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Liability and Risk

Radio 4 today had a philosophical argument about private institutions and public bodies becoming risk averse and the reasons behind that.

Many writers often advocate that public institutions such as government departments and local authorities have become unduly sensitive to potential claims arising out of the statutory activities and as a result are becoming more risk averse.

In the tabloids this is often highlighted when a particular council shuts down an activity available to members of the public on the grounds that their Health and Safety Department have considered it to be too risky. This notion of �too risky� is often defined on the basis that members of the public refuse to accept responsibility for their actions and often blame the authorities for the cause of the incident.

Tabloids often always conclude that this is as a result of the compensation culture.

It is often lost on these advocates that the current common law does give protection to these institutions. We have what is called a �fault based� system to establish legal responsibility of a wrong doer. A person pursuing a claim (a claimant) has to show that the wrong doer owes them a duty of care and that there has been a breach of that duty before establishing legal responsibility for the loss that they may have suffered.

In the past I have highlighted the case of a flower shop at a tube station. It was subject to a claim by a person walking past who had tripped over a petal. Whilst that person had succeeded in the first instance the House of Lords in fact overturned that decision. This is an example of the onerous duty that a claimant has to overcome before establishing a party to be held legally responsible. That is why some claims farmers used to advertise �where there is blame there is a claim�.

A further example is a recent case of Terence Charles Abraham v G Ireson & Son (Properties) Ltd and Others (2009)

Here a former employee was exposed to asbestos that had led to the development of mesothelioma (lung cancer). The Court found on facts that that the exposure, albeit modest and infrequent, had in fact has caused the Claimant to contract mesothelioma. However, the Court found that the exposure was not negligent because the employer could not have been expected to know at the time of employment that the Claimant was, or might be, exposed to the risk of an asbestos related injury. Furthermore the employer had no special degree of knowledge or personal experience which would have alerted them to the potential risk.

This is an example of the requirement that the claimant must establish not only duty of care but also breach of that duty. This shows the law has in built safeguards, which provide those with common law claims against them (such as local authorities, government departments and defendants) with a means to protect themselves.

If these bodies have become risk averse it is more often due to the economic decisions they make in regard to the cost of their legal advisers rather than legal arguments available to them to contest these claims.

This is particularly surprising as most claimants will now have benefit from a legal expense cover and as such if they fail in their claim defendant will be able to recover the majority of their costs of defending such actions.

The moral of the story is that private and public institutions should continue to function and provide facilities and take certain risks as long as there is a system in place should a claim materialise to defend such actions. The responsibility of the Health and Safety Departments of these institutions is not to become so risk averse so as to ban such activities but to have system in place both on paper and in practice so that claims can be successfully defended.

All about Third Party Capturing

What is Third Party Capturing?

Claimant solicitors and their professional bodies describe capturing of an injured party by a drivers road traffic insurers as third party capture. In practical terms this means injured persons are approached direct by the insurance company of the driver who is negligent and who maybe legally responsible for the cause of the accident. The person could be the injured by his/her own driver and/or by another car hence the reference to the �third party�. Many road traffic insurers are approaching injured person direct and are negotiating settlement of the injured party�s claim without the involvement of professional advisers and medical evidence.

Why is it in the news?

The Radio 4 Money Programme carried out research amongst members of the public and found evidence of insurance companies approaching injured parties direct and settling their legitimate claims. They in fact interviewed an employee of Quinn Direct who was heavily involved in this process and who admitted on the programme that there were financial incentives given to him by his employers to try and approach as many injured parties as possible direct and to settle those claims without the involvement of medical and legal advisers.

The Association of Personal Injury Lawyers and also many other bodies representing injured parties have taken up this matter with the Association of British Insurers, the Law Society and those reviewing Access to Justice.

The Association of British Insurers said on the programme that this was not widespread and one that they did not tolerate. This is contrary to the evidence and confession made by the Quinn employee.

We ourselves have been involved in one incident where two teenage passengers were approached by their father�s insurer to settle their claim without medical evidence and most importantly legal advice. Whilst the insurers always indicate that the recipient of the letter should seek independent legal advice it is always their hope and they work on the balance of chance that a certain percentage of people would not seek advice and deal with them direct.

In our instance cases two offers were made for £1,000.00 and £1,500.00. These teenagers were lucky as their parents were aware of our practice having advised them in the past. On our representation the £1,000.00 claim was settled for £1,500.00 and more importantly the £1,500.00 claim which was a more serious injury settled for £20,000.00. At the end of the day the teenagers did not suffer financially as their legal costs were paid by the insurers. Most importantly we were able to settle the more serious injury claim for substantially more than what they would have settled for if we were not involved.

Why Do Insurer�s Do This?

The insurers work on balance of probability that a certain number of injured parties when approached with an offer in writing would be tempted to settle without seeking professional legal advice. They do so in expectation that the claim itself would be settled for a lot less than if the lawyers were involved and more importantly would also save on legal costs. Therefore the insurers have financial incentives to continue to use this approach in expectations that out of ten a certain number of injured parties would deal with them direct saving themselves huge amounts on both legal costs and damages.

Why if you are injured and in that position you should not do it?

There is no benefit whatsoever in dealing with the insurers direct by you. In fact there is every chance that not only with lawyers involvement will enable you to obtain a better settlement but your injuries will be properly investigated. It would be tantamount to negligence to advise a client to settlement for a personal injury claim without the benefit of a medical report. Therefore your solicitor will obtain your medical records and obtain a medico legal report before valuing your claim. You will have therefore the benefit of having had a second medical opinion on your injury and also a better prospect of a larger settlement.

If you are concerned that consulting a lawyer will cost you, you should know that even claims settled out of Court attract an entitlement for legal costs. Therefore not only will you receive a properly investigated award for your injury but it will not cost you anything at all as all your solicitors fees and other expenses will be paid by the insurers.

There is therefore no advantage at all to you to deal with insurers direct but many benefits for consulting a legal adviser before dealing with the insurers.

Whilst there is no evidence that insurers will put pressure on members of the public at the time when you are recovering from your injury it may be tempting to accept an offer which to you may look attractive that would have been made for a lot less than your entitlement. Most importantly if you do settle a claim in those circumstances there are serious arguments that you will not be able to go back and renegotiate should your injuries turn out to be a lot more serious than you initially thought.

This is a hot topic and we always advise all our clients and readers to consult a lawyer if you are faced with that situation. In personal injury claims all solicitors will accept your instructions on a no-win-no-fee basis and therefore there is no expense to you in getting free legal advice.

For further information contact Nasir from our Bolton Office or Abdul Hafezi from the London Office.

Why go direct to a Solicitor and Not a Claims company?

Some of the things we hear about and have seen in relation to Claims Management Companies are:

1) They receive a substantial amount of money from the solicitor when they pass on your case to them.

2) They also sometimes take a cut of your compensation!

3) They promise you free hire cars and sign you up to Credit Hire agreements the cost of which sometimes cannot be fully recovered from the other side and ultimately you are liable for! In fact we know of some people that have been taken to Court and have had judgments made against them which cause many problems for them later when borrowing money or applying for a mortgage.

4) In one particular case the Claims Management Company was under investigation by the Police for fraud as they had been suspected of making fraudulent claims. This meant that hundreds of innocent peoples claims were also put under doubt and many insurance companies refused to pay them out.

These are just a fraction of some of the horror stories we hear.

Why go direct to a Solicitor?

1) You get to choose who will act for you in your case.

2) You get to see your lawyer face to face.

3) Solicitors are regulated by the SRA (Solicitors Regulation Authority) whom you can complain to if you are unhappy about the service provided.

4) Solicitors can act for you on a No Win No Fee basis.

5) You get the personal service and dedication you deserve.

There is little point having to pay a claims management company for passing on your details to a solicitor when you can go direct. When you hurt yourself you don't go to a middle man - you go straight to the Doctor! Why is there any difference here?

For a no obligation free chat about any legal issue please call us direct on 0800 389 9136.

People have the right to make a claim (The Bolton News, 10/03/2009)
IT is a fundamental right of people who have suffered injury or loss to make a compensation claim or other remedy that will attempt, as best as possible, to place that person in a position as if that injury or loss had not occurred.

Such fundamental rights to be compensated are often denied to ordinary people who have legitimate and honest claims due to insurance companies unjustifiably denying the claim.

Take, for example, the mother and child who were both passengers in a car accident and who were accused of not being in the car at the time of the accident, or the insurance company that did not accept that a couple who were going out for an evening meal with friends were involved in an accident at all.

Both these cases are real and, sadly, went to trial with all the stress they had to deal with to get the justice they deserved.

It is also a suspicion among personal injury solicitors like me that the insurance companies have stigmatised as "suspicious" particular claimants from particular ethnicities and claims arising out of particular towns and cities.

No doubt the recent conviction of a claims company director and his associates involved in manufacturing fraudulent claims from Bolton, which is described as a "hotspot" town by them, will make the insurance companies wary of accepting legitimate claims from Bolton and other parts of the North West.

But let them not forget that making a claim is a long established principal and right in English law and they should not make excuses to refuse to deal with claims wherever they come from and whoever makes them.

Motorcycle Accidents
"�an average of 107 people are killed or seriously injured in road accidents everyday�" (ONS)

If you are involved in a road traffic accident that was not your fault you may be entitled to claim compensation.

You may have a claim for compensation if you are:
A Driver
A Passenger
A Pedestrian
A Passenger on Public Transport
A Motorcyclist
A Pillion Passenger

What will you need to prove?
To bring successful personal injury claim you will need to show that:
You have been involved in an accident; and
The accident was not your fault; and
As a result of the accident you have suffered from personal injury and or damage to your property

What can you claim?
Compensation for your injuries
Any reasonable financial losses that were incurred as a direct result of the accident

What can we do for you?
We can give you a free initial consultation & provide you with jargon free, no hassle or catches legal advice, where we�ll assess the merits of your claim
If we think you have a valid case, we�ll arrange an appointment for us to meet � as solicitors with many years of experience, we believe our clients value face-to-face client contact
We will assign to you a specialist solicitor who will be your point of contact for your case. You will have their phone number and e-mail address.
We will investigate your claim and keep you informed at every stage.
We will help you ensure that you receive the maximum compensation for your injuries.
We try to keep things running as efficiently as possible, so you can continue with your life and leave all the hard work to us.

What steps can you take to minimise any dispute and maximise your chance your chances of success?

To help your case, you should take names, addresses and telephone numbers of any witnesses to the accident and take photographs of the accident & its location if possible. You should also contact the Police immediately and report the incident.

If you suffer financial losses as a result of your accident you should ensure that you keep all receipts, invoices and other documents that may support your claim.

Most importantly do not delay in calling us, as you must submit your claim within three years following the accident. If you do not issue your claim in court within 3 years your claim will be statute barred and you may not be able to claim the compensation to which you are entitled.

Call now to start your claim�

polish woman
"I highly recommend them to anyone seeking solicitors"

de silva
..."they did a tremendously good job"

Accident in Public Places
If you have been injured in an accident in a public places you may be entitled to claim compensation. This can include injuries sustained from tripping on a loose paving slab or pothole, slipping on a wet floor in a shopping centre, bank, restaurant or other public place or sustaining injury from a falling roof tile or branch.

There is a duty of care placed on any public or private company or organization to ensure that all people who visit their land or premises are reasonably safe. Local Authorities also have a duty to maintain and repair the highways.

If you are injured on private property such as in a bank, supermarket or restaurant the companies insurance will cover the claim. If you are injured on public property such as a footpath, pavement or park the local authority will cover the claim.

What can you claim?
Compensation for your injuries
Any reasonable financial losses that were incurred as a direct result of the accident

What can we do for you?
We can give you a free initial consultation & provide you with jargon free, no hassle or catches legal advice, where we�ll assess the merits of your claim
If we think you have a valid case, we�ll arrange an appointment for us to meet � as solicitors with many years of experience, we believe our clients value face-to-face client contact
We will assign to you a specialist solicitor who will be your point of contact for your case. You will have their phone number and e-mail address.
We will investigate your claim and keep you informed at every stage.
We will help you ensure that you receive the maximum compensation for your injuries.
We try to keep things running as efficiently as possible, so you can continue with your life and leave all the hard work to us.

What steps can you take to minimise any dispute and maximise your chance your chances of success?

To help your case, you should take names, addresses and telephone numbers of any witnesses to incident.

If you suffer financial losses as a result of your accident you should ensure that you keep all receipts, invoices and other documents that may support your claim.

Most importantly do not delay in calling us, as you must submit your claim within three years following the accident. If you do not issue your claim in court within 3 years your claim will be statute barred and you may not be able to claim the compensation to which you are entitled.

Call now to start your claim�

ibrahimi
"My claim was dealt with very well - there was no unexpected problems"

ibrahimi
"My claim was dealt with very well - there was no unexpected problems"

Pitfalls of Hire Cars
If you are unfortunate enough to have been involved in an accident and it was not your fault, it is important that you are aware of the costs involved with a hire car. Most people are under the assumption that the hire car is provided free of charge when in most circumstances this is not the case. Under 3rd party cover, there is generally no insurance cover for a hire car. This is rarely pointed out to customers who are then left to foot the bill which in some cases can amount to over £10,000. The other side will on occasion pay some money towards the cost of hire cars and if the matter proceeds to court, the Court will only award what is reasonable, and not what is the total cost. People need to be fully aware of the extortionate costs involved before they sign on the dotted line.

Football + Love = Money
The Court will, in certain cases, award an additional element for loss of congenial employment. This area was considered in the case of Morris v Johnson Mathey & Co Ltd in 1967 in which the Judge stated:

"The joy of the craftsman in his craft is beyond price. But the Court has to give some monetary value to the loss of craft. The Court should give consideration to the fact that the craftsman had to replace his craft with humdrum work."

In Appleton v Medhat Mohammed el Sasty (2007) the footballer had been a professional footballer when he suffered an injury. The surgeon negligently treated the footballer who was unable to continue to play professional football. When assessing his damages, the footballer was awarded an additional £25,000 for the loss of, what many people would consider to be a dream job. This award is at the highest end of the bracket, however this additional award is becoming more common and there are many examples of firemen and police who claim under this bracket.

N saini
"I am very happy with the way my claim was handled...I would not hesitate to recommend them to a friend or relative"

RTA
"I am very happy with the service and outcome I received"

Solicitors v Claims Management Companies
There is growing concern amongst the public after reports of people being ripped off by unscrupulous claims management companies. Some people feel that they have not received the compensation they deserve and others have been alarmed to find that they have taken out loans to cover insurance costs without realising it. Whilst the government has implemented steps to regulate claims management companies in the form of a new Compensation Bill, there is still some way to go.

One of the reasons for instructing a solicitor from the outset is that solicitors are regulated. All activities are regulated by the Law Society who set down stringent codes of conduct which all solicitors must abide by. It is therefore a good idea to consult a solicitor rather than a claims management company, who can advise you for free as to whether a claim has any merit and whether it is worth pursuing. - a solicitor has a duty to act in the best interests of all their clients and potential clients and will advise you as to the best way to go about resolving legal issues.

More importantly than this, the fact remains that a claims management company is ultimately unable to litigate a claim. Whilst they rake in the claims and initial enquiries, all claims are eventually passed to solicitors. So why bother with the claims management companies in the first place?

We set out below how to instruct a solicitor and important points to bear in mind while doing so. There is little point having to pay a claims management company for passing on your details to a solicitor but it is worth ensuring that you instruct the best solicitor for you.

