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Nicola Twine reflects on securing a finding of Fundamental Dishonesty with Enforceable Costs

<!-- wp:paragraph --> <p><strong><mark style="background-color:rgba(0, 0, 0, 0)" class="has-inline-color has-luminous-vivid-orange-color">“</mark></strong> What appears at first blush to be a straightforward case often is not. Many personal injury claims arise from ‘rear end shunt no fault accidents’, and damages are often expected to be recovered where that accident was sufficient to cause injury.<br><br>Withholding of information and misleading provision of information can have serious consequences.<br><br>Last week, in a case instructed by <a href="https://dwfgroup.com/en/services/legal-services/insurance/motor">DWF</a> for <a href="https://www.aviva.co.uk/">Aviva</a>,  I was successful in having a claim dismissed and securing a finding of ‘fundamental dishonesty’.<br><br>The Claimant had been involved in two accidents in proximity and brought claims arising from both. DWF had obtained the medical reports in both cases and social media posts, which were able to be considered alongside her medical records. </p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Claimant had been selective in what she had disclosed to medical experts, in relation to: each accident, her injuries, and her medical history. On the special damages claim there were suspicions of ‘claims layering’ - that the CBT and physiotherapy treatment had been added with the specific purpose of increasing the value of the claim and costs.<br><br>As the Defendant did not call evidence the case was determined following robust cross examination and submissions on credibility. The Claimant's reasons for her apparent failures were many. She was a poor historian unable to explain the inconsistencies and oddities. What is outlined as expected of a genuine claimant in 'Molodi' was not present. The trial Judge did not make finding of 'claims layering' but expressed concern about the medical reports in the case. Whilst it appeared that the Claimant may have been caught up in a model operated by others the Judge found that the Claimant was dishonest. In this case there was more than exaggeration at play, although exaggeration alone can give rise to a finding of fundamental dishonesty.<br><br>Fundamental dishonesty was found with enforceable costs and the Claimant was ordered to repay an interim payment.<br><br>Thanks to <a href="https://www.linkedin.com/in/ACoAAD7cNOYBLe-BDqnjeo_BlCJOGtKN6Re40to">Rohini Kapur</a> for her instructions and assistance. <strong><mark style="background-color:rgba(0, 0, 0, 0)" class="has-inline-color has-luminous-vivid-orange-color">”</mark></strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>Nicola Twine is a member of the specialist Personal Injury, Clinical Negligence, and Employment Teams at Parklane Plowden Chambers and is ranked as a Leading Junior by Chambers &amp; Partners and The Legal 500 in Employment and by The Legal 500 in Clinical Negligence. Her full profile can be accessed <a href="https://www.parklaneplowden.co.uk/barristers/nicola-twine">here</a>.</em></p> <!-- /wp:paragraph -->

Parklane Plowden Chambers ranked across seven practice areas in the Chambers and Partners 2024 rankings

<!-- wp:paragraph --> <p>Parklane Plowden Chambers has been ranked as a Band 1 set across five practice areas and a Band 2 set across two further areas in the Chambers and Partners 2024 rankings.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Chambers has been ranked as Band 1, the highest ranking a Chambers can achieve, across the Chancery; Clinical Negligence; Employment; Family: Children and Personal Injury practice areas.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Additionally, the set has been ranked as Tier 2 for both Family: Matrimonial Finance and Inquests &amp; Public Inquiries.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The individual barrister members received 65 rankings in this year’s edition across:</p> <!-- /wp:paragraph --> <!-- wp:list --> <ul><!-- wp:list-item --> <li>Chancery</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Clinical Negligence</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Costs Litigation</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Employment</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Family: Children </li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Family: Matrimonial Finance </li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Inquests &amp; Public Inquiries</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Motor Insurance Fraud</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Personal Injury</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Personal Injury: Industrial Disease</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Professional Negligence </li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Real Estate Litigation</li> <!-- /wp:list-item --></ul> <!-- /wp:list --> <!-- wp:paragraph --> <p>In addition to his Band 1 Personal Injury ranking, <a href="https://www.parklaneplowden.co.uk/our-barristers/andrew-axon/">Andrew Axon</a> has once again retained his individual Clinical Negligence ranking of 'Star Individual'.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p></p> <!-- /wp:paragraph -->

Parklane Plowden Chambers named as a Tier 1 barristers’ set across five practice areas in the Legal 500 2024 rankings

