Focus On…Clinical Negligence and Personal Injury
Welcome to the latest Focus on Clinical Negligence and Personal Injury.
Just as we are all getting used to propping up all the household tablets to create enough screens for virtual hearings, creating the perfect backdrop and keeping the children entertained with enough biscuits to last a whole hearing, the courts are returning to attended hearings. The team have been busy throughout lockdown with cases including remote trials, hearings and appeals as well as judicial work for those who sit on the Bench.
To help keep you up to speed, this edition includes the “takeaway cups” from our very popular #HardwickeBrews which we have been holding throughout lockdown as well as links to recent articles.
For those of you without Twitter, we also round up our favourite responses to Colm Nugent (aka @wigapedia)’s very popular tweet asking “What’s the weirdest thing you’ve had an expert report on.”
We hope you find it all informative and entertaining.
News from the Hardwicke Clinical Negligence & Personal Injury Team
It has been a very busy last few months for the Hardwicke Clinical Negligence & Personal Injury Team:
Charles Bagot QC has been leading the way on a number of fronts:
- Leading former Hardwicke pupil, Leon Glenister of Landmark Chambers, Charles acted pro bono, via the Free Representation Unit, in DP v Topmark Claims Management Ltd  UKUT (AAC) for the Applicant widower, whose wife was one of the youngest people to die from mesothelioma at the age of just 37 years. This was the first case to go to the Appellate Courts on the interpretation of the Diffuse Mesothelioma Payment Scheme. A link to Charles’ article on this appears below.
- During lockdown, Charles has represented NHS Resolution in various mediations and negotiations, resolving several of the largest and most complex fatal accident claims brought this year. For instance, in a ‘wealth creator’ case where the Claimant’s deceased wife, as well as being a senior hospital manager, had managed a successful and lucrative property portfolio for the family. A claim for £3.3m was compromised at a significant discount at a RTM.
- Charles also successfully compromised at a remotely conducted JSM a complex protected party brain injury claim, involving a Polish national and giving rise to a range of international and cross-border issues of law and practice. The claim had been pleaded at over £13m and was compromised successfully for Charles’ insurer clients for just over £3m, with Court approval being subsequently granted, similarly, via a remote hearing.
- Acting for NHS Wales, Charles successfully compromised a claim where he had drafted an amended Defence pleading fundamental dishonesty following disclosure of surveillance footage calling into question the veracity of Claimant’s account of chronic pain and disability following negligently managed bowel symptoms and surgery. Over £7m was claimed but the Claimant ultimately accepted an offer for c.7% of the pleaded value.
- Charles continues to be instructed in the leading cases on secondary victims. In the case of Paul v Royal Wolverhampton NHS Trust, Charles was successful in striking out the secondary victim claims before Master Cook:  EWHC 2893 (QB). An appeal by the Claimants was allowed by Chamberlain J following a hearing during lockdown:  EWHC 1415 (QB). An application for a second appeal is pending before the Court of Appeal.
- Charles has also been busy delivering remote training for both clients and the PI Bar Association, giving hints and tips on conducting remote hearings and negotiations, drawing on his experience of remote trials and application hearings both sitting as a Deputy QB Master during lockdown, as well as acting as advocate in such hearings and negotiations/ mediations.
Colm Nugent has also had a busy few months:
- The lockdown has seen a steady rise in ADR and Colm has been involved in multiple settlement meetings and a meditations with settlements ranging from six to seven figures.
- Colm has also been instructed in wide range number of new matters including two equine claims, a loss of limb industrial accident and a paraplegic claim following a car accident. Following his success in Rubiera v Job recently, he has also been instructed in two costs actions as against directors.
- One of Colm’s specialist areas of expertise is the issue of wasted costs orders against experts. He has been instructed on behalf of a medico-expert against whom a section 51 costs order is sought and has delivered training for the Personal Injury Bar Association on the subject.
Henry Slack has been equally busy:
- He has been conducting a number of trials remotely throughout lockdown.
- He successfully defended an Occupiers’ Liability trial held remotely before HHJ Evans-Gordon concerning a live-in carer who tripped over an old door threshold.
Jasmine Murphy has been not been sitting on her hands either:
- handling several Montreal Convention claims (accidents arising out of carriage by air)
- dealing with Animals Act claims during lockdown
- as well as dealing with hearings held by telephone instead of in person and remote JSMs.
- Judgment was delivered in one of Jasmine’s cases involving a litigant in person and fundamental dishonesty (Garraway v Holland & Barrett). HHJ Simpkiss made a finding of fundamental dishonesty and dismissed the claimant’s case. The case is reported on Lawtel here: https://www.lawtel.com/UK/Searches/4929/AC5011226
Gemma Witherington has been both sitting as a Deputy District Judge and acting for clients:
- She has successfully conducted several trials by Skype for Business remotely.
- She has also been advising on many settlement offers and tactical ways to progress cases despite a lack of directions from the Court on applications and directions hearings.
- Gemma has been working on a number of occupiers’ liability matters and also doing some interesting employers liability claims.
- She managed to move house mid lock down; which had its challenges!
Robert Whittock has been dealing with a variety of PI and clinical negligence cases (in between getting his yacht ship shape and learning to sail) including:
- drafting a schedule of loss in a fatal accident claim
- advising on quantum in a brain injury claim against the MIB
- settling a secondary victim claim arising out of a still birth.
