Throughout the data collection, data relating to liability, causation and also to the strength and effect of evidence (for example, expert medical evidence), were collected using a coding mechanism. This was designed to illustrate either the nature of the data itself (either by data type, or opinion of the data expressed by the solicitor handling the case), or to illustrate the effect which the data had upon the case that it related to.
A good example of this may be seen in the coding mechanism used when collecting data relating to causation:
Solicitor’s opinion relating to causation: 1. No causational problems
2. No significant causational problems 3. Some causational problems
4. Significant causational problems
5. Case untenable by virtue of an absence of causation
These codes were derived from a close study of case files during the development and piloting of the data collection instrument. The resultant data collection instrument therefore allowed the solicitor’s opinion of the strength of the causation present in each case examined to be recorded, by according the appropriate code to the causational element of each case, extracted from each closed case file examined.
The solicitor’s opinion was recorded on each case file in either of the following formats: 1. A letter to the client, post perusal of the evidence by the solicitor, and an opinion upon causation having been formed by the solicitor (the letter to the client indicating the “strength” of the case in terms of causation after relevant evidence had been obtained and reviewed by the solicitor, and the resultant opinion regarding causation made by the solicitor, and the reasons for this opinion).
2. A file note made on the file, post perusal of the evidence by the solicitor, and an opinion upon causation having been formed by the solicitor. Such a file note would always include the factors governing the opinion, and would be placed on the file after relevant evidence had been obtained and reviewed. The file note would generally be followed by a letter to the client informing the client of the situation with regard to causation, and the effect which this may have upon the case, (as in 1 above).
With regard to the allocation of the coding:
As proving causation is effectively an evidential concern, there are key elements which may be seen to arise in the typical negligence case, which may be seen to influence the opinion regarding causation formed by the solicitor subsequent to all relevant evidence having been obtained. The two most significant elements may be described thus:
1. Evidence relating to causation in terms of the actual facts of the case. Such elements include the facts of the case per se, in other words how the injury came to take place, irrespective of opinions relating to actual liability. In addition to this, there may be concerns relating to the presence or absence of a novus actus interveniens, or other concerns regarding a break (or otherwise) in the causal link. In some cases the formulation of an
opinion relating to causation may be delayed by a solicitor until expert witness evidence has been obtained (for example, an engineer’s report).
2. Medical evidence relating to the precise nature or effect of the injuries. Specifically this relates to the effect that the actual injury has had upon the claimant’s past or present medical condition post injury. A causational problem may particularly be seen to arise where the medical evidence indicates a relevant pre-existing condition. This can have a significant impact upon the level of causation, which may be shown to exist within a case, and can clearly impact upon quantum as a result. In cases where medical evidence indicates that causation has been compromised by a previous injury or pre-existing medical condition suffered by the claimant (whether or not this has been disclosed to the solicitor by the client prior to the relevant medical evidence being obtained), the solicitor may well advocate a reduction in quantum in order to achieve a satisfactory settlement for the claimant. As a result of this, most final decisions regarding the strength of causation may be seen to take place after the solicitor has had the opportunity of reading the report of the medical expert. The medical expert will always have had access to the claimant’s General Practitioner notes and medical records when preparing the expert medical report, and will therefore always include a commentary relating to any pre-existing conditions or previous injuries in the medical report itself.
The allocation of coding may be best explained by example:
Code 1 may be seen to relate, for example, to those cases where there is no doubt as regards the causal link (e.g. a “rear end shunt” RTA case), and where there is no adverse medical evidence (e.g. no evidence of a pre-existing condition relevant to the injury suffered by the claimant).
Code 2 may be seen to relate, for example, to cases where there is little or no doubt regarding the causal link, or where the causal link has been largely substantiated (although not absolutely entirely) by independent expert witness evidence, and there is no adverse medical evidence. Alternatively, it may relate to a case where there are no problems relating to the causal link, other than some slight adverse medical evidence, which the solicitor may even try to rebut if such evidence has been obtained by virtue of a medical report commissioned by the defendant, or which is of only small consequence if such evidence has been obtained by a joint medical report, or by a medical report commissioned by the claimant.
Code 3 may be seen to relate to cases where there are problems with the causal link, e.g. somewhat unfavourable expert witness evidence, or difficulties in establishing the causal link. It may also relate to cases where there is a higher level of significantly unfavourable medical evidence than is present in a case falling into Code 2 (above). However, typically Code 3 would be allocated to a case that the solicitor still regards as having some merits, and in which the advice would be to attempt settlement, with the poor level of causation having a significant impact upon quantum, (particularly with regard to the effect upon causation of adverse medical evidence).
Code 4 may be seen to relate to cases where there are significant problems in establishing the causal link, or where there is severely adverse medical evidence, (over and above the level of causational difficulty identified in Code 3). The solicitor may advise a discontinuance of the litigation if no settlement is forthcoming. Clearly quantum would be severely reduced in cases falling within Code 4 coding.
Code 5 was applied to all cases where evidence relevant to the causal link, or the medical evidence obtained during the course of the case, could only be seen to have such an adverse effect upon the case, that the solicitor was obliged to advise immediate
discontinuance, in order to meet the fundamental requirement of acting in the best interests of the client.
Liability Coding:
Liability was coded on a 5 point scale, in descending terms as with the coding system for causation described above. As with causation, data relating to the solicitor’s opinion was obtained by reviewing letters to the client and file notes, both pre-discovery (in the case of initial estimates), and post-discovery (in the case of actual estimates)
DCA Research Series No. 2/06
The funding of personal injury litigation: comparisons over time and across jurisdictions
This study provides evidence on the operation of funding arrangements in several areas of personal injury litigation and examines, for the first time in detail, the funding of clinical negligence cases. It also provides some information on approaches to personal injury litigation in other European jurisdictions.
The authors report that conditional fee agreements (CFAs) are now the predominant means of financing personal injury claims. They find that the complexity and value of personal injury claims run under CFAs has not changed significantly since the introduction of rules allowing for recovery of success fees and after the event insurance premiums. The study also finds that CFAs have become a significant source of funding for new clinical negligence cases.
Some comparisons are made with findings from a previous study, published in 2002 as: The Impact of Conditional Fees on the Selection, Handling and Outcomes of Personal Injury Cases by Fenn, Gray, Rickman and Carrier (DCA Research Series 6/02).
For further copies of this publication or information about the Research Series please contact the following address:
Department for Constitutional Affairs Research Unit Selborne House 54 Victoria Street London SW1E 6QW Tel: 020 7210 8520 Fax: 020 7210 0693