Introduction
Welcome to the February 2021 newsletter of Hardwicke’s Personal Injury and Clinical Negligence team, edited by Helena Drage.
We hope your 2021 is off to a great start. Things have certainly been busy for the team at Hardwicke.
We congratulate Gemma Witherington for her success acting for the defendant following a three-day trial of a dog strike case involving the Animals Act. This rather complicated area of law has been addressed by Gemma and Jasmine Murphy in their article “Animal Strikes and the Law” which also provides some really helpful tips for those instructed on both sides in animal strike cases. Both Gemma and Jasmine have extensive experience bringing and defending Animals Act claims and Jasmine is one of the editors of Kemp & Kemp’s chapter, “Injuries caused by Animals”.
Furthering the pursuit of making the complex clear, Gemma Witherington has also written an article explaining the recent and expected rule changes regarding witness statements, “The whole truth and nothing by the truth”. Jasmine and Gemma will be discussing the changes to the rules at a Hardwicke Brew on 9 March at 2pm. Details below.
We also congratulate Colm Nugent in his very recent success acting in defence of a medico-legal expert who was the subject of an application by the defendant for costs. Judgment will be published shortly. Along with Aneurin Moloney, Colm will discuss the importance and implications of this decision at a Hardwicke Brew on 10 February at 2pm. Details below.
Staying on the topic of costs, Colm Nugent also takes us through the very recent case of Pallett v MGN Limited [2021] EWHC 76 (Ch), probably one of the most significant decisions regarding the operation of CPR Part 36 in a number of years.
Editor – Helena Drage
#Brews
As many of you will know, the team has been hosting a series of informal Zoom sessions in which members of the team discuss recent developments in the law or particular topics of interest. We have an exciting programme lined up for you over the next few months.
The sessions last no more than 45 minutes and you are welcome to ask any questions you might like on the discussion topics. The focus is practical tips and pitfalls to watch out for. Following each session attendees are provided with a Takeaway Cup handout, summarising the practical points, case law and/or procedural issues, so there is no need to take notes. Come along, relax, and learn about recent developments in law for half an hour or so.
You will be sent further details via email closer to each Brew.
“Circumventing QOCS?”
Date: Wednesday, 10th February at 2pm
Speakers: Colm Nugent and Aneurin Moloney
Recent case law has given valuable guidance on the circumstances in which experts may be liable for the costs of any action.
The Brew will cover:
- The potential liability
- The threshold test
- The procedural requirements
- The evidence required
- The key cases.
“The truth, the whole truth and nothing but the truth. Witness statements – are you getting it right?”
Date: Tuesday, 9th March at 2pm
Speakers: Jasmine Murphy, Gemma Witherington and Emma Woods (Moderator)
This Brew will cover:
- The changes made in April 2020 to the wording of statements of truth and the importance of statements of truth.
- Statements by clients/witnesses that speak another language and practical/costs issues.
- The problem of witness statements making submissions.
- An update on the new rules in 2021 applying in the Business and Property Courts.
“Clinical Negligence Case Law 2020 Round Up”
Date: Wednesday, 24th March at 2pm
Speakers: Aneurin Moloney and Helena Drage
Aneurin and Helena take a look at the most interesting and important cases from 2020.
If you would like to attend any of these Brews, please e-mail events@gatehouselaw.co.uk. We will be in touch to confirm places in due course.
Activity Report
- Charles has been sitting as a Crown Court Recorder in the first Modern Slavery jury trial to be heard at that court centre. He has also been sitting as a Deputy Master in the High Court and as Recorder at Central London County Court.
- He is currently working on a wrongful birth case for NHS Resolution where damages are claimed at £11 million.
- Charles has had new instructions in lower limb amputation cases for both a Defendant insurer and a Claimant.
- He is considering a novel application for summary judgment in a fatal accident claim by a co-habitee.
Colm has been involved in a number of successful JSM/mediations and the following matters in the last two months:
- SN v AN: a catastrophic motorcycle accident leaving a pedestrian in a wheelchair and dependent on their family and carers for all his needs. This is one of Colm’s first claims in which he has deployed the new Swift v Carpenter accommodation calculation.
- TUI v TL: the successful defence of a medico-legal expert who was the subject of an application by the defendant for costs. Colm successfully rebuffed D’s application after a two-day interlocutory hearing. The Judgment will be published very shortly. Come along to the Brew on 10 February for a discussion of this case.
- D v SFL: a catastrophic traumatic amputation injury in which a young man lost all his fingers on both hands due to the operation of a factory steel-rolling machine.
- S v M: a multi-party action following a car accident in which horses escaped from a field and were struck by a driver injuring him and his passenger, the latter very seriously. Colm is instructed via Advocate, the Bar Pro Bono service.
- C v A: a claimant sustained serious eye injuries after a baling machine at work malfunctioned. The claimant is unfortunately likely to lose his sight from at least one eye.
- Henry successfully represented an insurer at an appeal concerning an RTA before HHJ Simpkiss on behalf of the Respondent.
- Henry has negotiated a settlement for deceased’s family in a clinical negligence claim concerning the failure by a GP to diagnose pancreatic lymphoma. Breach and causation were both in dispute.
- Jasmine recently experienced one of the South Eastern Circuit’s PTR/settlement hearings by CVP. This type of hearing can be very useful to help both parties to explore and reach settlement by way of Early Neutral Evaluation with an experienced Circuit Judge.