<!-- wp:paragraph --> <p>Parklane Plowden Chambers has been ranked as a Tier 1 set across five practice areas and a Tier 2 set across one area in The Legal 500 2024 rankings.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Chambers has been named as Tier 1, the highest ranking a Chambers can achieve, across chancery, probate and tax; clinical negligence; employment; family and children law and personal injury practice areas.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Parklane Plowden is also the only set to be ranked for chancery, probate and tax and clinical negligence on the North Eastern circuit.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Additionally, the set has been ranked as Tier 2 for inquests &amp; inquiries.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The individual barrister members received 79 rankings in this year’s edition across:</p> <!-- /wp:paragraph --> <!-- wp:list --> <ul><!-- wp:list-item --> <li>Court of Protection and Community Care </li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Chancery, Probate and Tax</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Clinical Negligence</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Commercial Litigation</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Employment</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Family: Children and Domestic Violence </li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Family: Divorce and Financial Remedy </li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Personal Injury</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Property and Construction</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Professional Negligence </li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Inquests and Inquiries</li> <!-- /wp:list-item --></ul> <!-- /wp:list --> <!-- wp:paragraph --> <p></p> <!-- /wp:paragraph -->

SEA CHANGE: bon voyage to many PI and fatal claims in the Admiralty Court

<!-- wp:paragraph --> <p>The knotty matter of having to issue personal injury and fatal accident claims occurring on ships in the Admiralty Division of the High Court is soon to addressed by amendments to the Civil Procedure Rules which will be launched on 6 April 2023.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>CPR 61 governs claims to be issued in the Admiralty Court.&nbsp; The present r.61.2 (1) (a) (v)<a href="#_ftn1" id="_ftnref1">[1]</a> states:</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>‘The following claims must be started in the Admiralty Court –</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>(a) a claim –</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>(v) for loss of life or personal injury specified in section 20(2)(f) of the Senior Courts Act 1981.’</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Where s.20 (2) (f) of the Senior Courts Act 1981 provides:</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>‘(f) any claim for loss of life or personal injury sustained in consequence of any defect in a ship or in her apparel or equipment, or in the consequence of the wrongful act, neglect or default of:</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>i. the owners, charterers or persons in possession or control of a ship; or</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>ii. the master or crew of the ship, or any other person for whose wrongful acts, neglects or defaults the owners, charterers or persons in possession or control of a ship are responsible</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In essence, it means any accident on a ship is likely to fall within CPR 61.&nbsp; And that has long given rise to headaches.&nbsp; Claimants mistakenly issue in the County Court, are forced to transfer their claim over to the Admiralty Court, only for the Admiralty Court to transfer it right back to whence it started.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In response to this unwarranted complexity, the Civil Procedure Rule Committee have decided it is time to rock the boat.&nbsp; From 6 April 2023, r.61.2 (1) (a) (v) is to be overhauled, replaced by r.61.2 (2):</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>‘Any other admiralty claim may be started in the Admiralty Court and a claim for loss of life or personal injury specified in Section 20(2)(f) of the Senior Courts Act 1981 should be started in the Admiralty Court in the circumstances set out in Practice Direction 61’.</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The updated Practice Direction 61 will stipulate, as at paragraph 2.8:</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>‘[Personal injury and fatal accident] Claims [falling within s.20 (2) (f) of the Senior Courts Act 1981] should not be commenced in the Admiralty Court unless they require or would benefit from the specialist knowledge and experience of that court. That is likely to include personal injury claims which:</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>(a) involve questions of navigation, seamanship, boat or ship-handling skills and/or acts or omissions relating to sea state;</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>(b) arise out of the shipwreck, capsizing or stranding of the ship, or explosion or fire in the ship;</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>(c) are employer’s liability claims relating to or concerning equipment or working practices peculiar to a ship;</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>(d) raise difficult or novel questions of private international law or of the interpretation of the Athens Convention.’</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>So, the sea of claims arising out of slips and trips on ships will, by and large, no longer sink or swim under the watch of Admiralty.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>This means plain sailing for claimants who would previously have been caught out in the choppy waters of issuance.&nbsp; And in the wake of this amendment, it means many such claims will be subject to the fast-track fixed costs regime under CPR 45.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Robert Allen is a pupil in Chambers currently under the supervision of Jim Hester.&nbsp; He will be accepting instructions in second six from 3 April 2023.</p> <!-- /wp:paragraph --> <!-- wp:separator --> <hr class="wp-block-separator has-alpha-channel-opacity"/> <!-- /wp:separator --> <!-- wp:paragraph --> <p><a href="#_ftnref1" id="_ftn1">[1]</a> White Book 2022 Edition, Volume 2, page 669</p> <!-- /wp:paragraph -->

