I recently wrote about ways for defendants to avoid personal injury litigation. As a follow up I thought it would be interesting to imagine that the ‘shoe was on the other foot’ and to consider the same objective from the claimant’s perspective.
Here are my suggestions:
- Treat litigation as a last resort
The three year limitation period gives sufficient time for most injuries to stabilise sufficiently for a final prognosis or for even the most complicated earnings models to be assessed. The pre-action protocol intends that litigation should be a last resort and that claims should not be issued prematurely when a settlement is still actively being explored. Where liability has been admitted, the claimant is supposed to disclose all medical reports and contact the defendant for a final "stocktake" at least 21 days before commencing proceedings. I have personally never been approached for a stocktake, yet it is a very attractive idea. Most defendants would frankly much rather avoid the expense of unnecessary proceedings and will be delighted by the opportunity for pre-litigation settlement discussions.
- Play fair with experts
The claimant has complete pre-litigation control over experts which can lead to some brinkmanship. At the worst extreme, the claimant exploits this situation to choose his favourite experts, collect reports behind the scenes, sit on them for a while, and then eventually disclose everything in one go and sometimes very close to limitation. The defendant will rarely accept these without question and the usual reaction is to ask for a second opinion from their own expert(s). The case then becomes entrenched whilst the defendant works to unpick the one sided reports. As an alternative, if the claimant is open about the expert road-map and circulates timely reports, the defendant is likely to be much less sceptical about whether the evidence is truly representative.
- Share information
The psychology of a claim is that the claimant who keeps the defendant updated and volunteers a schedule of loss and medical reports comes across as more genuine than the claimant who is slow to produce documents, sits on reports for months, and belatedly serves an inflated schedule. Progressive claimant solicitors will trade information to advance their client's interests.
- Do not over-claim
The system is at its most adversarial when the claimant over pleads the case for maximum negotiating room before conceding a realistic figure. We keep data that shows we are currently settling serious injury claims for about 40 per cent of the amount claimed, which means there is a 60 per cent mark-up. Unfortunately this approach significantly prolongs claims because the defendant is forced to work to bring the numbers back down to a fair and reasonable level, yet the claimant is rarely punished because of the lack of clearer costs sanctions for exaggeration.
- Make offers!
I handle a lot of claims where the claimant never makes any Part 36 offers and the claim only settles through defendant offers or, eventually, a joint settlement meeting. I have never completely understood the reluctance of claimants to make offers, especially when they have the best information regarding the injury and financial losses and are in the best position to value the claim. I hope that the civil justice reforms will encourage more claimant offers – considering that they stand to gain a further 10 per cent of damages (up to a cap of £75,000) for beating their own offers and that defendants may consider economic settlements because of the QOCS shield.
Apart from cases where the claimant instructs solicitors close to expiry of the limitation period and proceedings are unavoidable through lack of time, most other cases should be capable of resolution without proceedings. The key ingredients are that the claimant is reasonable about evidence, the defendant is reasonable about interim payments when required, and both are prepared to engage with the other and make realistic offers.