Introduction This Practice Note explains the applicable law and procedure where a party dies during the course of a personal injury claim or at the pre-action stage. It covers the following points: • the legal basis upon which personal injury claims can survive the death of a claimant or a defendant • limitation • the various losses in respect of which a claimant’s estate can recover • practical steps that ought to be taken depending on whether the deceased was a claimant or defendant including: ◦ identifying the parties and whether Personal Representatives are in place ◦ client care and funding ◦ dealing with evidence (Civil Evidence Act notices) • payments made into court • the applicability of the protocols for low-value claims This Practice Note does not cover cases in which the original claimant’s death was caused by the tort in question, resulting in a potential claim for the benefit of his or her dependents under the Fatal Accidents Act

This Practice Note is intended to highlight a range of issues which arise in personal injury claims where either the claimant or defendant becomes insolvent. It is important first to distinguish between two distinct but related concepts. A company is insolvent where either it is unable to pay its debts as they fall due or where the value of the company’s assets is less than the amount of its liabilities. Although less explicit in the Insolvency Act 1986 (IA 1986), the same criteria would also determine whether or not an individual is insolvent. The concept of insolvency is to be distinguished from the factual question of whether or not either an individual or a company is in an insolvency process. In the case of a company, the principal processes are liquidation and administration. In the case of an individual, the principal process is bankruptcy. The impacts of a party to a personal injury claim entering into an insolvency process are often profound and the bulk of

The spine The spine is a complex structure, divided into five regions: • cervical (C1 to C7)—the neck region; it has the greatest range of flexibility and supports the full weight of the skull • thoracic (T1 to T12)—the upper to mid back region; its main function is to hold the ribcage, which in turn protect the major organs. It has very limited movement • lumbar (L1 to L5)—the lower back region, its main function is to support the body’s weight and it has good flexibility • sacrum (S1 to S5)—the pelvis region, its main function is to connect the spine to the hip bones • coccyx—it is the tailbone and is an important attachment for tendons and ligaments within the pelvic area Within the spinal column the spinal cord runs from the medulla oblongata to first lumbar vertebra. The spinal cord consists of a cylindrical bundle of nerve fibres and is surrounded, for protection, by cerebrospinal fluid. It is the main pathway connecting the nervous system to the brain, alongside

Introduction A claimant may be able to pursue a claim under the Human Rights Act 1998 (HRA 1998) against a public authority for a breach of their convention rights under the European Convention on Human Rights (ECHR). The court has a discretion to award damages. Claims under HRA 1998 are of potential relevance to personal injury practitioners particularly where the claimant would be left with no remedy unless they bring a claim under HRA 1998. There are certain circumstances in which claimants will have no valid claim arising from personal injury unless they bring a claim under HRA 1998. In light of that fact, and the tight deadline for bringing such claims (the primary limitation period is just one year), all personal injury practitioners should at the very least familiarise themselves with the basics of how these claims operate. HRA 1998 claims are different in a number of significant respects from traditional personal injury claims. Prerequisites for a claim A claim under HRA 1998 can only succeed where

Option 1: Payments made to independent claims management company Your matter was referred to us by [insert name of introducer], which is a claims management company. We are required to inform you that [insert name of introducer] has a financial interest in referring you to us, because we make payments to [insert name of introducer] for [advertising, operating a call centre and vetting potential claims]. The amount we pay depends on the actual cost of the advertising/marketing but is generally in the region of £[insert range] for each potential client referred to us. We will not allow our arrangements with [insert name of introducer] to interfere with our commitment to: • treat you fairly • protect your best interests in all of our dealings with you • give you independent advice and not allow others to influence that advice If you have any queries or concerns about our arrangements with [insert name of introducer], please do not hesitate

Introduction Expert witnesses in personal injury claims provide expert opinion on medical and technical non-medical issues within their field of qualification. An expert’s duty is to help the court on matters within their expertise and the expert’s duty to the court overrides any obligation to the party instructing or paying them. Medical evidence is provided to the court in the form of a written report. The main experts in a personal injury claim are medical and medical evidence is fundamental in enabling the court to determine the diagnosis of injury caused by an accident and the extent of damage and loss sustained. Non-medical experts can provide evidence about liability issues, causation and non-medical losses. The relevant provisions relating to expert evidence are set out in CPR 35 and CPR PD 35 and the Guidance for the Instruction of Experts in Civil Claims 2014. See also Practice Note: Expert reports. Practitioners need to exercise a good control over expert evidence. There needs to be a critical assessment and consideration of the medical report to make sure that

PI & Clinical Negligence analysis: The High Court dismissed a claim by a motorcyclist who claimed to have lost traction on a worn manhole cover that was on a bend in the carriageway. As a result of his accident the claimant underwent an amputation of one of his arms. The case is relevant to the following issues: the definition of a defect in the carriageway; whether a claimant proves the circumstances and cause of his accident; the type and frequency of highway inspection; risk assessing the location of a manhole cover in the carriageway; and the particular vulnerability of motorcycle users. Written by Lee Evans, counsel at Farrar’s Building, Temple, EC4Y 7BD.

