39 Essex Chambers Civil Liability Newsletter April 2020

39 Essex Chambers Civil Liability Newsletter April 2020

CategoryNews, Newsletters Author Derek O'Sullivan QC, Emily Formby QC, Bernard Doherty, Samantha Jones, Michael Standing , Ruth Keating, Gethin Thomas, Philippe Kuhn Date

Welcome to a new look newsletter that we hope will provide you with easy online access to some cases and views of interest. There is, of course, some mention of Covid-19, the dominant issue at the moment, but also reflection on some of the other cases of interest still going on.


We shall, in addition, be rolling out webinars to take the place of our usual offering of in house and in person seminars – if you have any topics you would be interested in us covering do let us know.

Below please find articles prepared by members of 39 Essex Chambers which may be of interest.


Covid Changes to Courts
With most Courts having produced some guidance on how they intend to work remotely, Central London remains an outlier. By contrast, the Masters of the Queen’s Bench are starting to produce their own particular guidance. Reminiscent of the early days of the CPR, we will keep you updated on changes as they happen. You can find a daily update on the HMCTS operational list here.

ABI Agreement to suspend limitation
An agreement to extend immediately the personal injury protocol has taken effect from 24 March 2020 spearheaded by the ABI. All limitation dates in personal injury cases are frozen until 20 April with a joint review in the week commencing 13 April. See further updates here.

New Practice Directions
New practice direction 51ZA allows parties to agree a 56 day extension without formally notifying the Court so long as it does not put a hearing date at risk – something we have been doing voluntarily for some days now where appropriate. Essentially, it is an extension of the current 28 day practice. Specifically also, the pandemic must be taken into account by the Court when applications for extension of time are made. The PD ceases automatically on 30 October 2020 but can be reviewed before then. See here.

Practice direction 51Y issued on 26 March set out the protocol on the conduct of remote hearings and also makes clear that as many hearings as possibly should be conducted remotely – the guidance covers audio and video hearings. It also gives power to direct for video / audio hearings to take place in private where necessary. Read more here.

While we are seeing many cases adjourned, this is not the default position, quite the contrary. In the Matter of One Blackfriars Limited the Chancery Division assessed and refused an application to adjourn to adjourn a 5 week trial due to start in June. With the time left before the start date, the Court did not accept Covid-19 as a sufficient reason to adjourn. Rather time was to be spent exploring the technological options for a remote trial. Read more here.

Guidance for JSMs
39 Essex has come up with some suggested guidance for the management of remote JSMs. Based on our experience, these guidelines will at least ensure you have thought about the likely issues in advance. These have been rolled out over the past few weeks and are working well.


Statistical Evidence in clinical negligence cases
Vaughan Jacob writes about the case of Schembri v Marshall and considers the use of statistical evidence in clinical negligence cases.

Vicarious liability
Ruth Keating and Gethin Thomas look at the Supreme Court decision in Morrison and Barclays and look at vicarious liability – a doctrine on the move.

Funding for foreign surrogacy allowed
Samantha Jones provides a synopsis of the Supreme Court’s decision in Whittington Hospital NHS Trust.

HSE in the time of Covid
Tom Van Der Klugt looks at health and safety in the workplace in the world of Covid-19.

On-line and remote hearings
Philippe Kuhn shares thoughts on how to conduct a lower value PI claim as an on-line hearing in these Covid-19 days. Read here.

Degree course travel and package holiday regulations
Bernard Doherty looks at package travel and educational institutions and whether a degree course field trip is part of a package tour – a question covered in McCulloch v University of Leicester.

Use of intermediary unhelpful to trial judge 
Emily Formby reviews the use of an intermediary in a civil hearing – or perhaps lack of use – in the case of Morrow v Shrewsbury.

Judge considers liability of two cars involved in separate pedestrian incidents in Farah v Abdhullahi and others
Derek O’Sullivan QC, leading Michael Standing, acted for the successful fourth defendant in this 8-day liability and causation trial before Mr Justice Linden. The trial concerned the catastrophic brain injuries suffered by the Claimant during four phases of road traffic collisions involving two vehicles. The court was required to determine complex issues of medical causation, specifically in relation to diffuse axonal injury, as well as issues as to the identity of one driver. The case against the fourth defendant was dismissed in its entirety. Derek and Michael were instructed by Andrew Baker, Partner at Horwich Farrelly. Read the judgment here.

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