Masood Ahmed, ‘Fixed recoverable costs, vulnerability and access to justice’

ABSTRACT
This article critically considers the decisions in Cham and Santiago as well as the vulnerability rules within the Jackson fixed recoverable costs regime, and the impact these developments have on the right of access to justice for vulnerable litigants. It is argued that the problems with the new rules on vulnerability is a rule of law issue and, therefore, must be reconsidered and amended to protect vulnerable litigants.

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Masood Ahmed, ‘Fixed recoverable costs, vulnerability and access to justice’ [2024] Journal of Personal Injury Law (1) 77.

Swaby and Richards, ‘Ouch! The practicalities of whiplash claims’

According to the Association of British Insurers (ABI), in 2021, there were 89,000 fraudulent claims detected in England. Of that number, 49,000 were in motor insurance, of which 10,617 were of an organised nature. This was an increase of approximately 8% on the 2020 levels where detected fraud amounted to £1.12bn. The insurance industry of course sees insurance fraud on a daily basis and clearly, legitimate policy holders should not have to bear the cost of high premiums that result from such fraudulent claims. It therefore comes as no surprise that a perceived compensation culture surrounding fraudulent insurance claims with regard to whiplash injuries has developed. With regards to this culture, it has been estimated that the eradication of such claims would save the motor insurance industry £2bn per annum and that this would result in every insured person seeing a reduction of £50 in their motor insurance policy premiums …

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Gerald Swaby and Paul Richards, ‘Ouch! The practicalities of whiplash claims’ [2024] Journal of Personal Injury Law (1) 55.

Julian Chamberlayne, ‘Compensation for future losses: an international comparative review’

In claims involving life-changing injuries the future losses are, in most jurisdictions around the world, the biggest single element of the compensation. Calculating these future losses involves the instructed lawyers combining their skills in analysing the law and the evidence. At times it feels like we are mystics attempting to read a crystal ball to reveal what the future holds for our client. Key variables include medical, mortality and economics risks. A key question we must all ask ourselves is what are we attempting to achieve? The answer from most of the international lawyers that I have spoken to over the years is full compensation. But what does that important phrase mean and how much does it vary from country to country? Is it solely focused on meeting the claimant’s injury related needs, or does it factor in what society, or insurers, say they can afford? …

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Julian Chamberlayne, ‘Compensation for future losses: an international comparative review’ [2024] Journal of Personal Injury Law (1) 37.

David Green, ‘How inflation impacts everything (but especially claims)’

INTRODUCTION
In the 30 months between March 2021 and September 2023, RPI inflation has raised general prices by 27% – about as much as prices had risen in in the previous 10 years. The last period of such sustained inflation was in the 1970s, when the UK was hit successively by the OPEC crisis and by protracted industrial strife. The rate at which inflation is increasing appears now to be slowing, but inflation looks set to remain above the Bank of England’s target rate for some time yet. Simultaneously, civil cases are taking longer to resolve. Fast and Multi-Track cases took an average of 75.9 weeks between issue and trial in 2022, compared to 52.7 weeks in 2009. For such a claim decided in September 2023, RPI inflation will have risen by 16.4% since the claim was issued. Personal injury lawyers have long been able essentially to ignore inflation, because it would at most affect the value of their claims by a couple of percentage points. But inflation cannot be ignored in this sector any longer …

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David Green, ‘How inflation impacts everything (but especially claims)’ [2024] Journal of Personal Injury Law (1) 28.

Tim Trotman, ‘Synergistic causation in tort’

ABSTRACT
The purpose of this article is to look at synergistic causation in the current law of tort. Existing references to synergy in case law will be examined, a definition of synergy put forward, and an attempt made to place synergy within the existing landscape of both material contribution, and Fairchild liability. Many examples discussed below derive from the specific case of asbestos/tobacco interaction to cause lung cancer. Mesothelioma is not discussed here, which has its own rules under the Compensation Act 2006 s.3 .

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Tim Trotman, ‘Synergistic causation in tort’ [2024] Journal of Personal Injury Law (1) 16.

Philip Sales, ‘Exploring the interface between the common law of tort and statute law’

Twenty years ago, Professor Jack Beatson attacked what he termed the ‘oil and water’ approach to the relationship between common law and statute, which sees them as separate sources of law which do not intermingle. But as he said: ‘Why should statutory manifestations of principle … not be part of the armoury of the common law judge in determining a hard case and seeking to determine what best fits the fundamental principles of the legal system?’ This article pursues Jack Beatson’s theme in the context of the law of tort. It will explore how the existence and scope of a duty of care in common law is informed by statute. This includes examining how duty of care analysis may be bound up with considerations of public policy. Public policy is a contested field. Where can judges look for guidance on public policy to legitimise the way in which it is prayed in aid by the courts in their reasoning? Statutes are an important source of guidance on public policy and so are capable of informing the courts’ approach to duty of care questions at common law …

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Philip Sales, ‘Exploring the interface between the common law of tort and statute law’ [2024] Journal of Personal Injury Law (1) 3.

