April 2020 #184 – Law Journals

Sanctions: Persuading a judge to strike the claim out

Francesca O’Neill warns that failure to comply with procedural steps can have severe consequences ‘Not only did the judge in C v AXS accept that the decision in AEI was persuasive and strike the claim out, she was also persuaded to make a costs order on the indemnity basis – and order the claimant’s solicitors …

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Pure diagnosis cases: The test of breach of duty

Paul Sankey provides guidance on the appropriate test for breach of duty after negligence in diagnosis ‘The judge reached the right answer to the straightforward question “did the professional exercise reasonable care and skill?”, but had to use a route through Bolam and Bolitho to get there.’ The test of what amounts to breach of …

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Case report: London Borough of Haringey v FZO [2020] EWCA Civ 180

Limitation; credibility; prejudice ‘This is an important judgment in relation to evidential prejudice under s33(3)(b) Limitation Act 1980. Defendants in stale claims frequently submit that they have suffered prejudice due to the degradation or loss of critical evidence.’ Under s33 Limitation Act 1980 (LA 1980), the court may disapply the limitation period in a personal …

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Travel claims: COVID-19: the facts

Matthew Ford and Sarah Prager talk through the latest on COVID-19, its effect on travel and when compensation may be payable ‘As time goes on and more is known about the transmission of the virus, so too the obligations on travel providers increase in line with their increasing constructive knowledge.’ COVID-19 is a new virus …

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Witnesses: The problems of evidence many years after the event

Simon Readhead QC considers the difficulties caused by historic claims ‘Although the key factual witness had some recollection of the events under scrutiny, her evidence was necessarily an exercise in reconstruction from memory, contemporaneous records and what she believed she would have done and thought.’ Issues relating to memory and witness evidence continue to trouble …

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Reasonable practicability: Too much to ask?

Bethan Davies reports on a case which reaffirms that proving a measure to be unreasonable is an onerous duty on defendants ‘At first instance the judge should have asked whether the measure would have been “grossly disproportionate”, rather than merely asking on the balance whether the measure would have been proportionate.’ The first instance judgment …

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Costs orders: Does QOCS cover appeals?

Ryan Bright highlights the implications of a recent Court of Appeal decision ‘The claimant had sought to overturn DJ James’s order by relying on his own failure to comply with the procedural requirements.’ If a personal injury claimant is protected by qualified one-way costs shifting (QOCS) in first instance proceedings, can that claimant also rely …

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Pre-action protocols: Falling in between the portals

James Bentley examines a case where fixed costs did not apply when a cyclist was injured due to a defective road ‘Someone who is injured as a result of driving into a defect in the road denotes an accident that “arises out of” the use of the vehicle. There was a clear nexus between the …

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Costs: Let’s speculate about misconduct

Paul Jones discusses when it is possible to exit from the Protocol ‘The Master had been speculating but this was based on the available evidence and it could not be said that this was wrong.’ Cases exiting the Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents (the Protocol) are a frequent …

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