Good News for Litigants in person

The Civil Procedure Rule Committee agreed on the 1st October 2011 to increase the hourly rate a litigant in person can charge for their work in preparing their case from £9.25 to £18.00 per hour. 

So remember to make a detailed note of the time you spend preparing your claim so that you can provide the Judge with a detailed note at the final hearing and if you win he will then be able to award you some costs.  You also need to make sure that you take copies of all invoices and receipts you have in respect of Court Fees and Expert's reports obtained to support your claim.

The Egg Shell Principle

The Egg-shell skull principle says a defendant must take his victim as he finds him. So, for example  if a person negligently injures someone by asking them to climb a ladder which is unsafe and results in them falling,  they cannot complain if the injuries they have caused turn out to be more serious than expected because the victim suffered from a pre-existing weakness such as an unusually thin skull or a weak heart.

The Important of getting a good Expert

The  recent case of Edwards-Tubb v JD Wetherspoon, makes the necessity of obtaining good quality medical evidence at the outset of your claim clear.

 

The Court of Appeal held that the court could not override privilege (privilege protects communications between a solicitor and their client  In order for legal privilege to be maintained, the information must remain confidential ), but could and would normally require waiver of the privilege as a condition of granting permission to obtain evidence from a different expert.

There are three Key points as follows:

It makes no difference whether the change of expert occurred before or after proceedings were issued. In either case, a party will normally be required to give their opponent  an earlier report in order to maximise the information available to the court and to discourage "expert shopping".This is why it is so important to get the right expert at the beginning of a case, IF YOU HAVE A POORLY WRITTEN REPORT, THAT IS THE REPORT YOU WILL BE EXPECTED TO RELY UPON.

 

As a litigant in person if you instruct an expert at your own expense, rather than prepare a report for the purposes of the proceedings, the court will not normally require privilege to be waived in the report.

 

If a party can serve the new expert's report within the confines of an existing permission, it seems the court cannot require disclosure of the earlier report.

 

Practical implications are as follows

 

If you want to  maintain flexibility so that you can  instruct a different expert if necessary, it is better to seek permission to serve expert evidence based on a particular discipline (i.e a psychologist) rather than a named expert. It may also be advisable for you to avoid naming a chosen expert for as long as possible, if this can be done in accordance  with any applicable pre-action protocol.

This judgment highlights the importance of your testing a potential expert's views  before a decision is taken to instruct him or her for the purpose of the proceedings.  In other words you need to speak to the expert and ask questions because you need to know that he will be able to stand up in court and not crumble under cross examination.

You may also want to consider  instructing a potential expert as an advisory expert only until it is clear that he or she will be able to support the case.  

If the Defendant's or Plaintiff's legal representative suspects that an opponent is shopping around for a favourable expert, they may wish to consider asking whether the opponent has obtained any reports from any other experts, or they may seek to persuade the court to grant permission for expert evidence only on condition that any prior reports be disclosed.

My Travel Organiser's bankrupt

If your travel organiser becomes insolvent as a result of their own fraudelent conduct there is a solution under the Package Travel Directive (90/314/EEC) where there is a requirement that a guarantee of repatriation and refunding of money are provided to consumers where a travel organiser becomes insolvent in these circumstances

TIPS IN THE EVENT THAT YOU ARE INJURED WHILST ON HOLIDAY

The sun is out and many of us are thinking of going on holiday, Everyone at Affordable Law For You wants you to have a really great time, but in the event that you are a little unlucky and have an accident whilst on holiday do you know what to do to bring a successful claim when you return home.

Well here are some basic tips:-

1. Make sure that you inform your holiday representative, your tour operator and your travel agent of the circumstances of the accident.

2. Write down as full a description of what happened and where it happened.

3. Take photographs (remember you can use the camera on your mobile phone)

4. If it is car accident, you must the inform the police, remember to take a note of the name and number of the Police Officer you speak to and if possible get a copy of the report.

5. Keep all your receipts and records in respect of treatment, prescriptions, travel expenses, cost of damaged clothing etc

6. Remember you normally have three years in which to bring a claim, but you do need check the time limits as they many differ in other countries.

We hope you have a happy and safe holiday

What Duty of Care is Owed to you on a Holiday Excursion?

A contentious camel was the unlikely subject of the latest in a string of cases examining the tortious duty of care owed by holiday companies for accidents that happen during a holiday excursion.

Hendry and another v Kuoni Travel Ltd (Guildford County Court, HHJ Reid QC, 10 – 11 November and 16 December 2011) is about the provision of a “Camel Safari” excursion during a holiday by a tour operator to Rajasthan, India. The object of the excursion was very straightforward: the Claimants were to ride on the back of a camel. They were to set-off from their hotel. However the camel had it’s own ideas just before the Claimants reached the hotel gates.  The camel began “making sidesteps in a very jaunty manner” this in turn caused the Claimants to lose their balance and fall off, each sustaining serious injury. The Claimants were accompanied on the safari by the Defendant tour operator’s local representative who provided instructions in English.  It is also important to point out that the camel handlers or raikas spoke no English. And even more important it was confirmed that the representative used on this occasion by the holiday company had no knowledge of riding a camel and this assignment was his first and only time assisting with the excursion.

The holiday company described the excursion in their brochure as an “optional experience” and “available locally at extra cost”. The Defendant’s Booking Conditions provided that “the experience will be supervised and all reasonable precautions will be taken to ensure that you and your party are safe. We will only accept responsibility for personal injury where it is caused by our negligence or the negligence of our suppliers”. The Claimants remained firm in evidence that they had not made a separate booking for this excursion and had not been asked at any stage for payment and so therefore the excursion must have formed part of the package of services provide pursuant to the holiday contract, to which the Package Travel, Package Holidays and Package Tours Regulations 1992 applied. The court held that the excursion had been booked separately and so was outside the scope of the 1992 Regulations. The Claimant’s alternative case was that they had made a separate contract for the excursion which was governed by the terms of the Defendant’s Booking Conditions; this argument was also rejected by the Judge.

However, this was no the end of the line for the Claimants. Following Parker v TUI [2009] EWCA Civ 1261, they argued – in the further alternative – that the Defendant, in providing a local representative to accompany the excursion and to give instructions beforehand, had assumed responsibility to the Claimants for the reasonable safety of the excursion and, accordingly, owed them a tortious duty of care. It was held that the content of this common law, tortious duty was defined by local standards in accordance with the Court of Appeal’s guidance in Gouldbourn v Balkan Holidays Ltd [2010] EWCA Civ 372 (and other case law subsequent to Wilson v Best Travel Ltd [1993] 1 All ER 353 (QBD). Unsurprisingly, there were no specific statutes, rules or regulations to govern the provision of camel rides and safaris in India. Instead, there was local customary practice and both parties relied on expert evidence of what such practice required. The saddle on the camel’s back was simply  a seat with a hook-shaped “pommel” at the front which was attached by a rope running around the camel’s belly with a carpet and quilt placed loosely over the top. There were no stirrups or rope loops along the side of the camel that either rider could hold for stability. The reins were held at the front by the camel handler. It was held that the failure to provide stirrups constituted a breach of local customary practices. The court went on “so far as the second alleged breach of duty is concerned, in my judgment it is made out. There is simply no evidence that the defendant took any steps whatsoever to establish that the excursion provider was competent”. Judgement was made in favour of the Claimants.