... C167 (I)...... 165 r.7.6...... C168 r.36.10A...... C113 (2)...... C169, C171 r.36.14(1A)...... C106 (3)...... C169 r.36.14A...... C111, C113 Pt 10 r.10.3...... C43 r.36.5(1)...... 167 Pt 12 r.12.3(1)...... C43 r.36.9(4)...... 174 Pt 13...... C157 r.36.17(5)...... C116, C118 r.13.3...... C156, C158 (7)...... 174 (2)...... C156, C157, C158 Pt 39 r.39.3...... C156 Pt 14 r.14.1...... C47 (5)...... C156, C157 r.14.1A...... C47 (a)...... C157 (4)(b)...... C45 Pt 41 r.41.2...... 178

xxvii xxviii Table of Statutory Instruments

(II) r.41.8...... 178 2002 European Communities (Rights against Insurers) Pt 44...... 131, 133, 172, 175, C107 Regulations (SI 2002/3061)...... 181, C235 C114 reg.3...... C235 r.44.2...... 166 2003 Motor Vehicles (Compulsory Insurance) (Information r.44.3(4)(c)...... C107 Centre and Compensation Body) Regulations (SI r.44.5(1)...... C39 2003/37)...... C23, C24, C25, C26, C27 r.44.13. . . . . C176, C177, C179, C233, C234 C212, C234 C235 reg.9(2)...... C233 (1)...... C234 reg.10...... 181 r.44.14...... C176 reg.11...... 181 r.44.15...... C177 reg.12...... 181 r.44.16...... C177, C235 (2)...... C214 (1)...... 121 reg.13...... C24, C25, C26, C27, C211 r.44.17...... C177 C212, C233, C234 (I) r.44.2(4)...... 175 (1)...... C25, C234 Pt 45...... C111, C164, C165 (b)...... C233 (III) r.45.16...... C166 (2)...... C25, C211, C213 r.45.17...... C166 (b)...... C25, C211, C212 r.45.29...... C111 reg.16...... C212, C234 (IIIA)...... 132, C111, C112, C113, C114 2005 Work at Height Regulations (SI 2005/735). . . C92 C164 reg.10(2)...... C91, C92 r.45.29A...... C164 2006 Civil Procedure (Amendment No.3) Rules (SI r.45.29B...... C111, C113 2006/3435)...... 179 r.45.29C...... C111, C114, C164, C165 2008 Cancellation of Contracts made in a Consumer’s Home r.45.29I...... C111 or Place of Work etc. Regulations (SI r.45.29J...... 128, C111 2008/1816)...... C49 Pt 46 r.46.2...... C178 2011 Armed Forces and Reserve Forces (Compensation Pt 52(I) r.52.9A...... C176, C177, C178 Scheme) Order (SI 2011/517)...... 234, 235 Pt 61...... 171 2013 Damages-Based Agreements Regulations (SI r.61.4(10)...... 170, 171 2013/609)...... 100, 101, 103 (12)...... 170, 171 2013 Civil Procedure (Amendment No.6) Rules (SI Pt 81(VI) r.81.18...... C55 2013/1695)...... C111 1998 Control of Asbestos at Work (Amendment) Regulations 2015 Construction (Design and Management) Regulations (SI 1998/3235)...... 14 (SI 2015/51)...... 140 1999 Management of Health and Safety at Work Regulations Pt 3 reg.13...... 140 (SI 1999/3242)...... 137, 138, 139, C59, C61 2015 Health and Safety at Work etc. Act 1974 (General reg.3...... 137 Duties of Self-Employed Persons) (Prescribed (1)...... C59, C61 Undertakings) Regulations (SI 2000 Building Regulations (SI 2015/1583)...... 135, 136, 137 2000/2531). . . . . C128, C129, C130, C136, C137 reg.2(b)...... 136 C138, C139 Sch.1...... 135, 139 Pt II reg.4(2)...... C137 2016 Naval, Military and Air Forces Etc. (Disablement and 2002 Control of Substances Hazardous to Health Regulations Death) Service Pensions (Amendment) Order (SI (SI 2002/2677)...... 14 2016/374)...... 119 Table of European Legislation

