In the fourth of a series of updates, Dr 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
Hetherington v (1) Raymond Fell (2) Ferryhill Wheelers Cycling Club [2025] EWHC 1487 (KB)
Duty of care – amateur sporting events – cycling
On 23 May 2019, the Claimant was riding a bicycle in a time trial on a dual carriage way when he collided with D1. D2 was the cycling club run by amateurs and volunteers who had arranged the time trial. D1’s insurer admitted liability. The issue was whether D1’s Part 20 claim against D2 for contribution and/or indemnity could succeed.
Mr Justice Ritchie dismissed the Part 20 claim against D2. He found that D2 did carry a duty of care when performing the generic risk assessment to ensure, so far as they reasonably could, that the time trial was brought to the attention of road users by signs and marshals. There was a foreseeable risk of harm to riders on public roads from the drivers of third party vehicles. There was a relationship of close proximity as the riders entrusted the choice of course, the time of the trial, the risk assessments and the warning measures to D2. It was just, reasonable and fair to recognise the existence of a duty of care on D2.
D2 had discharged that duty by carrying out a risk assessment in 2007 and 2018 properly and sufficiently. That risk assessment, for example, had considered all junctions, traffic flow, right of way, visibility, road surfaces and major and minor road status. A further risk assessment carried out on the day was also adequate and sufficient.
The measures put in place by the generic risk assessment, namely signs and marshals, were sufficient reasonably to bring the time trial to the attention of drivers. D2’s decision to place a sign at the Butterwick Road junction was an additional notice to other road users and was evidence of how carefully they considered their duty of care, albeit not necessary.
This was a voluntary organisation carrying out tasks for free for the benefit of members of society and the standard of care placed upon them in law was not so high that it would discourage such beneficial voluntary activities.
Summary by Kyran Kanda
Andrew Cannestra v McLaren Automotive Events Limited [2025] EWHC 1844 (KB)
PTR 1992 – travel law – snowmobile safety
The claimant, Mr Cannestra, was a neurosurgeon who attended a McLaren road cars event in Lapland. He was a regular attendee at McLaren road car events. On 2 February 2020, Mr Cannestra lost control of a snowmobile and hit a tree. A claim for personal injury and consequential losses was brought under the Package Travel and Linked Travel Arrangement Regulations 2018. Finnish standards applied to the snowmobile safety aspects of the case.
Ritchie J performed a detailed analysis of the expert evidence in the case and found that the accident was caused by the Claimant’s accidental throttle use, which in turn was caused by the Claimant failing to follow the instructions given about safe navigating a left turn. Ritchie J considered a safety briefing of five minutes duration for two customers was adequate.
In determining whether the instructor met the standard of care required, he noted that he was “not guiding a 17 year old, new car driver. He was guiding a mature, supercar and jet-ski aficionado, who had ridden confidently and wanted more speed.” Consequently, the claim was dismissed.
Summary by Dr Dan Jacklin
Hannah Louise Rawson v TUI U.K. Ltd [2025] EWHC 2093 (KB)
PTR 1992 – travel law – infectious disease
Ms Rawson was a school teacher who travelled to Mexico on 8 July 2016 for a holiday at an all-inclusive hotel, booked through the Respondent. On 11 July 2016, she fell ill with diarrhoea and vomiting. She was diagnosed with Post-Infective Irritable Bowel Syndrome with accompanying anxiety and stress.
Her claim was that a food-borne pathogen known as cyclospora had caused her illness, but it also invited the court to make an award in her favour if her illness could be found to have likely been attributable to another pathogen. The claim was brought under the Package Travel and Linked Travel Arrangement Regulations 2018.
The case in the High Court was on appeal of the decision of HHJ Murdoch given in February 2024. He had dismissed the claim. The grounds of appeal were that the judge was wrong to find that: (1) a regional laboratory had been wrong because a national laboratory reached a different view, (2) that it was likely, on the evidence, that the pathogen must have come from consuming food and drink at the hotel.
Coulson LJ helpfully recounted the authorities on appeals against findings of fact, which is that appeal courts will not interfere unless compelled to do so. In Wheeldon Bros Waste Ltd v Millenium Insurance Co Ltd [2018] EWCA Civ 2403 he echoed the sentiments of several decisions of the House of Lords and Supreme Court on this point, including “the trial is not a dress rehearsal. It is the first and last night of the show” and “in making his decisions, the trial judge will have regard to the whole of the sea of evidence presented to him, whereas an appellate court will only be island hopping.”
Coulson LJ summed up the position by saying at paragraph [10]: “In short, to be overturned on appeal, a finding of fact must be one that no reasonable judge could have reached. In practice, that will usually occur only where there was no evidence at all to support the finding that was made, or the judge plainly misunderstood the evidence in order to arrive at the disputed finding.”
