This announcement follows the publication of a report by the Sunday Telegraph which shows more than 30,000 hip replacement patients across the country received a potentially faulty metal-on-metal hip.

What are the problems with metal-on-metal hip replacements?

Metal-on-metal hips have been reported to suffer significantly higher failure rates than other models of replacement hip. Two particular models of metal-on-metal hip, The DePuy ASR and DePuy ASR XL, have already been recalled as these showed failure rates of up to 50% after just six year.

Metal-on-metal hip units cause problems when friction between the metal parts of the joint causes metal to be released into the blood stream and soft tissue surrounding the joint. When this happens patients can suffer blood poising, recurring pain, swelling, loss of mobility as well as seemingly unrelated problems such as headaches.  

Despite evidence of other models of metal-on-metal hips also showing high failure rates, many models of metal-on-metal hip continue to be used in hip replacement operations across the country.

Offical medical authority guidance:

Guidance provided by medical regulators recommends patients with particular models of metal-on-metal hip receive regular check-ups from their hospital however, The British Orthopeadic Association has expressed fears not all patients have been contacted by their hospital.

Patients with metal-on-metal hips complaining of pain should be offered blood tests to establish the levels of cobalt and chromium in their bloodstream as well as MRI and Ultrasound scans so as to check for soft tissue damage.

What to do if you are concerned:

Patients suffering pain as a result of their hip metal hip replacement and patients unsure of whether they have a metal hip are advised to contact Jacqui Sayer on 01376 529298.

Jacqui is a solicitor in Holmes & Hills’ Personaly Injury team and specialises in compensation claims relating to metal-on-metal hips. Jacqui is currently representing men and women across the country making claims against the manufacturer of their metal hip.

For more information on claiming compensation relating to a metal-on-metal hip replacement, please click here.

Methods of Service

The Civil Procedure Rules 1998 (“CPR”) govern the conduct of litigation in the Courts of England and Wales.  Part 6 of those rules deals with permitted methods for service of the Claim Form, both within and outside the jurisdiction. The rules provide that service outside the UK is permissible by any method set out in a number of specified European Regulations and international treaties and conventions or “by any other method permitted by the law of the country in which it is to be served.”

In the recent case of Bacon v Automattic Inc and Others, the question came before the High Court as to whether it had jurisdiction to permit service of a Claim Form out of the jurisdiction by email.

In that case, the Claimant had issued proceedings against three Defendants who were all domiciled in the USA.  The Claimant sought an Order requiring the Defendants to disclose details of individuals responsible for publishing statements that the Claimant considered were defamatory.  The Claimant applied for permission to serve the Claim Form by email at addresses previously provided by the Defendants.

In his judgment, Tugendhat J noted that service out of the jurisdiction by an alternative method had been the subject of conflicting views in previous cases.  However, Tugendhat J held that service could be affected by alternative means because CPR 6.15 gives the Court discretion “where it appears … that there is good reason to authorise service by a method or at a place not otherwise permitted by this Part,” to “make an order permitting service by an alternative method or at an alternative place.” 

Finding that service out of the jurisdiction could be affected by alternative means, the judge agreed with the Claimant’s submissions that a comparison could be drawn with the permissible methods for service within the jurisdiction set out in CPR 6.3(1)(d), the effect of which is that service in the jurisdiction can be affected by email provided the party who is to receive service has indicated in writing to the serving party that he is willing to accept service by email and has provided an email address at which he can be served.

Having held therefore that he could order service upon the Defendants in the USA at the email addresses provided, the judge went on to say: “in future Claimants should put before the Court evidence as to whether that method is permitted by the law of the Country in which the Claim Form is to be served (or a good reason for not doing so), since if it is, service by an alternative method will be unnecessary”

Implications

Parties wishing to serve legal documents by email will, in the first instance, need to confirm whether it is permissible to do so under the laws of the country in which service is to be affected.  If it is, then they will be permitted to serve English proceedings by email under CPR 6.40(3)(c).

If it is not permissible under the laws of the relevant country then, where the Claimant can show there is good reason to do so, it will be possible for the Claimant to obtain a Court Order permitting overseas service by email.