Treaties and Conventions 2007 Treaty on the Functioning of the European Union art.267...... 47 1950 Convention for the Protection of Human Rights and art.340...... 46 Fundamental Freedoms (European Convention on (2)...... 47 Human Rights)...... 41, 49, 51, 54, 113 art.2...... 44, 45, 46, 47, 51 Regulations 54 (1)...... 45 1997 Reg.2027/97 on air carrier liability in the event of (2)...... 45 accidents [1997] OJ L285/1...... 43 art.6...... 44 art.13...... 44, 46, 47, 48, 49 2002 Reg.889/2002 amending Regulation 2027/97 on air 54 carrier liability in the event of accidents [2002] OJ art.41...... 47, 50, 51, 54 L140/2...... 43 art.46...... 50 Protocol 1 art.1...... 110 2003 Reg.883/2003 on the co-ordination of social security Protocol 6...... 45 systems art 3(1)(f)...... 42 1961 Brussels Convention on passengers and art.11...... 42 luggage...... C208 art.12...... 42 art.13...... 42 1967 Brussels Convention on passengers and luggage...... C208 2004 Reg.883/2004 on the coordination of social security systems [2004] OJ L166/1...... C162, 43 1974 Athens Convention. . . . . C185, C187, C188, C207, C208 2007 Reg.864/2007 on the law applicable to non-contractual C209 obligations [2007] OJ L199/40 (Rome art.3...... C188 II)...... 42, 182, 186, 188, C24 (1)...... C208 C25, C153, C195, C196, C221 art.16.1...... C207 art.1(3)...... C152 art.16.2...... C207 art.4...... C23, C24 (1)...... 42, 186, C24, C194, C196 1980 Convention on the Law Applicable to Contractual (2)...... C24, C152 Obligations...... C196 (3)...... C24, C194, C196 art.3...... C196 art.15...... C152, C153 art.4(1)...... C196 (c)...... C152 (b)...... C196 art.15a...... C152 art.16...... C152 2000 Charter of Fundamental Rights of the European Union...... 44, 48 2007 Reg.1371/2007 on rail passengers’ rights and art.2...... 44, 48 obligations [2007] OJ L315/14...... 43 (1)...... 45 (2)...... 45 2008 Reg.593/2008 on the law applicable to contractual art.47...... 48 obligations (Rome I)...... C194, C195, C196 art.51(1)...... 48 art.3...... C196

2002 Athens Protocol...... C208 2009 Reg.392/2009 on the liability of carriers of passengers by sea in the event of accidents [2009] OJ 2007 Lugano Convention...... 181, 188 L131/24...... 43

2007 Treaty on European Union 2011 Reg.181/2011 concerning the rights of passengers in art.50...... 188 bus and coach transport and amending Regulation 2006/2004 [2011] OJ L55/1...... 44

xxix xxx Table of European Legislation

2012 Reg.1215/2012 on jurisdiction and the recognition and 1990 Dir.90/314 on package travel, package holidays and enforcement of judgments in civil and commercial package tours [1992] OJ L158/59 (Package Travel matters (recast) [2012] OJ L351/1...... 42, 181 Direcrive)...... 43, C194, C195, C197 art.11b...... 181 art.5...... 43 Ch.II s.3...... 181 2000 Dir.2000/26 on the approximation of the laws of the Directives Member States relating to insurance against civil liability in respect of the use of motor vehicles and 1972 Dir.72/166 on insurance against civil liability in respect amending Council Directives 73/239 and 88/357 of the use of motor vehicles, and the enforcement of (Fourth motor insurance Directive) [2000] OJ the obligation to insure against such liability [1972] L181/65...... 180, 181, C214 OJ L1103/1 (First Motor Vehicle Insurance art.2...... 180 Directive)...... C199 art.6...... C215 art.1(2)...... C214 Art.7...... C211, C212, C215 art.3(1)...... C54, C198, C199 2004 Dir.2004/80 relating to compensation to crime victims 1984 Dir.84/5 on insurance against civil liability in respect [2004] OJ L261/15...... 42 of the use of motor vehicles [1984] OJ L43/27 (Second Motor Vehicle Insurance Directive). . . . 182, C54 2009 Dir.2009/103 relating to insurance against civil liability in respect of the use of motor vehicles, and the 1985 Dir.85/374 on the approximation of the laws, enforcement of the obligation to insure against such regulations and administrative provisions of the liability [2009] OJ L263/11 (Sixth Motor Vehicle Member States concerning liability for defective Insurance Directive). . . 148, C170, C181, C182, C54 products [1985] OJ L210/29 (Product Liability C212 Directive)...... 43 Recital (12)...... 182 art.6...... 43 art.1(2)...... C214 art.9(a)...... 43 art.3...... 42 (2)...... 43 art.18...... 42, C214 art.16...... 43 art.21(1)...... C214 art.23(1)...... C214 1989 Dir.89/391 on the introduction of measures to art.24(1)...... C214 encourage improvements in the safety and health of art.25(1)...... C214 workers at work [1989] OJ L183/1 (Second Framework Directive)...... C61 2012 Dir.2012/29 establishing minimum standards on the art.5(1)...... C61 rights, support and protection of victims of crime, and replacing Council Framework Decision 2001/220/JHA 1990 Dir.90/232 on insurance against civil liability in respect [2012] OJ L315/57...... 42 of the use of motor vehicles [1995] OJ L75/30 (Third Motor Vehicle Insurance Directive). . . . C54, C201 2012 Dir.2012/1215 art.3(1)...... C201 Recital (15)...... 183 Recital (16)...... 183 Table of Civil Procedure Rules