First Steps

A solicitor will advise you as to the viability of pursuing a claim. They will firstly consider Limitation. If you make a claim for personal injury then you will have three years from the date of the accident or the date that the wrong occurred to make your claim. If a claim is not made, then it will be statute barred and whilst it is possible to continue with the claim (a fact of which your solicitor must advise you) it is difficult to overcome Limitation without extremely good reason.

A solicitor will also consider the potential defendant in the case and whether it is worth pursing a claim against them. For example, you may have a good case, but if the defendant cannot be found or is bankrupt then there may be little point in pursuing a claim against them. A solicitor will advise you of the merits of pursing a claim and whether there are any ways around problems such as these.

As the claimant, it is up to you to prove that your version of events is true on a balance of probabilities. Your solicitor will consider whether there is any evidence and whether the defendant was in fact negligent.

Funding the claim

It is said that the no-win-no-fee (conditional fee agreement) should be the last resort. Under Rule 15 Solicitors Practice Rules 1999 the solicitor should explain to you all the possible methods of funding your case. This will included checking your household insurance and credit cards for legal expense cover.

Your solicitor should also explain to you the difference between your own solicitor�s costs and costs which may be awarded to the you if you win the case. It is important that your solicitor explains to you that if you lose the case you may have to pay your own solicitor's costs and your opponent�s costs. However, this risk may be covered by insurance. If you already have legal expense cover as part of your household expense or credit card insurance then this risk may already be covered. If not then legal expense insurance can be purchased and many companies allow claimants to defer payment of the premium until the outcome of the case. However, if you lose the case then whilst you may not have to pay your own solicitor�s costs, you may still incur your opponent's costs. It�s not all bad news though because most solicitors will have undertaken a stringent risk assessment of your case before advising you to pursue a claim and an insurance company may absorb the risk that if you lose the premium will not be recovered so that you will not have to pay anything. We are able to offer this to our clients as we have arrangements with insurance companies so that if you lose you will not have to pay anything. This is a service which claims management companies simply cannot offer as they are not able to undertake stringent risk assessments and as they are not regulated they are not trusted by the insurance industry to do so.

All of this information should be explained to you in a client care letter, sometimes known as a rule 15 letter. The letter should also cover other important aspects designed for your protection such as who to complain to if you are dissatisfied with the service you are getting.

Conditional Fee Agreements

This is commonly known as the no-win-no fee agreement. In essence, this means that if you lose the case you will not have to pay your own solicitors costs. However, you may still have to pay the other side�s costs. As explained above, the usual way around this is to purchase a legal expense cover (if you do not already have one).

It is important that your solicitor explains the entire agreement to you either in person or over the telephone. You should only sign the agreement once you are satisfied that you understand it all.

Legal Expense Insurance

Funding litigation can be a daunting prospect. However, usually it will follow two routes. If you have legal expense cover, either as part of your household insurance or credit card cover, then this will be used to cover the uncertainty of having to pay the other sides costs should the case be lost.

If you do not have legal insurance cover already in place, then you can purchase a cover. This is known as after-the-event insurance and the premium is recoverable from the other side if you win. As stated above, even if the case is lost there will usually be an arrangement in place so that nothing is payable by you.

Disbursements

In addition to your solicitor�s costs there are other expenses involved in litigation known as disbursements. These are court fees, fees for medical reports and the fees for hiring a barrister should the case proceed to trial.

All of these costs are recoverable from the other side. However, as for solicitor�s fees, in the event that the case is lost, it will be your responsibility as a claimant to pay them. As before though, this uncertainty is usually overcome by purchasing insurance.

Checklist

The following points are useful to have in mind when you instruct your solicitor

- Have they listened to you properly and advised you as to whether there is any merit in your claim?
Have you explored all possible methods of funding your case?
- Has your solicitor confirmed your instructions in writing and provided you with a rule 15 letter?
- Has your solicitor explained to you how your case will be funded?
- Has your solicitor explained the no-win-no-fee agreement to you satisfactorily?
- Do you have insurance in place to protect you should you lose the case?

An update on CICA claims
Introduction

The Criminal Injuries Compensation Scheme hit the headlines once more after the government published a consultation paper (Rebuilding Lives: Supporting Victims of Crime) with proposals to reform the scheme. Under the current scheme, victims of crime are awarded a sum of money to compensate them for their injuries.

The Criminal Injuries Compensation scheme last hit the headlines recently after the tragic events of July 7th when terrorist attacks left many people seriously injured and the length of time taken for a victim to receive their award � an average of 39 weeks.

The scheme deals with claims made by victims of crime on or after 1st April 2001 and the new proposals will not be retrospective if and when they come into force.

The Current Scheme

To be eligible for an award the claimant must have sustained a criminal injury. The injury must have been suffered in Great Britain and unless good reason can be shown otherwise the application must be made to the scheme within 2 years of the incident.

The CICA may also reduce or withhold an award in its entirety if it is shown that the victim did not cooperate with the police and/or their conduct before, during or after the attack will also be considered.

The scheme adopts a tariff system that takes into account the severity of the injuries as well as the number of injuries the victim has suffered. In this way, awards are made uniformly and the scheme is seen to be fair.

Compensation can also be made for loss of earnings (although not for the first 28 weeks), special expenses and for fatal accidents. There is a maximum award of £500,000.00.

Proposals

The new proposals aim to offer practical help and to reduce the �victim� culture that the scheme is seen by some to encourage. One of the main aims is to reduce the number of awards and amount of awards offered to victims of less serious crimes and to increase the pot for victims of serious crimes.

The definition of �serious� will have to be carefully considered, as this will be a contentious issue. The Times reports that one potential definition is �a physical or mental impairment that has a substantial and long-term adverse effect on a person�s ability to carry out normal day-to-day activities�.

The CICA will not be subject to any extra funding from the government in the future and therefore by reducing the amount of awards for less serious injuries, the government hopes to free up more money for the victims of more serious crimes.

Victims of less serious crimes will be offered medical treatment, more secure locks on their houses and therapy to help them to deal with their ordeal. This will obviously cost money and the cost saving advantages of these measures will have to be balanced in order for the new proposals to be advantages and money saving.

The cap on compensation of £500,000.00 will also be removed allowing for greater awards for those injuries deemed serious enough.

Another proposal aims to shift the onus from the government to employers for those victims of crime at work. Many public sector workers such as hospital workers and the police force are subject to violent criminal attacks during the course of their employment.

The government�s consultation paper propounds the idea that the scheme could discourage some employers to create and maintain a safe working environment for its employees. They advocate that it is the employer who is best placed to ensure that an employee is safe at work and to put in place systems to minimise risks to them.

Currently the law states that an employer is under a common law duty to take reasonable care for the safety of its employees. An employer is also subject to several statutory duties and health and safety regulations, which govern how an employer should implement safe systems of working.

It will be interesting to observe how the fear of financial implications will drive employers to take further care for their employee�s safety � if forced to pay out compensation for random criminal acts insurance premiums could also rise greatly. The impact on small businesses could be particularly great.

PERSONAL INJURY AND PROPERTY LITIGATION
PERSONAL INJURY AND PROPERTY LITIGATION

BACKGROUND

During the �70s and �80s successive governments of either persuasion continued to reduce eligibility for legal aid leaving a vast chunk of the public to pay for legal advice.

It was felt by many that access to justice was restricted to either the very rich who could afford to pay privately or those who qualified for legal aid.

There had also been pressure on successive governments to reduce the legal aid budget. This culminated in legal aid being removed for all personal injury litigation in January 2000. In order to increase access to justice, legislation was introduced which ran in tangent with changes in the Civil Practice Rules. It was believed that this would encourage early settlement of disputes and increase the band of population who could have access to legal advisers.

In April 2000 regulations were brought in enabling litigants to instruct legal advisers on what is now known as a no-win no-fee basis.

In 1998 Civil Procedure Rules were introduced. These brought in a number of new concepts. At the same time pre-action protocols were introduced in many areas of civil disputes. One of the first protocols brought in was in relation to personal injury litigation.

The Rules also brought in a concept of allocating civil claim to a track. There are 3 tracks and the selection of the appropriate track is generally governed by the financial value of the claim, disregarding interest, cost and contributory negligence.

(i) Small Claim

A small claim is one:-
(a) which has a financial value of no more than £5000;

(b) where any claim for personal injury the financial value of the claim is not more than £1000.

(ii) Fast Track Claim

A fast track claim is one where financial value of the claim does not exceed £15,000.

(iii) Multi Track Claim

A multi track is a normal track for any claim for which the small claims track or fast track claim is not a normal track. Thus any claim in excess of £15,000 in financial value is deemed to be a multi track claim.

The small claim track is designed to encourage litigants to take their own cases to the courts. The way in which this is facilitated is on the recovery of costs. It is fundamental principle of English law that costs follow events. Thus where a party is successful the opponent is ordered to pay the successful party�s legal costs. In the small claims track the successful party�s entitlement to recover costs is limited to the cost of issuing the summons and fixed cost. These are insignificant.

In fast and multi track claims the successful party will recover their legal costs on the standard basis. This means that the successful party will recover all reasonable costs reasonably incurred. The costs includes cost of successful party�s lawyers� fees, the expense of investigating and pursuing the claim. Expenses would include barrister�s fees, medical expert fees, liability expert fees, expense of obtaining GP and hospital records and police accident reports. It follows that in a personal injury case involving financial value in excess of £1000 the claimant will recover the cost and expense. (See below).

CONDITIONAL FEE AGREEMENT

The Access to Justice Act brought in the concept of Conditional Fee Agreement. It is a principle of English law that a successful party can only recover its legal cost if there is a written agreement between it and the legal adviser. Since 1 April 2000 a litigant can retain services of legal advisers under a Conditional Fee Agreement. Under this agreement the client agrees to pay his advisers� fees but this liability does not arise unless the claim is successful. This is commonly known as no-win no-fee. Success is defined as settlement in negotiation or at trial.

In order to recover the costs the litigant has to show that he/she has entered into a Conditional Fee Agreement with the advisers. We enclose a draft Conditional Fee Agreement commonly used.

A successful claimant is entitled to recover from the losing party the following:-

1. Basic Costs

These are costs charged by the solicitor on an hourly basis. The time spent on the file is calculated on an hourly basis with letters out and telephone calls charged separately. Letters and telephone calls are charged by dividing the hour into a unit of 10 with each telephone call of less than 6 minutes and a letter out charged at one-tenth of the hourly rate.

2. Success fee

As the adviser would not be paid by the client unless the claim is successful a concept of success fee was introduced in April 2000. Thus apart from basic costs the adviser is entitled to charge a success fee to the client. This is a mark-up on the hourly rate. The maximum success fee is 100%. The success fee is determined by the adviser at the initial stage of instruction. A number of factors are taken into account in arriving at a figure of success fee.
The Court of Appeal recently adjudicated on the claimant�s right to recover success fee and the percentage of it where claims are settled before commencement of the proceedings. It held that in straightforward road traffic accident cases the claimant�s advisers could not justify a success fee in excess of 20%. However it did not lay down rules that 20% or more could not be charged by claimant advisers.

3. Premium for After the Event Insurance

Where claims were pursued with the benefit of public funding the successful party used to get an order for costs but there was always a qualification that such order for costs could not be enforced without leave of the court. This was often known as the �Pools� Order. In practical terms this had very little benefit to the insurance industry. It was never practical to keep a file open to be able to return to the courts to seek leave of it to enforce the costs order.

A claimant runs the risk of having to pay the opponent�s costs in the event that a claim having been started is abandoned, discontinued or lost at trial i.e. the concept of costs following events.

In addition to basic costs and success fee a successful claimant can also recover the premium paid for an after event insurance. There are a number of providers of this in the market. We have experience of buying this cover from Amicus Legal Limited.

The Court of Appeal recently confirmed the claimant�s entitlement to premium even on claims settled without issue of proceedings and within the pre-action protocol period of 3 months. The paying party�s right to challenge the amount of basic cost, success fee and the premium remains unaltered.

DISEASE LITIGATION - FIXED FEES
DISEASE LITIGATION - FIXED FEES

The news that an agreement had been reached on fixed recoverable success fees for employers� liability disease cases was widely welcomed by the legal profession1 . The agreement will be implemented by the Civil Procedure Rule Committee and will be implemented in October 2005.

The new agreement will fix the success fee paid by a defendant�s insurer to the claimant�s solicitor or barrister where they are funded by a conditional fee agreement (�no win no fee� agreement).

The agreement follows two similar schemes for Road Traffic Accidents and Accidents at Work cases and is a positive move which will set in stone the question of success fees in one more area where liability is agreed.

Provisions of the Agreement2

27.5 % success fees in claims arising from asbestos related diseases (or 30% if the claim falls under s.30 Access to Justice Act)

62.5 % success fees in claims arising from deafness, vibration white finger and other diseases except stress and repetitive strain injury cases

100% success fee in claims arising from stress and repetitive strain injury.

Counsel�s fees should follow the same basic structure as for RTA and employers liability cases with the following success fees:

Fast track

14 days or less before trial � 50% for asbestos claim, 62.5% for deafness etc and 100% for RSI & stress

The relevant success fee applicable to solicitors for claims that conclude more than 14 days before trial

Multi track

21 days before trial � 75% for asbestos and deafness etc and 100% for RSI and stress cases

The relevant success fee applicable to solicitors for claims that conclude more than 14 days before trial

Parties can seek to escape the fixed success fee provisions and seek an alternative success fee if the claim is greater than £250,000.00

The need for an exceptionality clause and its precise working with regard to test case litigation will be discussed over the next few months. Therefore, the main part of the agreement as above would come into force in October 2005 with the remaining exceptionality provision, if appropriate, implemented in April 2006.

Implications
The flexibility of the new agreement means that it will be possible to recover success fees depending on the type of claim being bought.

The aims of the new agreement are to detract from the focus on costs, leaving the courts to focus on dealing with cases on their merits rather than the costs involved3 . Whilst some commentators argue that the fixed fees do not take into account the volume of work involved in investigating cases4 for the majority of cases more structured environment will prevail.

The outstanding issue of exceptionality is yet to be finalised and may not be implemented until 2006 which has disappointed some including APIL�s president Allan Gore QC. The fact that the agreement has not been wholly concluded has left a residual uncertainty in some areas, where some commentators have suggested that the risk profile in test cases has the potential to change overnight. The exceptionality clause will therefore play a vital role in removing those cases affected by test cases from the provisions of the scheme.

Insurance
The conditional fee market is strongly linked to the insurance market and in particular, the availability of competitive after-the-event- insurance (AEI).

Generally, policies are either individually underwritten or issued under delegated authority. Policies arranged under delegated authority provide for automatic cover on the basis that the insurance company has already assessed the firm. Individually underwritten policies are issued on a case-by-case basis.

The defendant�s insurer will also benefit from the new scheme. There will no longer be any uncertainty regarding the success fee which many claimant solicitors do not divulge in order to conceal their assessment of the cases chances of success.

Clearly, the immergence of the fixed recoverable success fee in most disease cases has implications for the insurance market. Except for those cases subject to the exceptionality clause, policies can take on a more structured format and the risk will be reflected in the fixed fee from the outset.

For more information contact aah@hafezis.com

1. Gazette, 7th July 2005
2. Civil Justice Council , Press Release, 1st July 2005
3. Lord Phillips of Worth, Master of the Rolls, Head of the Civil Justice Council
4. Gazette, 18th August 2005, Jon Robins

Fixed Costs Are Here at Last
Fixed Costs Are Here at Last

The Civil Procedure Rules
As of 6 October 2003, any cases involving road traffic accidents having the value of £10000 or less that settle without issue of proceedings will be subject to fixed fees. These fees are set out in part 45.7 to part 45.14 of the 1998 Civil Procedure Rules (CPR).

