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A round up of interesting cases - timescales within the legal and medical professions, what is and isn’t exceptional with reference to indemnity costs, Part 36, Expert Evidence, Exaggeration & Fraudulent Claims

Posted on 4th January, 2018

Part 36, Indemnity Costs, Inflation of Costs, Assignment of CFA

 

(1) DOREEN MCKEOWN (2) DANIEL MCKEOWN v TANZA TOTTLE VENTON, CC (Liverpool)12/06/2017

Defendant's late acceptance of Claimant's Part 36 offer in low value personal injury claim which had exited portal did not give rise to entitlement to indemnity costs.

 

Costs penalty for late acceptance of Part 36 offerhttps://www.lawgazette.co.uk/law/libel-claimants-face-costs-penalty-for-late-acceptance-of-part-36-offer/5063580.article

 

W PORTSMOUTH & CO LTD v CHRISTINE LINDA LOWIN (DAUGHTER & EXECUTRIX OF THE ESTATE OF ADELAIDE LOWIN, DECEASED), EWCA

CA (Civ Div) 19/12/2017

Where costs of a provisional assessment are awarded on an indemnity basis under r.36.17(4), those costs would be subject to the cap under CPR r.47.15.

 

https://www.litigationfutures.com/news/provisional-assessment-cap-not-displaced-part-36-offer-court-appeal-rules

 

(1) NICHOLAS MARTIN (2) BIG HAT STORES LTD (Claimants) v JULIA KOGAN (Defendant/Part 20 Claimant) & (1) FLORENCE FILM LTD (2) PATHE PRODUCTIONS LTD (3) QWERTY FILMS LTD (Part 20 Defendants)

IPEC, 13/12/2017
A case setting out how the court should deal with an award of indemnity costs where the Defendant had failed to beat the Claimant’s Part 36 offer.

 

http://www.opusip.co.uk/2017/12/17/3266-html/

 

WHITE & ANOR v PSM RESIDENTIAL FINANCE LTD & ANOR, QBD (TCC), 13/12/2017

In this case serious allegations had been made against the Defendants without any sustainable evidence in support. Unreasonable conduct, taking the case out of the norm, leads to an award of indemnity costs.

 

WHALEYS (BRADFORD) LTD v (1) GARRY BENNETT (2) JONATHAN CUBITT EWCA CA (Civ Div) 15/12/2017

Reiterates the exceptional test as being ‘one that takes the case out of the norm’. Ordinary behaviour does not render it reasonable.


https://www.exchangechambers.co.uk/james-malam-indemnity-costs-court-appeal-case/

 

GSD LAW LTD v CRAIG WARDMAN OF ST GOBAIN BUILDING DISTRIBUTION & ORS (2017) CA (Civ Div) 15/12/2017

The perils of inflating costs in schedules are highlighted here. It is not unusual when drawing a bill to come to a figure less than set out in an informal schedule. Often, however, this may be the case of costs being taken from a ledger, which would include non-recoverable work.

 

The case highlights (amongst other things) the importance of having a proper bill in the first instance. The judge found the allegations against the firm proven, and concluded that an appropriate sanction was to disallow all costs on the sample files under CPR r.44.11(2).

 

ALINA BUDANA (Appellant) v LEEDS TEACHING HOSPITALS NHS TRUST (Respondent) & LAW SOCIETY (Intervener) CA (Civ Div) 05/12/2017

During detailed assessment, an issue arose as to whether the purported assignment of an original CFA was legally effective. The purported transfer of a CFA to a second firm in respect of a PI claim resulted in a novated contract rather than an assignment; for the purposes of the transitional provisions of the LASPO 2012 s.44(6), the success fee payable to the second firm was payable under the CFA.

