A recent change in the law means that more and more claimants are suing their abusers direct, particularly when it is difficult or too expensive to demonstrate any local authority involvement/negligence. In EB v Haughton although the criminal court had found the abuser not guilty the Judge in the civil court found the alleged abuse had taken place and had caused the claimant injury and loss worth over £30K. It now transpires that Haughton had also a LSC certificate which paid his solicitor’s costs and means it is difficult for the claimant to enforce her award and her £111,000 costs ( I bet she was on a CFA). She has decided to sue the LSC. As far as we can make out, the claimant’s case is that the LSC owed her a duty of care not to fund an unmeritorious defence. We would be most surprised if this claim succeeds, but we do expect more claims based on the actions of individuals to focus on institutional defendants such as local authorities, schools and charitable organisations who will be seen to have larger pots of funds then the abusers themselves.

Could publicly funded institutional defendants bring similar claims against the LSC? Watch this space.

Posted by Sarah Erwin-Jones, who specialises in social services, the care sector, education and negotiating legal costs; advises on risk management issues including data protection matters.

Sarah Erwin-Jones
0115 976 6136
serwin@brownejacobson.com

The qualifying period of service for claiming unfair dismissal used to be two years, before it was successfully challenged in Europe in the late 1990’s as being indirectly discriminatory against women. It will be interesting to see if such a challenge is brought following this latest announcement, and whether such a challenge would stand up.

Posted by Tom McLaughlin, who specialises in contentious and non-contentious employment matters including; contractual issues, unfair dismissal, redundancy and all areas of discrimination.

Tom McLaughlin
020 7337 1033
tmclaughlin@brownejacobson.com

Monitoring these placements is not easy, it involves social workers working with multidisciplinary teams and families to try and work out what is best for each child. We are seeing an increasing number of claims arising out of such placements (and indeed failure to make such placements). To defend each claim we have to read lots of paper and electronic documents. We also need to spend valuable hours with practitioners so that we can explain what Social Work Practice means on the ground, and why decision making is not simple. The amount of time this involves is breathtaking yet quite often the value of the claim relatively low.

Sadly my view is that Social Workers may, like health professionals, have to become used to the idea that giving evidence in professional negligence claims is simply part of the job. Employers can make that change of culture easier by providing regular training and support.

Posted by Sarah Erwin-Jones, who specialises in social services, the care sector, education and negotiating legal costs; advises on risk management issues including data protection matters.

Sarah Erwin-Jones
0115 976 6136
serwin@brownejacobson.com

The 57th version seeks to bring uniformity and clarity to the meaning of “more advantageous” and “at least as advantageous” in Part 36. In recent cases judges have been seen to use their discretion leading to inconsistency in their decision making when it comes to awarding costs following an unaccepted Part 36 offer.

From 1st October, “more advantageous” means “better in money terms by any amount, however small”. And “at least as advantageous” shall be “construed accordingly.”

The amendment will provide a clearer cut approach to the costs rules, and it is hoped that the change will reduce the number of appeals bought forward regarding costs.

CPR.14(2)(a) provides that the normal cost consequences of Part 36 do not have to apply following judgment if it is unjust for them to do so. It remains to be seen as to whether parties will seek to rely on this aspect of the Part despite the clarity provided, if for example, the award is better in monetary terms by a nominal amount.

Posted by Nichola Evans, who specialises in professional indemnity work, directors and officers, legal expenses insurance, conditional fee agreements and after the event insurance and commercial litigation.

Nichola Evans
020 7337 1019
nevans@brownejacobson.com

Excessive workloads, long term staff illness, poor morale arising from uncertainty about jobs and lack of clarity about who is to do what and by when can allow these cases to drift. So its good to see how Family Intervention Projects can support local authorities, and lead families to more stable environments, and skill up parents where necessary. According to this report estimated savings of £3.8m were achieved, with over a third of referred cases being “successful”. Add to that the avoidance of up to £100,000 legal fees for every professional negligence claim avoided and the benefits start to add up really quickly!

Posted by Sarah Erwin-Jones, who specialises in social services, the care sector, education and negotiating legal costs; advises on risk management issues including data protection matters.

