DEFENDING AND SETTLING A CIVIL/PERSONAL INJURY CLAIM

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1 DEFENDING AND SETTLING A CIVIL/PERSONAL INJURY CLAIM 14 May 2015 Toby Scott, Partner

2 How a claim is started and progressed Traditional Approach see Law Society Website 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

3 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

4 cont. Pre-action Protocol 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.]

5 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. Relevance?

6 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

7 cont. Key Components and Liability Causation and Damage An account of Claimants post accident symptoms is frequently overlooked; Post accident information may be invaluable.

8 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)

9 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

10 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

11 Claims Portal Update (innovation or white elephant?) Scope; Portal costs (EL/PL) 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

12 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.

13 Do insurers and employers look for different things? Repercussive potential disease claims; 1 st claims; Economics commerciality (fact specific cases will be looked at commercially); Are you still with the insurer? [cost of shopping around!]

14 Litigation PADs; Service of proceedings; Reporting.

15 Questions?

16 Who are we? Toby Scott Partner Tel:

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