Personal Injury & Clinical Negligence 2025 Case Update – part 3

Written by:

Dan Jacklin

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In the third of a series of updates, Dan Jacklin, Connor Wright & Pupil Barrister Kyran Kanda have compiled an update on Personal Injury and Clinical Negligence cases which have been in the courts this year.

PERSONAL INJURY

(1) MH Site Maintenance Services Limited (2) Markerstudy Insurance Services Limited v James Watson [2025] EWCA Civ 775

RTA Pre-Action Protocol – Part 8 proceedings – Staying the claim

The Respondent failed to produce the settlement pack in a claim proceeding through Stage 2 of the CPR Low Value Road Traffic Accident Claims Pre-Action Protocol (‘PAP’). As limitation was about to expire, the Respondent issued Part 8 protective proceedings. A judge stayed the proceedings for 12 months with liberty to apply to lift the stay. The Appellants applied to lift the stay and for an unless order requiring the settlement pack to be filed and served within 21 days. 

The district judge held he did not have jurisdiction to make such an order as the court was not managing the PAP proceedings. That decision was confirmed at first appeal. At second appeal, the court overturned both decisions and held that, following Part 8 proceedings being issued, the court had jurisdiction to case manage the claim. 

In practical terms, the procedure under the PAP enabled a claimant a longer time to bring proceedings than the Limitation Act 1980 permitted. The court said there was no reason why claimants in lower value claims should be granted that indulgence where those with more serious injuries would not be. The renewal of a stay should never be seen as a ‘rubber stamping’ exercise. Under PD49F, the court can make the stay conditional on the happening of a particular event, such as the service of the settlement pack. 

Summary by Daniel Jacklin

Morris v Williams [2025] EWHC 218 (KB)

Without prejudice – Fundamental dishonesty – Unambiguous impropriety exception

In what circumstances will correspondence marked “without prejudice – save as to costs” be admissible as evidence? The Claimant brought a personal injury claim. The Defendant admitted negligence but alleged the Claimant had been fundamentally dishonest after video footage was obtained purportedly showing the Claimant in better health than he claimed. The Defendant applied to adduce a letter marked “without prejudice – save as to costs” which contained an admission to being “fundamentally dishonest” regarding aspects of the claim. 

The starting point is that without prejudice correspondence is inadmissible (Rush & Tompkins Limited v Greater London Council [1989] AC 1280 at 1289). There are exceptions to the rule. One exception relates to situations where to exclude material marked as ‘without prejudice’ would act as a cloak for perjury, blackmail or other “unambiguous impropriety” (Unilever PLC v The Proctor & Gamble Company [2000] 1 WLR 2436). An illustrative example is Merrill Lynch v Raffa [2001] ILPr 31, where the Defendant wished to defend an allegation of fraud where he had admitted having committed fraud in correspondence marked ‘without prejudice’. 

DJ Dodsworth upheld the Defendant’s application. He found that the letter contained an admission of fundamental dishonesty which was admissible based on the unambiguous impropriety exception. The letter was duly admitted.

Summary by Kyran Kanda

Zavorotnii v Malinowski [2025] EWHC 260 (KB) 

CCMCs – CPR 44.2 – Post-hearing costs orders

In Zavorotnii v Malinowski [2025] EWHC 260 (KB), HHJ Karen Walden-Smith considered the arguments as to whether a major reduction in a party’s costs budget should lead to an order for costs being made, rather than an order for costs in the case.

The case arose from a road traffic accident, in which the claimant sustained severe injuries as a passenger in a vehicle driven by the defendant. The claimant brought a personal injury claim against the defendant, who in turn sought an indemnity or contribution from the driver of the third-party vehicle. At a costs case management hearing, the court addressed the budgeting of costs for three phases of the litigation: disclosure, witness statements, and expert evidence. The claimant sought approval for a budget of £511,125.30, while the defendant proposed £261,374.30. The court approved a budget of £308,909.30, representing a 40% reduction from the claimant’s proposal but an 18.2% increase over the defendant’s offer.