On appeals against findings based on expert evidence, the appellate court will still be slow to intervene as expert opinion is entwined with factual evidence (Thomson v Christie Manson & Woods Ltd [2005] EWCA Civ 555).
For appeals based on adequacy of reasons, the authorities were recently summarised in Glas SAS (London Branch) v European Topsoho SARL [2025] EWCA Civ 933.
Cavanagh J then turned to his findings, upholding the trial judge’s decision that the regional laboratory finding was likely a false positive. Further, that the Claimant likely came into contact with the pathogen through the consumption of food and drink because there was no evidence at trial of the risk of it coming from other sources.
Notwithstanding that it was not in issue in this case, Cavanagh J helpfully said, relying on Glas SAS, that a failure to ask the trial judge to give further reasons does not prevent a party appealing the decision. He said, in the context of ex tempore judgments, that it was “asking too much” of a potential appellant to request further reasons moments after the judgment has been handed down. A party should take time to consider the reasons.
The appeal was dismissed.
Summary by Dr Dan Jacklin
CLINICAL NEGLIGENCE
NHS Staffordshire and Stoke-on-Trent Integrated Care Board v (1) AB (2) Midlands Partnership University NHS Foundation Trust (3) CD (4) EF [2025] EWCOP 20 (T3)
Court of Protection – Advance Decision to Refuse Treatment (“ADRT”) – Validity and Applicability
An Integrated Care Board sought a determination as to the validity and applicability of an ADRT purportedly made by AB.
AB had suffered a prolonged disorder of consciousness (“PDC”) following a catastrophic brain injury. He was being kept alive by means of long-term invasive care, including clinically assisted nutrition and hydration. He lacked capacity to make decisions about his medical treatment. All of the parties except his mother accepted, in accordance with expert evidence, that there was no prospect of his emerging from the PDC.
Before AB sustained his brain injury, he purportedly signed a living will which contained an ADRT, in accordance with the definition under s.24(1) of the Mental Capacity Act 2005. The ADRT refused life-sustaining treatment in the event of his suffering a “bad brain injury” from which he was unlikely to recover.
The ADRT’s authenticity, validity and applicability were in dispute. AB’s mother believed that it was a fake document or that AB had been unduly influenced into signing the ADRT. Even if the ADRT was genuine, she did not believe it applied to his circumstances.
The court granted the application and gave rare guidance surrounding disputed ADRTs. The ADRT was not brought to the attention of AB’s treating clinicians until August 2024, and it was not raised as a concern to the court until January 2025. The Second Defendant rightly accepted that it should have made an application to the Court of Protection as soon as it became aware of the ADRT and the dispute about its validity and applicability. The Court provided that:
- An ADRT would not be effective unless the relevant people knew of its existence. Any individual wishing to make an ADRT would be well advised to give a copy to their GP with clear and appropriate instructions.
- A genuine, valid and applicable ADRT is legally binding on clinicians. The decision may not be overridden by the wishes of their family or the views of the clinicians. A best interests assessment is unnecessary where an ADRT has been made.
- Where the existence of an ADRT is raised, any clinician would be wise to proactively make enquiries as to the validity of an ADRT. The treating clinicians should request a copy and should scrutinise it carefully. The Royal College of Physicians PDC Guidelines 2020 should be followed and, if necessary, a prompt application should be made to the Court of Protection.
- In the absence of a known ADRT, those treating a patient in a PDC would have to follow the best interests guidance set out in the PDC Guidelines in any event. A patient’s emergence from a PDC should be noted only when the criteria for emergence had been met and recorded.
- Even an invalid or inapplicable ADRT could be taken into account in a best interests decision, so a best interests consideration should not be delayed while the validity, applicability or authenticity of an ADRT was being scrutinised. The two processes should proceed in parallel.
- Anyone questioning the authenticity of an ostensibly valid and applicable ADRT must provide reasonable grounds for their concerns.
Summary by Connor Wright
Rebecca Hepworth v Dr Amanda Coates [2025] EWHC 1907 (KB)
Cauda equina syndrome – late diagnosis – spinal surgery
The allegation concerned a GP, Dr Coates, who was said to have failed to diagnose “red flag” symptoms of cauda equina syndrome at a face-to-face consultation on 5 November 2018. It is said that had those signs been recognised, Ms Hepworth would have been sent for emergency spinal surgery the same or next day, rather than on 9 November 2018 when she had the operation.
The experts agreed that a substantially better outcome would have been achieved had the operation occurred on 5/6 November 2018. It is common ground the effects of the delay have had a life-changing impact on the Claimant. Special damages are valued in excess of £5 million.