WHIPLASH (AND MORE): Taking stock of the Court of Appeal’s decision in Hassam &#038; Anor. v. Rabot &#038; Anor. [2023] EWCA Civ 19

<!-- wp:paragraph --> <p><em>The Court of Appeal’s much anticipated judgment in <u>Charlotte Victoria Hassam &amp; Anor. v. Yoann Samuel Rabot &amp; Anor</u>.<a href="#_ftn1" id="_ftnref1"><strong>[1]</strong></a> was handed down on Friday 20 January 2023.&nbsp; The Court set out guidelines as to how to deal with concurrence of tariff and non-tariff injuries.</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Two cases were heard together on appeal: <em><u>Rabot v. Hassam</u></em> and <em><u>Briggs v. Laditan</u></em>.&nbsp; Both arose out of road traffic accidents.&nbsp; Both concerned the claimant having suffered whiplash and non-whiplash injuries.<a href="#_ftn2" id="_ftnref2">[2]</a>&nbsp; Whiplash injuries<a href="#_ftn3" id="_ftnref3">[3]</a> now attract a tariff award, pursuant to the Whiplash Injury Regulations 2021 as enacted by the Civil Liability Act 2018.<a href="#_ftn4" id="_ftnref4">[4]</a></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong><em>Rabot</em></strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Yoann Rabot had suffered various tariff injuries including whiplash, alongside soft tissue injuries to the knees, for which no tariff applied.<a href="#_ftn5" id="_ftnref5">[5]</a>&nbsp; The tariff award at first instance was assessed at £1,390 and the non-tariff £2,500, totalling £3,890.&nbsp; Hennessy DJ, sitting in the County Court at Birkenhead, then ‘<em>stepped back</em>’ to consider whether adjustment was necessary, applying the <em>‘totality principle’</em> identified by Pitchford LJ in <em><u>Sadler v. Filipiak</u></em>.<a href="#_ftn6" id="_ftnref6">[6]</a></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>‘It is in my judgment always necessary to stand back from the compilation of individual figures, whether assistance has been derived from comparable cases or from the JSB guideline advice, to consider whether the award for pain, suffering and loss of amenity should be greater than the sum of the parts in order properly to reflect the combined effect of all the injuries upon the injured person's recovering quality of life or, on the contrary, should be smaller than the sum of the parts in order to remove an element of double counting...’</em><a href="#_ftn7" id="_ftnref7">[7]</a></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Following this application, Rabot’s overall award was reduced to £3,100.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong><em>Briggs</em></strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Similarly, Briggs, whose claim was heard by the same judge, suffered tariff-caught soft tissue injuries, alongside elbow, knee and hip injuries for which Parliament had not prescribed a set remedy.&nbsp; The tariffed injuries amounted to an award of £840, with non-tariff at £3,000.&nbsp; Hennessy DJ, stepping back and identifying an overlap between the two sets of injuries, reduced the award by £1,040 to give a total of £2,800.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>The Appeal</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The question for the Court to determine was this: what approach should be taken when coming to assess a combination of tariff and non-tariff injuries where a given claim involves both?</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>On that question, the Court of Appeal was divided.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Nicola Davies LJ, with whom Stuart-Smith LJ agreed, held by majority that on interpretation of the whiplash regulations, the assessments at first instance were correct.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>At paragraph 38 of her judgment, Nicola Davies LJ set out the approach to be taken by the Court:</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>‘It follows that the approach of the court to an assessment of damages in respect of a tariff and non-tariff award where concurrently caused PSLA is present is that the court should:</em></p> <!-- /wp:paragraph --> <!-- wp:list --> <ul><!-- wp:list-item --> <li><em>assess the tariff award by reference to the Regulations;</em></li> <!-- /wp:list-item --></ul> <!-- /wp:list --> <!-- wp:list --> <ul><!-- wp:list-item --> <li><em>assess the award for non-tariff injuries on common law principles; and Judgment Approved by the court for handing down Rabot v Hassam; Briggs v Laditan;</em></li> <!-- /wp:list-item --></ul> <!-- /wp:list --> <!-- wp:list --> <ul><!-- wp:list-item --> <li><em>“step back” in order to carry out the Sadler adjustment, recognising that the sum included in the tariff award for the whiplash component is unknown but is smaller than it would be if damages for the whiplash component had been assessed applying common law principles’</em></li> <!-- /wp:list-item --></ul> <!-- /wp:list --> <!