What Does 2023 Hold For PI Lawyers?

• Published date: 03 January 2023
• Subject Matter: Litigation, Mediation & Arbitration, Trials & Appeals & Compensation, Personal Injury, Civil Law
• Law Firm: Gatehouse Chambers
• Author: Ms Jasmine Murphy

What does 2023 hold for PI lawyers? Here are some appeals and likely developments coming over the horizon encapsulated in Kylie Minogue songs:

"Your Body": Mixed Injury Portal cases

Judgment from the Court of Appeal is awaited in the two test cases (Rabot v Hassam, Briggs v Laditam) which have been leapfrogged together from the palais de justice which is the County Court at Birkenhead. The issue is how to deal with Portal claims where injuries include whiplash injuries for which damages are fixed by a tariff and other non-whiplash injuries where the tariff is not fixed. The appeal is from decisions of an experienced judge, District Judge Hennessey, who valued the non-whiplash injury along usual principles using the JC Guidelines, added the tariff award for the whiplash injury and then discounted down to allow for overlap along established Sadler v Filipiak [2011] EWCA Civ 1728 lines. APIL and MASS intervened and argument was heard in December 2022.

"Spinning around" Vicarious Liability BXB v Watch Tower [2021] EWCA Civ 356

The latest instalment in the development (or perhaps not) of the doctrine of vicarious liability is due to be head by the Supreme Court in February 2023. In BXB a religious organisation was found vicariously liable for the actions of an unpaid volunteer elder who raped another adult member of congregation at his home. The defendant lost at first instance and in the Court of Appeal, but the Supreme Court has given permission to appeal on both stages of the test for vicarious liability: whether the relationship was akin to employment as well as close connection.

"The Winner Takes It All": QOCS, set off and Part 36 offers

Currently claimants with QOCS protection are benefiting from two loopholes which are about to be closed. In 2022 the Ministry of Justice published a Consultation concerning potential rule changes to deal with the issue defined by the Supreme Court in Ho v Adelekun [2021] UKSC 43. The Supreme Court determined that in a QOCS case a defendant cannot set off costs ordered to be paid to it against costs it is ordered to pay a claimant. However in its meeting in October 2022 the Civil Procedure Rules Committee additionally proposed changes to CPR 44 (see the minutes of the October 2022 meeting) to plug the hole identified in Cartwright v Venduct Engineering [2018] EWCA Civ 1654 that settlements, including acceptance of Part 36 offers, are not orders of the court which allow a defendant to enforce a costs order against the...