I’ve found over the years that, if we look at solving personal injury issues imaginatively, there is often a way of avoiding the courts.
My Chambers held a seminar recently at which various forms of ADR were discussed. It was of particular interest to me that, the following day, I was starting a trial arising out of a road traffic accident, in which the claimant was grievously injured. I didn’t know who the judge would be, but I was fairly confident, because it was in London, that it would not be a specialist personal injury judge. I was told late afternoon who the judge was, and I had to google the name to see the background – appointed as a specialist chancery Circuit Judge, and may have done family and criminal work. No mention of personal injury. Fast forward three days, and I win the case; does that mean that our system of personal injury litigation works? Definitely not. Before I embark on the problems and possibilities, I must make it clear that the judge was courteous, competent, efficient and very pleasant – I had no complaint other than lack of specialisation.
Lack of specialisation is only part of the problem. I had a more extreme example a few weeks ago, when we were told in the middle of a settlement meeting that our case would not be tried by Judge A (excellent personal injury judge), but by Judge B (poor quality chancery judge); that genuinely could have reduced our settlement position by a million pounds.
There are many forms of ADR, and they all involve the parties taking some measure of control of the dispute process, and avoiding non-specialist judges. A good starting point is the ADR Handbook, second edition now available. Since the first edition, a developing feature of different types of ADR has been flexibility. I still favour my system of neutral facilitation (see below), because that is far and away the most flexible of all the existing tools in the ADR toolkit. I think modern ADR should be imaginative and flexible.
The most obvious demonstration of that point is in relation to mediation. When it started in personal injury, it was sometimes of little value, because mediators were trained not to use their specialist expertise – if they had any. In fact, it was said that specialism was not only unnecessary, but also possibly a disadvantage, because you might reveal your own opinions. I always thought that approach had limitations, and I remember asking one mediator, an experienced personal injury silk, if he would tell us what he thought of our case – he did, and I disagreed with his view! However, I did then have to point out to my client that the mediator was giving us advance warning of what a judge might think, and that had real value; it meant that, even though I disagreed, we had to give weight to the possibility of failure. Nowadays, that is called evaluative mediation, and it is much more common.
Another type of ADR highlighted at our seminar was arbitration. I have to say that I see no place for this in personal injury compensation claims, but there is an alternative view. The talk was interesting to me in the sense that the speaker, who is an advocate of the use of arbitration in our type of claims, took us through the Arbitration Act (!), but had to try to emphasise the scope for flexibility within what some might see as a rather formal process.
Early neutral evaluation took a step forward on the 1st October 2015 – the court’s general powers of management were increased by adding to CPR 3 the power to hear (or order?) “an Early Neutral Evaluation with the aim of helping the parties settle the case”. Again, this is a form of ADR which can have real value, because it provides what mediation sometimes lacks; the reality testing, or objective assessment, which can help parties to perceive the weakness of their arguments.
Expert determination may not seem to have a place in personal injury disputes, but oddly enough I had an example where one expert helped the sides to come to an agreement. It was done in circumstances which would not be common, because it was a defence expert, but the solution was my suggestion, on the basis that I knew the expert well, had known her for a long time, and respected her honesty, expertise and judgment. There would be ways, though, of using experts to help us to resolve issues – that could fit in to my system of neutral facilitation, and I have two brain injury rehabilitation experts prepared to help.
I’ve found over the years that, if we look at solving personal injury issues imaginatively, there is often a way of avoiding the courts. Several times I have had my consultation with my client with the insurer and defence solicitor present in our room, being able to join in all our discussions about rehabilitation, accommodation, case management, care, state benefits, and all aspects of a plan for life. We discuss experts; who should we use, and whether we really need to spend tens of thousands of pounds on medico-legal reports which will be out of date in no time. We talk about ADR; for example, if there is a contributory negligence issue, shall we nominate a senior personal injury lawyer to deal with it.
It’s that experience, spread over many years, which has led me to the notion that sensible professionals could (and should) create an alternative system, tailored to the specific needs of (in my case) catastrophic compensation claims. As soon as the claimant solicitor notified the insurer of the claim, one or other would suggest appointing a neutral facilitator, who would be a senior personal injury lawyer with negotiation and mediation skills, as well as evidential and analytical experience. That person would be available to help avoid or resolve any problem. The whole process would be completely flexible, based on the parties agreeing at all stages what they want the facilitator to do.
Issues do arise all the time in these major claims. Rehabilitation can be an early problem; should the claimant go to this unit, at £4,000 a week, or that one at only £1,500? Should he or she go to one owned by the insurance industry, or a profit-making one? Should rehab last for six months, or only six weeks? What are the realistic goals, and how can both sides monitor them? What if the first choice of rehabilitation isn’t working; do we change unit, or try to improve the existing service? Should it be done under the Rehab Code, which can be disadvantageous to the insurer if there is a genuine primary liability or contributory negligence argument? What input should be allowed to the insurer to check that the claimant’s case manager is making sure that the money is well spent?
I had the example a while ago of choosing the right unit. The claimant’s spouse was determined that a particular unit was the appropriate one, and that others would not be as good. The insurer was unconvinced. The solution, which a neutral facilitator could have devised, was that we arranged for the spouse to argue the case with the defence rehab expert; just the two of them in a room, discussing the reasons. It worked. If it hadn’t, we could have agreed to ask an independent rehabilitation doctor to consider the arguments for and against, and the other suggested units, and to ……. and this is where the flexibility comes in. Would that doctor evaluate, or decide. Or, more likely, would the doctor discuss his or her thoughts with the facilitator, and would the facilitator then evaluate or determine? The process would depend on what the parties chose. For example, they could agree on a suitable rehabilitation doctor, and then instruct the facilitator to manage a process of enabling both sides to put their arguments forward, either orally or in writing, either with or without expert evidence, and they would agree what they wanted the facilitator to do; evaluate or determine. If the latter, would there be a right of appeal, by way of a second opinion, or would the process be to revert to the court system and go through the interim payment process.
Where my scheme differs fundamentally from all or most others is that it is aimed at all issues, starting when the claimant is in hospital. Many or most of the other methods of ADR are commonly used either for settlement of the entire claim, or when an issue has become a dispute. The choice of the word “facilitation” is to emphasise the ability to help people avoid disputes. Above all else, it is important to see that this system has no limits, other than the imagination of those involved, and that it is all subject to the parties, with the help of the facilitator, agreeing on a method of avoiding or resolving problems. More than any other type of ADR, it allows parties to take control of the entire process.
By Bill Braithwaite QC, Head of Exchange Chambers