The defendant argued that the claimant’s budget was overly ambitious and unrealistic, warranting a departure from the usual “costs in the case” order at the CCMC. The defendant sought an order requiring the claimant to pay the costs of the CCMC.

HHJ Walden-Smith considered recent authorities in relation to the application of the court’s discretion under CPR 44.2, which established that the court may depart from an order for “costs in the case” in CCMCs if a party’s budget is deemed unreasonable or unrealistically ambitious. The court noted that the claimant had increased its budget for two phases after the initial case management hearing, widening the dispute rather than narrowing it. Notwithstanding, the court held that, while the claimant’s budget was “overly ambitious”, it was not “entirely unrealistic.”

In light of these factors, the court made the usual “costs in the case” order, but issued a warning that future cases involving overly ambitious and unrealistic budgets could result in costs orders being made against the party seeking approval.

Summary by Connor Wright

Stephen Turner v Coupland Cavendish Limited [2025] EWHC 1605 (KB) 

Solicitor-client costs assessments – Part 18 requests – ATE premiums

The dispute arose in the context of proceedings for detailed assessment of a bill of costs. The respondent solicitors had acted for the appellant in a personal injury claim. Mr Turner’s claim had been settled. He received the respondent’s bill of costs and brought proceedings under s.70 of the Solicitors Act 1974, and CPR Part 67 for its assessment. 

Mr Turner was concerned that the ATE premium that he had been charged was inflated or that there was a secret commission paid to the respondent. He argued that any undisclosed financial benefits constituted client money and should have been credited to the cash account. With regard to a payment of £750 that was made by the respondent to a Gibraltar-based company, he said that he had entered into a separate damages-based agreement with that company under which a success fee would be taken by it, rather than by the respondent. Mr Turner requested, under CPR Part 18, information about the ATE insurance arrangements. He maintained that a former client, as principal, was entitled to receive information from their solicitor, acting as their agent.

On appeal, Sweeting J (sitting with Master Brown) concluded that, in relation to requests relating to a commission, the threshold is that the information must relate to a matter in dispute in the proceedings; there is no requirement for a witness statement or a “positive case” to be established by the requesting party. In some situations, it might be appropriate to request information under Part 18 to ascertain whether there is a dispute. It is incumbent on a solicitor to show that the cash account is accurate, not for a client to disprove it.

The ATE insurance premium was deemed to be an item in the cash account, reflecting a payment made on behalf of a client. The determination of “the result of the cash account” was a step required of the costs judge following detailed assessment of the bill, under para. 6.19 of Practice Direction 46. Whilst there could be no direct challenge to the quantum of the premium within the s.70 assessment, the accuracy of the cash account can thus be challenged, as noted in Herbert v HH Law Ltd [2019] EWCA Civ 527.

Further, for the purpose of a Part 18 request, it could not be assumed that there was no agency or that it would not be a relevant factor. Agency may give rise to a duty to account for the receipt of a commission, which is a distinct basis for the provision of information as to the performance of that duty, per Belsner v CAM Legal Services Ltd [2022] EWCA Civ 1387.

Summary by Connor Wright

Inquest into the death of Alexander Eastwood

Kickboxing – Combat sports – Regulation 28 report

Alex died on 2 July 2024 after he suffered a catastrophic bleed on the brain during an unsanctioned kickboxing bout three days prior in an exhibition match at a gym in Wigan. Alex was a five-time world champion kickboxer who had remained unbeaten for two years before the bout. His opponent in July 2024 was an adult kickboxer, two years his senior, who had experience of training and fighting in full-contact bouts. The bout was held outside Kickboxing GB rules. 

Mr Todd, an expert neurosurgeon, raised concerns about delays in clearing Alex’s airway at the scene and the decision to first transfer him to Royal Albert Edward Infirmary in Wigan rather than the Royal Manchester Children’s Hospital, where surgeons were waiting to operate on Alex. The inquest was told there were no independent ringside doctors or paramedics at the event. 

HM Area Coroner Michael Pemberton issued a Regulation 28 Prevention of Future Deaths report before the full inquest had been heard, clearly highlighting the court’s concern. The Secretary of State for Culture, Media and Sport, Lisa Nandy, said her department was tasked with “exploring ways to urgently improve the safety and welfare of children in martial arts and ensure it is always a priority.” 