1998 Civil Procedure Rules (SI r.36.7...... 175 1998/3132)...... 121, 122, 130, 132, 164 r.36.8...... 173 185, 207, 244, C48, C95 r.36.9(4)...... 174 C156, C159, C167, C168, C174 r.36.10(2)...... 166 C237 r.36.11...... 178 r.3.4...... C230 (6)...... 178, 179 r.3.9...... C157, C158 r.36.13...... 167 Pt 6...... C236 r.36.14...... 176, C111 r.6.15...... C236 (1)...... C105, C107 (2)...... C235, C238 (3)...... C111 Pt 6B PD...... 185 r.36.14A...... C111 para.3.1...... 185 r.36.15...... 167 r.7.5...... C167, C168 (3)(a)...... 168, C105 (1)...... C167 r.36.17...... 133, 174 (2)...... C167 (4)...... 132 r.7.6...... C168 (7)(a)...... 174 (2)...... C168, C169, C170, C171 r.36.20...... 167 (3)...... C168, C169 r.36.22...... 167, 169 Pt 7A PD...... C167, C170 r.39.3...... C156 r.10.3...... C43 (5)...... C156, C157 r.12.3(1)...... C43 (a)...... C157 Pt 13...... C157 Pt 44...... 131, 133 r.13.3...... C156, C158 r.44.2...... 166 (2)...... C156, C157, C158 (4)(c)...... 175 r.14.1A...... C47 r.44.5(1)...... C39 (4)(b)...... C45 r.44.13...... C176, C177, C179, C233, C234 Pt 14 PD...... C48 C235 para.7.2...... C45, C46 (1)...... C234 Pt 16...... 127 r.44.14...... C176 r.16.4(1)(c)...... C150, C151 r.44.15...... C177 Pt 20...... C148, C24, C234 r.44.16...... C177 r.24...... C230 (1)...... 121 r.25...... C211 Pt 44 PD para.12.4(a)...... 126 Pt 35...... C159 Pt 45...... C111, C164, C165 Pt 35 PD...... 4 s.IIIA...... 132, C111, C165 Pt 36...... 133, 164, 165, 166, 167 r.45.16...... C166 171, 172, 174, 175, 176 r.45.17...... C166 179, C106 r.45.29A...... C164 r.36.2(2)...... 167 r.45.29B...... C111 (c)...... 167 r.45.29C...... C111, C164, C165 (d)...... 165, 166 r.45.29I...... 128, C111 r.36.3(2)...... 166 r.52.9A...... C177, C178 r.36.5(1)...... 167 Pt 61...... 171 (1)(c)...... 167 (d)...... 165 2013 Civil Procedure (Amendment No.6) Rules (SI r.36.6(2)...... 178 2013/1695)...... C111

xxxi

Cumulative Index

This index has been prepared using Sweet & Maxwell’s Legal Taxonomy.

Abuse of process Agricultural insurance double recovery, C230—C233 public liability insurance Acceptance guard dogs, C88—C90 Part 36 offers Allocation of jurisdiction future of, 164—179 EU law Accidents at work direct rights against insurers, 180—188 abuse of process fatal accident claims double recovery, C230—C233 EU law, 40—55 admissibility Apologies surveillance video evidence, C238—241 dispute resolution maintenance of premises Scotland, 79—89 breach of duty of care, C140—C143 Appeals measure of damages qualified one-way costs shifting, C176—C179 failure to mitigate losses, C216—C219 Applicable law Acknowledgment of service EU law default judgments direct rights against insurers, 180—188 extensions of time, C43—C45 fatal accident claims Acquittals uninsured drivers, C23—C27 committal for contempt holiday claims fraud, C54—C57 package holidays, C194—C198 Admissibility measure of damages attempted murder uninsured drivers, C211—C215 Kyrgyzstan, C189—C191 road traffic accidents civil evidence contributory negligence, C152—C155 social media, 205—211 Appointments employers’ liability Rehabilitation Code 2015 personal protective equipment, C59—C64 supporting guide to case managers, 32—39 surveillance evidence, C171—C175, C238—241 Apportionment Advocacy fees employers’ liability settlement lung cancer from asbestos, 61—65, C83—C87 fixed costs, C164—C166 measure of damages After the event insurance causation, C219—C225 reasonableness Armed forces change of funding from legal aid, C37—C43 loss of congenial employment refusal to indemnify, 56—60 measure of damages, C100—C104 Aggravated damages Asbestos measure of damages employers’ liability child sexual abuse, C31—C34 lung cancer, 61—65, C83—C87 Cumulative Index

