One of the country’s leading personal injury QCs is calling for an end to court intervention in catastrophic personal injury claims.
Bill Braithwaite QC believes the current system is flawed. He has also held board level discussions with claimant and defendant law firms and major insurers who also believe there is a better way than non-specialist judges trying complex personal injury cases.
Bill Braithwaite QC is proposing a scheme called neutral facilitation.
“It is time for radical change,” he explained.
“When a major claim is notified, it would be possible for both sides to agree to appoint a neutral facilitator. That person could be a personal injury litigator, who has sufficient experience to understand and deal with all the usual issues which arise in a claim. The parties would therefore take charge of selecting the facilitator, unlike the position at present where the Court imposes its selection, and where only the minority of High Court judges are from a personal injury background.
“In addition to selecting the neutral facilitator, the parties would want to agree what powers they would give to that person. The possibilities are endless; he or she could be limited to only one of the many forms of ADR, or they could be given a free hand to decide which method of ADR would work best for any individual issue.
“It is really important to stress that this is not just mediation, nor is it another version of settlement meetings. It is a suggestion that we could and should use the whole range of ADR systems as and when we need them, in order to make the entire case run smoothly, not just to settle it at the end.”
David Fisher, Catastrophic & Injury Claims Technical Manager at AXA Insurance, believes neutral facilitation will find favour with insurers as well as claimants. He said:
“I fully support the process of neutral facilitation. No matter how well claimant and defendant teams may or may not be adopting a collaborative approach, sometimes issues or hurdles arise that have the potential to throw a claim off course and lead to unnecessary litigation. Neutral facilitation offers the potential to overcome such obstacles to the benefit of all parties, including the claimant.”
Neutral facilitation – how would the system work?
The claimant sustains catastrophic brain injury in the accident. He’s in hospital, but his family believe that he’s not getting the rehabilitation he needs. They have been told that there is a specialist brain injury rehab unit locally, which could take the claimant; they expect him to be there for 18 months (at six figure cost). The hospital is under pressure to release beds, and are pressurising the family to make alternative arrangements. That scenario contains the seeds of many disputes; the need for specialist rehabilitation, selection of an appropriate unit, residential or home-based, duration, cost, targets, and monitoring of progress. Any one of those could stall the discharge process for weeks or months, and could create tension.
If the neutral facilitator had been given wide powers, he might initiate discussion of discharge, encompassing all the above topics. By doing that, he could perhaps forestall any inappropriate decisions on either side. If the claimant’s lawyers, or indeed the defence team, started the process, the neutral facilitator could react immediately. A couple of phone calls might tell him whether there is a budding issue, and he might be able to manage it so that it did not grow. Without intervention, it is easy for one side or the other to develop expectations, and to adopt entrenched positions – hence all the interim payment applications. Nowadays, claimant lawyers are considering front-loading evidential preparation, so that they are prepared for a contested interim payment if necessary. That can be a costly procedure, and can set the scene for the remainder of the claim.
The neutral facilitator might find that the claimant’s family had set their heart on a particular unit, and that the insurer had serious reservations about that choice – perhaps borne out of previous experience, or possibly because the unit has not provided sufficient information to justify the claim that it will improve the claimant significantly. There could also be a cost/benefit issue bubbling along underneath. Discussion with both sides should identify the true problems; that could be done by phone, or in writing, or in person, or by a mixture of all methods. How it was done would depend on the neutral facilitator, and on the parties. In an extreme case, the facilitator could help the parties to co-operate in the selection of a rehab unit.
Once the real issues had been isolated, there would be a choice of ways of resolving them. Starting with the non-adjudicative ones, there would be room for an element of mediation, but that might have to give way to “early neutral evaluation” or, in an extreme case, “expert evaluation”. Evaluation is different from determination; it is just what it says on the tin, an evaluation of the respective positions by someone who has taken time and trouble to gather in the relevant arguments. A compromise possibility would be for the neutral facilitator to seek input from a rehabilitation clinician; only with the agreement of the parties, of course. A further alternative is “med-arb”; an agreement to mediate, but allowing the mediator to impose an outcome if the parties fail to reach agreement.
If those approaches did not solve the problem, it might be appropriate to consider adjudicative options. Whether there would be a right of appeal would depend on what the parties had agreed.
About Bill Braithwaite QC
Bill Braithwaite QC is a specialist personal injury and clinical negligence silk. He is a two time winner of the Personal Injury Barrister of the Year Award.