In the final edition of 2025, Dr Dan Jacklin, Connor Wright, Kyran Kanda and Pupil Barrister Shaniqua McKenzie have compiled an update on Personal Injury and Clinical Negligence cases which have been in the courts this year.
PERSONAL INJURY
Aaron Haley v Newcold Limited [2025] EWCC 57
Causation – Amputation – Workplace accident
In March 2019, the claimant suffered a severe crush injury when he was struck by a forklift truck at work, resulting in significant degloving and a burst fracture to the calcaneus. Liability was conceded, with a twenty per cent finding of contributory negligence.
Five years later, he underwent an elective below knee amputation of his right leg. The central question for HHJ Walsh; was that 2024 amputation caused by the accident in 2019?
A recurring difficulty for lay clients is the belief that once an accident occurs, everything that follows must be connected to it. Factual causation simply asks whether the later event happened because of the accident.
HHJ Walsh held that the amputation was not a consequence of the 2019 injury. It was not medically required, and although the claimant relied on personal medical autonomy and argued that ongoing pain justified the operation, the evidence did not show pain or disability so severe as to make amputation necessary or inevitable.
The reliability of the claimant’s pain account was further undermined by covert recordings. He was repeatedly seen walking freely without a crutch, driving using the injured leg, and suggesting at times that he was not taking painkillers. These behaviours were difficult to reconcile with someone experiencing intolerable pain necessitating the removal of a limb.
The recordings also showed levels of mobility inconsistent with what he reported to clinicians and medico legal experts. He appeared with a crutch only once, while travelling to a medical appointment, and abandoned it shortly afterwards.
A notable feature of the case is the use of covert recordings, which are becoming increasingly common in litigation. The judgment hints that their admissibility is likely to continue where they offer reliable and independent insight into the dispute. For litigants, the message is clear; credibility is built over time, not only when giving evidence. Consistency in everyday conduct has never been more important.
In conclusion the decision highlights that litigation is fundamentally evidence driven. The court’s task was not to assess sympathy but to determine whether the claimant’s later medical choice was because of the 2019 injury. Here, inconsistent accounts, objective footage and the voluntary nature of the amputation meant that link could not be established.
By Shaniqua McKenzie
Perrin v Walsh [2025] EWHC 2536 (KB)
Surveillance evidence – Draft expert reports – CPR 31
The Claimant was involved in a road traffic accident where she was knocked from her motorcycle. The Defendant argued that the extent of the Claimant’s injuries had been exaggerated. The central issue was whether to grant the Defendant’s application to rely upon covert surveillance footage of the Claimant obtained by a surveillance company. The Claimant raised various concerns about the editing, obtaining, timing and retention of the footage. She argued the footage had been dishonestly manipulated.
The Court acknowledged that there had been failures by the surveillance company. There will be circumstances where the conduct of a defendant, or its agents, is so egregious that probative and otherwise admissible surveillance material should be excluded from consideration utilising the Court’s power pursuant to CPR 32.1. The Defendant had provided “patently untrue” witness statements to the Court. For example, witness statements from the surveillance company’s operatives suggested that footage of the Claimant had not been excluded from the edited version when, in fact, it had.
The court regarded the conduct of the Defendant as “extremely poor”, but said the threshold to exclude evidence had not quite been reached in this case. The Defendant was said not to have engaged in a deliberate and dishonest attempt to provide a misleading picture of the Claimant’s (dis)abilities. The Defendant had retained the unedited version of footage of the Claimant and was willing to disclose it. The footage which had been removed from the edited version was either neutral or more helpful to the Defendant. The editing of the footage was said to be more likely attributable to human error than the product of malign or conspiratorial intent. The Court rejected the contention that the surveillance operatives had selectively filmed her engaging in certain activities.
The Court decided that the surveillance evidence was clearly of probative value and did not exclude it. The footage was clearly relevant and admissible. It would be manifestly unfair to the Defendant to deprive them of the evidence. For example, it showed the Claimant using her thumbs, lifting objects and walking unaided contrary to the overall picture she sought to present of her injuries. The Defendant was said to have fallen far short of the highest standards of integrity and propriety expected when obtaining covert surveillance evidence. Nevertheless, the Claimant, had sufficient time to deal with the surveillance evidence and provide evidence in response.
By Kyran Kanda
Colin Robertson v Google LLC [2025] EWCA Civ 1262 and Bellway Homes Limited v The Occupiers of Samuel Garside House [2025] EWCA Civ 1347
Challenging jurisdiction – CPR 11 – Service rules
Mr Robertson had failed to effect valid service of his claim form on the appellant, Google, in the USA within the applicable period of 6 months. The judge at first instance decided that the authorities were such that CPR r.7.6(3) (extending time for service of a claim form) was not the relevant rule but instead the relief from sanctions regime under CPR r.3.9 applied.