mesothelioma road traffic accidents contributory negligence, 114—120 contributory negligence, C1—C4 schools reconstruction evidence, C8—C10 legal implications, 14—31 Burden of proof Asbestosis clinical negligence breach of duty of care surgical procedures, C4—C7 causation, C108—C110 mesothelioma Assault contributory negligence, 114—120 vicarious liability road traffic accidents employment assault, C69—C75 contributory negligence, C152—C155 sports persons, C80—C83 fraudulent claims, C123—C126 Attempts sports persons attempted murder vicarious liability for assault, C80—C83 admissibility and standard of proof, Burns C189—C191 employers’ liability Australia breach of duty of care, C91—C93 mesothelioma Cancer contributory negligence, 114—120 employers’ liability Automatism lung cancer from asbestos, 61—65, C83—C87 road traffic accidents mesothelioma defences, C52—C54 contributory negligence, 114—120 Avoidance Capacity after the event insurance clinical negligence refusal to indemnify, 56—60 measure of damages, C144—C147 Battery Cardiovascular diseases sports persons causation vicarious liability for assault, C80—C83 road traffic accidents, C34—C36 Bermuda Care costs clinical negligence clinical negligence successive causes, C75—C80 causation, 141—153 Breach of duty of care measure of damages asbestosis pre-existing condition, C14—C23 causation, C108—C110 Case management deep vein thrombosis road traffic accidents causation, C192—C194 automatism, C52—C54 employers’ liability Causation burns, C91—C93 asbestosis infectious disease control breach of duty of care, C108—C110 cruise ships, C185—C188 clinical negligence maintenance of premises pre-existing condition, 141—153 accidents at work, C140—C143 successive causes, C75—C80 occupiers’ liability deep vein thrombosis contributory negligence, C136—C139 pre-existing condition, C192—C194 duty to warn, C130—C133 employers’ liability parking at sporting events, C133—C136 lung cancer from asbestos, C83—C87 Cumulative Index

infectious disease control Claim forms cruise ships, C185—C188 litigants in person loss of congenial employment service by alternative permitted method, measure of damages, C100—C104 C235—C238 measure of damages Claims management care costs, C14—C23 FOIL President’s reflections on PI market, mesothelioma 237—242 contributory negligence, 114—120 Clinical negligence public nuisance abuse of process fire causing substantial smoke and fumes, double recovery, C230—C233 C11—C13 burden of proof road traffic accidents surgical procedures, C4—C7 cardiovascular diseases, C34—C36 causation Certificates of recoverable benefit pre-existing condition, 141—153 costs orders extensions of time, C166—C171 interpretation, C105—C108 FOIL President’s reflections on PI market, Change of circumstances 237—242 asbestosis material consideration breach of duty of care, C108—C110 successive causes, C75—C80 Child abuse material contribution criminal injuries compensation delay in diagnosis, 154—163 historic offences, 105—113 measure of damages Child sexual abuse care costs, C14—C23 duty of care ex turpi causa, C144—C147 New South Wales, C203—C206 wrongful birth and wrongful sterilisation, measure of damages 95—99 psychiatric harm, C31—C34 standard of proof teacher at special educational needs school, Richard Davies QC Memorial Lecture 2015, C28—C31 1—13 Children surgeons road traffic accidents burden of proof, C4—C7 contributory negligence, C1—C4 Codes of practice Children's services Rehabilitation Code 2015 duty of care supporting guide to case managers, 32—39 child sexual abuse, C203—C206 Collision claims Choice of law emerging technology, 220—230 fatal accident claims Committal for contempt EU law, 40—55 fraud, C54—C57 holiday claims fraudulent claims package holidays, C194—C198 making false statements, C162—C164 Civil evidence Comparative law attempted murder mesothelioma admissibility and standard of proof, contributory negligence, 114—120 C189—C191 Compensation personal injury claims measure of damages social media, 205—211 uninsured drivers, C211—C215 Cumulative Index

mesothelioma disbursements contributory negligence, 114—120 legal expenses insurance, C118—C121 Complaints Part 36 offers duty of care genuine offers, C115—C118 child sexual abuse, C203—C206 police officers Compulsory insurance disgraceful conduct, C147—C152 policy wordings, C198—C202 qualified one-way costs shifting Conditional fee agreements untraced drivers, C233—C235 reasonableness reasonableness change of funding from legal aid, C37—C43 change of funding from legal aid to CFA, solicitors’ remuneration C37—C43 settlement direct with client, C49—C52 work in progress reviews, 249—255 Consent Costs orders measure of damages certificates of recoverable benefit child sexual abuse, C28—C31 interpretation, C105—C108 Contempt of court Credibility fraudulent claims sports persons making false statements, C162—C164 vicarious liability for assault, C80—C83 Contractual liability Criminal injuries compensation Part 36 offers child abuse genuine offers, C115—C118 historic offences, 105—113 Contribution impact of 2012 changes on victims of crime, police officers 231—236 disgraceful conduct, C147—C152 Criminal investigations Contributory negligence duty of care employers’ liability child sexual abuse, C203—C206 burns, C91—C93 Criminal Justice Council mesothelioma damages-based agreements general and special damages, C96—C100 relevance to personal injury cases, 100—104 smoking, 114—120 Cruise ships occupiers’ liability infectious disease control breach of duty of care, C136—C139 breach of duty of care, C185—C188 duty to warn, C130—C133 Damages road traffic accidents attempted murder breach of duty of care, C1—C4 admissibility and standard of proof, seat belts, C152—C155 C189—C191 Convictions duty of care criminal injuries compensation child sexual abuse, C203—C206 child abuse, 105—113 employers’ liability Cooling-off period burns, C91—C93 conditional fee agreements police officers solicitors’ remuneration on settlement, disgraceful conduct, C147—C152 C49—C52 Damages-based agreements Costs relevance to personal injury cases, 100—104 caseload profiling, 249—255 Cumulative Index

