Simon O’Dwyer

Simon practises exclusively in multi-track personal injury work acting on behalf of both claimants and defendants.

He has extensive experience of the full range of personal injury claims with particular expertise in respect of breach of duty in employer’s liability and claims arising out of serious road traffic accidents, including those culminating in claims for chronic pain; brain injury and spinal injury. Simon deals with significant value quantum cases with particular experience in large special damages claims for loss of earnings, prosthetics, accommodation and care.

He has developed a reputation as an excellent trial advocate often achieving success in difficult, borderline cases. As part of his court practice he routinely appears in both the County Court and High Court for interlocutory hearings such as CCMCs and application hearings, including interim payments.

Simon has vast experience of dealing with both liability and quantum experts and is always happy to assist in guiding such instructions at an early stage in a case. This often makes him a popular choice in more complicated causation and disputed quantum cases.

He has a particular specialism in cases involving chronic pain with an excellent understanding of the interaction between the various expert disciplines that regularly appear in such claims. He acts in cases concerning Complex Regional Pain Syndrome, Fibromyalgia and Chronic Fatigue Syndrome.

Selected Cases

Examples of his recent work include:

• Led by Christopher Sharp Q.C in High Court Appeal concerning application of the Workplace (Health, Safety and Welfare) Regulations 1992;
• Settlement of £222,000 in a workplace claim involving serious and complex injuries to the metatarsals in a 25 year old claimant;
• Successfully appeared in an employer’s liability multi track trial on contributory negligence and achieved Judgment for the claimant on a 100% basis against an offer of a 90/10 split in the claimant’s favour;
• He has recently appeared in two cases where the defendant insurer has sought strike out of the claimant’s case/refusal to lift a stay granted pursuant to the modified Part 8B procedure for claim which proceed in the Protocol for Low Value Claims but reach limitation prior to settlement citing the decision of Lyle v Allianz. On both occasions Simon has successfully resisted the applications.
• Currently instructed in a claim valued in excess of £300,000 in which the claimant has developed Post Thrombotic Syndrome and faces lifetime risk of leg ulceration/amputation. Complicated issues regarding causation and provisional damages.
• Settlement of £100,000 in a claim arising out of an accident in the workplace in which there was a significant dispute on causation and possible acceleration of pre-existing pathologies.
• Currently instructed in a claim arising out of an accident in the workplace in which the claimant suffered traumatic amputation of the parts of the index, middle and ring fingers. Significant future losses claimed in excess of £500,000 and involves Touch Bionics I-Digit prosthetics.

Simon is regularly instructed in inquests on behalf of families, insurers and other properly interested parties. He has appeared in numerous Article 2 inquests concerning deaths in custody or hospital and long running jury inquests relating to fatalities in the workplace.

Selected Cases

Recent examples of instructions include:

• Representing the interests of an insurer in a two week jury inquest into the death of an employee working for a large electricity provider.
• Representing a prison officer in an Article 2 inquest into the death of a prisoner in custody.
• Representing an ambulance technician, who was made a properly interested party, in an Article 2 inquest into the death of a patient who was not conveyed to hospital and subsequently died.
• Representing a police call centre handler, who was made a properly interested party, in an Article 2 inquest into the death of a young female who was found dead in woodland.

Simon enjoys an extensive costs practice, regularly appearing in both the County Court and Senior Courts Costs Office.

Simon is often instructed in costs disputes where the principle of whether fixed costs or standard costs should be recoverable.

Selected Cases

He has particular expertise in more complex arguments surrounding the application of Qualified One Way Costs Shifting and has appeared in cases concerning:

• Both pre and post 1^st April 2013 CFAs in the same claim;
• Termination of a pre 1^st April 2013 CFA and subsequent entering of a post 1^st April 2013 in respect of the same accident/claim;
• Costs following acceptance of a Part 36 offer out of time;
• Costs recovery by a successful defendant against a successful claimant in a multi defendant case;
• Applications for strike out for abuse of process, claim disclosing no reasonable grounds and obstruction by the claimant or claimant’s representatives;
• Applications for consideration of the issue of fundamental dishonesty following discontinuance by a claimant;
• Fundamental dishonesty at trial;
• Costs following failure to beat a defendant’s Part 36 offer at trial;
• Counterclaims or Part 20 claims not involving a claim for personal injury;
• Claims in which the date of retainer is unclear and the claimant has led the defendant to believe QUOCS does not apply by filing a notice of funding and or paying interim costs orders- question of estoppel.

Examples of such cases include:

• Cases concerning the interaction between fixed costs and Part 36 (Broadhurst v Tan);
• Cases where the defendant argues that the claimant should have commenced the claim in within the Protocol for Low Value Claims rather than by letter of claim ie. Unreasonably valued the claim in excess of the upper limit of £25,000;
• Claims which settle prior to allocation having commenced in the Protocol for Low Value Claims but subsequently exited (Qader v Esure).

Over the past ten years, Simon has obtained vast experience of dealing with issues of dishonesty and fraud. From early days of prosecuting criminal cases in the Magistrates and Crown Court to successfully appearing in one of the first cases in which a finding of fundamental dishonesty was made at trial in 2015 (Creech v Apple Security Group Limited (1) Severn Valley Railway (2)).

More recently Simon routinely deals with exaggeration, malingering, dishonesty and fraud in high value claims. These often, but not exclusively, relate to claims where the pathology of injury is unclear or which are presented as chronic pain type cases often arises out of what seems to be innocuous trauma. He has an excellent understanding of the inaction between the typical medical disciplines which appear in such claims and how best to tactically defend such claims. He regularly advises on tactics surrounding surveillance including in respect of when and what type of surveillance should be undertaken and also when and how best it should be deployed.

He has advised and appeared at trial in countless cases involving fraud in an RTA context such as phantom passenger, LVI, staged collisions, induced collisions and outright dishonest allegations where no contact was actually made between vehicles.

Simon also has extensive expertise in issues surrounding the dis-application of the Qualified One Way Costs Shifting regime on the basis of fundamental dishonesty both at trial and by way of operation of the Practice Direction to CPR 44 (12.4) where a claimant has discontinued in response to such allegations.