The scheme will apply to all accidents that occur on or after 6 October 2003 (25A)PD.

The scheme provides a basic payment and a mark-up graded up to £10000.

Basic payment £800.00
£0 - £5000 20%
£5000 - £10000 15%

For example, a claim settled for £6500 will enable the claimant to recover fixed fees as follows.

Basic payment £800.00
20% of £5000 £1000.00
15% of £1500 £225.00
Total £2025.00

The rules also provide for a mark-up for claimants living in London and whose claims are handled by a London solicitor. London claimants will be entitled to a mark-up of 12.5%.

Thus a London claimant settling a claim for £6500 will recover the following.

Fixed fees as above £2025.00
12.5% of £2025 £253.13
Total £2278.13

Disbursements
The rules provide that the claimant will be entitled to recover disbursements in addition to the fixed fees.

Can the claimant contract out of the fixed fee regime?
A claimant wishing to recover an amount greater than the fixed figure can apply to the court for costs to be assessed.

The claimant will have to show that the case is exceptional and at the same time will have to give an indication of the amount of costs they seek to recover. If defendant or insurer wishes to challenge the assessment process, they must specify in the acknowledgement of service.

The court will then determine the issue. If it agrees with the claimant it will assess the costs or make an order for costs. If it considers the claim inappropriate, fixed costs will be recoverable instead.

Penalties for going through this process
If the costs are assessed as 20% greater than the figure prescribed, the defendant or insurer will have to pay the cost of the assessment.

If the costs assessed are less than 20% greater than the fixed costs, the defendant or insurer can pay the lower of the two figures, i.e. assessed costs or fixed costs, and the claimant will have to bear the cost of the assessment.

While this regime does not apply to the Trenwick cases we hope that the above figures will be of assistance to you. These formulas can be used when dealing with a claimant�s claim for costs on non RTA matters as an indicator of what would be reasonable recoverable costs. These are after all figures that were recommended and approved by Association of Personal Injury Lawyers (APIL).

Conditional Fee Agreements (No Win, No Fee)
Conditional Fee Agreements (No Win, No Fee)

Background
During the �70s and �80s, successive governments of of both parties continued to reduce eligibility for legal aid, leaving a vast chunk of the public no choice but to pay for legal advice.

It was felt by many that access to justice was restricted to the very rich who could afford to pay privately and the few who still qualified for legal aid.

Pressure on successive governments to reduce the legal aid budget continued. This culminated in legal aid being removed for all personal injury litigation in January 2000.

In order to increase access to justice, legislation was introduced which ran in parallel with changes in the Civil Practice Rules. It was believed that these changes would encourage early settlement of disputes and increase the proportion of the population who could have access to legal advice.

In April 2000 regulations were brought in enabling litigants to instruct legal advisers on what is now known as a no-win-no-fee basis.

The way for this had been paved to some extent by the introduction of the Civil Procedure Rules in 1998. These brought in a number of new concepts. At the same time pre-action protocols were introduced in many areas of civil disputes. One of the first protocols brought in was in relation to personal injury litigation.

The rules also brought in the concept of allocating civil claims to a track. There are 3 tracks, and the selection of the appropriate track is generally governed by the financial value of the claim, disregarding interest, cost, and contributory negligence.

The Small Claims Track
A small claim is one:
which has a financial value of no more than £5000;
where in any claim for personal injury the financial value of the claim is not more than £1000.
The Fast Track
A fast track claim is one where financial value of the claim does not exceed £15000.

The Multi Track
A multi track is the normal track for any claim for which the small claims track or fast track claim would not be appropriate. Any claim in excess of £15000 in financial value is deemed to be a multi track claim.

The small claims track is designed to encourage litigants to take their own cases to the courts. The way in which this is facilitated is through the recovery of costs. It is fundamental principle of English law that where a party is successful, the opponent is ordered to pay the successful party�s legal costs. In the small claims track the successful party�s entitlement to costs is limited to the cost of issuing the summons, plus a fixed amount. Both of these costs are negligible.

In fast and multi track claims the successful party will recover their legal costs on the standard basis. This means that the successful party will recover all costs reasonably incurred. The costs include the successful party�s lawyers� fees and the expense of investigating and pursuing the claim. Expenses would include barrister�s fees, medical expert�s fees, liability expert�s fees, and the expense of obtaining GP and hospital records and police accident reports. It follows that in a personal injury case involving financial value in excess of £1000 the claimant will recover costs and expenses. (See below).

Conditional Fee Agreements
The Access to Justice Act brought in the concept of Conditional Fee Agreements. It is a principle of English law that a successful party can only recover its legal costs if there is a written agreement between it and the legal adviser. Since 1 April 2000, a litigant can retain the services of legal advisers under a Conditional Fee Agreement. Under this agreement, the client agrees to pay his advisers� fees, but this liability does not arise unless the claim is successful. This is commonly known as no win no fee. Success is defined as settlement in negotiation or at trial.

A successful claimant is entitled to recover the following from the losing party.

Basic Costs
These are costs charged by the solicitor. The time spent on the file is calculated on an hourly basis with letters and telephone calls charged separately. Letters and telephone calls are charged by dividing the hour into 10 units, with each telephone call of less than 6 minutes and a letter out charged at one tenth of the hourly rate.

Success Fees
As the adviser would not be paid by the client unless the claim is successful, the concept of success fee was introduced. Thus, apart from basic costs, the adviser is entitled to charge the client a success fee. This is a mark-up on the hourly rate. The maximum success fee is 100%. The success fee is determined by the adviser at the first stages of instruction. A number of factors are taken into account in arriving at a figure for the success fee.

The Court of Appeal recently adjudicated on the claimant�s right to recover success fees, and the appropriate percentage where claims are settled before the commencement of proceedings. It held that in straightforward road traffic accident cases the claimant�s advisers could not justify a success fee in excess of 20%. However it did not lay down rules that 20% or more could not be charged by claimant advisers.

After the Event Insurance Premiums
Where claims were pursued with the benefit of public funding the successful party used to get an order for costs, but there was always a qualification that such an order for costs could not be enforced without leave of the court. This was often known as the �Pools� Order. In practical terms this was of very little benefit to the insurance industry. It was never practical to keep a file open in order to return to the courts and seek leave to enforce the costs order.

A claimant runs the risk of having to pay the opponent�s costs in the event that a claim, having been started, is abandoned, discontinued or lost at trial.

In addition to basic costs and success fees, a successful claimant can also recover the premium paid for after-the-event insurance. There are a number of providers of this type of insurance in the market. We have experience of buying this cover from Amicus Legal Limited.

The Court of Appeal recently confirmed the claimant�s entitlement to premium even on claims settled without the issue of proceedings and within the pre-action protocol period of 3 months. The paying party�s right to challenge the amount of basic costs, success fees, and the premium, remains unaltered.

Compensation Bill
Introduction.

The compensation bill was published by the government on 3rd November 2005 and will form the Compensation Act 2006 if passed. The bill�s focus is on the regulation of claims management companies who many feel have long been exploiting members of the public and giving them false expectations of large compensation payouts. The self-regulation of claims management companies has seen them stoop to levels that are unacceptable in order to generate enquiries. The government has now stepped in to regulate this area.

One of the main difficulties will be changing the public�s perception of what they can claim for and indeed in many cases, how they can make a claim. Whilst it has long been clear to solicitors and insurance companies alike that claims management companies can and do take advantage of members of the public, this is based on the public�s perception that claims management companies are on their side and solicitors are not.

Whilst the main incentive for the government to pass the compensation bill will be to shrink the 'compensation culture' and to fence in claims particularly those against public authorities, there is also an opportunity for solicitors firms and insurance companies to seize in order to benefit from the bill. Insurance companies will benefit from the governments attempt to shrink the blame culture which has seen the number of claims in recent years expand at an alarming rate as the public perceives that they need take no personal culpability for their actions. The irresponsible attitude of the public towards their own actions is surely based on the outlook that it doesn't matter if things go wrong because a claim for compensation can always be made and that idea is supported by claims management companies; they will take the chance to pursue a claim which has no merit in it because there is very little to lose and everything to gain. Whilst the U.K. has been derisory of the American compensation culture and stories of ludicrous payouts for self imposed accidents it seems that the U.K. is following suit.

The government has adopted a twofold approach to tackling these problems which is discussed below:

Part I - Government's Attempt to Limit Claims
Law of Negligence

The law of tort (civil wrongs) is one of the most complex and dynamic areas of law and is intrinsically linked to the development and progression of our society. One of the biggest factors which has influenced tort law recently is the expansion and increased sophistication of the insurance industry. The courts have made several important rulings in recent years based on the insurance position of the defendant.

In order to make a claim in negligence the onus is on the claimant to show that they were owed a duty of care, which has been breached, causing them loss. The standard of care owed by the defendant is a question of law whilst the question of whether the standard has been reached is one of fact. One important distinction to make is the difference between liability for positive acts and liability for omissions. In general, there will be no liability for a failure to act.

Desirable Activities

Part 1 of the compensation bill states that a court when considering a claim in negligence, may consider whether taking the steps necessary to reach the appropriate standard of care may prevent a desirable activity from being undertaken or discourage people from undertaking functions in connection with a desirable activity. This seems somewhat vague - what constitutes a 'desirable activity' is unclear and some commentators argue that this will only exacerbate the problem as the courts become inundated with test cases on this point .

The government's aim is to minimize the blame culture that is rapidly permeating our society, particularly when it effects public authorities; reports that schools have banned school trips and hanging baskets that are no longer allowed have prompted fears that the compensation culture is out of control.

It is important that potential claimants understand that they may not always have a claim even if the components of negligence exist. One of the main differences between claims management companies and solicitors is that some claims management companies will often give entirely inaccurate advice to potential litigants, raising false expectations as to their chances of success. As stated above, this is because claims management companies have almost nothing to lose by perusing a claim and everything to gain. This is unacceptable and there is a need for greater education of the public.

Part II - Claims Management Services

Provision of services
Part 2 of the compensation bill looks at claims management services in some detail. The basic premise is that claims management companies will now be regulated in order to protect the public from cowboys who do not have their best interest at heart. It is astonishing that no steps have been taken prior to this, especially after considering the stringent rules placed on solicitors.

The bill sets out that claims management companies must be regulated if they wish to:
 Provide financial services or assistance;
 Provide services by way of or in relation to legal services;
 Refer or introduce one person to another; or
 Make enquiries.

The bill has a clear proviso that expert services are not included in the above.

Regulation

It is clear that claims management companies need to be regulated. As Part 1 of the bill suggests, it is no coincidence that there is an increased public perception that compensation will be available for any untoward accident. Under the terms of the new bill, claims management companies will be scrutinized by a state appointed regulator who will ensure that:

 The claims management company is authorised; and
 The conduct of the company is regulated.

The regulator will promote the best interests of members of the public who use such authorised services. Interestingly, their function will also include promoting public awareness on the regulation of claims management services which may create a shift in the perception and use of solicitors firms from the outset of a claim as a result.

However, it seems that whilst this is a step in the right direction, the proposals fall far short of what is actually required. The regulating body is likely to be one which is already in existence which in effect means that claims management companies will be privately regulated. This is clearly undesirable as we have seen that self-regulation simply does not work.

Enforcement

If a person commits an offence in that they are not regulated, or hold themselves out as being regulated when they are not (specifically through advertising or promotional materials) then they will be subject to:

 Imprisonment;
 A fine; and/or
 Both.

Interestingly the bill refers to a 'person' so it remains to be seen how enforcement will be affected against corporate entities. The bill makes it clear that an offence is triable on indictment i.e. in the crown court in front of a jury which highlights the severe nature of this type of crime � it falls which murder, GBH and rape as the type of crime which can tried in the crown court. Whilst this message is clear, just how this will work in practice is not.

The defence which can be raised is that a person did not know and could not be expected to know they were committing an offence. This is a two part test, clearly it is not enough to say that a person did not know that they were committing an offence, as this subjective test is coupled with an objective test could not be expected to know and it will be interesting to see how the courts will interpret this in the future.

Conclusion

The bill is the first step in tackling the mounting problems created by claims management companies. Whilst not all claims farmers are exploitative, it has been clear for some time now that more needs to be done to regulate this industry. The insurance industry will become beneficiaries of the new bill if it does indeed reduce the number of claims which are being put forward in the hope that they will be settled regardless of whether there is any merit in them.

Whilst the government has taken some steps to tackle the issues surrounding personal injury litigation they have clearly not gone far enough. Whilst the courts must interpret all Acts, much of these proposals are vague and unsatisfactory and it remains to be seen how effective these proposals will actually be.

The insurance industry should use the compensation bill to take a more aggressive approach to dealing with claims. Claims management companies have created the perception that any claim is worth pursuing and in many cases this is true. By adopting a zero tolerance approach to these companies, the Insurance Industry can come out on top.

Occupational Stress Claims
Occupational Stress Claims

Workers in the U.K. work under increasingly stressful conditions. On average, they work more hours than workers in the rest of Europe and have increasingly hectic lifestyles. Although the Working Time Regulations 1998 are designed to protect the worker, they can opt in or out of these regulations so that the standard 48 hours of work per week can be extended.

As a result occupational stress claims have become more common in the U.K. In one of the first stress cases to reach the courts Sutherland v Hatton the court held that harmful levels of stress are likely to occur when a person feels powerless or trapped - this may occur when a person is moved into a role in which they are unfamiliar without the support or training they require or when workloads are so excessive that a person is constantly under stress.

As with all claims for personal injury, the onus will be on the claimant to prove on a balance of probabilities that they were owed a duty of care, which was breached causing damage/injury. Of course, psychological injury is rather more difficult to prove than physical injury and this is where the need for specialist solicitors and experts becomes important.

Recent Case Law

The case of Hone v Six Continents Retail is one of the most recently decided cases in this area. The Court of Appeal found unanimously in favour of the Claimant and dismissed his employers appeal. In this case the claimant, who was a pub manager had been working for excessive numbers of hours will little support.

The Court of Appeal held in the case that the test laid down in the Hatton case which further stated that a duty to take steps would be triggered when 'the indications of impending harm to health arising from stress at work must be plain enough for any reasonable employer to realise that he should have done something about it.

The case therefore supports the notion that a successful claim for occupational stress can be mounted from a breach of the Working Time Regulations.

Requirements

One of the major difficulties facing a claimant who wishes to mount a claim for occupational stress at work is that the government has not legislated specifically in this area. The cases of Petch v Commissioners of Custom and Excise and Walker v Northumberland County Council were amongst the first to recognise that the well established principals of employers liability also applied to claims for psychiatric illness arising from occupational stress.

There have been several seminal cases involving personal injury due to stress. The most well known is that of Walker v Northumberland County Council . This was one of the first successful claims for damages due to stress.

Of course many cases never reach the courts and are settled out of court. The appellate courts have therefore used the cases which have reached them to set down various requirements for occupational stress claims.

The claimant must have suffered an injury.
The injury must have been caused by stress at work.
The injury must be foreseeable
The claimant must show that the injury was the fault of the employer and could not have been avoided.
An employee feeling excess stress should alert their employer and/or union to the problem.

The courts have laid down the above requirements over a series of cases and these hurdles must be overcome in order to mount a successful claim. More often than not the injury to the claimant will be psychological and will usually be manifested in the claimant suffering a nervous breakdown or post traumatic stress disorder (PTSD). The claimant must also establish a causal link between the injury and stress at work - most of us suffer some degrees of stress outside the workplace due to bereavements, divorce or financial worries and the claimant must show that 'but for' the stress at work they would not have suffered any injury. In other words other sources of stress must be so small as to be negligible.