Data protection Dishonesty civil evidence fundamental dishonesty social media, 205—211 guidance for practitioners, 121—133 Dates Dispute resolution future loss Scotland multipliers, C94—C96 apologies, 79—89 Deep vein thrombosis Disrepair causation defective premises pre-existing condition, C192—C194 stairs, C127—C130 Default judgments Documentary evidence acknowledgement of service periodical payment orders, 243—248 extensions of time, C43—C45 Double recovery admissibility abuse of process, C230—C233 surveillance video evidence, C238—241 Drafting relief from sanctions damages-based agreements road traffic accidents, C156—C161 relevance to personal injury cases, 100—104 Defective premises Due diligence landlords’ duties caseload profiling, 249—255 fatal accident claims, C126—C127 work in progress reviews, 249—255 stairs, C127—C130 Duty of care Defences child sexual abuse illegality, 212—219 New South Wales, C203—C206 road traffic accidents fatal accident claims automatism, C52—C54 defective premises, C126—C127 Delay Duty to warn clinical negligence occupiers’ liability extensions of time, C166—C171 breach of duty of care, C130—C133 diagnosis E-commerce clinical negligence, 154—163 online services relief from sanctions liability of Airbnb, 66—78 road traffic accidents, C156—C161 Employees’ duties Diagnosis vicarious liability delay employment assault, C69—C75 clinical negligence, 154—163 Employers’ liability Directors’ liabilities asbestos employers’ liability insurance lung cancer, 61—65, C83—C87 Scotland, C181—C184 breach of duty of care Directors’ powers and duties burns, C91—C93 employers’ liability insurance personal protective equipment, C59—C64 Scotland, C181—C184 prisoners, C64—C69 Disbursements vicarious liability disbursements assault, C69—C75 legal expenses insurance, C118—C121 Employers’ liability insurance Disgraceful conduct Scotland police officers directors’ liabilities, C181—C184 exemplary damages, C147—C152 Cumulative Index

Employers’ powers and duties Extensions of time health and safety at work clinical negligence, C166—C171 self-employment, 134—140 default judgments Employment status acknowledgement of service, C43—C45 vicarious liability Falling objects crowd-workers, 90—94 employers’ liability prisoners, C64—C69 burns, C91—C93 Ethics Farms civil evidence public liability insurance social media, 205—211 guard dogs, C88—C90 EU law Fatal accident claims fatal accident claims, 40—55, C23—C27 defective premises holiday claims duty of care, C126—C127 choice of law, C194—C198 EU law, 40—55 insurers’ liabilities future loss direct rights against insurers, 180—188 multipliers, C94—C96 measure of damages limitation periods uninsured drivers, C211—C215 Scotland, C207—C210 road traffic accidents mesothelioma automatism, C52—C54 general and special damages, C96—C100 Ex turpi causa road traffic accidents clinical negligence uninsured drivers, C23—C27 measure of damages, C144—C147 Fees Exclusion clauses conditional fee agreements online services solicitors’ remuneration on settlement, liability of Airbnb, 66—78 C49—C52 Exemplary damages Financial Conduct Authority police officers periodical payment orders, 243—248 disgraceful conduct, C147—C152 Fire Exemptions compulsory insurance fundamental dishonesty policy wordings, C198—C202 guidance for practitioners, 121—133 public nuisance Expert evidence substantial smoke and fumes, C11—C13 employers’ liability Fixed costs personal protective equipment, C59—C64 FOIL President’s reflections on PI market, road traffic accidents 237—242 reconstruction evidence, C8—C10 low value personal injury claims standard of proof Part 36 offers, C111—C115 Richard Davies QC Memorial Lecture 2015, settlement, C164—C166 1—13 Football clubs Expert witnesses sports persons admissibility vicarious liability for assault, C80—C83 surveillance evidence, C171—C175 Foreign law Experts’ duties road traffic accidents employers’ liability contributory negligence, C152—C155 personal protective equipment, C59—C64 Cumulative Index

