DEFENDING AND SETTLING A CIVIL/PERSONAL INJURY CLAIM

DEFENDING AND SETTLING A

CIVIL/PERSONAL INJURY CLAIM

14 May 2015

How a claim is started and progressed

• Traditional Approach – see Law Society Website

http://www.lawsociety.org.uk/for-the-public/common-legal-issues/personal-injury-claim/

• The Reality in 2015

• Jackson Reforms – ATE premiums no longer recoverable;

• QOCS

• Damages Based Agreement (aka “Don’t Bother Agreements”)

• Private Equity and Claimant Market Consolidation

• PI Claims are now a commodity to be bought and sold in high volumes

• Commercial focus on high volume low value claims

• Little/no personal contact with any of the parties

• Little/no triage

• Opportunistic instruction of solicitors

• QOCS – speculative submission of claims

• Increased speculation in litigation

..

Pre-action Protocol

(http://www.justice.gov.uk/courts/procedure-rules/civil/protocol/prot_pic)

• Three month limit for response with reasons

• Letter of claim should nominate medical experts;

• Responses should set out basis of denial and give disclosure of documents (“impartial to the issues”);

• Sanction.

• Outline Features

• Letter of Claim;

• 3 month response time;

• Admissions and denials;

• Relevance

cont. Pre-action Protocol

simpmarllp.com Professional. Approachable. Exceptional

•

Contradiction with Jackson Reforms

– A

protocol without teeth?

• Cost Budgeting and QOCS sanction for non-compliance by Defendant?

• The point is ... [write a sensible letter a Judge will understand – don’t assume your position will be vindicated or that an unreasonable Claimant lawyer will be punished.]

How are Claims Assessed?

•

Common responses:-

− he/she was just stupid

− PP was available

− He/she just out to make a claim

− No one would ever do it that way

− There’s nothing wrong with him/her

− He/she is a liar.

Key Components of Liability

• Duty of Care

• EL – generally straightforward

• PL – see OLA 1957

• Liability to contractors’ employees?

• Relevance of Insurance Arrangements

• Breach

• Often straightforward

• How did the accident arise

• The value of evidence (liability and contributory negligence)

• Beware systemic failures

cont. Key Components and

Liability

•

Causation and Damage

• An account of Claimants’ post accident symptoms is frequently overlooked;

• Post accident information may be invaluable.

Response to the Accident

• On the accident date

• Photos and lots of them

• Work equipment – photograph, remove and isolate

• Consult CCTV logs

• Log/identify the relevant personnel/witnesses

• Involve statutory bodies for large incidents (http://www.hse.gov.uk/pubns/indg453.pdf)

cont. Response to the Accident

• Prioritise your own position

• Complete accident and investigation report. Delay/absence will be construed against you. Keep it factual – No Opinions!!

• Compile site plans/drawings/illustrations (and record problems (and record problems)

• Marshall witnesses – interview and produce signed and dated statements (provide witnesses – whether potentially helpful or hostile) with access to photographs, drawings or documents.

• RIDDOR – accounts recordable at 3 days absence and reportable at 7 days (See HSE link above);

• Injuries to non-employees reportable if victim is taken to hospital;

• Specified injuries.

• THERE ARE NO SECOND CHANCES

cont. Response to the Accident

•

Discussion – Privilege

•

Common sense should prevail;

•

Beware potential criminal culpability;

•

Compile accident dossier;

•

protocol complaint documentation;

•

Index of materials;

•

Include earnings information (if Claimant absent from

work).

•

Notification – HSE and Brokers/Insurers

Claims Portal Update – (innovation or

white elephant?)

• Scope;

• Portal costs (EL/PL) - £900 to £1600;

• Fixed Recoverable Costs (FRC) on exit;

• FRC between 150 and 250% more generous than portal fees;

• Disease claim exempted;

• Response time limits (to CNF):-

− EL 30 days − PL 40 days • Claimant behaviours:- − deficient CNF’s − manipulation of value − contributory negligence • Court Fees

Documents and Evidence – Privilege and

Disclosure

•

Relevance of documents where systemic failure alleged

• Look for dominant purpose of documents;

• Exercise caution with “in-house” witness statements;

• Modified approach in serious incidents where there is prosecution potential.

Do insurers and employers look for

different things?

•

Repercussive potential – disease claims;

•

1

claims;

•

Economics – commerciality (fact specific cases will

be looked at commercially);

•

Are you still with the insurer? [cost of shopping

around!]

Litigation

•

PADs;

•

Service of proceedings;

•

Reporting.

Questions?

Who are we?

Toby Scott Partner

Email: toby.scott@simpmarllp.com Tel: 0919 229 2255