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General liability newsletter February 2019

Published on 11 February 2019

The latest general liability news coming out of the courts.

This edition covers: 

Costs order upheld against litigant in person

Litigants in person are often given a generous amount of flexibility when it comes to compliance with rules of evidence and court rules generally, so that the court does not appear to penalise a Claimant unduly for lack of knowledge about such things. However, the litigant in person in Ogiehor v Belinfantie [2018] EWCA Civ 2423 (2 November 2018) (Lindblom and Irwin LLJ) pushed this flexibility too far when he blatantly flouted the rule that without prejudice offers must not be made known to the trial judge until after judgment has been given. Read more

Judgment allegedly obtained by fraud cannot be set aside through same proceedings

In Summers v Fairclough Homes [2012] UKSC 26, the Supreme Court decided that the Court had the power under its inherent jurisdiction and under the Civil Procedure Rules to strike out a statement of case at any stage of the proceedings, even when it had already been determined that the claimant was, in principle, entitled to damages in an ascertained sum. Read more

Document not recorded by the court deemed not filed

In Extreme Adventure Ltd v Dolan and others [2018] EWHC 3040 (IPEC) (2 October 2018) the Defendant maintained that an Acknowledgement of Service had been hand-delivered to the Court on 4 January 2018. The Court had no record of the Acknowledgement of Service on its file and when the Claimant applied to have default judgment entered, granted the application. Read more.

Failure to serve medical report and schedule of loss with proceedings not fatal to claim

In Stephen Mark v Universal Coatings & Services Limited and Barrier Limited (23 November 2018)[2018] EWHC 3206 (QB) the High Court considered whether failure to comply with CPR Practice Direction 16 paragraph 4.3 was something for which relief from sanctions must be obtained. PD 16.4.3 says that a personal injury Claimant must serve a medical report and schedule of loss with the Particulars of Claim. Read more.

A party cannot buy relief from sanctions by offering to pay costs

In BMCE Bank International plc v Phoenix Commodities PVT Ltd and another [2018] EWHC 3380 (Comm) (19 October 2018) the Defendant’s solicitor overlooked a deadline for filing a costs budget, which was eventually filed two weeks late. Read more.

Court’s discretion in considering whether to disapply limitation

In a case based upon interesting and unusual facts, the High Court permitted a Claimant to pursue his claim against his GP after the expiry of the limitation period even though there was no doubt that  the Claimant had actual knowledge of the allegedly negligent act that formed the basis of his claim. Read more.

Statistical data on life expectancy is permissible in appropriate cases

Medical experts often give an opinion within their reports on the likely effect of a Claimant’s pre-existing medical condition on life expectancy. This is common for example in mesothelioma claims. However, in Stephen Mays (a protected party by his litigation friend, the Offcial Solicitor) v Drive Force (UK) limited (4 January 2019) [2019] EWHC 5 (QB) the Claimant was severely injured in a fall at work and the instructed medical experts were unable to comment on all aspects of the Claimant’s pre-existing medical conditions and lifestyle in relation to his life expectancy. Read more.