The Court of Appeal held the judge was wrong. CPR r.7.6(3) was the relevant rule. First, there is nothing in CPR r.6.34(2)(b) (notice of entitlement to serve outside jurisdiction) which undermined the regime in r.7.6(3). Second, r 7.6 applies to any extension of the period for compliance with rule 7.5; it is not limited to claims within the jurisdiction. Third, the rule of interpretation dictates that it is illegitimate to use the general provision in r.3.9 in an attempt to circumvent the more particular requirements of r.7.6(3). Fourth, if the judge’s conclusion was right, it would mean that those seeking to extend time for service outside the jurisdiction would be in a better position than those seeking to extend time for service within the jurisdiction. This view was reinforced by the authorities, such as R (Good Law Project Limited) v Secretary of State for Health and Social Care [2022] EWCA Civ 355 which held that the relief from sanctions regime did not apply to service of the claim form. In summary, because Mr Robertson had not validly served the claim form within time, the proceedings, on the face of it, were a nullity. He needed to obtain an extension of time for service. Relief from sanctions in those circumstances are simply irrelevant: if time for service is not extended under the relevant rule (here, r.7.6(3)), there are no proceedings in which relief from sanctions can be granted.
The day after judgment was handed down in Colin Robertson, the Court of Appeal heard Bellway Homes Limited. In that case, the first instance judge found that the Claimant had failed to serve the claim form by the date and time set out in an earlier order. The first instance judge, however, accepted the Claimant’s argument that the Defendant should have filed an Acknowledgment of Service and/or made an application under CPR Part 11 (disputing the court’s jurisdiction). Their failure to do so meant that they were deemed to have accepted the court’s jurisdiction. These same arguments were raised (at a very late stage) in Colin Robertson and rejected by the Court. It found that there was no obligation to file an AoS where the previous steps in the CPR, i.e. proper service of the Claim Form, had not been compiled with. There was no obligation for an application under CPR Part 11 by the Defendant where it was already obvious that jurisdiction was in issue because the Claimant had sought a declaration that the Claim Form was properly served. An application under CPR Part 11 would simply be duplication of paper, time and cost. Unsurprisingly, therefore, the Court of Appeal in Bellway Homes Limited also rejected the argument.
By Kyran Kanda
QXK and Anor v Conrad Bair and Anor [2025] EWHC 2492 (KB)
RTA – Presumption of drivership – Indemnity costs
At around 01:54 on 20 June 2021, the Claimants were saying goodbye to friends after a night out when they were struck by a vehicle and seriously injured. The Claimants argue that there is a rebuttable presumption that the driver of a car is the owner and the burden shifts to the Defendant to prove that he was not the driver (following the ratios in Barnard v Sully (1931) 47 TLR 557, Ende v Cassidy [1964] Crim LR 595, and Elliot v Loake [1982] 1 WLUK 802).
In a careful analysis of the evidence, Master Sullivan found that the Defendant, Mr Bair, was likely the owner and driver of the offending vehicle. The judgment provides an illustrative guide for Defendants of what evidence may be needed to displace such a presumption. Judgment was entered for the Claimant.
By Dr Daniel Jacklin
CLINICAL NEGLIGENCE
Dr Ezebunwo Chinda v Cardiff & Vale University Health Board [2025] EWHC 2692 (KB)
Withdrawal of a Part 36 offer – CPR 36 – Spinal tuberculosis
The case concerns the negligent delay in ordering an MRI scan to diagnose spinal tuberculosis resulting in a neurological injury. At a JSM on 1 July 2025, the parties did not reach a settlement because the Claimant sought, for the first time, provisional damages and the Defendant did not have authority to settle the claim on that basis. It was agreed that the Claimant would set out terms on which he was willing to settle which his representatives did in a Part 36 offer on 2 July 2025.
The offer included a retained lump sum, a variable periodic payments order and an order for provisional damages. On 8 July 2025, the Claimant’s solicitors wrote to the Defendant seeking to withdraw the offer. The Defendant accepted the offer on 22 July 2025. The Claimant subsequently made a new Part 36 offer on 29 July 2025.
It was common ground that the Defendant accepted the offer before the relevant period expired and that the Claimant required the court’s permission under CPR 36.10(2)(b) to withdraw the offer. The court was required to consider whether there had been a “change in circumstances” and whether it was “in the interests of justice” to give permission for the offer to be withdrawn.
Master Cook accepted the Claimant had changed his mind and that a change in mind cannot amount to a change in circumstances for the purpose of CPR 36.10(3). To hold otherwise, he said, “would be to introduce an unacceptable degree of uncertainty into what should remain a certain process.” He relied on the ratio in Camper v Pothecary [1941] 2 KB 58 and Retailers v Visa [2017] EWHC 3606 (Comm). Permission to withdraw the Part 36 offer was refused.