Sarah Erwin-Jones
0115 976 6136
serwin@brownejacobson.com

This will be welcomed by employers, who have seen the amount of claims rise dramatically during the recent economic downturn (claims rose by 56 per cent in 2010).

However, it is not all good news.

Age discrimination claims have risen by 32 per cent. This may be as a result of employers struggling with changes to how and when employees can be retired and is something all employers need to handle with care and claims by part-time workers claiming less favourable treatment have nearly tripled. This is a stark reminder that part-time workers are entitled to the same benefits (pro rata) as full time employees.

Employers should also note that the number of claims is still significantly above 2009 levels, indicating that employees are very aware of their rights and are not afraid to involve the tribunal to enforce them.

Ben Standing
0121 237 4563
bstanding@brownejacobson.com

Our experience matches this profile. The number of civil claims for compensation against local authorities, schools, sports clubs and charities we see remains steady. If anything, they are gradually increasing, and the claimants solicitors are prepared to bring claims where there is no successful conviction.

Posted by Sarah Erwin-Jones, who specialises in social services, the care sector, education and negotiating legal costs; advises on risk management issues including data protection matters.

Sarah Erwin-Jones
0115 976 6136
serwin@brownejacobson.com

Claims under the act must be submitted within 14 days of the damage taking place, though the ABI and others are lobbying for an extension to 42 days. Insurance policies typically make it a condition precedent that incidents be reported within 7 days. Prompt action is essential as full details of the damage must be submitted.

• Policyholders must ensure they report damage to insurers immediately, or risk having their claim rejected
• Insurers should encourage policyholders to report losses, and must ensure claims are submitted to relevant police authorities within 14 days

Posted by Derek Bambury, who specialises in professional indemnity, dealing with claims against a wide range of professionals; experienced in policy coverage disputes.

Derek Bambury
0115 976 6204
dbambury@brownejacobson.com

As the leaders of the group crossed a rugged terrace there was a rock fall from the area where they had reached. One of the group was struck on the head by a rock and suffered skull fractures resulting in a severe traumatic brain injury.

The court ruled there had been no breach of duty of care by the leaders. The leaders held appropriate qualifications to lead the climb and had undertaken proper risk assessments and continuous reviews. It was impossible to say what triggered the rock fall and a fuller reconnaissance of the route would not have led to any different course of action.

This tragic accident demonstrates that many hazardous activities carry inherent risks which cannot be negated completely and provides a good indication as to the extent of planning organisers should have in order to satisfy their obligations.

Posted by Jonathan Cook, who specialises in defendant public liability work including employers’, occupiers’ and highways liability cases from initial instruction to trial. Including small claims, fast and multi track work.

Jonathan Cook
0115 976 6150
jcook@brownejacobson.com

The Court of Appeal has now overturned that decision because the High Court ignored the long-standing principle that liability under an indemnity policy is not triggered until the existence and extent of liability to the third party is established (Post Office v Norwich Union (1967)).

Therefore, in dispute resolution clauses, “claim” means “crystallised claim”.

Posted by Jonathan Newbold, who specialises in professional negligence, financial services and commercial dispute resolution; advises insurers on policy wording and coverage matters.

Jonathan Newbold
0115 976 6581
jnewbold@brownejacobson.com

At first instance the claimant was ordered to pay the defendants costs from expiry of the first offer. The claimant had not succeeded after that time, alternatively, the claimant’s conduct justified the award.

The decision was reversed on appeal. The issue of success was abandoned by the defendant. In relation to conduct, Jackson LJ explained though settlement fell short of the claim due to adverse surveillance and medical evidence, misrepresentation had been excluded by the Judge and there were no procedural issues which justified an award against the claimant.

Jackson’s message to defendants is clear: make an adequate Part 36 offer or risk costs.

Posted by James Arrowsmith, who specialises in high value personal injury claims, extensive experience of claims relating to head injuries and serious bodily injury, psychiatric damage and injuries to children.

James Arrowsmith
0121 237 3981
jarrowsmith@brownejacobson.com

Whilst the headlines rightly concentrate on the flood of low exposure claims which will undoubtedly follow, I was struck by the Supreme Court taking the time to set out in very clear terms a step-by-step approach to the case law behind Fairchild and, why in light of the lack of certainty in scientific knowledge, the Fairchild exception is necessary in mesothelioma claims.