The courts have also held that in determining the forseeability of the injury, they will take into consideration the individual characteristics of the employee and the demands placed upon them by their particular employee. The indications of stress should be clear enough that a reasonable employer should be able to recognise them. The last requirement suggests that the claimant should inform their employer and/or union that they are suffering.

Costs

It has been accepted that a 100% success fee can be charged in stress cases. This is due to the fact that the level of success fee must reflect amongst other factors, the complexity of the issues and as stress cases are notoriously high-risk cases, this can be justified. In the Hone case the court held that they wished to consider whether the costs were proportionate to what was at stake, in this case £21,000.00. It is interesting that the courts have mentioned proportionality in this case, particularly as the Campbell v MGN case is the subject of detailed assessment with costs close to £1million and an award of around £3,000.00. Some commentators feel that if the courts insist in proportionality not to the complexity of the issues and the risks involved, but to what is ultimately at stake, that this will lead to costs capping at allocation .

[2002] IRLR 263
[2005]EWCA Civ 922

[1993] ICR 789

[1995] 1 All ER 737

Ibid

Simon Allen, Law Society Gazette, 16th December 2005.

Breast Cancer and Misdiagnosis
Breast Cancer and Misdiagnosis

Last months news headlines have included the shocking and worrying story that up to seventeen women were told that they could face a significant risk of dying from breast cancer after being informed that the radiologist who screened them for the disease had wrongly given them the all clear.

In these cases the radiologists reports had not been checked by another colleague as the hospital he worked for employed just one radiologist which conversely may raise other issues in itself (there have been calls on the government to ensure that all breast screenings are double checked as well as concerns raised over staffing levels in hospitals).

It has been reported that the delay caused by the misdiagnosis may have �significantly altered� the women�s chances of dying from breast cancer.

The doctor involved was initially suspended and has since been charged.

So what of the women involved? Apart from the fact that their lives have undoubtedly been shattered by this news, what recourse is available to them? Surely even amid calls of a compensation culture gone mad there is no one who would doubt that these women are deserving of some remedy?

Course of Action
The usual way to proceed in cases like this is to sue the NHS Trust, that is the hospital where the women were misdiagnosed and claim that the trust is vicariously liable for the actions of the medical professional involved, in this case, the radiologist. Complaints against a doctor can also be made via the NHS complaint procedure within 6 months of the matter complained of although it is important to note that such a complaint cannot be made whilst litigation is being intimated and/or to the General Medical Council. This may lead to a formal apology and sometimes the doctor involved being struck off or suspended however, sometimes even this is not enough.

As with all cases of negligence, the onus will be on the claimant to prove (on a balance of probabilities) that they were owed a duty of care, that this was breached and that this caused them loss. Interestingly, it is often this last element of loss which proves the most difficult for a claimant in a medical negligence matter to prove.

Duty
It is a well-established principle of law that a doctor owes their patients a duty to take reasonable care for the safety and well being of their patients. In the example above, it is a given that the radiologist owed the women a duty of care.

Breach
A special standard of care applies to Defendant�s who claim to have a particular professional or otherwise unique skill. The seminal case in this area was the case of Bowlam v Frien Hospital Management Committee

This case established two main principles:

Where a person purports to have a special skill then they will be judged against the standard of another reasonable person who purports to have the same skill. Thus a radiologist will be just against the standard of another reasonable radiologist.
If the actions of the person who claims to have a particular skill are supported by a responsible body of professional opinion then they will not be considered to have breached the standard of care. This is often referred to as the 10% rule where if 10% of radiologists would for example, have diagnosed the women using the same methods then the doctor would not have breached the standard of care � although there is no real issue of this in the above example.
The professional standard of care is objective in that the same standard will therefore be required of all professionals who purport to have a particular skill.

The courts have also held that just because a doctor or other professional had acted in accordance with common practice does not necessarily mean that this is conclusive evidence that the standard of care has been reached because the common practice may in itself be negligent (this principal is prevalent throughout all areas involving negligent practice).

One practical difficulty that a claimant may face at this stage is that the NHS trust may not admit liability. If there is no admission of liability then a claimant may not be able to afford to investigate the claim and an insurance company may not be willing to underwrite the risk of taking on such a complex and expensive case. It is therefore important to obtain practical and specialist advice from a personal injury lawyer and certainly not to turn to a claims management company who will have little legal knowledge and even less medical knowledge or understanding of how this area of law works.

Loss
The final hurdle for the claimant to overcome is that the defendant�s actions have caused them some kind of loss. In order to prove this, they must establish that the defendant�s actions were the legal cause of their loss. As stated above, in medical negligence cases, this can often be the hardest element of negligence to establish.

There are several legal tests which may be applied. The first being the �but for� test, that is, can it be said that �but for� the defendant�s actions the claimant would not have suffered any loss? The harsh reality of many medical negligence cases is that it may be difficult to prove that but for the defendant�s actions, the person would have been treated successfully and that their chances of recovery would be better.

For example, if a doctor misdiagnoses and illness or fails to spot something is wrong with a patient, then they may be in breach of their duty of care to the patient. However, if the patient would have died anyway then the doctor�s breach would not have caused their loss. So in the example being used here, if the women�s chances of death would have been the same regardless of whether or not the radiologist would have diagnosed them at the time properly, then the elements of negligence would not be established.

In the example we are using it has been reported that the doctors misdiagnosis may have �significantly increased� the women�s chances of death and so it seems, he has caused them loss in that he has increased their levels of illness, possible caused them to lose a breast which may have been avoidable if the disease had been caught early and not been allowed to spread and perhaps has lead to an earlier death than they may have had if he had not misdiagnosed them.

Summary

As with all negligence cases, the onus will be on the claimant to establish that they were owed a duty of care and that this was breached causing loss. As the discussion above shows, in clinical negligence matters the element of loss may be difficult to prove.

[1957] 1 W.L.R 582

Ibid

Barnett v Chelsea and Kensington Hospital Management Committee [1942] AC 691

Patients under sixteen right to medical confidentiality
Patients under sixteen right to medical confidentiality

Last months news reported Mr Justice Silber �s dismissal of a claim concerning patients under sixteen right to confidentiality when seeking advice and treatment on contraceptives, sparking much controversy over potential infringement of parental rights.
The Claimant, a parent, was refused judicial review by way of declarations that:

Doctors should be obliged to disclose such advice and treatment to parents of under sixteen in relation to contraception, abortion and sexually transmitted diseases and so not provide such advice or treatment without parental knowledge.

Literature published in June 2004 by the Secretary of Sate for Health, which provided a guideline for Doctors and health professionals on advising and treating patients under sixteen about contraception, Sexual and Reproductive Health should be declared unlawful.

The application was dismissed and raised significant debate as to whether providing confidential advice and treatment to under sixteen�s interferes with parents right in accordance with Article 8 of the European Convention of the Human Rights.
To what extent does this confidentiality affect parental responsibility for their children�s mental and moral well being? Alternatively should there be a higher degree of confidentiality so as to not deter under sixteen�s from seeking advice and treatment? Would more confidentiality result in an increase in protection of health in society from sexually transmitted disease, child pregnancies, and further increase the use of contraceptives?
Legal Position
The case of Gillick V West Norfolk and Wisbech Health Authority provides the guidelines that have to be complied with when a Doctor or Health Care Professional is providing advice and treatment. Patients under 16 can be provided with such treatment and advice if they are deemed to be �competent�.
The standard of competence is dependent on the patient�s ability to fully understand what is being proposed, the choices available to them, the consequences of such choices and its implications.
Guidelines as to judging who qualifies as being �competent� have been set out for Doctors and Health Care Professionals to comply with:

The patient must understand all the risks and benefits of the treatment.
Parental support must be encouraged, or alternatively informing another adult in the Child�s life.
When advising or treating for contraceptives the Doctor/ healthcare Professional should consider whether the patient�s psychical or mental health is likely to suffer as a result of not receiving or receiving contraception.
Priority should be given to the patient�s best interest.
The concern raised by parents of the above is whether these guidelines gave Doctors/Health Care Professionals approval to disregard parental rights and responsibilities and additionally how it is possible to determine whether a child is �sufficiently mature� to be �competent�? How competent are children in making their own decisions?
European Convention on Human Rights
Article 8 (1) of the Human Rights Act states �Everyone has the right to respect for his private and family life� and further the right of the child to preserve his or her identity, including nationality, name and family relations as recognised by law without unlawful interference.
There is the view that as a child gets older they are able to make decisions on their own accord and understand the consequence of their own actions therefore parental rights to a family life naturally reduce. If a child is �competent � enough to understand the medical advice and treatment being given should they be prevented from receiving this just so that parents can retain parental rights in accordance with this Act?

The United Nations Convention on the Rights of the Child 1989 (UNCRC)
The rights of children have considerably increased through Human Rights laws.

Article 3 (1) : the best interest of the child should be a primary consideration in all actions concerning children
Article 5: requires that children�s rights should be exercised in accordance with their evolving capacities.
Article 12: requires that in all decisions effecting children due weight should be attached to their views.
Summary
Recent developments in both case law and human rights laws have held a crucial impact over patients under sixteen�s right to confidentiality. The difficulty is in distinguishing between the rights, responsibilities and entitlement of parents against under sixteen-year olds entitlement to advice and treatment as a personal and private choice.
[1986] 1 AC 112

Noise Control: Hearing regulations to prompt waive of compensation claims
Hearing regulations to prompt waive of compensation claims

Hearing regulations to prompt waive of compensation claims
As an insurer underwriting claims you are under a duty to warn your insured that employers have been warned to take serious measures to protect their employees hearing in preparation of the Control of Noise at Work Regulations 2005, which came into force on the 6th April 2006. Firms may be bombarded with compensation claims if they fail to take appropriate steps in adhering to the regulations.
Hearing loss is one of the most serious occupational diseases. As an insurer you should check that your insured is taking appropriate steps to prevent such compensation claims arising.

Occupational Noise Induced Hearing Loss
Employers should be made aware that hearing loss is usually a gradual process, due to prolonged exposure to noise. However extremely loud or explosive noises, such as cartridge-operated machines, can cause an immediate hearing loss. This means that claims may not arise until after the damage has been caused. Employers should know that preventative measures now could prevent a bombardment of compensation claims arising in the future years

Regulations
The new regulations mean that employers have a legal duty to cut down noise and protect their employees from ay possibility of harmful effects of noise at work.

Regulation 4 � Exposure levels
A lower exposure to noise value is set at 80db and upper value at 85db. Average noise levels reaching a worker's ears should never be above 87 db. The regulations require the employer to average out the exposure to noise over a one-week period instead of the current normal eight-hour period, in situations where the noise exposure varies on a day-to-day basis. Employers must decide if weekly exposure is relevant or not.

Regulation 5 - Risk assessment
An employer who carries out work which may expose employees to noise at or above a lower exposure action value have to carry out a suitable and sufficient risk assessment of that noise The risk assessment should identify the measures which need to be taken to meet the requirements of these Regulations. An employer should take appropriate action if it is discovered by this assessment that the employee is being or is likely to be exposed to such noise.

Regulation 6 - Elimination or control of exposure to noise at the workplace or at least reduce the risks.
This may include establishing and implementing a programme of organisational and technical measures

Regulation 7- Hearing protection
Hearing protection available upon request to any employee who is exposed or may be exposed to noise. .

Regulation 8 - Maintenance and use of equipment
Employers should ensure that anything provided by them in compliance with their duties under these Regulations or for the benefit of an employee is fully and properly used and maintained in an efficient state, in efficient working order and in good repair.

Regulation 9 - Health Surveillance
If an employee is exposed to noise employers must ensure that such employees are placed under suitable health surveillance. A health record must also be kept by the employer for any employee who undergoes health surveillance.

Regulation 10 � Information, instruction and training
Where employees are exposed to noise employers must provide suitable and sufficient Information, instruction and training.

Measures
As an insurer you can inform employers that the following measures should be taken:

Old noisy machinery should be replaced with newer, quieter models and enquiries should be made about noise levels of machinery before equipment is purchased.
Noisy machinery should be kept in a separate work area.
Materials to absorb sound should be installed.
Equipment should be regularly maintained.
Protective equipment should be provided where noisy machinery is being used.
Checks should be in place to ensure that employees do not spend longer than necessary in a noisey working environment or appropriate quite areas should be provided within the workplace

Conclusion
As an insurer you are ought to check that your insured is taking action to put precautionary measures in place. Strict checks of your insured�s rigorous compliance with the regulations will not only prevent compensation claims but also allow you, the insurer, to better defend any potential claims that may still arise. A productive approach by the underwriter at the outset of a policy would be beneficial to both you and the insured. You would be in a better position to defend the claim and your insured will benefit from a reduction in their premium.

Is an apology an admission of liability?
Is an apology an admission of liability?

On the 7th march 2006 the House of Lords defeated Ministers on proposals to confront the �compensation culture�. There is a growing concern that people in fear of the intensifying �compensation culture� are stopping many activities.

The House of Lords were defeated when peers voted 157 to 144 against the Government during the report stage of the Bill. The new amended bill introduces an opportunity for an apology without such equating to an admission of liability.

It is commonly known that people that have suffered negligence say that an apology at an early stage may have prevented litigation, however insurers� advise their insured that an apology would effectively equate to an admission of liability.

Amendment
Part 1, subsection 2 of the amended Compensation Bill states:

�an apology, an offer of treatment or other redress, shall not of itself amount to an admission of negligence or breach of statutory duty.

So how much of a distinction can be drawn between an apology and an admission of liability? As an insurer you are aware that people are advised to maintain as little contact with the claiming party as possible, even by way of a simple explanation of the accident, and not to apologise or offer any redress, so there is no risk of an admission of guilt. The amendments to the Compensation Bill allow a clear differentiation to be drawn between saying �I�m sorry� and admitting liability or negligence.

The Government have urged that this approach may help to calm the atmosphere in compensation claims and may help to settle matters rather then costly and timely court hearings.

Change in law or change in attitude?

There is considerable concern that this new amendment and theoretical change in attitude may contradict current Compensation law. Is the perception that a mere apology for being the unwitting and unblameful cause of someone being hurt always going to be seen as an admission of guilt? Can a distinction be drawn between merely changing perceptions and not law?

Conservative Spokesperson Lord Hunt of Wirral stated that he wanted a change in attitude and perception that people cannot say �sorry� and not a change in the law.

Baroness Ashton in the House of Lords commented that �the principle behind saying, "I'm sorry", even if it means, "I'm sorry I didn't see you because you just did something stupid", is as relevant as saying, "I'm sorry I didn't see you because I just did something stupid". I agree with that�. She went to to say that despite this she could not accept the proposed amendment as accepting it would inevitably alter the law.

The question still remains unanswered, what is an appropriate apology that does not cross a boundary into being an admission of liability and who is to define this apology and boundary? In essence the common law will evolve and answer these over time.

Conclusion
The amendments to the Compensation Bill were passed in the House of Lords on 27th March 2006. As an insurer you should check the advice given to you insured. Offering redress and apologies no longer amount to an admission of liability therefore may save you expense and further improve the system for valid claims.

Wrongful Death
Accidents or Occurrences that have resulted in death This encompasses all types of cases in which there will be a cause of action either in negligence or otherwise had victim survived.

Product Liability Claims
If you have been injured as a result of an unsafe product you may have a claim against the company that designed, manufactured or retailed the product. If you had the product professional installed you may also have a claim against the company who installed the product.

There is a duty to ensure that any product that is manufactured and sold to the public is safe and reasonably fit for its intended purpose. Your claim could either be for breach of contract or for negligence.

Product liability claims can be made in relation to any products that are shown to be defective and have caused injuries or financial losses this can cover anything from boilers, cars and electrical equipment to foodstuffs and cosmetics.

