General liability newsletter - October 2019
Welcome to the October edition of our general liability newsletter. This month looks at recent cases involving; fraud, privilege, covert surveillance, non-party access and legal costs.
Covert recordings – a gateway to open recording of all medical examinations?
At an interim hearing in Samantha Mustard v (1) Jamie Flower (2) Stephen Flower (3) Direct Line Insurance  EWHC 2623 (QB) (11 October 2019) a High Court judge considered the Third Defendant’s application to exclude recordings made covertly by the Claimant of part of the examinations of her by two of the Defendant’s medical experts. The experts knew, and had agreed to part of the examinations being recorded, but they did not agree to the Claimant recording psychological tests designed to assess her psychological state. The Claimant alleged that the tests had been incorrectly administered and the test results accordingly unreliable. Read more
Discount rates north and south of the border expected to be different for years to come
On 27 September 2019, the Government Actuary announced that the discount rate in Scotland will remain unchanged at -0.75%, despite recent amendments to the calculation methodology that led to the discount rate in England and Wales being increased from -0.75% to -0.25%. Read more
Non-party access to Court documents – open justice prevails – generally
The Civil Procedure Rules allow someone who is not a party to an action to ask the Court to provide a copy of a Court record or any filed at Court by a party. The scope of the documents that can be asked for has been clarified by the Supreme Court in Cape Intermediate Holdings v Dring  UKSC 38 29 July 2019. Read more
How long do documents subject to legal professional privilege remain privileged?
According to the Court of Appeal, the short answer is that they remain privileged for ever unless privilege has been waived. Read more
Fraudulent personal injury Claimant imprisoned for eight months
On 10 October 2019, in AIG Europe Ltd v Mohammed Bilal (10 October 2019), the High Court sentenced Mohammed Bilal to eight months imprisonment for contempt of court arising out of his personal injury claim. Read more
Failure to disclose relevant information that goes to the heart of a claim is fundamentally dishonest conduct that warrants the disapplication of Qualified One Way Costs Shifting
In Haider v DSM Demolition Ltd  EWHC 2712 QB, the Claimant alleged that the Defendant’s driver was negligent in running into the back of his vehicle after the Claimant had slowed down to accommodate a manoeuvre by a vehicle ahead of him. The Defendant alleged that the Claimant had staged the accident so as to make a claim. Part of the Claimant’s claim included a claim for £30,000 for car credit hire charges because he could not afford a replacement car. Read more
In Patel and another v Patel and others  EWHC 2643 the Defendant submitted that its Defence did not have to respond to every allegation in Particulars of Claim once a positive defence had been pleaded to the claim as a whole. Read more
Counsel’s fees are recoverable as disbursements after a claim exits the EL/PL Protocol – if justified – part 1
In Scott Dover v Finsbury Food Group Plc (10 October 2019)  10 WLUK 155 Master Brown at the Senior Courts Costs Offce dismissed an Appeal by the Defendant against the part of
the Assessment of the Claimant’s costs which allowed Counsel’s fees to be claimed as a disbursement (and not subject to fixed costs) in a claim which had commenced in the Pre-Action Protocol for Low Value Personal Injury claims and had exited the Portal process before settling. Read more
Counsel’s fees are not recoverable as a disbursement after claim exits the EL/PL Protocol – part 2
In Philip Aldred v Master Tyreese Sulay Alieu Cham (25 October 2019)  EWCA Civ 1780 the Court of Appeal considered a similar issue to that in Scott Dover v Finsbury Food Group plc. Read more