- Jasmine has also had hearings in cases involving a multi-party Animals Act case, a collision between two cyclists and several CRPS claims.
Don’t forget to check out Gemma and Jasmine’s article on Gemma’s recent Animals Act case, “Animal Strikes and the Law”.
Gemma Witherington
Gemma appeared for the successful Defendants in a four-day trial involving the Animals Act representing a Defendant dog walking company. One of the dogs in its care ran into another dog walker causing a fractured hip. The Judge made useful remarks on a) that a severe injury was not to be expected if a dog ran into a person and b) that he doubted whether the Claimant’s pleaded characteristic of a dog “uncontrollably running” could be covered within the act. A useful case for future Defendants. Gemma has also been involved in several committal applications arising out of fundamentally dishonest claimants.
For more information have a read of Gemma and Jasmine’s article “Animal Strikes and the Law”
Gemma continues to sit as a Civil Recorder and has been hearing a variety of trials, including employer’s liability cases and road traffic accidents.
If you’re scratching your head about the recent and expected changes to the rules in respect of witness statements, then check out Gemma’s article “The whole truth and nothing by the truth”. Would you like to know more? Gemma and Jasmine will be teaming up to host a Hardwicke Brew on the topic on Tuesday 9 March at 2pm. Details will be sent via email closer to the time.
Aneurin represented the family in a 3-day inquest arising out of a delay in treating a patient with a bowel perforation following recent surgery.
- Acting on behalf of the defendant, Aneurin settled a claim for £160,000 where the claimant had sustained multiple severe injuries in a gas explosion.
- Aneurin received instructions to act for the claimant in a clinical negligence claim where a delay in recognising a complication of a vascular condition resulted in the need for an amputation.
- Acting on behalf of the claimant, Aneurin settled a claim for £350,000 where injuries were sustained as a result of a collision in an HGV lorry yard.
- Acting on behalf of the claimant, he also settled a clinical negligence claim arising out of a delay in diagnosing a scaphoid fracture due to the failure to obtain adequate x-ray projections.
- Acting for the defendants, Helena successfully opposed the claimant’s application to amend his witness statement in an Animals Act case. The Court ordered that the Claimant ought to serve a supplemental statement and the defendants be given permission to serve witness evidence in response. Helena achieved a favourable outcome on costs.
- Helena advised on quantum of damages in multiple serious orthopaedic injury cases, one of which involved a significant loss of earnings, loss of pension and loss of congenial employment claim.
- She settled pleadings for the defendant in a claim involving electrocution at work and pleaded fundamental dishonesty in respect of the circumstances of the alleged accident.
- Helena advised on quantum of damages in respect of a professional negligence matter arising from a personal injury claim.
Emma has been instructed in a number of hearings recently:
- An application to set aside default judgment.
- Emma successfully opposed the Claimant’s application for Special Damages to be paid following default judgment and not be subject to any challenge, despite the outstanding claim for General Damages.
- Emma represented the Defendant in a fast track trial arising out of a road traffic accident and successfully argued for several paragraphs of the Claimant’s Witness Statement to be struck out on the basis that those paragraphs contained commentary on other documents, submissions and referred to a without prejudice payment.
Animal Strikes and the Law
Gemma Witherington and Jasmine Murphy consider the law in relation to animal strike cases and take a look at Gemma’s recent case Menzies v Doggy Day Care.
Click here to read the article.
Part 36: Waiting until the day after expiry of the relevant period. What is the costs position?
Colm Nugent takes us through the very recent case of Pallett v MGN Limited [2021] EWHC 76 (Ch).
Click here to read the article by Colm Nugent.
“The whole truth and nothing but the truth”: New rules on witness statement April 2021
Witness Statements: all change in the Business and Property Court… what does this mean for PI and Clin Neg?
Gemma Witherington outlines and discusses the changes to the rules regarding the preparation of witness statements in the Business and Property Court set out at Practice Direction 57AC and what this might mean for practitioners in our fields.
Past events
If you missed out on our recent Hardwicke Brews but would like a copy of the Takeaway Cup, please e-mail events@gatehouselaw.co.uk. In winter 2020 the team covered:
- Relief from Sanctions
- Recent Developments in Fatal Accident Claims
- Instruction and the use of Experts after Griffiths and in the Post-Covid Litigation Era
- Ogden 8: Disability, employment and education, pension loss, and fatal accidents
“Hardwicke unrobed” - get to know us better!
Each month a member of our team has to spin ‘the Wheel of Questions’ and answer the first three questions that come up. This month, Aneurin Moloney has a go:
At what job would you be terrible?
Handyman – I have zero practical DIY type skills.
What was your first job?
After leaving school I worked making sandwiches in a shop. The owner insisted on using top quality ingredients and there was always spare to take home. Best job ever.
What’s been on your mind lately?
Should I really be taking a dentist’s recommendation of what toothpaste to buy when they make a living out of people having bad teeth?
Want to try for yourself? Click on the wheel below!
Contact Us
If you would like to discuss any of the topics in this newsletter, please contact a member of our Practice Management Team:
Natasha Devlin-Clingham, Practice Manager
Ben Smith, Practice Manager
To find out more about our Clinical Negligence & Personal Injury Team and their work, visit the Clinical Negligence & Personal Injury page on our website. To view a copy of our privacy statement, please click here.
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