What can you claim?
Compensation for your injuries
Any reasonable financial losses that were incurred as a direct result of the accident

What can we do for you?
We can give you a free initial consultation & provide you with jargon free, no hassle or catches legal advice, where we�ll assess the merits of your claim
If we think you have a valid case, we�ll arrange an appointment for us to meet � as solicitors with many years of experience, we believe our clients value face-to-face client contact
We will assign to you a specialist solicitor who will be your point of contact for your case. You will have their phone number and e-mail address.
We will investigate your claim and keep you informed at every stage.
We will help you ensure that you receive the maximum compensation for your injuries.
We try to keep things running as efficiently as possible, so you can continue with your life and leave all the hard work to us.

What steps can you take to minimise any dispute and maximise your chances of success?

To help your case, you should ensure that you preserve any evidence you can to show the product was defective or unsafe. This may include photographs or keeping the original product. You should also keep any receipts or instruction booklets that you have.

If you suffer financial losses as a result of your accident you should ensure that you keep all receipts, invoices and other documents that may support your claim.

Most importantly do not delay in calling us, as you must submit your claim within three years following the accident if you were injured and six years if your claim is for property damage only. If you do not issue your claim in court within 3 years your claim will be statute barred and you may not be able to claim the compensation to which you are entitled.

Call now to start your claim�

Dog Bites
Anyone who owns or has the control of a dog within the United Kingdom has a responsibility to ensure that that dog is kept under proper control. If you are attacked or bitten by a dog in a public place then you may have a claim for damages against the owner of the dog.

What can you claim?
Compensation for your injuries
Any reasonable financial losses that were incurred as a direct result of the accident

What can we do for you?
We can give you a free initial consultation & provide you with jargon free, no hassle or catches legal advice, where we�ll assess the merits of your claim
If we think you have a valid case, we�ll arrange an appointment for us to meet � as solicitors with many years of experience, we believe our clients value face-to-face client contact
We will assign to you a specialist solicitor who will be your point of contact for your case. You will have their phone number and e-mail address.
We will investigate your claim and keep you informed at every stage.
We will help you ensure that you receive the maximum compensation for your injuries.
We try to keep things running as efficiently as possible, so you can continue with your life and leave all the hard work to us.

What steps can you take to minimise any dispute and maximise your chance your chances of success?

To help your case, you should take names, addresses and telephone numbers of any witnesses to incident. You should also contact the Police immediately and report the incident.

If you suffer financial losses as a result of your accident you should ensure that you keep all receipts, invoices and other documents that may support your claim.

Most importantly do not delay in calling us, as you must submit your claim within three years following the accident. If you do not issue your claim in court within 3 years your claim will be statute barred and you may not be able to claim the compensation to which you are entitled.

Call now to start your claim�

Fatal Accidents
If you are the relative of a person who has died as a result of an accident you may be able to make a claim for damages. We understand that the death of a close relative can be a time of hardship both emotionally and financially and we will deal with your claim as sympathetically as possible.

Claims by Dependants

If you are a dependant of a person who has died as a result of the accident you may be entitled to make a claim for bereavement, loss of dependency and reasonable funeral expenses.

The claim for bereavement can only be made by spouses and parents and the amount recoverable is currently fixed at £10,000.

Your entitlement to claim loss of dependency and the amount of the award is governed by legislation and we will be able to advise you further in relation to this once we are aware of your personal circumstances. Generally it will be necessary to show that you were financial dependant on the deceased.

Claims made on behalf of the estate

A claim can be brought by the personal representative for any damages that the deceased person would have been entitled to claim for at the time of his death. You will need to establish that the deceased person would have been entitled to claim damages had he survived.

The amount of the damages will also be the damages to which the deceased person would have been entitled to claim had he survived.

What can we do for you?
We can offer you sympathetic and straightforward advice on your claim.
We can give you a free initial consultation & provide you with jargon free, no hassle or catches legal advice, where we�ll assess the merits of your claim
If we think you have a valid case, we�ll arrange an appointment for us to meet � as solicitors with many years of experience, we believe our clients value face-to-face client contact
We will assign to you a specialist solicitor who will be your point of contact for your case. You will have their phone number and e-mail address.
We will investigate your claim and keep you informed at every stage.
We will help you ensure that you receive the maximum damages.
We try to keep things running as efficiently as possible, so you can continue with your life and leave all the hard work to us.

What steps can you take to minimise any dispute and maximise your chance your chances of success?

To help your case, you should find as much information as possible surrounding the accident in particular details of any witnesses. If applicable you should also report the incident to the police.

Most importantly do not delay in calling us, as you must submit your claim within prescribed time limits. These will depend on your personal circumstances and we can advise you further at your initial consultation.

Call now to start your claim�

Claims for Work Related Illnesses
If you develop an illness or condition as a result of your working environment or working conditions you may be able to make a claim for compensation against your employer.

Your employer is under a legal duty to take reasonable care for your health and safety whilst you are at work. The government has introduced numerous regulations that place duty on your employer to ensure your working environment is safe and if they have failed to meet these requirements and you are injured as a result you will be entitled to claim compensation

Examples of work Related Illnesses
Asbestos/ Pneumoconiosis or Mesothelioma � an inflammation of the lungs, which can develop into cancer. This often caused by inhaling substances or particles at work in particular asbestos.
Occupational Asthma � is a form of asthma that is often caused by exposure to a precipitating factor in the workplace.
Occupational Dermatitis � this is a skin condition that is usually caused by a direct contact with an irritating substance such as cleaning fluid.
Industrial Deafness � claims can be brought by people who have suffered hearing loss as a result of prolonged exposure to a high level of noise
Work-related Upper Limb Disorders and tenosynovitis - these can occur as a result of constant repetition of tasks such as typing.
Occupational Stress � this includes claims for a nervous breakdown or other stress related symptoms induced by your employment.

What will you need to prove?

To bring successful claim you will need to show that:
As a result of your working conditions or environment you have developed a disease or condition; and
The disease or condition was caused or partially caused as a result of your employer�s negligence and/or breach of statutory duty. This means that had your employer done everything they should have done to take reasonable care of your safety at work you would not have suffered from this condition or your chance of developing this condition would have been greatly reduced.

What can you claim?
Compensation for your injuries
Any reasonable financial losses that were incurred as a direct result of the accident

What can we do for you?
We can give you a free initial consultation & provide you with jargon free, no hassle or catches legal advice, where we�ll assess the merits of your claim
If we think you have a valid case, we�ll arrange an appointment for us to meet � as solicitors with many years of experience, we believe our clients value face-to-face client contact
We will assign to you a specialist solicitor who will be your point of contact for your case. You will have their phone number and e-mail address.
We will investigate your claim and keep you informed at every stage.
We will arrange for a specialist to review your medical reports, examine you and prepare a report. We will advise you on the contents of the report and merits of any claim.
We will help you ensure that you receive the maximum compensation.
We try to keep things running as efficiently as possible, so you can continue with your life and leave all the hard work to us.

What steps can you take to minimise any dispute and maximise your chance your chances of success?

To help your case, you should find as much information as possible in relation to your condition. Keep a diary of your illness or condition and the effect it has had on you.

If you suffer financial losses as a result of your injuries or conditions you should ensure that you keep all receipts, invoices and other documents that may support your claim.

Most importantly do not delay in calling us, as you must submit your claim within three years following the date you first became aware of your condition. If you do not issue your claim in court within this time claim will be statute barred and you may not be able to claim the compensation to which you are entitled.

Call now to start your claim�

Injuries sustained by Victims of Crime
Victims of violent crimes who have suffered injuries can apply to the Criminal Injuries Compensation Authority (CICA) for compensation.

To be eligible to make an application under the scheme you must show that:
You have been the victim of crime of violence
You have suffered personal injury as a result
The incident occurred in Great Britain
The incident was reported to the police as soon as possible after it occurred (unless good reason can be shown for not doing so)

The application to the CICA must be made within 2 years of the incident (unless good reason can be shown for not doing so). Your damages may be reduced if you have any previous criminal convictions, even if they are not related to the incident.

The CICA will consider your application form and any supporting evidence. They will then carry out the necessary investigations by contacting the police, hospital and any witnesses. Any ward they make will be based on a tariff-based system and will depend on the seriousness of your injuries.

Your legal costs will not be paid by the CICA and our costs will therefore be recovered from your damages.

What can we do for you?
We can give you a free initial consultation & provide you with jargon free, no hassle or catches legal advice, where we�ll assess the merits of your application
If we think you have a valid case, we�ll arrange an appointment for us to meet � as solicitors with many years of experience, we believe our clients value face-to-face client contact
We will assign to you a specialist solicitor who will be your point of contact for your case. You will have their phone number and e-mail address.
We will investigate your claim and keep you informed at every stage.
We will submit your application to the CICA
If your application is unsuccessful or your award reduced, we will appeal the decision of the CICA on your behalf.
We try to keep things running as efficiently as possible, so you can continue with your life and leave all the hard work to us.

What steps can you take to minimise any dispute and maximise your chance your chances of success?

To help your case, you should take names, addresses and telephone numbers of any witnesses. You should also contact the Police immediately and report the incident.

If you suffer financial losses as a result of your accident you should ensure that you keep all receipts, invoices and other documents that may support your claim.

Most importantly do not delay in calling us, as you must submit your claim within two years following the accident.

Call now to start your claim�

Clinical Negligence Claims
You may be entitled to compensation if you have suffered as a result of miss-diagnosis, improper choice of treatment or medication, negligence in surgical procedures or any negligence or mistakes by any health care professionals including GP�s, surgeons, midwifes, nurses and hospital doctors.

What will you need to prove?

To bring successful clinical negligence claim you will need to show that:
You have been treated by a doctor or other health professional; and
The treatment you have received is not supported by any reasonable body of medical opinion; and
As a result of the treatment you failed to recover from a pre-existing condition, your chances of recovery were diminished or your original injury or condition has become worse.

We understand that it is often difficult to know what has happened to you in these cases or to know if you have received negligent treatment by a health care professional.

In practice clinical negligence claims will largely turn on medical evidence and we will ensure that we obtain copies of your medical records and arrange for a medical expert to examine you, review your records and prepare a report on your condition and treatment. We will be able to advise you on the contents of the report and the merits of any claim.

What can you claim?
Compensation for your pain and suffering
Any reasonable financial losses that were incurred as a direct result of your treatment

What can we do for you?
We can give you a free initial consultation & provide you with jargon free, no hassle or catches legal advice, where we�ll assess the merits of your claim
If we think you have a valid case, we�ll arrange an appointment for us to meet � as solicitors with many years of experience, we believe our clients value face-to-face client contact
You may qualify for public funding if you are in receipt of benefits, in which case we will direct you to a firm of solicitors with a legal aid franchise.
We will assign to you a specialist solicitor who will be your point of contact for your case. You will have their phone number and e-mail address.
We will investigate your claim and keep you informed at every stage.
We will arrange for a specialist to review your medical reports, examine you and prepare a report. We will advise you on the contents of the report and merits of any claim.
We understand the importance of dealing with your claim in a professional manner and maintain a good relationship with the medical staff who may be responsible for your ongoing care and treatment.
We will help you ensure that you receive the maximum compensation.
We try to keep things running as efficiently as possible, so you can continue with your life and leave all the hard work to us.

What steps can you take to minimise any dispute and maximise your chance your chances of success?

To help your case, you should find as much information as possible in relation to your condition and the treatment you have received. Keep a diary of your illness or injury and the effect it has had on you. If you write or receive any correspondence from the hospital. NHS trust or GP concerned always keep copies of these letters.

If you suffer financial losses as a result of your injuries or conditions you should ensure that you keep all receipts, invoices and other documents that may support your claim.

Most importantly do not delay in calling us, as you must submit your claim within three years of becoming aware of the possibility that you could claim. If you do not issue your claim in court within this time your claim will be statute barred and you may not be able to claim the compensation to which you are entitled.

Call now to start your claim�

Accidents at Work
If you are involved in an accident at work and are injured as a result you may be entitled to claim compensation from your employer.

Your employer is under a legal duty to take reasonable care for your health and safety whilst you are at work. The government has introduced numerous regulations that place duty on your employer to ensure your working environment is safe and if they have failed to meet these requirements and you are injured as a result you will be entitled to claim compensation

What will you need to prove?

To bring successful claim you will need to show that:
You have been involved in an accident at work; and
As a result of the accident you have sustained personal injury; and
The accident was caused as a result of your employer�s negligence and/or breach of statutory duty. This means that had your employer done everything they should have done to take reasonable care of your safety at work the accident would not have occurred.

What can you claim?
Compensation for your injuries
Any reasonable financial losses that were incurred as a direct result of the accident

What can we do for you?
We can give you a free initial consultation & provide you with jargon free, no hassle or catches legal advice, where we�ll assess the merits of your claim
If we think you have a valid case, we�ll arrange an appointment for us to meet � as solicitors with many years of experience, we believe our clients value face-to-face client contact
We will assign to you a specialist solicitor who will be your point of contact for your case. You will have their phone number and e-mail address.
We will investigate your claim and keep you informed at every stage.
We will help you ensure that you receive the maximum compensation for your injuries.
We try to keep things running as efficiently as possible, so you can continue with your life and leave all the hard work to us.

What steps can you take to minimise any dispute and maximise your chance your chances of success?

To help your case, you should take names, addresses and telephone numbers of any witnesses to the accident and take photographs of the accident & its location if possible. You should also contact the Police immediately and report the incident.

If you suffer financial losses as a result of your accident you should ensure that you keep all receipts, invoices and other documents that may support your claim.

Most importantly do not delay in calling us, as you must submit your claim within three years following the accident. If you do not issue your claim in court within 3 years your claim will be statute barred and you may not be able to claim the compensation to which you are entitled.

Call now to start your claim�

MIB Claims
If you are involved in a �hit and run� accident or the other driver is uninsured the Motor Insurance Bureau (MIB) will deal with your claim for compensation. They are funded by the insurance industry.

Uninsured Driver

If an uninsured driver hits you we will need to make a claim to the MIB on your behalf by completing an MIB claim form. We will need to investigate your claim in the same way as we would if the other driver was insured.

You will need to show that:
You have been involved in an accident; and
The accident was not your fault; and
As a result of the accident you have suffered from personal injury and or damage to your property

If the MIB are satisfied that the other driver was legally responsible for the cause of the accident they will make an offer of compensation.

If you to not agree with the MIB assessment or the amount of the offer you can proceed to issue a claim at court against the uninsured driver and if you are successful the MIB will satisfy the judgement. This means you will recover your damages and legal costs in the same way as if the driver had been insured.

Hit & Run

If you are involved in a �hit & run� accident where you do not have the identity of the other driver the MIB will consider your claim. In these cases they will make all the necessary investigations and if they are satisfied you have a claim that would have been successful against the other driver had his identity been known they will award damages. The amount awarded in damages will be equivalent to an amount that would be awarded by the courts.

The MIB are not obliged to pay your costs if you are injured in a �hit & run� accident. They will usually make a contribution towards your costs and you will be responsible for any shortfall.

What can we do for you?
We can give you a free initial consultation & provide you with jargon free, no hassle or catches legal advice, where we�ll assess the merits of your claim
If we think you have a valid case, we�ll arrange an appointment for us to meet � as solicitors with many years of experience, we believe our clients value face-to-face client contact
We will assign to you a specialist solicitor who will be your point of contact for your case. You will have their phone number and e-mail address.
We will investigate your claim and keep you informed at every stage.
We will help you ensure that you receive the maximum compensation for your injuries.
We try to keep things running as efficiently as possible, so you can continue with your life and leave all the hard work to us.