-- wp:paragraph --> <p><em>‘There is one caveat, namely that the final award cannot be less than would be awarded for the non-tariff injuries if they had been the only injuries suffered by the claimant.’</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In essence, consider each injury as intended by statute or at common law, then step back to determine totality.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The caveat provided is noteworthy.&nbsp; The total award would be no lower than what the PSLA would have been in a given case for the non-tariff injuries by themselves.&nbsp; In other words, a claimant cannot walk away with a lesser sum by bringing both claims together.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Sir Geoffrey Vos MR, dissenting, determined that the parliamentary award represented full compensation for the injuries taken together.  The consequence of that approach would mean the award for any non-tariff injury would only amount in a small uplift on the original sum.  Stuart-Smith LJ suggested it was hard to reconcile such an application of the law with the conclusion reached:<a id="_ftnref8" href="#_ftn8">[8]</a></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>‘The Master of the Rolls starts with an acceptance that the 2018 Act “removed certain claimants’ rights to full compensation for whiplash injuries, but not for other kinds of injury”; but he reaches the conclusion that “Parliament has legislated for the reduction of general damages for non-whiplash personal injuries in cases where whiplash injuries have been sustained, even though the statute does not appear specifically to be directed at non-whiplash cases.” (My emphasis). There is an obvious tension between these two statements. Since it is accepted that the 2018 Act does not remove any claimants’ rights to full compensation for other kinds of injury, the conclusion can only be supported if the terms of the statute effect the change by necessary implication and the consequential alteration to the common law was necessary and no more than necessary: see Lachaux at [13], cited by Nicola Davies LJ above.’</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Comment</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The dissenting view mirrors the approach taken by many insurance companies when defending such claims.&nbsp; Following <em>Rabot</em>, insurers are likely to review their position.&nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Courts across the country now have a methodology upon which to value these claims.&nbsp; But is that the final word on the subject?&nbsp; We await to see whether leave to appeal will be sought to take the matter up to the Supreme Court in due course.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The full judgment can be found <a href="https://caselaw.nationalarchives.gov.uk/ewca/civ/2023/19">here</a>.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The tariffs found within the Whiplash Injury Regulations 2021 can be found <a href="https://www.legislation.gov.uk/uksi/2021/642/regulation/2/made">here</a>.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="https://www.parklaneplowden.co.uk/our-barristers/bharat-jangra/">Bharat Jangra</a>, called 2019, is a junior member of the civil and employment teams in Chambers.&nbsp; He is regularly instructed in representing parties at hearings in relation to assessment of quantum and in drafting advices on quantum.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="https://www.parklaneplowden.co.uk/our-barristers/robert-allen-pupil/">Robert Allen</a> is a pupil in Chambers currently under the supervision of <a href="https://www.parklaneplowden.co.uk/our-barristers/jim-hester/">Jim Hester</a>.&nbsp; He will be accepting instructions in second six from 3 April 2023.</p> <!-- /wp:paragraph --> <!-- wp:separator --> <hr class="wp-block-separator has-alpha-channel-opacity"/> <!-- /wp:separator --> <!-- wp:paragraph --> <p><a href="#_ftnref1" id="_ftn1">[1]</a> [2023] EWCA Civ 19</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="#_ftnref2" id="_ftn2">[2]</a> Para 2 ibid</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="#_ftnref3" id="_ftn3">[3]</a> So long as they do not exceed, or are not likely to exceed, two years – Section 3(1)(b)(i) Civil Liability Act 2018</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="#_ftnref4" id="_ftn4">[4]</a> Section 3</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="#_ftnref5" id="_ftn5">[5]</a> In quantifying PSLA for non-tariff injuries, the common law principles apply – see <em>Attorney General of St Helena v. AB</em> [2020] UKPC 1.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="#_ftnref6" id="_ftn6">[6]</a> [2011] EWCA Civ 1728</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="#_ftnref7" id="_ftn7">[7]</a> Para 34 ibid</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="#_ftnref8" id="_ftn8">[8]</a> Para 43 ibid</p> <!-- /wp:paragraph -->

Can the new Practice Direction 1A be used to justify a split trial?