Foreseeability Guard dogs maintenance of premises public liability insurance accidents at work, C140—C143 agricultural insurance, C88—C90 occupiers’ liability Guidelines breach of duty of care, C133—C136 Rehabilitation Code 2015 France supporting guide to case managers, 32—39 fatal accident claims Handbooks uninsured drivers, C23—C27 periodical payment orders, 243—248 holiday claims Hazardous substances choice of law, C194—C198 public nuisance Fraud fire causing substantial smoke and fumes, committal for contempt, C54—C57 C11—C13 Fraudulent claims Health and safety at work civil evidence employers’ powers and duties social media, 205—211 self-employment, 134—140 contempt of court, C162—C164 Hearing relief from sanctions FOIL President’s reflections on PI market, road traffic accidents, C156—C161 237—242 road traffic accidents Heritage property burden of proof, C123—C126 occupiers’ liability Fraudulent misrepresentation duty to warn, C130—C133 personal injury claims Highway authorities’ powers and duties setting aside settlement, C226—C230 road traffic accidents Fresh evidence pre-action admissions, C45—C49 asbestosis Highway maintenance breach of duty of care, C108—C110 road traffic accidents Fundamental rights pre-action admissions, C45—C49 fatal accident claims Hip EU law, 40—55 clinical negligence Funding burden of proof, C4—C7 caseload profiling, 249—255 Historic offences work in progress reviews, 249—255 criminal injuries compensation Future loss child abuse, 105—113 fatal accident claims Holiday claims multipliers, C94—C96 package holidays General damages choice of law, C194—C198 fatal accident claims Hotels mesothelioma, C96—C100 online services Greece liability of Airbnb, 66—78 measure of damages Ice uninsured drivers, C211—C215 road traffic accidents Group litigation reconstruction evidence, C8—C10 public nuisance Illegality fire causing substantial smoke and fumes, defences, 212—219 C11—C13 Cumulative Index

Indemnities Kyrgyzstan police officers attempted murder disgraceful conduct, C147—C152 admissibility and standard of proof, Indemnity basis C189—C191 Part 36 offers Landlords’ duties genuine offers, C115—C118 defective premises low value personal injury claims, C111—C115 fatal accident claims, C126—C127 Indemnity principle stairs, C127—C130 damages-based agreements Late filing relevance to personal injury cases, 100—104 admissibility Infectious disease control surveillance evidence, C171—C175 cruise ships surveillance video evidence, C238—241 breach of duty of care, C185—C188 default judgments Information technology extensions of time, C43—C45 personal injury claims Law firms law firms, 189—194 caseload profiling, 249—255 Insolvency disbursements employers’ liability insurance legal expenses insurance, C118—C121 Scotland, C181—C184 personal injury claims Insurance claims information technology, 189—194 compulsory insurance work in progress reviews, 249—255 policy wordings, C198—C202 Lawyers Insurance companies social media, 195—203 conditional fee agreements Legal aid solicitors’ remuneration on settlement, reasonableness C49—C52 change of funding to CFA, C37—C43 Insurers’ liabilities Legal expenses insurance EU law costs direct rights against insurers, 180—188 disbursements, C118—C121 fatal accident claims Legal profession uninsured drivers, C23—C27 FOIL President’s reflections on PI market, Interpretation 237—242 certificates of recoverable benefit Legal reasoning costs orders, C105—C108 standard of proof in law and science Investigations Richard Davies QC Memorial Lecture 2015, collision claims 1—13 emerging technology, 220—230 Liens Joint tortfeasors conditional fee agreements abuse of process solicitors’ remuneration on settlement, double recovery, C230—C233 C49—C52 Just satisfaction Limitation periods fatal accident claims after the event insurance EU law, 40—55 refusal to indemnify, 56—60 Knowledge fatal accident claims after the event insurance Scotland, C207—C210 refusal to indemnify, 56—60 Cumulative Index

Litigants in person public nuisance claim forms fire causing substantial smoke and fumes, service by alternative permitted method, C11—C13 C235—C238 Measure of damages Local authorities’ powers and duties accidents at work deep vein thrombosis failure to mitigate losses, C216—C219 causation, C192—C194 armed forces Loss of congenial employment loss of congenial employment, C100—C104 armed forces care costs measure of damages, C100—C104 pre-existing condition, C14—C23 Loss of earnings child sexual abuse measure of damages psychiatric harm, C31—C34 causation, C219—C225 teacher at special educational needs school, child sexual abuse, C31—C34 C28—C31 failure to mitigate losses, C216—C219 clinical negligence Loss of profits ex turpi causa, C144—C147 disbursements wrongful birth and wrongful sterilisation, legal expenses insurance, C118—C121 95—99 Loss of services future loss measure of damages multipliers, C94—C96 failure to mitigate losses, C216—C219 road traffic accidents Low value personal injury claims cardiovascular diseases, C34—C36 fixed costs causation, C219—C225 Part 36 offers, C111—C115 uninsured drivers, C211—C215 Lung Medical evidence employers’ liability standard of proof lung cancer from asbestos, 61—65, C83—C87 Richard Davies QC Memorial Lecture 2015, Maintenance of premises 1—13 breach of duty of care Medical treatment accidents at work, C140—C143 measure of damages Making false statements child sexual abuse, C31—C34 fraudulent claims Mens rea contempt of court, C162—C164 defences Managers illegality, 212—219 Rehabilitation Code 2015 Mental health supporting guide to case managers, 32—39 criminal injuries compensation Material consideration impact of 2012 changes on victims of crime, clinical negligence 231—236 successive causes, C75—C80 Mesothelioma Material contribution asbestos in schools clinical negligence legal implications, 14—31 delay in diagnosis, 154—163 contributory negligence mesothelioma smoking, 114—120 contributory negligence, 114—120 fatal accident claims general and special damages, C96—C100 Cumulative Index

