Personal Injury Mediation Services

End of Trade Unions funding personal injury claims?

admin — Tue, 09 Mar 2010 10:00:13 +0000

Trade Unions have a long tradition of supporting personal injury claims

I started my legal career with Thompsons and also worked for Russell Jones & Walker. They are just two firms which receive many cases through referral from Trade Unions. Claimants are represented under Collective Conditional Fee Agreements (CCFA). If the claim is successful the claimant can recover from the defendant a sum which is payable to the Union – in lieu of a premium in a CFA case. If unsuccessful the Union will pay the defendant’s costs on behalf of their member. As union solicitors win/settle the vast majority of their cases this is in fact a source of revenue for the Union.

I wonder then what they make of the proposals in the recent report by Lord Jackson on qualified one-way costs shifting? The idea is that the traditional rule of paying the defendant’s costs if you lose be abolished and replaced with this proposal quoted from page 189 of the report:

4.7 Proposed rule. I therefore propose that all claimants in personal injury cases, whether or not legally aided, be given a broadly similar degree of protection against adverse costs. In order to achieve this result I propose that a provision along the following lines be added to the CPR:

“Costs ordered against the claimant in any claim for personal injuries or clinical negligence shall not exceed the amount (if any) which is a reasonable one for him to pay having regard to all the circumstances including:

(a) the financial resources of all the parties to the proceedings, and

(b) their conduct in connection with the dispute to which the proceedings

relate.”

If this proposal is adopted, there will have to be consequential provisions of the kind that currently exist to enable section 11(1) of the 1999 Act to be operated. The details of these consequential provisions will be a matter for the Civil Procedure Rule Committee.

4.8 I do not think it should be necessary in most cases to require a detailed enforcement procedure to determine liability under this provision. In the great majority of cases it should be determined at the conclusion of the case whether an order should be made and, if so, the amount should be determined summarily. Furthermore the making of a costs order will be the exception, rather than the rule. Nevertheless, the formula suggested above will enable the court to make a costs order in three specific situations where such an order would be appropriate: (a) where the claimant has behaved unreasonably (e.g. bringing a frivolous or fraudulent claim); (b) where the defendant is neither insured nor a large organisation which is self- insured; or (c) where the claimant is conspicuously wealthy.

It is too early to say what this will all mean in practice. Does it mean that a Trade Union backed claimant may be interpreted by the courts as being “conspicuously wealthy”. The consequence would be the Union would be ordered to pay defendant’s costs in unsuccessful cases. On the other hand the proposal to abolish the recoverability of premiums would mean there is no financial benefit to the Union in successful claims.

Why would a Union face this risk for no reward when the client acting as an individual would not be ordered to pay the defendant’s costs if they lost?

I would be very interested to hear your views on this – please post a comment.

Jackson report debated in parliament

admin — Tue, 02 Mar 2010 10:00:46 +0000

The Lords get the debate underway

The House of Lords has had the briefest debate about the Jackson report on costs reform. You don’t have to go to the law library as Hansards comes to you on line – you can see the debate here.

Not a lot was said other than the fact that the government is now “actively assessing the implications” of the report. Lord Woolf asked how long it will be before we see any action taken. He may as well have asked how long is a piece of string. Lord Bach informed the House that the report requires a great deal of analysis and wondered if Lord Jackson wanted all the recommendations implementing as a package or not implementing at all!

Oh, and by the way, there’s an election coming up so don’t hold your breath.

Do you think Sir Rupert’s report has to be implemented in full or should the Ministry of Justice cherry pick the recommendations?

Mediation posts from the archive

admin — Fri, 26 Feb 2010 09:17:39 +0000

I started writing personal injury mediation posts on this site well over a year ago so decided it would be a good idea to look back occasionally into the archive. New readers may not have seen the following from February 2009 :

Client care and personal injury mediation
How to improve client satisfaction (and incidentally your profitability) by using mediation to reduce the life cycle of personal injury cases.
No tossing allowed
A look at the HSE’s “myth busting” articles about the more ridiculous stories about what you supposedly can’t do because of health and safety legislation.
Litigators don’t know how to negotiate
Negotiation is a huge part of the litigators role but never used to be taught as a skill. Is it intuitive to all lawyers or some simple no good at it?