<!-- wp:paragraph {"fontSize":"medium"} --> <p class="has-medium-font-size"><strong>A brief summary of the decision in Mr AXX (A protected party) v Zajac [2022] EWHC 2463 (KB)</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Background </strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In 2016 the Claimant was knocked off his bike by the Defendant. It was said that he had suffered a traumatic brain injury and continued to suffer from neuropsychiatric symptoms including psychosis, paranoia, and delusion. The Claimant was refusing to take antipsychotic medication and could not be forced to do so without being sectioned, which wasn’t deemed appropriate in the circumstances. The Claimant’s difficulties also meant that he would not fully engage in medical examinations. </p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Claimant had partially engaged with his Neuropsychiatrist whilst other experts found it very difficult or were turned away. Without taking his antipsychotics, his prognosis could only be assessed as guarded. The Defendant denied causation of the psychiatric condition in part because of a history of substance abuse. The Claimant’s representatives argued that a case manager and access to independent medical professionals would assist in helping the Claimant to engage with treatment. With causation disputed, interim payments were not forthcoming.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>The Issue</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The main issue before the court was whether the new vulnerability provisions in Practice Direction 1A could be used to justify ordering a split trial to deal with causation first. &nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Claimant argued that a split trial would provide the best prospects of getting the Claimant’s evidence before the court.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>The Law</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>CPR 1.1(2) (a) requires the court to ensure, so far as is practicable, that the parties are on an equal footing and can participate fully in proceedings, and that the parties and witnesses can give their best evidence.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Paragraph 5 of Practice Direction 1A states that when considering whether a factor may adversely affect the ability of a party to participate in proceedings and/or give their best evidence, the court should consider their ability to: &nbsp;</p> <!-- /wp:paragraph --> <!-- wp:list {"ordered":true,"type":"a"} --> <ol type="a"><li>Understand the proceedings and their role in them.</li><li>Express themselves throughout the proceedings.</li><li>Put their evidence before the court.</li><li>Respond to or comply with any request of the court or do in a timely manner.</li><li>Instruct their representative/s (if any) before, during and after the hearings; and</li><li>Attend any hearing.</li></ol> <!-- /wp:list --> <!-- wp:paragraph --> <p><strong>Decision</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Judge concluded:</p> <!-- /wp:paragraph --> <!-- wp:list {"type":"a"} --> <ul type="a"><li>The vulnerability appeared to impede the Claimant’s participation in proceedings and as such considered PD 1A (5).</li></ul> <!-- /wp:list --> <!-- wp:list --> <ul><li>The Claimant’s medical condition and refusal to take his medication made understanding proceedings a real obstacle.</li></ul> <!-- /wp:list --> <!-- wp:list --> <ul><li>At the time of the hearing, the Claimant was too unwell to attend any trial meaning there was no proportionate modification to ensure attendance at any hearing.</li></ul> <!-- /wp:list --> <!-- wp:list --> <ul><li>The most prominent issues were about putting his evidence before the court and responding to any request of the court at all or in a timely manner.</li></ul> <!-- /wp:list --> <!-- wp:list --> <ul><li>The judge agreed that to put the evidence before the court included indirectly so, by way of cooperating with experts for the purpose of expert reports.</li></ul> <!-- /wp:list --> <!-- wp:paragraph --> <p>The judge concluded that <em>“a split trial on causation, leaving possible quantum of damages for later, was a measure which would be proportionate …..because to enable causation to be resolved would stand a real prospect of enabling the Claimant to place his evidence before the court, by making it more likely he could engage with the experts at quantum stage and by also enabling prognosis to be clearer if and when he is able to be medicated….. That in turn was affected by the potential to obtain an interim payment once liability for substantial damages is established (if it is) at a split trial.”</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The judge therefore ordered a split trial.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Conclusion </strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>This case is a good illustration of the interplay between the new Practice Direction 1A and the overriding objective.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>It serves as a useful reminder for practitioners to identify vulnerable parties at the earliest possible stage.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The case is also one of the first examples of how the new Practice Direction 1A can be used in practice when considering very practical case management decisions.&nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="https://www.parklaneplowden.co.uk/our-barristers/oliver-bailey/">Oliver Bailey</a> is beginning his specialist civil law pupillage under supervision&nbsp;<a href="https://www.parklaneplowden.co.uk/our-barristers/hylton-armstrong/">Hylton Armstrong</a>&nbsp;and&nbsp;<a href="https://www.parklaneplowden.co.uk/our-barristers/bronia-hartley/">Bronia Hartley. </a></p> <!-- /wp:paragraph -->