Contracting parties may therefore wish to insist on their counter party providing an email address and to include an express provision in their contract (perhaps by including it within their standard terms and conditions) that their counter party agrees to accept service of legal documents at the email address they have provided.

Recent judgments of the Employment Appeal Tribunal (EAT) have delivered conflicting guidance regarding the circumstances in which an Employee on long-term sick leave will be entitled to payment in respect of statutory holiday under the Working Time Regulations (WTR). The Cases were heard 2 weeks apart, but uncertainty for Employers remains about the correct approach, until hopefully the Court of Appeal clarifies the position (possibly in early 2012).

The WTRs 1998 lay down the basic rules governing entitlement to paid annual leave, including procedures to be followed by both Employers and Employees concerning minimum notice periods to be given when either holiday is requested, or an Employer seeks to restrict when holiday may be taken during the leave year. What is clear (and not in contention) is that an Employee continues to accrue annual leave entitlement even whilst he/she is on sick leave.

The issue of contention raised by the recent EAT cases of NHS Leeds v Larner and Fraser v Southwest London St George’s Mental Health Trust surrounds the question whether, in order to trigger entitlement to an actual payment, an Employee must notify his/her Employer (during the Leave Year in question) that they wish to take statutory holiday (paid leave) either during the period of sick absence, or subsequently after recovery.  

The decision in the case of Larner (heard on 29^th June 2011) followed the reasoning in earlier cases and concluded that the entitlement to paid holiday of a worker absent on sick leave does not depend on him/her having given notice to take that holiday during the Leave Year in question. In practice this would mean that a worker absent for 2 years would, on subsequent dismissal, be entitled to payment in lieu of holiday pay for the 2 years in question despite having not previously requested the leave.

However, in Fraser (heard on 13^th July 2011) the EAT ruled that a proper interpretation of the Regulations dictated the opposite: an Employee would lose the right to paid leave (or to receive payment in lieu on termination) if such notice was not given during the relevant Leave Year.

The above example highlights the difficulties facing Employers when dealing with issues in the workplace and trying to respond in accordance with the law. Employment law in particular changes almost weekly as new legislation and court rulings come into force.

Date & location:

Thursday, 16 February 2012
(12:30-14:00)
Il Principe Restaurant, Inworth, Colchester, CO5 9SP.

Holmes & Hills have extended invites to a number of local businesses, providing attendees with the opportunity to meet and network with other local professionals over an informal lunch.

Attendance at the lunch is by invitation only but we would welcome any local businesses or professionals to contact us if they haven’t received an invite but would like to attend.

Attendance at the lunch is free, a meal will be provided, along with coffees and a drink, courtesy of Holmes & Hills.

Menu:

Merluzzo All’ Aqua Pazza - Pan fried cos in a fresh tomato, basil and white wine sauce.

Pennette Al Salmone - Penne Pasta with smoked salmon, cream and rocket.

Petto Di Pollo Cacciatora - Chicken breast with a mushroom and white wine sauce.

Italian Fritata - Omlette with onions and fresh tomatoes.

For more information, or to book your places at this event, please call Phil Davies on 01621 817522 or e-mail him at .

Under s.34 of the Employment Relations Act 1999, changes must be made to the limits that apply to certain employment tribunal awards, and other amounts payable, in line with changes to the Retail Price Index (RPI).  

From September 2010 to September 2011 the RPI increased 5.6% and to reflect this the maximum amount of a week’s pay which can be used to calculate statutory redundancy payments and awards for unfair dismissal has increased from £400 to £430 per week.   

These new limit applies where the event giving rise to the payment or award takes place on or after 1 February 2012.

What should you do if you are concerned?

- Locate your medical records and find out if you have PIP implants. If you had PIP implants on the NHS you can request your medical notes from your GP. The NHS will also be writing to all the women they gave PIP implants to over the next few weeks.

- If you had your implants done privately you can request this information from the private practice you used.

- Speak to your GP or private practice to discuss whether you need a scan and whether removal is advisable in your case.