Craig Purshouse, ‘Tort theory and the interpretive sleight of hand’

INTRODUCTION
What food best represents tort law? The question is not as bizarre as it first appears and the answer no longer appears to be escargot washed down with a ginger beer float. Indeed, food-based metaphors seem especially popular among tort theorists. For Robert Stevens, tort law is ‘not like minestrone soup’ insofar as one cannot ‘simply add together a number of disparate ingredients and hope to get a satisfactory result’. In her Clarendon Law Lectures, Jane Stapleton, no doubt in a nod to those remarks, was critical of theorists who ‘describe tort law as being fundamentally “all about one thing”, like carrot purée’. In the ‘carrot purée’ camp are those who have been referred to as ‘Grand Theorists’, ‘reductionists’, or ‘rights-fundamentalists’. This would encompass scholars in the corrective justice and rights-based traditions of tort theory …

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Craig Purshouse, ‘Tort theory and the interpretive sleight of hand’ (2024) 140 (April) Law Quarterly Review 301.

Daniel Meyerowitz-Katz, ‘Election between contractual rights: reconciling the authorities by recognising differences’

Where a party to a contract has two inconsistent rights it must elect between them, and an election to exercise one means the other is irrevocably lost. This applies where a party has a right to bring the contract to an end, such as through termination or rescission (collectively, ‘disaffirmation’). The party can either disaffirm the contract or affirm it, but not both. Once it does one it cannot do the other. This is the doctrine of election in contract law. But how does one know when a party has elected? And what is the basis for this doctrine? Such questions have caused a great deal of judicial and academic angst …

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Daniel Meyerowitz-Katz, ‘Election between contractual rights: reconciling the authorities by recognising differences’ (2024) 140 (April) Law Quarterly Review 198.

Sjåfjell and Mähönen, ‘Corporate Purpose and the Misleading Shareholder vs Stakeholder Dichotomy’

ABSTRACT
Corporate purpose has again become a topic of discussion in company law and corporate governance. In the European Union, the tension between the societal approach to companies with its long history and the efficiency-based approach with its much shorter history (and weaker basis) is palpable in the heated debates ever since the European Commission launched its Sustainable Corporate Governance initiative in 2020. In this debate, shareholder primacy proponents have sought to frame the discussion within what we call a shareholder v stakeholder dichotomy.

The dichotomy is misleading and dangerous in the way it takes company law proper out of the discussion and reinforces the shareholder primacy drive. We reject the dichotomy as a meaningful framing of the debate and seek to dismantle some of the strawmen set up on the road towards sustainable corporate governance. We instead discuss corporate purpose as a matter of company law and relevant to ensuring the contribution of business to sustainability, and how such an overarching purpose could be operationalised with a redefinition of duties of the board. With this backdrop, we analyse the Sustainable Corporate Governance initiative, concentrating on company law and sustainability aspects of the proposed Corporate Sustainability Due Diligence Directive.

Beate Sjåfjell and Jukka Mähönen, Corporate Purpose and the Misleading Shareholder vs Stakeholder Dichotomy, 34 Bond Law Review 69 (2024).

Zambrano, Guha, Peters and Xia, ‘Private Enforcement in the States’

ABSTRACT
Scholarship on US litigation and civil procedure has scarcely studied the role of private enforcement in the states. Over the past two decades, scholars have established that, almost uniquely in the world, the US often relies on private parties rather than administrative agencies to enforce important statutory provisions. Take your pick of any area in American governance, and you will find private rights of action: environmental law, civil rights, employment discrimination, antitrust, consumer protection, business competition, securities fraud, and so on. In each of these areas, Congress has deliberately empowered private plaintiffs instead of, or in addition to, government agencies. Yet, despite the vast importance of private enforcement at the federal level, we have no account of how prevalent private rights of action are in state law. And this question is particularly pressing now that a number of states – triggered by the Texas abortion law SB 8 – are using private enforcement to weaken constitutional rights. Is private enforcement a meaningful method of governance in the states or just at the federal level? Which political conditions lead to the adoption of state private enforcement? And why does it exist?

In this Article, we conduct the first systematic empirical investigation of the hidden world of state private enforcement. Using computational linguistics and machine learning, we identify private-enforcement provisions across a unique dataset of all fifty states’ laws going back to 2003. Our results show that private enforcement is ubiquitous at the state level …

Diego A Zambrano, Neel Guha, Austin Peters, and Jeffrey Xia, Private Enforcement in the States, University of Pennsylvania Law Review, volume 172 issue 1 (2023).