By Dr Daniel Jacklin
Mohamed Atef Hakmi v East & Nother Hertfordshire NHS Trust and Anor [2025] EWHC 2597 (KB)
Stroke – Fundamental dishonesty – Costs awards
The claim concerns an alleged failure by Dr Metcalf to offer Mr Hakmi thrombolysis to treat a stroke which caused him to develop serious disability. Readers may recognise the name of the Claimant, as he is a distinguished consultant orthopaedic surgeon at the Lister Hospital in Stevenage and who taught at the University of Cambridge medical school. Unfortunately, the stroke forced his retirement from surgery and has had a significant impact on his life.
David Pittaway KC, sitting as a Deputy Judge of the High Court, found that although one the neurological examinations was inadequate, the objective signs of a stroke were too subtle to register a definitive NIHSS score on Stroke Proforma A. The learned judge was critical that a phone call took place instead of a video call because of computer issues faced by the stroke consultant, but found on balance that it was likely the symptoms were so subtle that another stroke consultant having seen Mr Hakmi in person would not have reached a different view.
The court went on to conclude that had thrombolysis been offered it likely would not have altered the outcome in this case in any event. The judge was critical of the lack of academic evidence supporting treatment of lacuna strokes with thrombolysis. Consequently, the claim was dismissed.
The learned judge went on to reject the allegation of fundamental dishonesty which was alleged on the basis that Mr Hakmi had deliberately underperformed on the psychological tests.
In light of the failed allegation of fundamental dishonesty, and notwithstanding the claim having failed to establish breach or causation, the judge went on to order the Defendants pay 15% of the Claimant’s costs from the date the allegation was raised in the Defendant’s counterschedule.
By Dr Daniel Jacklin
Julia Tosh v Vivek Gupta [2025] EWHC 2025 (KB)
Haemorrhoidectomy – Anal stenosis – Failure to advise
The Claimant underwent a ligasure haemorrhoidectomy in June 2019. Unfortunately, it left her with a rare but serious complication in the form of anal stenosis. The claim that the surgery was conducted negligently was discontinued following the experts joint statement. The remaining allegations were that there was a negligent grading of her haemorrhoids, a failure to discuss and offer non-surgical treatment options and a failure to advise as to the risks and benefits of the surgical procedure she subsequently underwent.
Sarah Clarke KC, sitting as a Deputy Judge of the High Court, found the Claimant an honest witness but an unreliable historian. Where it differed, the learned judge preferred the evidence of Professor Phillips over that of Mr Thompson, the latter of which made a number of concessions during evidence that he had not fulfilled his Part 35 obligations.
The court found that none of the alleged breaches of duty had been proved. The judge said that had the Claimant decided to try non-surgical options first, then she would have required the surgery within two years in any event. In that event, her claim would have been limited to a two-year acceleration of her symptoms. Consequently, the claim was dismissed
By Dr Daniel Jacklin
COSTS
XX (a protected party by her husband and litigation friend, YY) and Anor v Jordan Young and Anor [2025] EWHC 2443 (SCCO)
Proportionality – Fundamental dishonesty – Costs awards
In this case, Costs Judge Nagalingam considered the Second Defendant’s application for permission to appeal against Judge Nagalingam’s August 2025 judgment in [2025] EWHC 2073 (SCCO) (“the August decision”). That Judgment followed the learned Judge’s March 2025 judgment in [2025] EWHC 680 (SCCO) (“the March decision”).
The decision of the learned judge concerned the assessment of costs arising from a personal injury claim. The underlying claim arose following a road traffic accident in which the Second Claimant was struck by a vehicle. The pleaded value was some £2.5m, but the matter was settled for £149,000, net of contributory negligence. The Second Claimant’s costs across all three proceedings were reduced by 34%. The profit costs were reduced by 38% in the August Decision.
The March decision, itself, serves as a helpful demonstration of many of the common arguments around proportionality in detailed assessment hearings. The learned Judge also provided guidance on recoverable and unrecoverable types of costs. Examples included the recoverability of costs arising from internal communication and legal research, duplication, and the role of delegation. The August decision, among other things, confirmed the relevance of the likely true value of the claim, as opposed to the pleaded value.
The Second Defendant, the RTA insurer, sought permission to appeal the August Decision on the basis that the Judge erred by failing to consider –
- The Claimant’s lack of explanation for why she accepted a settlement sum significantly less than pleaded;
- A proportionality reduction for work incurred after a point when the Claimant allegedly should have recovered; and
- A proportionality reduction for the accommodation claim, which (the Defendant alleged) had failed.
The Second Defendant argued that there were inconsistencies in the Second Claimant’s case, which were evidenced by surveillance footage. The learned Judge refused permission to appeal. Particularly, the Judge found at [90]-[91] that quasi-findings of fundamental dishonesty would improperly put a cost judge “in the shoes of the trial judge before the assessment is started”. The Judge found there was no other compelling reason to hear the appeal.
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.
