Clinical Negligence & Personal Injury Newsletter: May 2022
Introduction
Welcome to the May edition of Gatehouse Chambers’ Clinical Negligence and Personal Injury Newsletter.
I am delighted to be this month’s editor and we bring you a bumper Newsletter with articles and highlights and news.
Vanessa McKinlay writes on the Health and Social Care Committee report on clinical negligence reform proposals.
Jasmine Murphy tackles the proposed QOCS set-off changes, now out for consultation.
Emma Zeb looks at the NHS injury costs recovery scheme.
Charles Bagot QC looks at expert reports and the potentially devastating consequences of non-compliance with Part 35.
Colm Nugent considers the difficulties when an early part 36 offer means that the receiving party is unable to properly evaluate whether the offer is good, or bad.
We have a smattering of team highlights about who has been up to what (and occasionally, where) and finally a round-up of our webinars, seminars and talks coming up on a range of topics.
As we reach the middle of 2022, it is clear that some of the seismic changes forced upon lawyers by lockdown are here to stay. WFH has become accepted as being part of the working week. Many offices are operating a split week between office and home. It seems unlikely we will ever return to the working arrangements common in February 2020.
Now that almost everyone can now operate Zooms or Teams (save for the mute button), that may become the default meeting. Less time on trains means more time to work on other things.
Advocacy styles have had to adapt to that suited to a screen and a camera – very different to that of the courtroom. CCMC’s – once unthinkable other than in person, can work well over a good connection and a familiarity with sharing a screen. Multi-expert conferences can be arranged without needing to book them six months in advance. A quick conference with the insurer, lay client or solicitor can be arranged within 24 hours.
On the downside, being on holiday is no longer necessarily the cast-iron excuse it once was, to avoid that hearing or conference.
At Gatehouse we have tried to adopt the best of remote working while recognising that face-to-face meetings, discussions, conferences and hearings always have that element missing from the 2D image, no matter how high-resolution it may be. We are living through interesting times.
The Gatehouse Injury team are always happy to hear suggestions from you and your teams about topics you would like covered in newsletters, talks, webinars or our ever-popular Brews. Whatever the topic, we have the means, the facilities and the expertise to cover it.
Happy reading!
Colm Nugent, Editor in Residence
The Health and Social Care Committee report on clinical negligence reform proposals
On the 28th April the Health and Social Care Committee published its report into NHS litigation reform. The cross-party Committee suggests that we need a radically different system for compensating injured patients, which moves away from apportioning blame and prioritises learning from mistakes. The Committee recommends that an independent administrative body should investigate cases and determine who should receive compensation.
Click here to read Vanessa McKinlay’s summary.
Changes to the QOCS regime
In a newly published consultation by the Civil Procedure Rules costs sub-committee, the Government is proposing changes to the QOCS regime that will put the costs recovered by a claimant at risk of being eaten up by a defendant’s costs order.
Click here to read Jasmine Murphy‘s summary.
Expert reports: the triumph of form over substance?
It is easy to be lulled into a false sense of security that the formal requirements for an expert report, as set out in CPR 35.10, Practice Direction 35 and the Guidance for the Instruction of Experts in Civil Claims to which it refers (PD 35.1), matter far less than what an expert actually says.
Click here to read Charles Bagot KC‘s latest article.
When the Part 36 offer means you’re caught between a rock and a hard place
Colm Nugent considers the difficulties when an early part 36 offer means that the receiving party is unable to properly evaluate whether the offer is good, or bad.
Click here to read his latest article.
Activity report
Busy beavers that we are, I asked the team to pick out some highlights over the past few weeks:
Charles Bagot QC has:
- Been successful in the election as Chair of the Personal Injuries Bar Association, the body which represents the interests of the 1,500 or so barristers practising in PI work.
- Successfully defended a psychiatric injury claim at trial on behalf of a NHS Trust, arising out of the tragic stillbirth of a baby.
- Been instructed to draft an expert report on English law for a US Court dealing with the remedies for psychiatric injury available to relatives of victims of terror attacks.
- Been advising both Claimants and Defendants in various catastrophic and fatal accident claims, including concluding large seven figure settlements in lump sum and periodical payment cases.
- Has been talking to students and aspiring barristers at various careers and outreach events about training for and practising at the Bar.
- Representing the family in an inquest arising out of death following a routine oesophagoscopy.
- Settling a claim concerning the delay in administering thrombolysis following a stroke as JSM for a substantial six-figure sum.
- Representing the claimant in an appeal concerning the proper application of the Occupiers Liability Act 1957 in a slip on leaves in a country park.
- Settling a Fatal Accidents Act clinical negligence claim for a substantial six-figure sum.