What steps can you take to minimise any dispute and maximise your chance your chances of success?

To help your case, you should take names, addresses and telephone numbers of any witnesses to the accident and take photographs of the accident & its location if possible. You should also contact the Police immediately and report the incident.

If you suffer financial losses as a result of your accident you should ensure that you keep all receipts, invoices and other documents that may support your claim.

Most importantly do not delay in calling us, as you must submit your claim within three years following the accident.

Claims by Children
Children cannot bring proceedings in their own name. In civil law a child is anyone who is under the age of 18.

If a child has been injured and wishes to make a claim for compensation they must either wait until they reach the age of 18 or bring a claim through �a litigation friend.� The litigation friend is usually the child�s parent or guardian and will bring the claim on behalf of the child.

If we reach a settlement on behalf of a child we will always ask the court to approve the settlement. This will ensure that the child receives fair damages for their injuries. The damages will then be paid into court and invested on behalf of the child. When the child reaches the age of 18 the funds will be released to him or her. If you can shown that the funds are needed to care for the child during his or her minority and application can be made to the court to ask that the funds be made available to you for the benefit of the child.

What can you claim?
Compensation for your injuries
Any reasonable financial losses that were incurred as a direct result of the accident

What can we do for you?
We can give you a free initial consultation & provide you with jargon free, no hassle or catches legal advice, where we�ll assess the merits of your claim
If we think you have a valid case, we�ll arrange an appointment for us to meet � as solicitors with many years of experience, we believe our clients value face-to-face client contact
We will assign to you a specialist solicitor who will be your point of contact for your case. You will have their phone number and e-mail address.
We will investigate your claim and keep you informed at every stage.
We will help you ensure that you receive the maximum compensation for your injuries.
We try to keep things running as efficiently as possible, so you can continue with your life and leave all the hard work to us.

Road Traffic Accidents
"�an average of 107 people are killed or seriously injured in road accidents everyday�" (ONS)

If you are involved in a road traffic accident that was not your fault you may be entitled to claim compensation.

You may have a claim for compensation if you are:
A Driver
A Passenger
A Pedestrian
A Passenger on Public Transport
A Motorcyclist
A Pillion Passenger

What will you need to prove?
To bring successful personal injury claim you will need to show that:
You have been involved in an accident; and
The accident was not your fault; and
As a result of the accident you have suffered from personal injury and or damage to your property

What can you claim?
Compensation for your injuries
Any reasonable financial losses that were incurred as a direct result of the accident

What can we do for you?
We can give you a free initial consultation & provide you with jargon free, no hassle or catches legal advice, where we�ll assess the merits of your claim
If we think you have a valid case, we�ll arrange an appointment for us to meet � as solicitors with many years of experience, we believe our clients value face-to-face client contact
We will assign to you a specialist solicitor who will be your point of contact for your case. You will have their phone number and e-mail address.
We will investigate your claim and keep you informed at every stage.
We will help you ensure that you receive the maximum compensation for your injuries.
We try to keep things running as efficiently as possible, so you can continue with your life and leave all the hard work to us.

What steps can you take to minimise any dispute and maximise your chance your chances of success?

To help your case, you should take names, addresses and telephone numbers of any witnesses to the accident and take photographs of the accident & its location if possible. You should also contact the Police immediately and report the incident.

If you suffer financial losses as a result of your accident you should ensure that you keep all receipts, invoices and other documents that may support your claim.

Most importantly do not delay in calling us, as you must submit your claim within three years following the accident. If you do not issue your claim in court within 3 years your claim will be statute barred and you may not be able to claim the compensation to which you are entitled.

Call now to start your claim�

VIOXX PHARMACEUTICAL LITIGATION
If you have been prescribed VIOXX and within 12 months or more of continuous use, have developed heart attack, stroke, blood clots or kidney damage within seven days of starting VIOXX, then you may have a claim against the manufacturers of the drug Merc & Company. You may or may not know, but in September of 2004 the manufacturers withdrew the drug from global circulation.

Accident on the road
Date settled
June 2004

Details
Our client was a young girl travelling with her grandmother when being involved in a road traffic accident. We had dealt with her grandmother�s claim. Her parents were not aware of her right to pursue a claim and had left the matter in abeyance for some time. On having settled her grandmother�s claims we were approached by the parents.

Our client has sustained both physical and psychological injuries arising out of the accident. We obtained evidence from a neurologist, a psychiatrist and an orthopaedic expert.

Outcome
Proceedings were issued and the matter was finally settled near our clients 18th birthday in the sum of £25,000.00. We have just learnt that our client has now married and with the benefits of the financial compensation is moving abroad.

Accident in a public place
Date settled
June 2004

Details
Our client visited Tesco Superstores in her locality and slipped whilst there on an egg yolk. Our client was referred to us by our principal�s former colleague who had instigated the claim. The Tesco Superstore and their solicitors had made strong representation on their responsibility. We took over the claim, obtained the relevant witness statements and medical evidence. We purchased Legal Expense Cover for our client and were on the verge of issuing legal proceedings in the matter when an offer was made. This was accepted by our client.

Outcome
Our client accepted the sum of £6,500.00 with contributions towards her legal costs.

Accident at work
Date settled
January 2005

Details
Our Claimant was an employee of Tesco Superstores and was injured whilst at work. Whilst on the face of it she had suffered relatively minor physical injury this escalated into serious long terms problems. Our client was referred to us by a law firm. We obtained specialist medical evidence to support the argument of development of complication from a minor injury. On the anniversary of the limitation period Tesco�s finally agreed to deal with our claim and offered to settle.

Outcome
Our client accepted the sum of £50,000.00 in full and final settlement of her claim.

Accident in a public place
Date settled
December 2006

Details
The Claimant was referred to us by our panel law firm. She was injured in a car park whilst taking her grandchildren to the local swimming pool. She sustained a serious injury to her lower limb. We obtained witness statements and medical evidence on her behalf leading to the public liability insurers to settle her claim without commencing legal proceedings.

Outcome
Our client accepted an offer of £37,500.00 with legal costs

Accident on the road
Date settled
December 2004

Case History
The Claimant approached us on being referred by our law firm on our Panel. She was seriously injured whilst getting out of a car on a main road in North London. We obtained both orthopaedic and psychological expert evidence on her behalf. The third parties insurers continually denied liability and proceedings had to be issued.

Outcome
Part way through the proceedings in Court our client accepted a sum of £30,000.00 in full and final settlement of her claim. Our satisfied client has used the settlement damages to purchase a home abroad.

Accident in the Road
Date settled:
May 2007

Details
The Claimant was a rising star in the hairdressing world. Unfortunately she was injured in a road traffic accident. Luckily, she was referred to us by a law firm on our panel. We immediately issued legal proceedings.

Outcome:
We had a round table meeting leading to a settlement in the sum of £250,000.00.

Injury on a train
Date settled:
April 2007

Details
This client was one of the last victims to have settled his claim arising from the Hatfield train crash disaster. He had previously consulted two firms of solicitors, one with a national name for this area of law. He was not happy with the advice and was subsequently referred to us by member of our panel.

We obtained additional medical evidence from a psychiatrist. Obtained judgment on liability.

Outcome:
The claim was settled on the basis of our client�s injuries for a sum of £30,000.00.

Partnership dispute
Date Settled
June 2007 in the High Court

Details
A partnership dispute was referred to us by one of our Panel members. Proceedings were issued against our clients in Liverpool High Court and finally transferred at the Claimant�s request to London. On the fifth day the Claimant abandoned the case against our client and was ordered to pay all of our clients costs.

Outcome:
The Claimant having started the claim against our clients abandoned the claim. A business client incredibly happy to have successfully defended a share in his business.

Accident at Work
Date settled:
January 2007

Details:
The Claimant was injured whilst at work lifting a sandbag. He sustained a serious injury to his back. His employers went into liquidation and the insurers refused to deal with the claim. The matter was transferred to us from a North London practice as they had terminated our client�s agreement. They could not help. We took over the case and negotiated with the insurers.

Outcome:
We settled the claim with the insurers for £217,000.00. Our client was able to use the proceeds to buy himself a home.

Disease Litigation
Diseases such as asbestosis, miselthelioma, asthma and others caused as a result of exposure to harmful dust or asbestos at a place of employment.

Trip and Fall / Slip and Fall Accidents
Injuries sustained as a result of a fall due to a dangerous condition.

Construction Accidents
Injuries sustained while performing construction work. There are laws designed to protect the health and safety of construction workers. Owners and general contractors have an obligation to keep the work site safe. If there is an accident, a worker may be able to bring a claim against the owner or general contractor in addition to his employer. In any accident on a construction site, it is important to consult a solicitor with expertise in this area of the law to ensure that your rights are fully protected.

Premises Accidents
Injuries sustained in buildings or on private property owned by another person or business. Premises liability encompasses a variety of claims, including but not limited to injuries sustained inside a building, on an escalator/lift, or outside on private or public land.

Personal Injury and property litigation background
During the �70s and �80s successive governments of either persuasion continued to reduce eligibility for legal aid leaving a vast chunk of the public to pay for legal advice.

It was felt by many that access to justice was restricted to either the very rich who could afford to pay privately or those who qualified for legal aid.

There had also been pressure on successive governments to reduce the legal aid budget. This culminated in legal aid being removed for all personal injury litigation in January 2000. In order to increase access to justice, legislation was introduced which ran in tangent with changes in the Civil Practice Rules. It was believed that this would encourage early settlement of disputes and increase the band of population who could have access to legal advisers.

In April 2000 regulations were brought in enabling litigants to instruct legal advisers on what is now known as a no-win no-fee basis.

In 1998 Civil Procedure Rules were introduced. These brought in a number of new concepts. At the same time pre-action protocols were introduced in many areas of civil disputes. One of the first protocols brought in was in relation to personal injury litigation.

The Rules also brought in a concept of allocating civil claim to a track. There are 3 tracks and the selection of the appropriate track is generally governed by the financial value of the claim, disregarding interest, cost and contributory negligence.

(i) Small Claim
A small claim is one:-
(a) which has a financial value of no more than £5000;
(b) where any claim for personal injury the financial value of the claim is not more than £1000.

(ii) Fast Track Claim
A fast track claim is one where financial value of the claim does not exceed £15,000.

(iii) Multi Track Claim
A multi track is a normal track for any claim for which the small claims track or fast track claim is not a normal track. Thus any claim in excess of £15,000 in financial value is deemed to be a multi track claim.

The small claim track is designed to encourage litigants to take their own cases to the courts. The way in which this is facilitated is on the recovery of costs. It is fundamental principle of English law that costs follow events. Thus where a party is successful the opponent is ordered to pay the successful party�s legal costs. In the small claims track the successful party�s entitlement to recover costs is limited to the cost of issuing the summons and fixed cost. These are insignificant.

In fast and multi track claims the successful party will recover their legal costs on the standard basis. This means that the successful party will recover all reasonable costs reasonably incurred. The costs includes cost of successful party�s lawyers� fees, the expense of investigating and pursuing the claim. Expenses would include barrister�s fees, medical expert fees, liability expert fees, expense of obtaining GP and hospital records and police accident reports. It follows that in a personal injury case involving financial value in excess of £1000 the claimant will recover the cost and expense. (See below).

CONDITIONAL FEE AGREEMENT

The Access to Justice Act brought in the concept of Conditional Fee Agreement. It is a principle of English law that a successful party can only recover its legal cost if there is a written agreement between it and the legal adviser. Since 1 April 2000 a litigant can retain services of legal advisers under a Conditional Fee Agreement. Under this agreement the client agrees to pay his advisers� fees but this liability does not arise unless the claim is successful. This is commonly known as no-win no-fee. Success is defined as settlement in negotiation or at trial.

In order to recover the costs the litigant has to show that he/she has entered into a Conditional Fee Agreement with the advisers. We enclose a draft Conditional Fee Agreement commonly used.

A successful claimant is entitled to recover from the losing party the following:-

1. Basic Costs
These are costs charged by the solicitor on an hourly basis. The time spent on the file is calculated on an hourly basis with letters out and telephone calls charged separately. Letters and telephone calls are charged by dividing the hour into a unit of 10 with each telephone call of less than 6 minutes and a letter out charged at one-tenth of the hourly rate.

2. Success fee
As the adviser would not be paid by the client unless the claim is successful a concept of success fee was introduced in April 2000. Thus apart from basic costs the adviser is entitled to charge a success fee to the client. This is a mark-up on the hourly rate. The maximum success fee is 100%. The success fee is determined by the adviser at the initial stage of instruction. A number of factors are taken into account in arriving at a figure of success fee. The Court of Appeal recently adjudicated on the claimant�s right to recover success fee and the percentage of it where claims are settled before commencement of the proceedings. It held that in straightforward road traffic accident cases the claimant�s advisers could not justify a success fee in excess of 20%. However it did not lay down rules that 20% or more could not be charged by claimant advisers.

3. Premium for After the Event Insurance
Where claims were pursued with the benefit of public funding the successful party used to get an order for costs but there was always a qualification that such order for costs could not be enforced without leave of the court. This was often known as the �Pools� Order. In practical terms this had very little benefit to the insurance industry. It was never practical to keep a file open to be able to return to the courts to seek leave of it to enforce the costs order.

A claimant runs the risk of having to pay the opponent�s costs in the event that a claim having been started is abandoned, discontinued or lost at trial i.e. the concept of costs following events.

In addition to basic costs and success fee a successful claimant can also recover the premium paid for an after event insurance. There are a number of providers of this in the market. We have experience of buying this cover from Amicus Legal Limited.

The Court of Appeal recently confirmed the claimant�s entitlement to premium even on claims settled without issue of proceedings and within the pre-action protocol period of 3 months. The paying party�s right to challenge the amount of basic cost, success fee and the premium remains unaltered.

Callery v Gray
1) Legal expense premiums

As anticipated the Court of Appeal has ruled that claimants are entitled to recover premium for legal expense cover on matter settled without litigation. The court has deferred the decision on the precise amount of the premium directing the matter to Master John O�Hare, the senior Cost Master. He is going to make a further submission to the Court of Appeal before they give a final opinion on the level of premium. However, in the meantime I would submit that the claimant is entitled to a reasonable amount of premium. Whilst it would be considered to be an onerous duty on the claimant�s solicitors to shop around for a premium, premiums in excess of £1000 for straightforward RTA, ELPL, personal injury claims would in my view be excessive. My own personal experience of purchasing legal expense cover leads me to conclude that one can purchase cover for most of the claims that Trenwick have to deal with for no more than £550 to £750.

2) Success fee

The court has determined that the claimant is entitled to a success fee as a matter of principle. It has not given a firm opinion about the level of success fee to be allowed. What it has said is that the claimant�s solicitors are entitled to charge a success fee of up to 100%. However where cases are settled within the pre-action protocol period of 3 months, the success fee should be reduced to no more than 5%. It also opined that a modest success fee of 20% should be allowed in straightforward RTA type cases. In the sort of cases that your team comes across this is the type of success fee that should be paid.

If in fact claims can be settled within the 3 month period then the insurer could make substantial savings as there would be a good argument to pay a success fee of no more than 5%.

Revision of Court Fees
In civil matters a claimant must pay a fee to the court to start court proceedings for a claim. The amount that must be paid is a sum fixed by the court. Under a no-win-no-fee agreement, this is known as a disbursement i.e. an expense that must be paid upfront.
Usually, if the claimant wins the case, the court fee is recoverable from the other side but if the case is lost or if not all of the costs are recovered from the other side, the claimant may have to pay these fees.

