It has long been fashionable for catastrophic injury practitioners from both sides to champion a collaborative claims handling approach.
The basic idea is that the traditionally adversarial process is replaced by mutual communication and compromise.
Different market initiatives, such as the Rehabilitation Code and the Multi Track Code, have even tried to codify good behaviour.
Problems arise in the first place because the claims process is adversarial by its very nature, and puts various practical barriers in the way of true collaboration no matter how good the intentions of the parties.
The timetable is dictated by certain checkpoints, for example. The parties may be unable to negotiate a liability compromise until criminal proceedings are finished and all the evidence becomes available for civil purposes.
Escaping the conventional process
The claimant will also probably need interim payments from the defendant to fund whatever care and accommodation may be required following discharge from primary care, and the process of buying and adapting a new property is time consuming.
The claimant may then want a sufficient trial period to reality-test the arrangements before final settlement.
All the while, small gains are still possible for several years post-accident, and the parties must judge whether the claimant's condition has sufficiently stabilised for the experts to give a reliable lifetime prognosis.
It is, nonetheless, possible to escape from the straitjacket of the conventional claim process to some extent by taking a more collaborative approach, especially in the early stages of the claim lifecycle following first notification.
At the adversarial extreme, the defendant issues a 'holding' denial of liability because a catastrophic injury is involved and there is a defence on paper. The claim then stalls for several months while the criminal proceedings run their course.
All the while, the claimant's family may be struggling financially without a main breadwinner and no funding is available to maximise the rehabilitation opportunities.
The collaborative alternative is for the defendant to make early interim payments to cover post-accident expenditure and initial rehabilitation, on the express understanding that these will be non-refundable should the claim fail on liability.
In exchange, the claimant provides regular updates regarding the injuries for the insurer to maintain an accurate reserve.
At this point it can be extremely valuable for the defendant's representatives to meet the claimant and their family, ideally before discharge from hospital, so that the best possible response to immediate needs can be co-ordinated.
In reality, this is a too-rare occurrence because the claimant's lawyer is naturally concerned about not overloading their vulnerable client or is mistrustful of the motives.
However, we know of an example where a two-way meeting involving the claimant demonstrated to the defendant that the care package was inadequate and it was agreed to provide increased funding.
Many claimant lawyers prefer to appoint their own case manager and organise unilateral rehabilitation, funded on a 'credit-rehab' basis or from interim payments.
The Rehabilitation Code envisages joint instruction of a case manager and mutual decisions regarding rehabilitation delivery and expenditure.
However, the code is only voluntary and many claimant lawyers prefer to control rehabilitation because they regard lifestyle and therapy choices as the claimant's prerogative, or they wish to avoid the defendant, effectively holding a veto in relation to more controversial items.
Where rehabilitation proceeds according to the code, the defendant has an excellent opportunity to set a collaborative tone by quickly agreeing to implement the recommendations from the initial needs assessment and recognising that flexibility is required where expensive items offer potential results that may decrease the final claim.
Alternatively, where contributory negligence is a real prospect and the claimant faces a private funding shortfall, a reasonable compromise might be for the claimant to co-operate in relation to state funding and benefits applications in return for the defendant being flexible regarding rehabilitation issues.
It is to be hoped that, as part of a collaborative rehabilitation programme, the claimant would agree to all stakeholders attending review meetings with the case manager as required.
Genuine joint working
Once liability is conceded, the adversarial claimant may obtain a variety of one-sided expert reports, often without notice to the defendant, and serve these with a short-notice request for a significant interim payment to purchase and adapt a property.
Alternatively, the parties could agree to undertake a joint property search because there is a mutual interest in ensuring that the claimant is not overcompensated in that respect.
The claimant will frequently be forced to borrow from other heads of damage to raise sufficient capital for the purchase, which makes it especially important to avoid irrecoverable over-provision that could otherwise have funded other essentials.
We would agree that the final property decision is largely a matter of personal choice, in the same way as for an un-injured purchaser, and this can be achieved by simply agreeing with the claimant that a general interim payment be made at their risk as to reasonable need and future recovery in the claim.
The claimant's litigation team has the huge advantage of always having the best information regarding the claimant's circumstances and they act as gatekeeper for examination facilities by medical experts.
To create a more level playing field, the Multi Track Code pilot scheme provides for mutual road-mapping of cases so as to avoid litigation-by-ambush.
At the last review meeting of the pilot group, claimant and defendant stakeholders advocated their support for this concept, yet we have seen variable compliance between individual lawyers in some of the participating claimant firms.
As defendant representatives, we are always prepared to try to agree the expert disciplines and preferred names, including single joint experts even in the potentially most contentious areas such as future care, assuming both sides can identify someone who is known to avoid extremes of opinion and might, therefore, be mutually acceptable.
Advance warning of the claimant arranging expensive after-the-event insurance to protect against any adverse costs orders is always a good thing.
As a firm, we have been operating a form of qualified one way costs shifting for a while, by offering side-agreements to claimant lawyers that we will not seek to recover any adverse costs orders from their client if, in return, they will forego such cover.
This is advantageous to both sides: the claimant's funding pot is preserved for more beneficial items, and the defendant limits the litigation costs bill and can still use Part 36 to the modified extent of protecting against the claimant's costs even if they have traded away the prospect of recovering a proportion of their own.
Opportunities for compromise
In short, there are plenty of opportunities for compromise during the lifecycle of a catastrophic injury claim.
The best claimant lawyers will engage with the collaborative approach, but fight their client's corner when necessary. Others have an extremely aggressive mode of litigation and will try to have everything their way.
But the more constructive a relationship, the less inclined parties are to take the adversarial route of best-case schedules and counter-schedules, which of themselves can further entrench the dispute.
Even the most collaborative practitioners will frequently encounter issues on which they disagree. We are not advocating either side simply 'gives in' as a means of keeping the peace.
True collaboration is about knowing when to give and take, or sometimes trade, and keeping in mind the common goal of achieving a fair compensation settlement for the claimant at the earliest stage.
The article was first published by Post Magazine, 11 December 2012.