- Instructed as junior counsel acting for the Cabinet Office at the Grenfell Tower inquiry in relation to the Module 6 hearings on the testing of construction materials and the Building Regulations.
- Instructed as junior counsel acting for the Ministry of Defence at an inquest.
- Instructed in various clinical negligence claims including in relation to negligently performed biliary surgery and colectomy, and the negligent management of bedsores and post-operative wounds.
- Acting for the Defendant in various EL claims involving (allegedly) defective machinery.
- Acting as co-chair of the Junior Executive Committee at PIBA.
- Represented NHS Wales in a £8.6 million claim at JSM against a leading silk, dealing with negotiations of a lump sum award and a periodical payment order and whether this was appropriate.
- Appeared in a number of high-profile inquests so far this year, including a case concerning a man who absconded from an acute psychiatric unit and then took his own life by placing himself in front of a train and another case involving a day of legal argument about the revised scope of an inquest part way through the evidence.
- Advised in two new catastrophic motorcycling injury cases for Claimants. One with liability difficulties and another concerning the issues of provisional damages and amputation risk.
- Acting for the private prison estate in two different claims concerning in-cell fires in prison.
- Successfully represented the claimant in a liability-denied PI claim where the defendant (unsuccessfully) alleged fundamentally dishonesty in respect of his claim for damages.
- Acted in travel sickness trial where claim was dismissed due to the Judge rejecting the claimant’s “uncontroverted” expert evidence regarding Entamoeba Histolica infection, in accordance with the current law as set out in Griffiths v Tui [2021].
- Instructed by defendant in a tripping claim where the claimant had tripped over a bright yellow barrier lying in the street. Claim was dismissed when the court determined that the barrier, even when laid down, was not a real source of danger. Defendant was not required to take further steps beyond its operating system of inspection.
- Instructed for claimant in a professional negligence claim arising out a settlement in a brain injury case. Sole trustee had dissipated the trust fund and had stopped paying monies to the beneficiary for her day to day living expenses and lied about the reasons for the stop in payments. A freezing injunction was obtained in the High Court against the trustee together with an order for third party disclosure against the building society where the trust monies ought to have been held.
- Successfully obtained an award of compensation from the Solicitors Compensation Fund when the solicitor acting in respect of a clinical negligence case had settled the claim without the client’s authority and had dissipated the settlement monies. The professional indemnity insurer had refused to pay compensation on the basis that the solicitor’s actions were dishonest and not covered by the policy of insurance.
- Concluded two long-running claims with multi-million-pound settlements for young female claimants with life changing injuries.
- The first claim involved a young woman who suffered brain, internal and spinal injuries caused by an RTA with issues of capacity as well as causation and quantum.
- The second claim involved a lower limb degloving injury when a cyclist was run over by a lorry.
- Jasmine dealt with both cases as sole Counsel, and in the first case she was against leading Counsel and his (senior) junior.
- Appeared in the High Court representing the Defendant at an Infant Approval Hearing
- Assisting Charles Bagot QC with a Third-Party Disclosure Application
- Drafted a Defence to an Employer’s Liability claim where an employee was injured removing a customer from the premises
- Successfully represented the Defendant in a Fast Track Trial concerning a Occupiers Liability tripping claim
- Multi-party JSM in long-running equine Animals Act claim, other parties included those represented by Charles Bagot QC and Jasmine Murphy
- Instructed in devastating traumatic bi-lateral upper limb amputation claim on a young man.
- Instructed (for claimant and defendant respectively) in two new professional negligence claims arising out of alleged under-settlement of personal injury claims.
- Instructed to conduct and Early Neutral Evaluation in a professional negligence action arising out of a struck-out personal injury claim [see article on ENE here].
- Acting on behalf of a young man who sustained life-changing injuries when shot by a landowner who believed him to be trespassing.
Seminar programme
If – like Depeche Mode – you just can’t get enough, we have forthcoming seminars you may want to put in your Teams diaries. Click on the links below for details.
Upcoming webinars
Gatehouse on Demand
Inquest Conclusions – Key Practice Points
J2J Clinical Negligence Webinar: Making or breaking your claim/defence: expert evidence
J2J Clinical Negligence Webinar: What do you need to prove? Breach of duty
J2J Clinical Negligence Webinar: What do you need to prove? Causation
J2J Clinical Negligence Webinar: Quantum
Expert Costs liability (external seminar)
Expert Witnesses & Liability for Costs – An Update for Personal Injury Lawyers
Contact us
If you would like to discuss any of the topics in this newsletter, please contact a member of our Practice Management Team.
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.
This edition of the PI & Clinical Negligence newsletter was edited by Colm Nugent. Comments or queries about this newsletter? Please get in touch with him!
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