Ministry of Justice duty to warn, C130—C133 vicarious liability parking at sporting events, C133—C136 prisoners, C64—C69 fatal accident claims Miscarriage defective premises, C126—C127 measure of damages Online services causation, C219—C225 vicarious liability Misrepresentation Airbnb, 66—78 after the event insurance crowd-workers, 90—94 refusal to indemnify, 56—60 Package holidays Misuse of drugs holiday claims clinical negligence choice of law, C194—C198 measure of damages, C144—C147 Pain Mitigation loss of congenial employment fraudulent claims measure of damages, C100—C104 contempt of court, C162—C164 Pain and suffering Motor insurance measure of damages compulsory insurance failure to mitigate losses, C216—C219 policy wordings, C198—C202 Parents EU law clinical negligence direct rights against insurers, 180—188 wrongful birth and wrongful sterilisation, Motor Insurers' Bureau 95—99 measure of damages Parking uninsured drivers, C211—C215 occupiers’ liability qualified one-way costs shifting breach of duty of care, C133—C136 untraced drivers, C233—C235 Part 36 offers Multipliers certificates of recoverable benefit fatal accident claims costs orders, C105—C108 future loss, C94—C96 contractual liability Neck genuine offers, C115—C118 measure of damages future of, 164—179 failure to mitigate losses, C216—C219 low value personal injury claims Negligence fixed costs, C111—C115 road traffic accidents Peaceful enjoyment of possessions automatism, C52—C54 criminal injuries compensation New South Wales child abuse, 105—113 child sexual abuse Periodical payments duty of care, C203—C206 ensuring security of, 243—248 NHS trusts Personal injury claims abuse of process civil evidence double recovery, C230—C233 social media, 205—211 Non-parties committal for contempt disbursements fraud, C54—C57 legal expenses insurance, C118—C121 conditional fee agreements Occupiers’ liability solicitors’ remuneration on settlement, breach of duty of care C49—C52 contributory negligence, C136—C139 Cumulative Index

fraudulent claims Pre-action protocols contempt of court, C162—C164 conditional fee agreements fraudulent misrepresentation solicitors’ remuneration on settlement, setting aside settlement, C226—C230 C49—C52 fundamental dishonesty Pre-existing condition guidance for practitioners, 121—133 clinical negligence law firms causation, 141—153 information technology, 189—194 deep vein thrombosis public nuisance causation, C192—C194 fire causing substantial smoke and fumes, measure of damages C11—C13 care costs, C14—C23 qualified one-way costs shifting Preliminary issues appeals, C176—C179 road traffic accidents untraced drivers, C233—C235 automatism, C52—C54 reasonableness Prisoners change of funding from legal aid to CFA, vicarious liability, C64—C69 C37—C43 Procedural impropriety settlement clinical negligence fixed costs, C164—C166 burden of proof, C4—C7 video evidence Professional negligence admissibility, C171—C175, C238—241 after the event insurance Personal protective equipment refusal to indemnify, 56—60 employers’ liability, C59—C64 Proportionality Personality disorders caseload profiling, 249—255 measure of damages civil evidence child sexual abuse, C28—C31 social media, 205—211 Plans work in progress reviews, 249—255 infectious disease control Psychiatric harm breach of duty of care, C185—C188 measure of damages Poland child sexual abuse, C31—C34 road traffic accidents Public liability insurance contributory negligence, C152—C155 agricultural insurance Police officers guard dogs, C88—C90 disgraceful conduct Pubs and bars exemplary damages, C147—C152 occupiers’ liability Police stations breach of duty of care, C136—C139 maintenance of premises Pupils breach of duty of care, C140—C143 asbestos in schools Policy wordings legal implications, 14—31 compulsory insurance, C198—C202 Qualified one-way costs shifting Pre-action admissions appeals, C176—C179 highway maintenance fundamental dishonesty road traffic accidents, C45—C49 guidance for practitioners, 121—133 untraced drivers, C233—C235 Cumulative Index