 

https://www.4newsquare.com/wp-content/uploads/2017/12/Court-of-Appeal-Judgment-Budana.pdf

 

http://www.zenithchambers.co.uk/current-awareness/personalinjury/%E2%80%8BTo%20Me...To%20You...%20–%20Assign%20Of%20Things%20To%20Come%20–%20Budana%20and%20CFA%20Assignment%20in%20the%20Court%20of%20Appeal

 

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Withdrawal of CANH, Expert ‘Shopping’, Information to be given to Patients & Limitation Points


NHS TRUST v (1) Y (BY HIS LITIGATION FRIEND, THE OFFICIAL SOLICITOR) (2) Y

QBD, 13/11/2017

Not mandatory to seek the court's consent to withdraw clinically assisted nutrition and hydration (CANH) where clinical team and patient's family agreed that it was not in the patient’s best interests to continue to receive CANH.

 

D (A CHILD BY HER FATHER & LITIGATION FRIEND MR S) v CHAPMAN & ANOR

QBD, 10/11/2017

All is not lost if you obtain unsupportive medical evidence. A second opinion can be relied upon so long as the unfavourable opinions are served and that there is good reason for having sought a second opinion, with the instant case involving complex and highly controversial causation issues.

 

https://www.parksquarebarristers.co.uk/news/expert-shopping-considered-fiona-ross/

 

RAUL GUIU GALLARDO v IMPERIAL COLLEGE HEALTHCARE NHS TRUST, QBD 08/12/2017

Damages awarded to a patient who did not find out the real nature of his condition until 9 years after surgery to remove a malignant tumour. Seemingly in this case whilst it was recorded that there would be some flexibility as to timings for giving information, 9 years was not within the realms of flexibility. Had the patient been aware of the malignancy and risk of recurrence, he would have had the opportunity for regular monitoring and the chance to improve prognosis.

https://www.enablelaw.com/consent-medical-care-gallardo-v-imperial-college-healthcare-nhs-trust/

 

http://www.dailymail.co.uk/wires/pa/article-5160141/Damages-man-hospital-failed-tell-cancer.html

 

CHIEF CONSTABLE OF GREATER MANCHESTER v ROBERT CARROLL

CA (Civ Div) 01/12/2017

The perils of doing too good a job. As part of his training for and undercover work posing as a drug user, the police officer handled and heated heroin, ultimately leading to heroin addiction and psychiatric illness. The exercise of discretion under the Limitation Act 1980 s.33 enabled the former police officer to claim damages accordingly.

http://www.manchestereveningnews.co.uk/news/greater-manchester-news/police-work-addicted-heroin-former-13981691

 

(1) GOVERNORS & CO OF THE BANK OF IRELAND (2) BANK OF IRELAND (UK) PLC v WATTS GROUP PLC QBD (TCC)12/07/2017

An interesting read for expert witnesses out there as expert Quantity Surveyor resists negligence claim by two banks following expert’s report on a borrower's cost estimates for a building development. It was found that the expert had not fallen below the standard to be expected, with reference to the fact that his role was to assess the reasonableness of the figures provided by the borrower and not to make a detailed calculation himself.

 

http://www.civillitigationbrief.com/2017/10/08/the-bank-of-ireland-round-two-appropriate-sums-for-an-interim-payment-on-account-of-costs-indemnity-costs-ordered-because-of-conduct-of-expert/

 

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Exaggeration of Symptoms & Fraudulent Claims

 

AVIVA INSURANCE LTD v ALEKSANDAR KOVACIC QBD, 07/11/2017

Another case of exaggeration of continuing symptoms; allegations of contempt of court were proved to the criminal standard as surveillance evidence showed PI Claimant lied and falsely represented continuing symptoms.

 

http://www.anthonygold.co.uk/wp-content/uploads/2017/11/Aviva-v-Kovacic-2017.pdf

 

ADVANTAGE INSURANCE LTD v CHRISTOPHER EWERE QBD, 16/11/2017

Another day; another Claimant falsifying his claim. Definitely one with a creative mind – after being found in contempt for falsely stating that had been in his parked car when it was struck by another vehicle.

 

https://www.forbessolicitors.co.uk/news/display/39785/dishonest-claimant-held-in-contempt-of-court

AVIVA INSURANCE LTD v AHMED, QBD, 21/11/2017

A case highlighting the problem faced by motorists with members of the public causing accidents for monetary gain. In this case, a man deliberately caused an RTA by braking suddenly in front of another vehicle.

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