At the time of writing, Hurricane Combat & Fitness, Kickboxing GB, and UK Sport have either not yet replied or their replies are yet to be made publicly available at www.judiciary.uk.  

Summary by Daniel Jacklin


CLINICAL NEGLIGENCE

Philipa Hodgson v (1) Dr Daniel Hammond (2) Dr Andre Dieleman [2025] EWHC 1261 (KB)

Pelvic inflammatory disease – late diagnosis – failure to refer  

The Claimant was a patient at Brighton Station Health Centre. She alleges that the Defendant clinicians failed to act upon a potential diagnosis of pelvic inflammatory disease (‘PID’). Dr Hammond is said to have failed to undertake a pelvic examination on 30 August 2016 or to arrange an ultrasound thereafter. Dr Dielman is said to have failed to refer the Claimant for an urgent pelvic examination following a telephone consultation on 5 September 2016. 

The causation experts agreed that earlier diagnosis would have led to a recovery within two weeks, avoided a tubo-ovarian abscess, a hydrosalpinx, a laparoscopy in which her left fallopian tube was removed and a further infection leading to a second laparoscopy. They also agreed that the Claimant’s pelvic adhesions would have been fewer and less extensive. Further, the Claimant would have avoided chronic pelvic pain, dyspareunia and dyschezia to the same extent.

HHJ Melissa Clarke found both allegations of negligence proven as set out above. The quantum judgment [2025] EWHC 1610 (KB) is now also available. The learned judge awarded £94,000 for PSLA and total damages of £126,251.95. The judgment contains some pertinent observations on the expert evidence which may be useful to medico-legal experts.  

Summary by Daniel Jacklin

Michelle Prudence & Anor v Gloucestershire Hospitals NHS Foundation Trust [2025] EWHC 1209 (KB)

Strike-out – summary judgment – psychiatric injury

The Claimants worked as midwives for the Defendant and took over care from two other midwives whom it had been admitted were negligent in delivering “Baby Margot” at a hospital in Cheltenham. The claim avers that the “horrifying” matters that occurred during the transfer of care caused them to each experience significant psychiatric injuries. 

The case concerns strike out and summary judgment applications concerning ten paragraphs of an Amended Defence. Master Thornett was critical of the original Particulars of Claim which failed to plead the precise scope of the duty of care owed to the Claimants, notwithstanding that the Claimants understood that it was not disputed that the Defendant was negligent in respect of Baby Margot. He was also critical of the Claimants’ attempts to introduce new allegations in the subsequent Reply. The Amended Defences were alleged to breach CPR 16 requirements in that they were “bare defences” and failed to plead a positive case when it ought to do so (SPI North Ltd v Swiss Post International (UK) Ltd [2019] EWCA Civ 7). 

Master Thornett dismissed the strike out application concerning all ten of the cited paragraphs. He said that any arguable absence of a precise counter-factual or legal defence could fairly be interpreted to have arisen because of: (a) an imbalance between reliance upon very specific particulars of clinical negligence and the unclear duties owed to each Claimant and their breach; (b) the allegations fell outside the Defendant’s knowledge as understood in SPI or; (c) constituted counter-factual matters the Defendant was unable to admit or deny.

The application for summary judgment was also rejected. Master Thornett found that the claim was not as self-contained and self-proving as the Claimants contended. It was “unacceptably broad” for the Claimants to rely on clinical negligence of the Defendant with respect to Baby Margot not to support claims for loss directly caused by that negligence but instead as giving rise to a factual scenario in which, the Claimants contend, there were separate acts or omissions as were directly owed to them. He rejected that the Defence was “incoherent” or had no real prospect of success.

Summary by Kyran Kanda


Whilst every effort has been taken to ensure that the law in this article is correct, it is intended to give a general overview of the law for educational and/or informational purposes. It is not intended to be a substitute for specific legal advice and should not be relied upon for this purpose.

This article represents the opinion of the author and does not necessarily reflect the view of any other member of St Philips Chambers.

Written by Dan Jacklin

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