PI Brief Update

Catastrophic Injury Claims Without Recourse to the Courts - Bill Braithwaite QC, Head of Exchange Chambers

03/10/13. This may sound pathetic, but the best read I've had in a long time is the 2013 Jackson ADR Handbook! In his Foreword, Lord Dyson, Master of the Rolls, says: “…. this book should be as tried and trusted as the White Book and the Green Book.”. I think that ADR may represent a revolution which is about to happen in personal injury litigation; I believe that within five years we will habitually conduct significant personal injury claims without any recourse to the courts.

We've had supposed revolutions before, but they have come to nothing; in my world, the Woolf reforms have probably not added anything of value. This could be different, though. If the climate amongst thinking personal injury lawyers is right, we will all embrace an opportunity which reflects, to some extent, what has been happening.

I've written an article recently for JPIL, suggesting a way in which ADR could be used to facilitate the conduct of claims. 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.

When a major claim is notified, it would be possible for both sides to agree to appoint a neutral facilitator. That person could (and should, at first?) 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. A major choice for the parties would be whether to allow the neutral facilitator to use the “adjudicative” options, or only the non-adjudicative ones. That decision would not have to be made at the outset; it would be possible to appoint the neutral facilitator, and then to see what issues he or she would be needed for.

In real life, the system might work like this. 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. Also, claimant lawyers are entitled to be wary of defendants interfering with the clinical management of the injured person.

If the neutral facilitator had been given wide powers, he might initiate discussion of discharge, encompassing all the above topics (this would fit in with route mapping in the Multi-Track Code). 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, for example, adjudication (with or without expert assistance), expert determination, arbitration (?including something called “baseball arbitration”??). Whether there would be a right of appeal would depend on what the parties had agreed.

The Handbook uses the word “robust” moderately frequently, and I feel that that word holds the key to success if neutral facilitation is to work. I don’t mean that the facilitator should trample over everyone, but that he or she should be prepared to form views, and express them diplomatically but, if necessary, robustly, so that there can be no misunderstanding.

Of course, if the neutral facilitator had been able to forestall the dispute by encouraging rational discussion before attitudes hardened, the process might be easier.

Still dealing with the same scenario, it might be possible to widen the area of discussion so that views became less entrenched. For example, there may be other units which would be suitable for rehabilitation, or it might be possible to find out what sort of information the insurer would find helpful in judging whether they are comfortable with funding. Most importantly, it might help if the insurer was involved in monitoring the performance of the unit; that could be done with the help of a responsible, specialist clinician. Again, in an extreme case (by which I mean one where the parties are extremely co-operative) it might be possible to nominate a joint clinician to advise.

In a short article like this, I can't go into enough detail to explain how neutral facilitation could affect and manage every aspect of a substantial personal injury claim. It may be worth mentioning, though, some obvious areas where it could play an important part

• selection of accommodation on discharge from rehabilitation – rent or buy – short or long term

• the choice of an experienced and effective case manager

• consideration of the case manager’s goals, and monitoring them

• selection of experts, and delay in medico-legal reporting until it is necessary

• payment of interim payments, and monitoring how they are spent

• interim payment of costs

• final settlement.

Whether any of this will work will depend on whether practitioners are prepared to embrace it. There are two reasons why I think we should; first, I think it reflects a developing view amongst experienced lawyers and insurers that the court is the last resort, because it is less specialist than we are. Secondly, if we don’t do it by choice, we may be forced into it. There are many passages in the Handbook which support the notion that judges will be taking a firm line; eg “Judges are prepared to question parties as to the steps taken to avoid litigation, and will robustly encourage them to cooperate in the use of ADR.”.

Also, there are many potential benefits:

• cost

• speed

• ability to choose tribunal

• control of the process

• flexibility of the process

• the range of issues which can be managed

• risk management.

I can't explain why I think that now is the right time for such a radical change. It may be that we are all tired of non-specialists trying our cases, or that the uncertainty of judge selection is bedevilling our attempts to manage risk. Maybe it’s part of a gradual process; after all, mediation was unknown in personal injury not so long ago, and it is now established as an option. Whatever the reason, I'm convinced that, five years from now, most large personal injury claims will be managed without court intervention. What a wonderful thought!
 

Bill Braithwaite QC
www.billbraithwaite.com

This article first appeared in the September 2013 issue of The Personal Injury Law Journal (PILJ)

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