- If after speaking with your GP you decide you want your implants replaced the NHS will remove and replace your implants for free if the NHS undertook your original operation to put them in.

- Private patients will have to discuss with their clinic whether they are offering free removal and replacement. A list of practices currently offering free procedures to patients can be seen below.

- If your private clinic is no longer in business or is refusing to remove your implants speak to your GP about having them removed on the NHS. Note: the NHS is currently only removing, not replacing implants for private patients.

Signs of a ruptured implant:

• Lumps on the breast/s
• Swelling around the breast/s
• The breast has changed shape
• Pain and sensitivity in the breast/s
• Deflation of the breast/s

NHS (England) will remove but not replace:

Health Secretary Andrew Lansley has announced the NHS will remove PIP breast implants free of charge for women wishing to have them taken out.

Whether women had their breast implants put in on the NHS, or privately through a cosmetic surgery clinic, the NHS will remove the implants free of charge. However, at this stage the NHS in England will not replace the implants unless there is a medical reason for doing so.

Those women who had their PIP implants from the NHS in the first instance will be able to have them removed and replaced on the NHS without any cost to themselves.

Women in England wishing to have their implants removed or replaced on the NHS should contact their GP. Your GP should be able to explain how you can go about having your implants removed.

NHS (Wales) will remove and replace:

Women in Wales with PIP breast implants will be able to have their implants removed and replaced free of charge on the NHS whether they had them implanted by the NHS or by a private clinic.

Women in Wales wishing to have their implants removed and replaced on the NHS should contact their GP who will explain how you can go about having your PIP implants removed.

Private clinics do not have to remove or replace:

Women in England who received their PIP implants from a private clinic are not entitled to free removal and replacement on the NHS. Private clinics are also not legally obliged, at this point in time, to remove or replace the PIP implants they have fitted free of charge.

Many of the private cosmetic clinics which used PIP implants have since gone into liquidation or been dissolved by their owners. For the women who received their PIP implants from these clinics, they will either have to have their implants removed on the NHS for free or pay another private clinic to have them removed and replaced.

Some private clinics have announced they will remove and replace all the PIP implants they have used free of charge. Others are however currently refusing to offer this and are charging for the removal and replacement. Many clinics are offering free consultations and scans to patients in order to assess whether the implants have ruptured and whether they have caused any damage.

Clinics currently offering free removal and replacement, where required, are:

• Holly House
• Highgate Hospitals
• Make Yourself Amazing
• Ramsey Healthcare
• Spire Healthcare
• BMI Healthcare
• Nuffield Healthcare
• HCA International

It is recommended that women who know they have PIP breast implants, or are unsure whether they have PIP implants, contact the clinic where they had their operation.

Where do women with PIP implants stand legally?

Unfortunately each case is highly dependent on its own circumstances, for instance whether there has been pain, suffering or illness caused by the implants. In order to determine whether you may be able to make a claim for compensation, expenses and other losses it is advised you speak to a solicitor.

Christopher Livingston, a Solicitor and Partner at Holmes & Hills LLP, is giving free legal advice and support to women across the country in relation to PIP implants. If you would like to discuss your case with a solicitor, Chris can be contacted on 01376 529298.

For background information on PIP breast implants please click here.

If enforcement becomes necessary the successful party in the adjudication (the Claimant) should apply to the Technology and Construction Court (TCC) to enforce the adjudicator’s decision. The TCC will not interfere with an adjudicator’s decision unless the adjudicator plainly had no jurisdiction or there has been a serious breach of natural justice. (However, see Part 2 below for what might possibly be done to contest a decision).

Where the decision being enforced is an award for the payment of money, the Claimant should issue a claim under Part 7 of the Civil Procedure Rules (“CPR”) together with an application for summary judgment under CPR Part 24. To ensure that the application is dealt with speedily a lot of work has to be done at the point of issuing the claim. All evidence in support of the application should be filed at the TCC from the outset (and served on the Defendant) together with an application to abridge time to ensure the matter is considered quickly. 

The Claimant should mark the documents: “paper without notice adjudication enforcement claim and application for the urgent attention of a TCC judge”.