The claim failed to establish Dr Coates had been negligent. Dr Coates was considered a conscientious GP. Whilst her note taking was considered insufficient in places, she had recently attended training on the red flags for CES and the factual evidence supported Dr Coates’ conclusion. The claim was dismissed. HHJ Charman went on to note that, had liability been established, general damages would have attracted an award of £170,000.
Summary by Dr Dan Jacklin
HQA v Newcastle-upon-Tyne Hospitals NHS Foundation Trust [2025] EWHC 2121 (KB)
Heart surgery – hypoxic brain injury – adverse inferences
On 3 May 2022, the Claimant underwent elective open-heart surgery. It was agreed that the surgeon unintentionally cut the wall of the Claimant’s aorta, causing catastrophic haemorrhaging. The Claimant sustained a serious hypoxic brain injury. Geraint Webb KC, sitting as a Deputy High Court Judge, decided three preliminary issues.
Firstly, there was a breach of duty during the pre-operative stage in failing to expose and prepare the Claimant’s femoral vessels. This would have facilitated cardiopulmonary bypass in the event of the occurrence of the known and foreseeable risk of aortic injury.
Secondly, there was no breach of duty during the intraoperative stage. The catastrophic injury to the aorta which eventuated was a known and foreseeable risk (being a medium to high risk) of injury inherent in the surgery. That injury eventuated in the absence of negligence on the part of the surgeon.
Thirdly, there was a breach of duty concerning consent. There was a failure to ensure that the Claimant received advice as to the risks of the proposed surgery in advance. There was also a breach of duty in failing to advise the Claimant that, prior to commencing the surgery, the femoral vessels could be exposed and prepared in order to attempt to mitigate the severity of injuries resulting from the foreseeable and known risk of aortic injury. Had the Claimant received such advice then, on the balance of probabilities, the Claimant would still have elected to proceed with the surgery on the same date but with the option of the femoral vessels being exposed and prepared in advance.
The judgment is also notable for its comments on drawing adverse inferences. The Defendant had failed to adduce a witness statement from Mr De Rita, a consultant who was called into the operating theatre after the Claimant suffered the injury and attempted cannulation. It would have been appropriate to draw an adverse inference from the Defendant’s failure because no proper explanation had been advanced to explain the lack of a witness statement and the specific facts of the case called for an explanation of the circumstances in which the femoral artery dissected. The appropriate adverse inference to draw would be that Mr De Rita’s evidence would have supported the Claimant’s case. By contrast, it was not appropriate to draw inferences in relation to other disclosure failures because there was an explanation for it, there was other contemporaneous evidence to assist the court, and the disclosure was only relevant to an issue that was not pleaded and raised by the Claimant at a late stage.
Summary by Kyran Kanda
Costs Cases
Sony Interactive Entertainment Europe Limited & Anor v Alex Neill Class Representative Limited [2025] EWCA Civ 841 [2025] EWCA Civ 841
Costs and litigation funding – enforceability – damages based agreements – collective proceedings
This was the decision in four conjoined appeals from the Competition Appeal Tribunal (“CAT”) concerning the enforceability of the respective Litigation Funding Agreements (“LFAs”) that had been agreed in each case. In each of the underlying proceedings, the CAT held that the LFAs were enforceable, but granted permission to appeal on the ground that there was “some other substantial reason” to do so. That substantial reason arose from the ongoing uncertainty surrounding the enforceability of LFAs, particularly following the decision of the Supreme Court in R (PACCAR Inc) v Competition Appeal Tribunal [2023] UKSC 28 (“PACCAR”).
In each case, the LFAs in question were amended following PACCAR, doubtless to avoid findings that the LFAs were unenforceable Damages Based Agreements (“DBA”) under section 58AA of the Courts and Legal Services Act 1990 (“the CLSA”). The Court of Appeal was required to decide three issues:
- First, if the amount payable to a funder is payable from and/or capped by the proceeds of a successful outcome, is the amount of the payment “to be determined by reference to the amount of the financial benefit obtained” for the purposes of section 58AA(3)(a)(ii) of the CLSA?
- Secondly, if the LFAs provide that the funder is paid a percentage of the proceedings, “only to the extent enforceable and permitted by applicable law”, is it a DBA?
- Thirdly, if the LFA is unenforceable and/or unlawful, can any parts of it be severed?
Concerning the first issue, the appellants argued that, where there is an express or implied cap on the funder’s return by reference to the amount of the proceeds, the amount of the payment to the funder is “determined by reference to the amount of the financial benefit obtained.” This would make the LFA an unenforceable DBA (either generally, in opt-out proceedings, or unless it complies with the DBA Regulations 2013 in opt-in proceedings).