Under the old legal aid scheme, claimants of limited means may have qualified for assistance with these types of fees. However, after 1st April 2000 the scope of funding in litigation was seriously reduced as a result of the Access to Justice Act 1999. This means that those Litigants with limited means may now have to turn to other methods to fund their litigation (most commonly the no-won-no-fee agreement).
A rise in civil court fees came into force on 4th January 2005. The move was designed to fully recover court costs set against a new I.T. infrastructure which is required to modernise systems and create a more efficient service for all.

There has been much consternation surrounding the increase in civil court fees. The Association of Personal Injury Lawyers has stated that the increases in court fees will greatly affect access to justice and leave personal injury victims, particularly those of limited means, unable to pursue their cases in court.

Whilst the increase in court fees has been widely criticized, the consultation paper refers to the Lord Chancellors principles laid down in 1998 for protecting access to justice. The ten points included the principles that fees should not exclude access to justice and that there should be protection for litigants of modest means.

Arguably an increase in court fees will detract those litigants who pursue a claim on malicious or unfounded claims. However, this should not be at the cost of detracting those innocent litigants who deserve to claim damages for losses they have suffered.

As a Claimant, it is important to note that there are procedures in place which can help you to recover all or some of the costs of litigating.

Exemptions
Whilst the battle rages on, it is important to note that there are some protections in place to help those with limited means. A potential litigant can apply for exemption from paying court fees, or remission from paying all the fees. The court will decide using a means test whether a litigant is exempt from paying court fees or whether they may just pay some of the fees on the basis that if they paid the whole fee they would suffer financial hardship.

The court will exempt a litigant from paying a fee altogether if:
They or their partner receives income support
They or their partner receive income-based Job Seeker's Allowance
Either
Their gross annual income is £15,050.00 or less and they or their partner receive working tax credit and child credit between them.

If a litigant does not satisfy these criteria the court may decide that they do not have to pay a court fee, or that they may pay a smaller fee because if they paid the full fee they would suffer financial hardship.

Exemption or remission can be applied for retrospectively if the litigant did not know that they could apply or thought that their circumstances did not allow them to apply. Any refunds must be applied for within 6 months of the fee being paid.

More information
A claimant can apply for exemption or remission using Form EX160.

Medical Experts - the 40th update of the CPR - September 2005
The 40th Update to the Civil Procedural Rules introduces many changes to a number of areas. Medical experts will be affected by these changes, as the rules governing medical experts have not been found to be completely satisfactory. The medical expert is sometimes perceived as slightly aloof and not fully engaged in the case as all the other parties have been. Cases where a joint expert has not been chosen have given rise to fears of bias and predisposition towards the instructing party albeit that these fears may be false, in a litigious environment it is not difficult to understand how they arise.

The rules governing medical expert's duties and evidence are found in Part 35 Civil Procedural Rules 1998. Part 35 CPR 1998 and the accompanying Practice Direction set out:

- The duty to restrict expert evidence
- Interpretation
- Experts overriding duty to the court
- The courts power to restrict expert evidence
- The general requirement for expert evidence to be given in a written report
- Written questions to experts
- Courts power to direct that evidence is to be given by a single joint expert
- Instructions to a single joint expert
- The power of the court to direct a party to provide information
- Contents of the report
- The use by a party of an experts evidence disclosed by another party
- Discussions between experts
- Consequences of failure to disclose an experts report

Part 35 CPR details amongst other things that the expert has an overriding duty to the court and that medical experts cannot be retained under Conditional Fee Arrangements. Under the 40th Update of the Civil Procedural Rules a new protocol, 'The Protocol for the Instruction of Experts' aimed at medical experts reinforces the principle that a medical expert should be impartial in Personal Injury cases and is found annexed to Practice Direction 35

The new rules are aimed directly at the expert and really solidify and raise consciousness as to the role of the expert. The Protocol will replace the Code of Guidance on Expert Evidence and another benefit is arguably that the updated rules also bring the expert into the loop in terms of case management.

The protocol should be especially reassuring to Defendant's and their Insurer's for whom in Personal Injury cases, a medical expert's opinions can often determine the severity of the financial implications of litigation.

The Protocol for the Instruction of Experts to give Evidence in Civil Claims will set out key points for experts to follow which will include the fact that experts in Personal Injury and other civil matters must be aware of the overriding objective of the Civil Procedural Rules (rule1) which in effect state that the expert's duty is to the court to deal with cases fairly and justly; some commentators advocate that a useful test to apply would be to question whether the expert's advice would be the same regardless of whether they have been instructed by a Claimant or a Defendant.

The courts may also now take into account failure to comply with the Protocol for the Instruction of Experts when making orders in relation to costs, time limits or stay of proceedings.

For the Personal Injury Defendant, this should go some way to allaying fears that experts instructed by the Claimant will be sympathisers of their clients, therefore sacrificing their neutrality or feel some duty to mediate between parties or decide on facts which is of course, the role of the court. For the Expert the existence of the Protocol should preempt any such fears and allow them to provide their reports as necessary.

Of course, many people are aware of the role of the expert in criminal cases which resulted in the convictions of those like Sally Canning, the solicitor accused of killing her children and seemingly convicted on the compelling but ultimately flawed and grossly misleading evidence of Sir Roy Meadows. Whilst the criminal protocol has not yet been put into place, there are few who feel it will differ too greatly from the civil protocol.

Whilst the civil courts have yet to see such high profile miscarriages of justice it can be no bad thing to ensure that all sides are aware of the role of the expert in litigation.

Disease Litigation - The introduction of fixed fees from October 2005
Disease Litigation - The introduction of fixed fees from October 2005

The news that an agreement had been reached on fixed recoverable success fees for employers' liability disease cases was widely welcomed by the legal profession. The agreement will be implemented by the Civil Procedure Rule Committee and will be implemented in October 2005.

The new agreement will fix the success fee paid by a defendant's insurer to the claimant's solicitor or barrister where they are funded by a conditional fee agreement ('no win no fee' agreement).

The agreement follows two similar schemes for Road Traffic Accidents and Accidents at Work cases and is a positive move which will set in stone the question of success fees in one more area where liability is agreed.

Provisions of the Agreement

27.5 % success fees in claims arising from asbestos related diseases (or 30% if the claim falls under s.30 Access to Justice Act)

62.5 % success fees in claims arising from deafness, vibration white finger and other diseases except stress and repetitive strain injury cases

100% success fee in claims arising from stress and repetitive strain injury.

Counsel's fees should follow the same basic structure as for RTA and employers liability cases with the following success fees:

Fast track
- 14 days or less before trial - 50% for asbestos claim, 62.5% for deafness etc and 100% for RSI & stress
- The relevant success fee applicable to solicitors for claims that conclude more than 14 days before trial

Multi track
- 21 days before trial - 75% for asbestos and deafness etc and 100% for RSI and stress cases
- The relevant success fee applicable to solicitors for claims that conclude more than 14 days before trial

Parties can seek to escape the fixed success fee provisions and seek an alternative success fee if the claim is greater than £250,000.00
The need for an exceptionality clause and its precise working with regard to test case litigation will be discussed over the next few months. Therefore, the main part of the agreement as above would come into force in October 2005 with the remaining exceptionality provision, if appropriate, implemented in April 2006.

Implications
The flexibility of the new agreement means that it will be possible to recover success fees depending on the type of claim being bought.

The aims of the new agreement are to detract from the focus on costs, leaving the courts to focus on dealing with cases on their merits rather than the costs involved. Whilst some commentators argue that the fixed fees do not take into account the volume of work involved in investigating cases for the majority of cases more structured environment will prevail.

The outstanding issue of exceptionality is yet to be finalised and may not be implemented until 2006 which has disappointed some including APIL's president Allan Gore QC. The fact that the agreement has not been wholly concluded has left a residual uncertainty in some areas, where some commentators have suggested that the risk profile in test cases has the potential to change overnight. The exceptionality clause will therefore play a vital role in removing those cases affected by test cases from the provisions of the scheme.

Insurance
The conditional fee market is strongly linked to the insurance market and in particular, the availability of competitive after-the-event- insurance (AEI).

Generally, policies are either individually underwritten or issued under delegated authority. Policies arranged under delegated authority provide for automatic cover on the basis that the insurance company has already assessed the firm. Individually underwritten policies are issued on a case-by-case basis.

The defendant's insurer will also benefit from the new scheme. There will no longer be any uncertainty regarding the success fee which many claimant solicitors do not divulge in order to conceal their assessment of the cases chances of success.

Clearly, the immergence of the fixed recoverable success fee in most disease cases has implications for the insurance market. Except for those cases subject to the exceptionality clause, policies can take on a more structured format and the risk will be reflected in the fixed fee from the outset.

US Vioxx test opens the floodgates for UK litigation
On 19th August 2005, a Texas jury awarded a widow $253.4m (£141m) after accepting that her husband had been killed by Vioxx, the drug manufactured by pharmaceutical giant Merck.

Vioxx is the trade name for rofecoxib which is a type of painkiller known as a Cox-2 inhibitor. It has been mostly used to provide pain relief for suffers of arthritis. Originally heralded as a breakthrough pain reliever, the drug appeared to eliminate side effects such as stomach problems which can be unwelcome effects of other pain killers.

However, in September 2004 Merck pulled Vioxx from the market after its own research showed that the drug could significantly increase the risk of patients suffering from a heart attack or a stroke.

In the recently decided case a widow claimed that Vioxx was responsible for her husbands death. The deceased, aged 59, who was a keen athlete, had been taking the drug for 8 months when he died of a heart arrhythmia in his sleep. Whilst Merck argued that the death was attributable to a pre existing heart condition, the jury agreed with his widow and awarded her massive damages which included a huge amount in punitive damages (although state laws limit the amount of damages that can be awarded and it is likely that the sum will be reduced on appeal).

It is estimated that around 20million people have taken Vioxx and that around 400,000 Britons have taken the drug. The recent ruling in the U.S. has the potential to pave the way for others who have suffered after taking Vioxx to seek action against Merck.

All eyes will be on two more cases to taking place in September in New Jersey and New Orleans. Arguably, if Merck loses these actions the financial impact will be great. The ruling in Texas coupled with adverse press has seen Merck's share prices fall. If Merck loses the next two cases some commentators advocate that the financial pressure may prompt the company to settle out of court.

Whilst most pharmaceutical companies maintain that pioneering new drugs is their main priority, there is no doubt that the industry is high risk and that the cost of developing new drugs is huge. Whatever the outcome the pharmaceutical industry in its entirety will have to seriously consider issues surrounding public safety.

Are you one of the 400,000 Britons in the UK who has taken Vioxx?

Have you or do you know any one who has taken Vioxx?

Have you:
a) taken Vioxx for more than 18 months?
b) had no other risk factors for heart attacks or strokes?

If you fit these criteria and you would like more information on making a claim for injury suffered as a result of taking this drug, then please contact us for free advice.

Vioxx claims; The 2nd claim against Merck
The second case against Merck relating to the controversial drug Vioxx is now well underway in the United States. This time, the claimant is a former US Marine who took the drug to relive pain following a combat injury.
Just like the first claimant, Mr. Humeston's background would suggest that he was a physically fit man who was not an obvious candidate for a heart attack. However, Mr. Humeston did suffer a heart attack after having taken Vioxx regularly to relive pain for around 2 months. He had been taking Vioxx for a total of 4 months prior to his heart attack.

It is expected that Mr. Humeston's lawyers will argue that Merck, the pharmaceutical giant at the centre of this scandal, knew of the dangers relating to this drug at the time the drug was marketed. They will surely also argue that Merck engaged in deceptive and unconscionable practices in the sale and marketing of the drug. Ultimately they will argue that had these dangers been known to the medical profession and patients alike, then Mr. Humeston would never have taken this drug.

Meanwhile the first case involving Vioxx to hit the headlines has seen Merck's legal team cross examine a medical expert on their opinions on a 2000 study which found that patients taking Vioxx had more heart attacks and cardiovascular problems than patients taking Naproxen (belonging to a group of non-steroidal anti-inflammatory drugs also used for pain management).

The repercussions of these cases are clear. If the cases in the United States are successful, then the implications are that litigants in the U.K. will be able to use evidence and/or concessions of liability to found successful cases against Merck in the U.K.

Are you one of the 400,000 Britons in the UK who has taken Vioxx?

Have you or do you know any one who has taken Vioxx?

Have you:
a) taken Vioxx for more than 18 months?
b) had no other risk factors for heart attacks or strokes?

If you fit these criteria and you would like more information on making a claim for injury suffered as a result of taking this drug, then please contact us for advice.

If only we did have a Compensation Culture
Fewer than one in 10 people made ill or injured in their workplace ends up with any compensation

Johann Hari

Let's talk about Muffin. She is a yappy, dappy dachshund belonging to a man called Gordon Musselwhite. But Muffin is also a symbol of how the debate about Britain's "compensation culture" has departed from reality.
In 2003, Muffin got a slipped disc. She spotted a leaflet from Safeway poking through the letterbox and leaped up to gnaw on it. Mr Musselwhite decided to sue Safeway for the £2,500 vets' bills that it took to put Muffy right. The right-wing press splashed with the story as yet more evidence that we are sliding towards an Americanized system of million-pound handouts for coffee burns. They said it was "proof" that "Health and Safety Nazis" are "strangling Britain", and worse. Nobody could blame the British people for concluding that our system was, indeed, out of control.

The story faded from view. None of these enraged newspapers bothered to report what happened next: the case was thrown out of court for being both frivolous and absurd. Muffin lives on, with all expenses paid by the Musselwhites. In other words, the compensation system worked.

Almost every story about "compensation gone mad" ends the same way. If you trace the tale from the hot coals of rage in the right-wing press to the cold reality of the law courts, you find a string of myths and delusions. Last year, the corporate-friendly Labour Government set up a Better Regulation Task Force - consisting mostly of businessmen - to investigate this very issue. After months of in-depth study, even they found that the compensation culture is a "damaging urban myth".
When it comes to people who really need and deserve compensation, far from being a lavish giveaway culture, this is Cruel Britannia. A major investigation by the Trades Union Congress published last week - "A Little Compensation" - has found that fewer than one in 10 people made ill or injured in their workplace ends up with any compensation at all.
Even if your boss leaves you riddled with tumours, you may get nothing. More than 1,000 people dying a slow, agonising death each year from the asbestos cancer mesothelioma receive nothing, even though this is universally recognised to have been caused by unsafe work conditions.
Whenever I hear somebody saying "you get thousands just for stubbing a toe these days", I want to drag them to Barry Welch's grave. He died last month of asbestos-related cancer just after his 32nd birthday. It's some stubbed toe, but his wife and three children have received no compensation - none - from the company which exposed him to asbestos as a young man.

The Welches are not an exception. In this country, we still have a Kleenex approach to manual workers - use them, screw them up, and throw them away. Companies will fight for decades to refuse responsibility for illnesses they caused, and even when they are forced to take responsibility, the value they place on human life is often contemptuously low.

Last year, it was proven beyond doubt that a Scottish ship-worker, Ian Cruickshank, had died in agony at the age of 52 because he was exposed to carcinogens as he tried to earn a living. (Perhaps there could be a new phrase for this kind of work: earning a dying). The Fairfields, Upper Clyde Shipbuilders and Govan Shipyards offered his family £3,000 in return for his life.

Indeed, a real compensation culture is exactly what families like the Cruickshanks need. If only we had one. Right now, levels of compensation are lower in Britain than in any other developed country bar Denmark. This means companies here can take bigger risks with your life than with the lives of anybody else in Europe. At £1.5bn, the entire corporate compensation budget is still lower than the annual profits of a single supermarket chain. It's no good appealing to the good nature of individual businessmen, as the Government so often does. It is only tough regulation and the real possibility of having to pay compensation that will make them minimise harm to workers.