This new starter guide is one of two Personal Injury—new starter guides. This guide provides a general introduction to personal injury (PI) practice and signposts further resources. It is aimed at trainee solicitors and those who are new to working in PI as a practice area. It focuses on the key issues that arise pre-action (ie before court proceedings are started) when pursuing or defending a PI claim. There are a number of factors which practitioners should consider from the outset of a personal injury claim, including the limitation period applicable, the liability issues that are likely to be important in the case, the pre-action protocol to be followed and how the case might be funded. This new starter guide includes links to other Lexis+® sources and materials which provide more comprehensive information on the topics covered. This guide provides a general introduction to PI practice, including, the role of the PI solicitor, early considerations and the pre-action phase. Personal injury new starter guide—procedure provides an introduction to PI litigation from considering

This new starter guide is one of two Personal Injury—new starter guides. This guide provides an introduction to personal injury (PI) procedure from considering the commencement of court proceedings through to settlement or trial. It is aimed at trainee solicitors and those who are new to PI as a practice area. It focuses on the key issues that arise in PI and includes links to other LexisNexis® sources and materials which provide more comprehensive information on the topics covered. Practice Note: Personal injury new starter guide—pre-action provides a general introduction to personal injury (PI) practice, including, the role of the PI solicitor, early considerations and the pre-action phase. Those who are new to PI are also likely to find the Overviews in each of the subtopics in the PI practice area useful. These Overviews give an introduction to each of the subtopics in the PI module with links to relevant content to help navigate the topic covered. This guide will look at: • Alternative procedures to litigation—common types of PI claims which are

Personal injury recovery describes the process and outcome of obtaining compensation (damages) for loss, injury or illness caused by another party’s negligence, breach of statutory duty or other actionable wrongdoing. It is not a statutory term of art, but a descriptive expression used in personal injury litigation and insurance practice across England and Wales, Scotland, Northern Ireland and Ireland.In practice, personal injury recovery covers both the securing of liability findings (or settlement) and the quantification and payment of damages. These typically include general damages for pain, suffering and loss of amenity, and special damages for financial losses such as loss of earnings, care costs and medical expenses. In serious cases it may include future losses, periodical payments, and provisional or interim damages.The legal framework includes common law principles, limitation rules and pre‑action protocols, together with specific statutes (for example the Limitation Act 1980, Damages (Scotland) Act 2011 and equivalent legislation in Northern Ireland and Ireland). While terminology and procedure vary slightly by jurisdiction (e.g. solatium in Scotland, different court structures and guidelines), the underlying concept of personal injury recovery as compensatory redress is broadly consistent.

This Practice Note explains the SRA’s requirements regarding personal injury (PI) referral arrangements. It reflects the SRA Standards and Regulations, together with SRA guidance and the underlying statutory regime—the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO 2012). For guidance on generic SRA requirements relating to referral arrangements (including personal injury referral arrangements), see Practice Note: Referral and fee sharing arrangements. If you believe that your personal injury referral arrangement may involve an unlawful referral fee you should: • terminate the arrangement, or • change the arrangement, to exclude the unlawful fee and ensure you comply with all relevant SRA requirements Statutory regime PI referral fees are banned in almost all circumstances. LASPO 2012 introduced a high-level statutory framework for the PI referral fee ban. The statutory framework is implemented by front-line regulators such as the SRA and Financial Conduct Authority (FCA). Certain powers are reserved to the Lord Chancellor to make secondary regulations. Who is within scope of LASPO 2012? LASPO 2012 applies to regulated persons. This includes persons authorised by the

This Practice Note explains the systems and controls you should consider implementing when personal injury (PI) referrals are received by the firm, to identify prohibited PI referral arrangements and ensure you comply with the statutory and regulatory regime in relation to any PI referral arrangements you consider to be lawful. It reflects the SRA Standards and Regulations and underlying statutory regime—the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO 2012). For guidance covering referrals made by your firm, see subtopic: Introductions to third parties. Not all PI referral arrangements to your firm involving payments are unlawful. See Practice Note: Personal injury referral arrangements—SRA requirements—Statutory regime which explains the underlying statutory regime and how this is implemented by the SRA. See also Practice Note: Personal injury referrals—SRA examples, flowchart and guidance. For guidance on generic SRA requirements relating to referral arrangements (including personal injury referral arrangements), see Practice Note: Referral and fee sharing arrangements. Assessing whether your PI referral arrangements are compliant You should review your existing PI referral and fee sharing arrangements