LinkedIn personal injury group

admin — Fri, 12 Feb 2010 09:23:48 +0000

Are you registered on the professional networking site LinkedIn? If so do send me an invite to connect. I would also encourage you to join the UK Personal Injury Lawyers & Insurers group. This is a fledgling group with membership of a cross section of professionals from all aspects of personal injury litigation – claimant lawyers, defendant lawyers, insurers, claims management companies, mediators, expert witnesses and so on.

Unlike most personal injury forums this cross-party involvement means we get a wide spectrum of opinions from different perspectives. As with all LinkedIn groups you get out of it what you put in but I do encourage you to give it a try.

LinkedIn is free to join and easy to leave if it’s not for you.

Wildlake v BAA Ltd 2009

admin — Wed, 27 Jan 2010 14:03:58 +0000

Last week I reported on Hullock v East Riding of Yorkshire County Council. Matthew Harman of Mathhew Harman & Partners costs lawyers (Matthew is also a Mediator) kindly contacted me through LinkedIn to refer me to the case of Wildlake v BAA Ltd [2009] EWCA Cic 1256. This case involved a claimant in a personal injury matter exaggerating her injuries – she did this by failing to report pre-accident problems to the medical experts. This was discovered well over a year before the matter went to trial.

The case is well worth reading for a concise review of the law on the costs consequences of exaggerated claims. Cases reviewed include:

Molloy v Shell UK Ltd [2001] EWCA Civ 1272
Painting v University of Oxford [2005] EWCA Civ 161
Shah v Wassim Ul-Haq [2009] EWCA Civ 542
Jackson v Ministry of Defence [2006] EWCA Civ 46
Hall & ors v Stone [2007] EWCA Civ 1354
Straker v Tudor Rose [2007] EWCA Civ 368
Barnes v Time Talk UK Ltd [2003] EWCA Civ 402
Morgan v UPS [2008] EWCA Civ 1476 and
Blakes Estates Ltd v Government of Montserrat [2005] UKPC 46, [2006] 1 W.L.R. 297

The claimant was awarded just under £5,900 by the trial judge. The defendant had made a part 36 offer of £4,500. Nevertheless the court ordered the claimant to pay the defendant’s costs. On appeal the court decided the judge had misdirected himself as to the law and so was able to set aside the order. Taking everything into account the Court of Appeal substituted it’s own view that there should be no order for costs.

From a mediator’s point of view the point to make is that failing to attempt to negotiate a claim is something that will be taken into account by costs judges. Ward LJ said at para 43 :

Part 36 now also affects a claimant. Whilst not obliged to make a counter-offer, in this day and age of encouraging settlement, claimants who do not do so run the risk that their refusal will impact upon the costs they may otherwise be entitled to recover. Here there was no attempt to negotiate and that counts against the claimant.

What is also triking is that defendants still appear to be reluctant to offer mediation in cases involving suspected exaggeration or fraud. Going to mediation does not weaken your claim one iota and gives you the opportunity of putting your views directly to the claimant. That can have a sobering effect on the recipient.

What do you think? Can mediation work in fraudulent or exaggerated claims? Add a comment below.

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Hullock v East Riding of Yorkshire County Council

admin — Mon, 25 Jan 2010 09:30:13 +0000

Costs consequences for exaggerated claims will hurt more under Jackson's proposed reforms.

Once again the question of who was the winner in personal injury litigation was considered by the Court of Appeal in Hullock v East Riding of Yorkshire County Council [2009]. In December 2004 the claimant tripped on a pavement and suffered injuries. She had a fractured hip requiring insertion of a plate and two weeks in hospital. Liability was conceded within 4 months of the claim being notified to the defendant. In November 2005 the claimant served a schedule for past and future care amounting to £93,000. Proceedings were issued. Eventually after surveillance evidence and a joint orthopaedic report the claimant revised the schedule claiming just £6,500 of past care and abandoning the future care.

