PI Brief Update

The Serious Injury Guide - Duncan Rutter, DAC Beachcroft

13/06/16. The Serious Injury Guide is a voluntary guide that applies to personal injury claims worth £250,000 or more. It does not apply to clinical negligence or asbestos related disease claims and doesn't affect a solicitor's duty to act in the best interests of his/her client. So far 13 insurers and 53 law firms have signed up to it.

The guide sets out a number of objectives. Liability should be resolved as quickly as possible and in any event within 6 months of first notification. Where resolution is not possible an action plan should be agreed to resolve liability disputes. Where liability is resolved an interim payment of liability costs should be made. There should be early access to rehabilitation where reasonably required including, where necessary, the appointment of an independent clinical case manager. Claims should be resolved in a costs appropriate and proportionate manner and within an appropriate time frame. At the heart of the guide is the idea that claims resolution should be in an environment of mutual trust, transparency and collaboration. There should be early notification of claims and collaborative case planning with early and continuing interim payments where appropriate. In order to maintain trust and collaboration, the Guide says there should be no Part 36 or Calderbank offers unless the parties have negotiated and failed to reach agreement. There should be disclosure by all parties of relevant documents in a way which avoids duplication of effort and costs.

The Guide includes detailed guidance covering a range of issues. Notification of the claim should be within 7 days of instruction. To encourage this its suggested there should be no challenge to the costs of providing this information for lack of a retainer. It suggests a response within 14 days and first contact within 28 days to include an exchange of views on liability, the provision of further information about the injury, the need for rehabilitation and a date for the next contact. It suggests a timetable is agreed for regular discussions to bring the case to a conclusion. There are detailed suggestions for cases involving multiple defendants, encouraging one defendant to take the lead. Reasonable access should be given for medical examinations and the parties should liaise over the selection of experts, enabling parties to agree appropriate joint instructions at an early stage. Any request for rehabilitation should be dealt with promptly and agreement reached about the provision of rehabilitation reports and records. For cases where there are problems or disputes the guide provides an escalation process with easily identifiable escalation points on each side. Whilst this escalation process is sensible, in most cases if escalation is necessary the trust by then is likely to have been lost irretrievably. The parties are encouraged to consider a wide range of alternative dispute resolution methods, though considering ADR need not prevent the start of proceedings.

The guide encourages a more collaborative approach in high value injury claims. Some have argued that the guide is unnecessary as many adopt this approach in any event. Others argue there should be sanctions for non-compliance. Overall the balance seems to be right. The Guide will encourage parties to work together to resolve these claims efficiently.

The full guide can be found at www.seriousinjuryguide.co.uk.

Duncan Rutter
DAC Beachcroft

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