So why all the fuss about the compensation culture now if the problem isn't real? In the late 1990s, there was a brief spike in the amount of compensation businesses had to pay to workers they had harmed - so a fierce propaganda fight-back was launched. Along with allies in the right-wing press, they have aggressively promoted the idea that Britain has a compensation culture filled with Muffins in order to discredit real compensation claims and hold down the bills.

In a neat twist, the myth is now so widely believed that many people really are changing their behaviour as a result. School-teachers are afraid to take pupils on trips, because they cower at the thought of lawsuits that would never come.
As Tony Blair put it in a speech on the subject last week: "The most outlandish cases that are brought are dismissed. But their headlines live on, create a myth and the myth is acted on ... So public bodies, in fear of [non-existent] litigation, act in highly risk-averse and peculiar ways. We have had a local authority removing hanging baskets for fear that they might fall on somebody's head, even though no such accident had occurred in the 18 years they had been hanging there."
And there's an infuriating coda, too: the Labour Govern-ment still acts as though the problem is real and promises to deal with it. In his intellectually incoherent speech, Blair first showed that the panic about the compensation culture is built on a myth, but then proceeded to act as though it was a serious problem that had to be tackled. He even pledged to "replace the compensation culture with a common sense culture". It's a familiar story: the desire to appease big corporations and the right overwhelms the truth, even in the mind of a Labour prime minister.

The only real problem with compensation in this country is that there is not enough of it being paid out by negligent corporations to the workers they harm. The TUC has shown that work-created illnesses and accidents cost workers £10bn a year, more than 10 times the amount paid out by businesses. So why is the cost to deserved business a scandal while the undeserved cost to ordinary people is a non-issue? The truth is that the whole compensation culture debate is scarred by Britain's extreme and growing inequality. Nobody was surprised when the Lloyds' names sued, or when the agri-businesses affected by BSE demanded £4bn in compensation. But when ordinary people start to use the courts to enforce their civil and legal rights - and for much smaller amounts - it is labelled a crisis.
Now, if you'll excuse me, I must go and kick Muffin. And no, Mr Musselwhite, do not expect any compensation

Reproduced by kind permission of Johann Hari.
j.hari@independent.co.uk

Personal Injury - What Can You Claim?
From stories of huge payouts in the USA to stories of a compensation culture gone mad in Britain the rumours on personal injury law are rife. But what are the facts?

The reality is that reports have shown that Britain pays less on civil compensation than any other major European country apart from Denmark, and a third that of the USA. In fact, several organisations believe that the level of damages awarded in Personal Injury cases do not truly compensate the Claimant and campaign to highlight the issue.

So what can be claimed for?

The court can make an accurate award for financial loses which have been incurred as a result of an accident. These can be calculated precisely and are known as Special Damages. Losses which cannot be accurately accounted for, such as the award for Pain and Suffering following an accident, are known as General Damages.

The Claimant may regard their compensation as one lump payment however, there are important distinctions to be made.

Special Damages

These are items of specific loss. The Claimant may claim for financial losses incurred from the date of the accident until trial. The losses claimed for must be reasonably incurred. Ideally, the Claimant should provide as much evidence for the losses as possible, in the form of receipts and invoices. It is important for the Claimant to understand that extravagant claims will not be entertained.

The main heads of damage will be:

Items of specific loss- such as clothes, personal effects damaged in the accident

Loss of earnings prior to trial

Medical expenses prior to trial

Cost of Care- whether by a professional carer or a family member

Cost of Living with a disability prior to trial

The Claimant will be allowed to recover their net loss of earnings, that is the amount they receive after tax, NI and any other deductions. Typically, the claimant's solicitor will base the claimant's net earnings on the average from 13 weeks prior wages. The figure will therefore include any overtime, bonuses or other benefits that the Claimant had received over the 13 weeks. The Claimant's solicitor can contact the Claimant's employer for this information if necessary.

There are occasions when a comparative earner, that is someone employed in the same or similar role as the Claimant, can be used to calculate the loss of earnings figure.

There are also some items which must be accounted for when calculating the loss of earnings such as tax refunds, and sums paid to the Claimant by the employer (for example, Statutory Sick Pay). Items which are not set off against the award will be pensions, and insurance monies and, as a matter of public policy, charitable payments.

Medical Expenses Prior to trial are also capable of precise calculation. In order to speed up recovery, the Claimant may have undertaken private medical treatment which can be recovered. However, they can only claim for the medical treatment received and not the 'hotel element' of private care. Under the 40th Update to the Civil Procedural Rules, the Letter of Claim should include an offer to the Defendant to send the Claimant for rehabilitative treatment, the cost of which will come under the claim for special damages.

The Claimant cannot undertake treatment on the NHS and then claim for what the treatment would have cost privately.

General Damages

These are damages which are not capable of being calculated precisely. The most common head of damage claimed for are:

Pain Suffering and Loss of Amenity

Loss of Earnings after trial

Handicap in the Labour Market - Smith v Manchester Award

Loss of congenial employment

Loss of pension

Future cost of Care

Loss of motor vehicle

Pain Suffering and Loss of Amenity
This award will compensate the Claimant for the pain and suffering caused by the injury both immediately after the accident and in the future depending on the seriousness of the accident.

The test for pain and suffering is subjective, that is, what did this particular claimant suffer? An expert medical report is commonly used to evidence this. The valuation is then made by looking at the Judicial Studies Board Guidelines, Case Law and any other relevant materials. This means that for example, if a Claimant falls into a comma immediately after their accident, it is unlikely that they will have a claim for pain and suffering.

The test for loss of amenity, that is for loss of enjoyment of a former lifestyle is objective so that the award may be made regardless of whether the claimant is aware of their loss. This has connotations for more serious injuries.

A Smith v Manchester award compensates the claimant for a handicap in the labour market. That is, if the claimant loses his current job due to his injury, then this award will compensate them for the difficulties they may face in finding another job. There must be a real risk that the Claimant will lose their job and the court will consider the degree of the risk, and the factors which will affect the claimant from becoming employed in the future.

Future Loss of Earnings are calculated using a multiplier and multiplicand. The multiplicand is the Claimant's net annual earnings that they would have been receiving at the date of trial. The multiplier is based on the period of likely future loss. It is slightly more complicated to calculate and depends on the facts of the case. The period of loss is commonly calculated from the date of trial until retirement age and the multiplier is calculated using the government issued Ogden tables which account for inflation, the contingencies of life and whether the claimant is a male or female.

In more serious cases where the Claimant's life expectancy has been reduced as a result of the accident then the period of loss will be based on the claimant's life expectancy before the accident not as shortened by the accident.

Evidence

When claiming for losses evidence is an important factor. In particular expert medical evidence will be crucial. In most personal injury cases the instruction of a joint medical expert will often be encouraged although in cases of more serious injuries each side may nominate their own expert. The expert's duty will be to the court regardless of who instructs them and the new protocol for experts adds weight to this notion.

Interest

It is important not to forget to claim for interest. In personal injury interest is usually awarded at half the short-term investment rate for special damages from the date of the accident until the date of trial. PSLA damages are awarded interest at 2% and damages for future losses carry no interest.

Conclusion

It is clear that the system is far from a compensation free-for- all. The rules are designed to compensate a claimant for losses that they have incurred as a result of the accident. The aim being to put the claimant in the position that they would have been in had the tort (the civil wrong) not occurred.

Criminal Injuries Compensation Authority (CICA)
Introduction

The Criminal Injuries Compensation Authority (CICA) hit the headlines recently after the tragic events of July 7th 2005 when terrorist attacks on London left many people seriously injured. The government run scheme was criticised after some victims of the bombings felt that the amounts they were being awarded for their injuries were derisory and that the time taken to actually receive an award was woefully slow.

The CICA have today (07/12/05) announced plans to change the system. They have set up a special incident team to deal with the July 7th applications and will continue to deal with other applications as usual.

The scheme was also in the limelight again after several newspapers reported that the chief campaigner on behalf of the victims was in fact a convicted rapist in one of the most violent crimes of this kind seen in the U.K. Many reports suggested that this campaigner was the last person who should be highlighting the needs of victims having subjected his own victims to such a terrible ordeal. The announcement today has however, controversially clarified that unlike for other applications, the CICA will not take into consideration the conduct of the applicant.

What seems to have been missed are the legal principles behind the criminal injuries compensation scheme and the facts of how it operates. The following is a summary of the key legal facts behind the Criminal Injuries Compensation Scheme which can help victims of crime:

Criminal Injuries Compensation Scheme

The scheme is a government run scheme, funded by the taxpayer which aims to compensate victims of crime by way of a discretionary award. The scheme deals with claims made by victims of crime on or after 1st April 2001.

Eligibility

To be eligible for an award the claimant must have sustained a criminal injury on or after 1st October 1979.The injury must have been suffered in Great Britain and unless good reason can be shown otherwise the application must be made to the scheme within 2 years of the incident.

The Criminal Injuries compensation board will consider various factors. Interestingly, they will consider the character of the applicant not only during and after the incident but also before as demonstrated by the applicant's criminal record or lack thereof. In the above example of a convicted rapist being unsatisfied with the award, it is not surprising that many people whilst sympathising with the fact that the claimant had lost a limb in tragic circumstances, find it hard to reconcile this on spending tax payers money on compensating a violent rapist. This extreme example highlights why awards made by the scheme are discretionary. It is an enlightened society indeed that compensates victims of crime for the injuries they have suffered albeit that this is something we should be proud of.

The CICA may also reduce or withhold an award in its entirety if it is shown that the victim did not cooperate with the police.

The scheme adopts a penalty points system which may reduce the award to 0% depending on the claimant's character and cooperation with the police. Although as stated above, the CICA have confirmed that this is not a consideration which will be considered from an applicant who has been a victim of the July 7th bombings.

Compensation

The scheme adopts a tariff system which takes into account the severity of the injuries as well as the number of injuries the victim has suffered. In this way, awards are made uniformly and the scheme is seen to be fair.

Compensation can also be made for loss of earnings (although not for the first 28 weeks), special expenses and for fatal accidents(to include funeral expenses).

There is a maximum award of £500,000.00 (this is subject to changes which will be the topic of our next article).

Deductions

Deductions are commonly made where the victim has received compensation as a result of a criminal or civil court case or settlement.

Conclusion

The criminal injuries compensation scheme is something that can provide financial recompense for victims of what are often senseless crimes. It operates under a uniform and regulated system which is aimed at fairness to all. Often an applicant will wish to instruct a solicitor who will be able to present their case in order to obtain the best possible award for the victim. Solicitors costs cannot be recovered from the CICA so a solicitor will take their fees from any award which is made on a contingency fee basis (i.e. a percentage of the award) However, an application can be made by the applicant themselves by filling in the CICA's application form.

If you have been the victim of crime within the past few years and would like assistance in making a claim to the CICA then call us now on Freephone 0800 389 9136 or email info@lawclaim.net for further information and advice.

The cost of privacy?
The case of Campbell v Mirror (EC find out name) attracted media attention not least because it involved a supermodel and raised some interesting issues regarding privacy. There is no tort of privacy and cases which are litigated often involve high profile parties who it is said, are the only people who can afford to take such issues to trial. The issue in this case was precisely this, the defendants when faced with a huge bill from the models solicitors argued that no-win-no-fee arrangements infringed their free speech under Art 10 European Convention of Human Rights.

This was a clever and interesting argument, not least because in the absence of a tort of privacy, the UK courts have had to balance the issue of Data Protection and the European Directive on the protection of individuals with regard to the processing of personal data and on the free movement of such with the right to free speech. Some commentators point to the difficulty that the courts face when faced with a choice between the European model which calls for a balance of competing values and the American model which gives a premium to free speech.

Free Speech

When faced with a £594,000 bill from Campbell�s solicitors, the defendants argued that the £280,000 success fee charged by her instructing solicitors infringed their free speech. The argument is well founded, albeit perhaps not from such a successful newspaper. If a smaller publication was faced with the same bill then this could seriously threaten their existence. There are many cases which have been forced to settle out of court to avoid precisely this.

The House of Lords observed that there was a difference between the use of CFA�s in defamation cases and personal injury cases. Liability insurers can bear the risk of cases being lost whilst the same cannot be said for small publishers.

The Daily Mirror can take some hope from the fact that the bill presented by Campbells solicitors will be subject to detailed assessment and as it seems that the courts have adopted the European model, they will surely observe the doctrine of proportionality. Campbell recovered £3,500 in damages whilst her solicitors fees were in excess of £1 million.

Can you claim against public authorities?
Claims against public authorities raise many interesting arguments. When determining whether a particular class of Defendant should owe a duty of care to a claimant, the courts have looked to the wider social and economic implications of imposing such a duty of care on them.

Claims against local authorities have also posed many interesting academic questions and a plethora of cases have developed the law in this area. The courts have struggled to balance the duty of care owed by the local authority to members of the public with the fact that public authorities are, ultimately, mostly funded by the taxpayer and the moral and economic repercussions of paying out compensation from their funds.

There has also been a general feeling that local authorities should not operate by looking over their shoulder with overly cautious practices aimed at avoiding litigation funded at the public�s expense.

The �compensation culture� concept has fuelled the idea that public authorities are targeted because there is a general sense that they have the money to pay for claims and that this in turn has led to bogus claims. The fear of opening the �floodgates of litigation� has been used by the courts to impose checks on making such claims.

Can I Claim?

You may still be able to make a claim if you have tripped and suffered an injury in a public place. If you have tripped on the pavement then it is worth noting that the courts have developed a rule over the years that the pavement should be raised by 1 inch (the 1inch rule) however, this rule is not set in stone and it doesn�t mean that you cannot claim if it is not.

If you have tripped in a public place such as supermarket car park or at the shops then the owner will be under a duty to take care for your safety and the courts will be less rigid.

Whilst these rules may sound daunting and off putting, we deal with these types of cases everyday and are fully equipped to assist you in determining whether you have a claim and if you do we will deal with it for you.

Case Law

In the case of Owen v City of Westminster [2004] EWHC 1557 (QB) the claimant sought damages for personal injury resulting from an accident where she tripped on pavement maintained by the defendant. In this case the court held that whilst the Defendant had a duty under the Highways Act 1980 to maintain highways and whilst the paving stone in question was in a dangerous state, the fact that the Defendant had an appropriate and adequate system in place for the inspection and maintenance of pavements in the area meant that they had a defence under s. 58 of the Act.

The seminal case involving issues of public policy was Hill v Chief Constable of West Yorkshire [1988] 2 All ER 238 . The mother of Peter Sutcliffe�s last victim sued the police on behalf of her daughter�s estate. She alleged that the police had acted negligently on the grounds that they had failed to catch Peter Sutcliffe earlier. The court not only held that there was insufficient proximity to establish a duty of care but also held that the action was barred on the grounds of public policy.

It is these public policy arguments which make claims against local authorities difficult to pursue and the arguments expounded in Hill have been followed in subsequent cases. The law recognises that authorities have limited resources to maintain roads, paths and highways so that they are free of defects. The courts have been unwilling to allow compensation to be paid from the �public purse� in many cases. It is their attitude that the public purse is not a bottomless pit from which compensation should be paid to anyone who trips over in the street.

The courts have also held in tripping cases that in actions for damages involving injuries sustained by tripping over uneven pavement surfaces a Claimant must show that the particular spot where they tripped was dangerous. Phyllis Ivy James v Preseli Pembrokeshire DC November 16, 1992. Again they found that there should be a reasonable balance between public and private interests and that to set a standard that was unreasonably high was not in the public interest.