Flaux C found that “the amount of the financial benefit obtained should be focused on the primary contractual entitlement of the funder,” which in the present cases was not a percentage of damages as in PACCAR. The appellants’ argument would have produced the “absurd result” that funding under LFAs in the CAT would become practically impossible save where the DBA Regulations could be complied with.
With respect to the second issue, Flaux C determined that the respective provisions for recovery by reference to a percentage of the proceeds were “simply of no contractual effect” under the current law. Section 58AA(3)(a)(ii) CLSA was not engaged. Flaux C also rejected the appellants’ submission that the inclusion of that provision gave rise to an increased risk of a conflict of interest between the funder and the class representative.
Finally, Flaux C held that it was unnecessary to decide the third issue, having found against the appellants on the first and second issues.
Summary by Connor Wright
XX & Anor v Young & Anor [2025] EWHC 2073 (SCCO)
Costs – detailed assessment – proportionality
In this matter, Costs Judge Nagalingam considered how the proportionality test should be approached in Detailed Assessment proceedings. The Court also considered the extent to which issues of conduct could be considered within the assessment. Following the Court’s line-by-line assessment of the bill, it was reduced by some 36.4%. Substantial further reductions were then made in accordance with the court’s assessment of proportionality.
The SCCO’s key findings are as follows:
- The assessment of proportionality is no longer a prospective exercise. The court may, and did, undertake a line-by-line assessment first, before standing back to consider whether the assessed costs were proportionate against the CPR 44.3(5) factors. The court has not, generally, ruled out accounting for proportionality during the course of a line-by-line assessment, but must be careful not double-count proportionality deductions if that approach is taken.
- A reduction of receiving party costs by one third was ‘not untypical’ following a line-by-line assessment in the SCCO.
- Consideration should be given to the true value of a claim. This case had a range of possible outcomes. The court concluded, however, that the claim value was closer to the £149,000 settlement than the £2.5m fully pleaded claim. Judge Nagalingam found that the court should have regard to “a notional bracket of possible outcomes without descending into the improbable”.
- The paying party is entitled to raise the conduct of their opponent within the costs proceedings. The paying party cannot, however, seek relitigate issues from the substantive litigation. The receiving party could have elected to press their case in relation to alleged exaggeration of injuries, but elected not to do so.
- The court may have regard to any conduct which generates costs, whether that conduct is good or bad. There is no particular requirement for the court to make a finding of misconduct in order to consider the impact of any particular conduct. In the instant case, the Defendant had elected to keep liability a live issue and had not made early protective settlement offers. It was therefore reasonable for the Claimant to continue with litigation.
- Vulnerability includes such factors as age, language barriers and injury recovery. The isolating effect of the Covid-19 pandemic was, in this case, a factor supporting vulnerability, alongside the Claimant’s command of the English language.
- The SCCO revisited the internal communications which had been indicated to be vulnerable to proportionality reductions. It was claimed at £27,724.50 plus VAT, on the line-by-line assessment reduced to £22,946.15 plus VAT, but following the application of proportionality was significantly reduced to £10,000 plus VAT.
Summary by Connor Wright
Civil Procedure Update
Update on the Civil Procedure Rules (Amendment No. 2) Rules 2025
Part 8 procedure – CPR 44 (summary assessment) – CPR PD5C (electronic filing)
The latest update to the Civil Procedure Rules comes into force under The Civil Procedure (Amendment No. 2) Rules 2025 (SI 2025/893) between September and October 2025.
Key amendments include:
- Amendments to CPR 2.8 and 5.5, in support of new Practice Direction 5C, which will provide for electronic filing via CE-File. This entrenches what was previously the subject of the electronic working pilot under PD5O.
- Amendments to Part 8 to (a) make clear that rules 7.5 and 7.6 apply with regards to service of the claim form and (b) amend CPR 8.5, such that where a defendant indicates an intention to contest the court’s jurisdiction but does not make any such application, the evidence on which the defendant relies must be filed within fourteen days of the acknowledgment of service, rather than with the acknowledgement of service.
Key costs amendments include:
- Amendment of CPR 44 to allow summary assessment to be undertaken by another Judge, where that assessment is not carried out at the end of a hearing. A different judge or costs officer was not previously permitted to carry out that summary assessment, per R (Isah) v Secretary of State [2023] EWCA Civ 268.
- Further, under CPR 46.2, where the court contemplates adding a party to proceedings for the purposes of costs only, rule 19.4 (procedure for adding and substituting parties) and rule 20.7 (procedure for making any other additional claim) will no longer apply.
The new rules can be found here:
https://www.legislation.gov.uk/uksi/2025/893/contents/made
Summary by Connor Wright
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.
