Many claims still drift unnecessarily into litigation when both parties could avoid this extra delay and expense through more efficient case handling. Here are 10 examples of the positive steps that can be taken
- Use the pre-action protocol
Various parts of the protocol are intended to narrow the gap between the parties and lead to more pre-action settlements. Too many claims still enter litigation without the claimant disclosing all medical reports where liability is admitted, or the parties participating in a final "stocktake" before proceedings.
- Spot multi-track claims early
Some claims may not show their multi-track potential until near the limitation date, whether by deliberate ambush or concealment or by late-emerging complications. If these claims can be identified at an earlier stage and referred to senior case handlers, the chances of pre-litigation settlement should be greatly increased. To support this, new claims can be screened for indicators of multi-track potential, such as head injuries, high earners, lengthy hospital admissions etc.
- Gather case intelligence
Most of the claimant's procedural advantage comes from their superior case intelligence. In EL cases the defendant should have good access to health and earnings information regarding the claimant. In PL and motor cases there is more reliance on cooperation. However, lots of valuable information is also available from independent sources, such as local newspapers, social networks, and CCTV footage. Pre-action disclosure is not the claimant's prerogative and can be used by defendants where "desirable … to assist the dispute to be resolved without proceedings".
- Use surveillance where indicated
In the minority of cases where you encounter a brick wall, or the claimant's selective approach to pre-action cooperation raises suspicions, then surveillance can be considered as a means of building a picture of day-to-day activity and informing a Part 36 offer. Surveillance is increasingly used not for suspected malingers, but for defendants to objectively verify the reported symptoms where no other routes are easily available.
Some claimants or their lawyers are naturally cautious and will decide to wait to complete treatment before settling. This may only amount to a few therapy sessions, but direct funding or an interim payment can accelerate the final prognosis.
- Don't be too greedy
Lots of claims fail to settle quickly because one or both sides wants to "win" and secure the highest or lowest payout for their client. This competition distorts the true purpose of simply providing fair compensation and prolongs claims.
- Pre-med settlement has its place
Many claimants know their own mind and would prefer to avoid the intrusion, inconvenience, and delay of a prolonged claim. Pre-med settlement is criticised by claimant lawyers, but should be seriously considered by both parties where the claimant knows the pros and cons and makes an informed decision.
- Make a pre-action Part 36 offer
No claim should ever reach limitation without a Part 36 offer having been made. For the defendant a best case offer should always be feasible. This can be based on experience and similar claims even where the claimant is controlling the medical evidence.
- Offer mediation
The success rates from mediation are admirably high and an offer of mediation carries its own costs consequences if unreasonably refused. The Courts have been unsympathetic to perceived excuses about cases not being fully prepared, and this may persuade a reluctant opponent to the negotiating table.
- Maintain good working relations
Most of the above steps can be accelerated or entirely avoided through a constructive dialogue with the claimant. In my experience, the cases that settle the quickest and for the fairest amount are those run by progressive solicitors who are willing to trade information to advance their client's interests. The dabblers, costs-builders, and over-aggressive solicitors tend to achieve the poorest outcomes across a range of benchmarks including lifecycle and compensation level.
The continuing civil justice reforms will bring about systemic changes to the personal injury claims process, but an awful lot can also be done at the case handling level to avoid litigation.