Aneurin (Nye) Moloney has been occupied with a full diary including:
- representing a claimant in a remote trial using CVP (Cloud Virtual Platform) before HHJ Rochford with a favourable outcome for the claimant.
- negotiating excellent outcomes in clinical negligence claims for claimants.
- settling a long-running case concerning a delay in diagnosing cancer for £340,000 and another arising out of negligent treatment by paramedics for £140,000.
Helena Drage may be junior but she is fast building experience beyond her call:
- She settled a complex and severe orthopaedic injuries case at a JSM via Zoom in excess of half a million pounds.
- She has been instructed in several employers’ liability, fatal accident, clinical negligence and brain injury claims.
- In addition, Helena is acting in two professional negligence matters arising from mismanagement of personal injury claims.
- Helena is also currently dealing with probate issues in a claim where the claimant has passed away pre-issue and another where the claimant has passed after issue of the claim form.
During lockdown, Hardwicke started running a series of 30 minute or so informal chats on Zoom on different subjects with a practical angle for litigators. At the end of the Brew, a short summary of the points – “a Takeaway Cup” – was prepared. The Clinical Negligence & Personal Injury team provided several of these #HardwickeBrews. These are listed below with links to the relevant Takeaway Cup.
- Hints and Tips for Remote Litigation
- Break the log jam with online ADR
- Part 36 offers and future loss of earnings in the time of Covid-19
- Fundamental Dishonesty – where are we now
- Vicarious liability in 2020
- Ogden 8 – why so late?
Charles Bagot QC also spoke about remote hearings and negotiations at a PIBA webinar.
Weirdest Expert Reports
Our story starts with Colm Nugent aka @wigapedia tweeting:
“Legal Twitter. What’s the weirdest thing you’ve had an expert report on? Mine is an engineers report on a headstone/gravestone which toppled, trapping the stone mason in the open grave for several hours until found by a passer-by.”
This tweet was read by nearly 100,000 Twitter users and led to over a hundred responses. Our favourites are these:
- A canister of prize bull semen that had “gone off” – Candace Taylor-Gregg @candacekendall_
- The value of a loft full of assorted racing pigeons. They were dead. So the answer was ”not much “ – I could have written it myself….. – Alison Lobb @AlisonLobb1
- The design of knife resistant body armour. I resisted the temptation to instruct the expert to have a stab at writing a report….. – John Wright @JohnWright52
- A report about whether a shire horse could continue to work in a travelling show or was fit for the knackers yard. We were firmly advocating the former and the other side the latter. – Stephane J Osborne @osbornelaw
- Fashion expert claiming black puffa jacket and Arsenal hat were distinctive clothes in 90s London…didn’t use it… – Susie Alegre @susie_alegre
- Camel riding safety standards in north Africa – Paul Smith @SmithRamparts
- Expert reporting on a strange psychological injury following an accident whereby C had taken to collecting the product of every toilet visit for several years in pots kept at his house – Kelvin Farmaner @insuranceLitSol
- The impact of soil, thrown by a neighbour, into clients fish pond killing prized koi carp…. I still have the newspaper cutting – 24/25 yrs ago when I was a trainee! – Jamie Hanley @jamiehanley
- Shamanism (and whether the consequent altered state of consciousness had caused the Defendant to pierce her neighbour’s eye with a letter opener). It was fascinating. Cause was something else though. – Rachel Faux @rachelfaux18
- The financial value of an ostrich – Nigel Poole QC @nigelpooleqc
- Mine was the quantity of oxygen consumed by 2 palettes of fast ripening tomatoes, and the extent to which the tomatoes contributed to death by suffocation – Oliver Kirk @kirknotabout
- A modelling expert on the Zoolander world of male modelling…. – Jasmine Murphy @cruellacivil
- The approved health and safety practices for artificially inseminating a heifer is one that sticks in the mind – Tim O’Connor @timoconnorbl
- Archery standards in Spain….- Matthew Mawdsley @matthewmawdsle2. To which the best reply was: El bow? – Stuart Webber @WebberStuart
In case you have missed them, we list below articles we have published in the last few months:
- Brush up your advocacy skills or simply amuse yourself with the contortions of the Johnny Depp trial reading Jasmine Murphy‘s article.
- Henry Slack looked in his article at SC v An NHS Foundation Trust where the High Court refused an application to adjourn on the basis that a remote trial would be unfair.
- The mesothelioma compensation scheme was considered at the appellate level for the first time with Charles Bagot QC representing the appellant widower. You can read his article here.
- Remote mediations have started to become mainstream. Barrister and mediator, John de Waal QC sets out how to make them work in this piece.
- Indeed remote ADR generally is being seen as a way around the court logjam as Colm Nugent explains in this article.
- Disapplying fixed costs for unreasonable behaviour (Emedo v AIG Europe Ltd) was the focus of another of Colm’s articles.
- Colm also looked at Khan v Aviva Insurance Ltd which considered costs in personal injury cases. Read his article here.
Areas of Expertise
The team covers all the following areas of Clinical Negligence and Personal Injury:
- Clinical Negligence
- Inquests & Inquiry
- Personal Injury
- Product Liability
You can find out more about each area by going to the Clinical Negligence & Personal Injury expertise page. If you would like to discuss a possible instruction, please contact the Practice Management Team.
This content is provided free of charge for information purposes only. It does not constitute legal advice and should not be relied on as such. No responsibility for the accuracy and/or correctness of the information and commentary set out in the article, or for any consequences of relying on it, is assumed or accepted by any member of Chambers or by Chambers as a whole.