If the 84 page judgement causes you to baulk – at least read the detail of Lord Phillips judgement. I wonder if the Supreme Court wanted to use the opportunity to provide clarity in a complex area of the law following their poorly received judgement in the series of cases known as the trigger litigation.

Posted by Bridget Tatham, specialising in: high value complex litigation relating to disease and stress and bullying at work; experienced in regulatory matters including advocacy, investigations and inquests.

Bridget Tatham
0121 237 3916
btatham@brownejacobson.com

The Claimant argued that the Council should have fitted door closures and other protection to the door; that Risk Assessments had been completed and sufficient supervision was not in place.

The Court found that just because door closures were available it did not necessarily mean that there was a breach if they were not utilised. A door is safe without such protection and a child of the Claimant’s age should be familiar with doors and their dangers.

While the Council had not risk assessed for the type of accident that occurred for that specific door, the Court found it was not necessary to do so as there had been no other accident prior to this one.
The claim was dismissed – the School’s duty was to take such care as would be exercised by a reasonably careful parent and not to take steps to ensure the complete safety of its pupils. Commonsense prevailed.

Posted by Jonathan Cook, who specialises in defendant public liability work including employers’, occupiers’ and highways liability cases from initial instruction to trial. Including small claims, fast and multi track work.

Jonathan Cook
0115 976 6150
jcook@brownejacobson.com

The Bill and accompanying consultation sought, amongst other things, to implement recommendations of the Law Commission in relation to fatal accidents and interest on damages including a ‘catch all’ provision for dependency claims under the Fatal Accidents Act, to cover all those  ”being maintained by the deceased immediately before the death “; extending the class of individuals entitled to bereavement damages and new rules in relation to interest on damages, to allow for compound interest awarded at increased rates.

The proposals gave rise to significant risk of satellite litigation and increased claim costs which would have had a particular adverse effect on many of our public sector and insurer clients, and were opposed by Browne Jacobson.

The Government’s full response to the consultation.

Posted by James Arrowsmith, who specialises in high value personal injury claims, extensive experience of claims relating to head injuries and serious bodily injury, psychiatric damage and injuries to children.

James Arrowsmith
0121 237 3981
jarrowsmith@brownejacobson.com

The distinction is technical, and the practice was descried by Lord Young in Common Sense, Common Safety as a ‘high pressure marketing technique’ which fuels perceptions of a compensation culture. Young recommended that the practice be prohibited.

The Ministry of Justice is now consulting on an amendment to the Claims Management Regulations which would have the effect of banning all cash incentives in relation to personal injury claims.

The consultation is open until 10 February.

Posted by James Arrowsmith, who specialises in high value personal injury claims, extensive experience of claims relating to head injuries and serious bodily injury, psychiatric damage and injuries to children.

James Arrowsmith
0121 237 3981
jarrowsmith@brownejacobson.com

Its key recommendations include abolishing the recovery of success fees or ATE premiums from the losing party, the use of qualified one way costs shifting and damages based agreements and enhanced penalties under Part 36 offers.

The consultation focuses primarily on issues of funding. Recommendations such as fixed fees, new processes and limitations on referral fees will be looked at separately. There is also a strong focus within the document on personal injury litigation, though a number of the proposed reforms would have wider ranging effects.

Posted by James Arrowsmith, who specialises in high value personal injury claims, extensive experience of claims relating to head injuries and serious bodily injury, psychiatric damage and injuries to children.

James Arrowsmith
0121 237 3981
jarrowsmith@brownejacobson.com

The main thrust of this will be to review CFAs and as to whether they are the best way of achieving justice with the current level of success fees and the way in which ATE works.

It is reassuring that the Government is looking at proposals for fixed costs on the fast track and has recognised the unique problems associated with clinical negligence claims. However it has left us in the dark when it comes to non personal injury claims and legal expenses insurance.

It is important the Government clarifies how this will be combined with other measures such as the Lord Young report and the LSB review on referral fees if it seriously wants the industry to engage fully in the debate.

Posted by Nichola Evans
0207 337 1019
nevans@brownejacobson.com