The judge will generally deal with the application on paper within three working days. The judge will give directions, which will include when the Defendant should file an acknowledgement of service, when the Defendant should serve its evidence and the date for a full hearing (usually within 28 days of the order).

If the defendant fails to acknowledge service of the papers the Claimant should apply for judgment in default of acknowledgement of service. If the Defendant acknowledges service, but then indicates it will take no further part in the proceedings, the Claimant should apply to the court to bring the hearing date forward. At the hearing, the court will decide whether to enforce the adjudicator’s decision. The court will give reasons for the decision, usually in a written judgment. The judgment will then be enforceable in the same way as any other money judgment.

Part 2 - Grounds for resisting enforcement of the adjudicator’s decision.

Now the boot is on the other foot. What can a paying party do to resist enforcement of an award?

Remember the basic presumption is that an award should be paid. The TCC will enforce that decision unless the paying party can persuade the court that:

• The adjudicator had no jurisdiction to make the decision.
• There was a serious breach of the rules of natural justice.

Adjudication was meant to be a straightforward mechanism to ensure quicker payment within the construction industry. However, many adjudications become mired in disputes about the adjudicator’s jurisdiction. If a paying party intends to run a jurisdiction defence, he/she must run it from the outset. They must reserve their right during the adjudication to challenge the adjudicator’s jurisdiction and must state that any further involvement in the adjudication is without prejudice to the objection about jurisdiction. In the absence of such a reservation a court is unlikely to hear a later argument about jurisdiction.

Jurisdiction challenges include:

• The contract was not a construction contract.
• There was in fact no dispute evident e.g. no valid demand for payment had been made.
• The dispute referred to the adjudicator was different to the dispute that had crystallized.
• The dispute referred to adjudication was the same or substantially the same as a dispute already decided by an adjudicator.
• The adjudicator did not determine the dispute referred to him.
• The adjudicator failed to reach the decision within the required time.
• The adjudicator imposed a pre-condition on the publication of his decision.

Examples of a breach of the rules of natural justice include the adjudicator’s failure to:

• Consult with both parties about: communications from one party; his approach to the dispute; taking advice from a third party; or relying on a report he commissioned.
• Give a party sufficient time to respond to a submission or evidence.
• Take into account submissions from one party.
• Give reasons for the decision (if requested or required).

Arguments that are unlikely to succeed in the TCC as reasons for not paying an award include:

• The dispute is too complex for adjudication.
• Enforcement proceedings should be stayed pending the decision in a cross adjudication, or to allow the parties to mediate.
• The matter will be referred to arbitration or litigation.

If the Claimant is successful in enforcing an award the paying party will usually have to pay the amount of the decision, interest and the costs incurred in the TCC, so beware. As adjudication is an interim measure the paying party may ultimately issue litigation to unravel the award but most often the adjudication decision is seen as water under the bridge.

 What if my ex-partner and I can agree on child contact arrangements?

Where parents can agree about contact and living arrangements following divorce or separation and where both parents keep to these arrangements, there may be no need to go through legal proceedings. However, it is advised that parents set out what is agreed in writing so both parties are clear as to what their responsibilities and commitments are towards the child and each other.

 What if my ex-partner and I cannot agree on child contact arrangements?

If parents are unable to agree on how to arrange contact with children, it is advised they seek legal advice from a solicitor who can negotiate with the other party on their behalf. If an agreement is still not reached, under the Children Act 1989, either parent can make an application to court for a Contact Order. This Court Order will stipulate the arrangements to be followed by both parents and will allow for sanctions to be imposed on either of the parents if they do not adhere to it.

In deciding what living and contact arrangements to impose on the child’s parents a Judge will consider what is in the child’s best interest. In the majority of cases a Judge will consider contact with both parents to be beneficial to the child unless one of the parents poses a risk to the child’s welfare. In making their decision a judge will asses:

•  The child’s wishes
•  The child’s age
•  The affect of a change in circumstances on the child
•  The physical, emotional and educational needs of the child
•  The risk of harm, if any, posed to the child
•  The capability of each parent to cater for the child’s needs

Types of child contact:

Contact between a non-resident parent and a child can take many forms including direct contact (involving the parent visiting the child), indirect contact (involving regularly speaking over the phone, letters or e-mails) or staying over night with the non-resident parent. What a Judge considers to be the most appropriate form and length of contact will differ in each case. Any Contact Order made by a judge will usually last until the child is aged 16.