The parties agreed to settle for £15,000 and proceed to trial on costs only (the parties had previously agreed an interim payment of £15,000 – the claimant had valued general damages at £14,000). The judge ordered the defendant to pay 50% of the claimant’s costs. The defendant appealed. Lord Justice Patten reviewed the case of Hall v Stone [2007] and Painting v Oxford University [2005]. He dismissed the suggestion that the defendant’s failure to make use of an effective part 36 offer early in the proceedings was an answer to the argument that most of the costs were attributable to the disputed care claim.

He concluded at paragraph 33 :

This is therefore in my judgment a case in which the exaggerated and unsuccessful claim for special damages had real costs consequences for which the claimant should be made liable. Although the appeal is against the exercise of a discretion, I think that Mr Cox is right in his submission that the Recorder failed properly to recognise and give effect to the importance of his finding about the defendant’s conduct and was wrong to regard it as only a partial answer to the claimant’s case based on her apparent success in the action. The real winner was the defendant. Had the disputed element of special damages not been included in the November 2005 schedule, the claim would have been settled without the need for proceedings. Instead of an agreed interim payment of £15,000, the money would have been paid to the claimant in satisfaction of her claim and any further costs would have been avoided.

He allowed the defendant’s appeal and ordered that they pay the claimant’s costs up to the date of their interim payment of £15,000 but that the claimant pay the defendant’s costs thereafter. The impact of this order on the claimant herself may be negligible if she had in place an ATE insurance policy and a CFA agreement. She may not pay a penny of costs out of her compensation. However of course if the proposals put forward by Lord Jackson in his final report on costs are implemented then this type of order will have significant impact on claimants, not just on their solicitors and insurers.

Thanks to Costs Lawyer Matthew Harman who contacted me about Wildlake v BAA Ltd [2009].

What do you think? Was the original order a proportionate way to deal with an exaggerated claim or did the Court of Appeal get it right? Add a comment below.

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Education key to mediation growth

admin — Mon, 18 Jan 2010 10:00:39 +0000

I wrote about Lord Clarke’s latest call for education for judges and lawyers about mediation a few weeks ago. I have written a longer article for the Personal Injury Brief Update Journal entitled Education key to increasing personal injury mediation. Follow the link to the PIBUJ website although you need to register to read it.

The theme has obviously been taken up by Lord Jackson who produced his final report on personal injury litigation costs on 14th January 2010. He said on page 363:

I recommend that:

(i) There should be a serious campaign (a) to ensure that all litigation lawyers and judges are properly informed about the benefits which ADR can bring and (b) to alert the public and small businesses to the benefits of ADR.

If you are interested in receiving mediation training for your firm or for a group of firms together just give me a call on 0845 056 3625 to discuss your needs.

Jackson Costs review final report

admin — Thu, 14 Jan 2010 13:18:47 +0000

Lord Justice Jackson, ready to put his feet up no doubt.

Follow this link to read Lord Justice Jackson’s review of civil costs final report. Feel free to comment below. I have extracted the relevant personal injury parts of the executive summary and will comment on them in future posts.

Proposals from the executive summary:

General damages to be increased by 10%.
Success fees and ATE premiums should cease to be recoverable from unsuccessful parties (ie the defendants usually in PI cases. (The Lord giveth then he taketh away!).
Success fees (which will have to be paid by the claimant) be capped at 25% of damages, excluding any damages referable to future care or future losses.
Ban referral fees.
Unsuccessful claimants do not have to pay the defendant’s costs (making ATE insurance for defendant’s costs unnecessary – see 2 above).
Fixed fast track costs (recommends £12,000 pre-trial limit).
Lawyers should be allowed to offer contingency fee agreements – not clear if that it is to be limited to certain types of contentious business. so may or may not include personal injury.
Claimant recovers extra 10% if defendant fails to beat part 36 offer (what happens to Carver? – it should be overturned says Jackson).
Working party set up to design a neutral “Colossus” for calculating general damages.