Reasonableness Road traffic accidents costs breach of duty of care change of funding from legal aid to CFA, contributory negligence, C1—C4 C37—C43 reconstruction evidence, C8—C10 Reasons causation clinical negligence cardiovascular diseases, C34—C36 extensions of time, C166—C171 collision claims road traffic accidents emerging technology, 220—230 fraudulent claims, C123—C126 contributory negligence Referrals seat belts, C152—C155 disbursements defences legal expenses insurance, C118—C121 automatism, C52—C54 Rehabilitation EU law Rehabilitation Code 2015 direct rights against insurers, 180—188 supporting guide to case managers, 32—39 fatal accident claims Reliance uninsured drivers, C23—C27 fraudulent misrepresentation fraudulent claims setting aside settlement, C226—C230 burden of proof, C123—C126 Relief from sanctions highway maintenance fraudulent claims pre-action admissions, C45—C49 road traffic accidents, C156—C161 measure of damages Repairs causation, C219—C225 compulsory insurance uninsured drivers, C211—C215 policy wordings, C198—C202 qualified one-way costs shifting defective premises untraced drivers, C233—C235 landlords’ duties, C126—C127, C127—C130 relief from sanctions Reproduction fraudulent claims, C156—C161 clinical negligence Roads wrongful birth and wrongful sterilisation, compulsory insurance 95—99 policy wordings, C198—C202 Right of direct action Safety EU law defective premises insurers’ liabilities, 180—188 stairs, C127—C130 Right to effective remedy Schools fatal accident claims asbestos EU law, 40—55 legal implications, 14—31 Right to life measure of damages fatal accident claims child sexual abuse, C28—C31 EU law, 40—55 Science Risk assessment standard of proof employers’ liability Richard Davies QC Memorial Lecture 2015, personal protective equipment, C59—C64 1—13 Risk management Scotland caseload profiling, 249—255 dispute resolution apologies, 79—89 Cumulative Index

employers’ liability lawyers, 195—203 burns, C91—C93 Solicitors’ remuneration personal protective equipment, C59—C64 conditional fee agreements employers’ liability insurance settlement, C49—C52 directors’ liabilities, C181—C184 Special damages fatal accident claims fatal accident claims limitation periods, C207—C210 mesothelioma, C96—C100 Self-employed workers measure of damages vicarious liability causation, C219—C225 crowd-workers, 90—94 Speed Self-employment road traffic accidents employers’ powers and duties reconstruction evidence, C8—C10 health and safety at work, 134—140 Sporting events Service by alternative permitted method criminal injuries compensation claim forms impact of 2012 changes on victims of crime, litigants in person, C235—C238 231—236 Service out of jurisdiction occupiers’ liability clinical negligence breach of duty of care, C133—C136 extensions of time, C166—C171 Sports persons Setting aside vicarious liability fraudulent misrepresentation assault, C80—C83 setting aside settlement, C226—C230 Stairs relief from sanctions defective premises road traffic accidents, C156—C161 landlords’ duties, C126—C127, C127—C130 Settlement occupiers’ liability conditional fee agreements breach of duty of care, C136—C139 solicitors’ remuneration, C49—C52 Standard of proof fixed costs, C164—C166 attempted murder fraudulent misrepresentation Kyrgyzstan, C189—C191 setting aside settlement, C226—C230 science Sexual grooming Richard Davies QC Memorial Lecture 2015, measure of damages 1—13 teacher at special educational needs school, Sterilisation C28—C31 clinical negligence Small claims track measure of damages, 95—99 FOIL President’s reflections on PI market, Striking out 237—242 disbursements Smoking legal expenses insurance, C118—C121 mesothelioma fundamental dishonesty contributory negligence, 114—120 guidance for practitioners, 121—133 Social care Success fees deep vein thrombosis conditional fee agreements causation, C192—C194 solicitors’ remuneration on settlement, Social media C49—C52 civil evidence admissibility, 205—211 Cumulative Index

reasonableness Validity change of funding from legal aid to CFA, Part 36 offers C37—C43 genuine offers, C115—C118 Successive causes Vicarious liability clinical negligence assault material consideration, C75—C80 employers’ liability, C69—C75 Surgeons sports persons, C80—C83 clinical negligence measure of damages burden of proof, C4—C7 child sexual abuse, C28—C31 Surgical procedures online services clinical negligence Airbnb, 66—78 burden of proof, C4—C7 crowd-workers, 90—94 Surveillance prisoners, C64—C69 admissibility, C171—C175, C238—241 Victims Suspended sentences criminal injuries compensation fraudulent claims child abuse, 105—113 contempt of court, C162—C164 Video evidence Teachers admissibility asbestos in schools surveillance evidence, C171—C175, legal implications, 14—31 C238—241 measure of damages Violence child sexual abuse, C28—C31 criminal injuries compensation Technology child abuse, 105—113 collision claims Viral infections emerging technology, 220—230 infectious disease control Third party insurance breach of duty of care, C185—C188 EU law Withdrawal direct rights against insurers, 180—188 EU law Time limits direct rights against insurers, 180—188 criminal injuries compensation Part 36 offers impact of 2012 changes on victims of crime, future of, 164—179 231—236 pre-action admissions Part 36 offers road traffic accidents, C45—C49 future of, 164—179 Witnesses Torts deep vein thrombosis defences causation, C192—C194 illegality, 212—219 Work in progress vicarious liability due diligence, 249—255 employment assault, C69—C75 Workers Uninsured drivers vicarious liability road traffic accidents crowd-workers, 90—94 fatal accident claims, C23—C27 Wrongful birth Untraced drivers clinical negligence qualified one-way costs shifting, C233—C235 measure of damages, 95—99 Cumulative Index

Wrongful conception measure of damages, 95—99 clinical negligence