 Can I dispute a Contact Order?

Parents can dispute a Contact Order once it is made if they believe the contact granted is a potential risk to the child; for instance, if a Judge has granted unsupervised contact to a parent with a history of violence or alcohol abuse. In such cases legal advice can be sought from a family solicitor and a County Court application can be made by the resident parent to change or vary the Contact Order.

 Getting advice on child contact matters:

As with any matter involving children, it is recommended advice is sought from a family solicitor at an early stage to ensure you are aware of your rights as a parent and what options you have available to you.

Helen Harris is an experienced family solicitor and Head of Holmes & Hills’ Family Team in Braintree, Halstead and Tiptree, Essex. Her team family solicitors are specialists in divorce, separation and children matters, including contact, residence and maintenance.

For further information on children matters folowing divorce or separation, click here.

Ballymore (the landlord) sought an upward review of the rent paid by Cordoba for the occupation of a data centre.  As is common, tenants’ improvements were to be disregarded for the purpose of the review.  Cordoba had substantially upgraded the power supply so the building could be used as a data centre.  However, their surveyor had not produced any direct evidence to this effect in his valuation report used during the arbitration.  The Arbitrator accordingly assessed the rent of the building on its current use as a data centre.  Cordoba did not think this to be fair and appealed the arbitration award on the basis that the Arbitrator had failed to take into account the issue of the tenants’ improvements.

The appeal to the High Court failed.  The surveyor’s report had not expressly referred to tenants’ improvements so the issue had never even been put to the Arbitrator.  The Arbitrator’s decision was therefore sound on the basis of the evidence and arguments put before him.  This was an expensive mistake (which we suspect will have repercussions so far as the surveyor is concerned).  This shows that a rent review arbitration is far from a cosy, informal procedure.  Specialist advice should be taken.

It is suspected as many as 40,000 women in the UK may have breast implants produced by French company Poly Implant Prothese (PIP). These implants are at the centre of an international health scare after French authorities believe they may be linked to an increased chance of developing cancer.

About PIP breast implants:

The UK’s Medicines and Healthcare products Regulatory Authority (MHRA) recalled all PIP breast implants in 2010 and banned their use after it was discovered the PIP implants had an increased risk of rupture and contained an unapproved silicone gel.

The gel used by PIP in their implants does not reach the quality standards required for a silicone gel to be used in a breast implant.

Despite banning their use the MHRA argue the PIP implants posed little or no risk to the health of those women who had already had them and stated it was not necessary for them to be removed. Following a report published on Friday 6th January the MHRA is standing by this decision.

Whilst the Government is not recommending all women with PIP implants have them removed, they are encouraging private clinics to offer free removal of PIP breast implants to their patients if requested. The Government has also announced that women with PIP implants will be able to have them romoved for free on the NHS if they cannot get this through their clinic, however, the NHS will not offer replacement implants.

Health risks of PIP breast implants:

Concern over the PIP implants has recently been renewed by French authorities amid fears the implants have a higher than usual rupture rate and the unapproved silicone may be linked to a rare cancer. French authorities have discovered 8 cases of women with PIP implants developing a rare form of cancer and French Health Authorities are now recommending all women with these implants have them removed.

Despite well documented concerns, the UK’s regulatory body – the MHRA -  believes the implants do not have a  high rupture rate and argue there is “insufficient evidence to indicate any association with cancer” and . The MHRA does not believe the PIP implants pose any significant risk to women who have them and is not currently advising women in the UK to have them removed.

Claiming compensation:

If you have PIP breast implants you may be able to make a claim for the cost of replacing the implants, other losses and potentially a compensation claim for injuries as well.

Holmes & Hills Solicitors are experts in dealing with product liability litigation cases and represent clients across the country on a wide range of product liability claims.