OK I think that’s enough to be going on with. I will read the chapters in detail and comment in later posts. I will also review what he has to say about mediation but here is one quote as a taster from page 387 to whet the appetite :

There is a widespread belief that mediation is not suitable for personal injury cases. This belief is incorrect. Mediation is capable of arriving at a reasonable outcome in many personal injury cases, and bringing satisfaction to the parties in the process. However, it is essential that such mediations are carried out by mediators with specialist experience of personal injuries litigation.

See the New Law Journal webcast.

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Who pays for personal injury mediation?

Philip Hesketh — Mon, 11 Jan 2010 12:14:19 +0000

Insurers may offer to pay the mediator's fees in advance.

Who pays the mediator’s fees in a personal injury mediation? The simple answer is whoever the contract says should pay. The contract is formed by the mediation agreement and the mediator’s terms and conditions. The usual case is that both sides agree to pay half of the fee in advance of the mediation. This can be varied by any agreement reached at the mediation itself. So if the claim is settled the defendant in all probabilty will agree to pay the costs including the claimant’s half of the fee.

I delivered a training session to a firm of personal injury claimant lawyers recently. One of the solicitors said an insurer had recently offered to go to mediation on two cases and in both instances had offered to pay the whole fee up front. He was very suspicious of the insurer’s motives. Actually I mediated a case last week where this happened. Insurer’s recognise the benefits of mediation but also acknowledge that finding £575 plus VAT to pay half the fee can be a disincentive for some claimants and they would rather pay it themselves and have the mediation proceed – in all likelihood they will be paying all of the fee eventually so it makes perfect sense.

This is the first post of the year so I wish all my readers a prosperous year. If you haven’t already done so do sign up for my monthly mediation newsletter and pass it on to any colleagues who may be interested.

If you still haven’t been involved in a mediation and want to try it out then give me a bell and we can chat generally about suitable cases and I may be able to help find a mediator in your area. Your new year resolutions have statistically already been abandoned so try a new one – mediate your first case this year. Best wishes.

Beresfords former solicitors lose appeal

admin — Tue, 22 Dec 2009 04:00:05 +0000

High Court rejects appeal of solicitors struck off the Roll

The BBC reported last week on the failed appeal of the two solicitors who were struck off the Roll of Solicitors last year in connection with their handling of miners’ compensation claims. I have written before about miners compensation claims and the league tables showing the relative performance of solicitors. I mention it again because of the knock-on effect this case appears to have.

The Gazette reported last week that some MPs want to exclude solicitors from any proposed new scheme to compensate workers for asbestos related pleural plaques. Jim Sheridan MP for Paisley and Refrewshire North is reported as saying

We don’t want lawyers making a business out of other people’s misfortune.

Unfortunately because of the scandal over the miners’ scheme one can understand this sentiment. On the other hand competent and professional personal injury solicitors have been helping injured workers recover compensation under various government schemes for decades. These schemes are never straightforward and it does not seem right to refuse an injured person access to professional advice and assistance. Although I am no expert on the Human Rights Act I imagine a serious challenge could be made if this recommendation is approved.

There is a role for mediators in these public policy discussions which has not been fulfilled before. Mediators can help move parties beyond the type of forthright position expressed by the Mr Sheridan MP. His stance is that he does not want solicitors involved. However his (admirable) interest is probably to protect the public purse from abuse by unscrupulous practitioners to ensure that as much as the funds available can be spent on compensation rather than costs. The involvement of solicitors in the scheme is not incompatible with meeting this interest but the discussion has to be more sophisticated than we have managed in the past.

What do you think? Should lawyers be excluded? If so who will ensure claimants are properly compensated? Add a comment below.