Staking a claim?

Dominic Regan takes soundings on the future of PI litigation

A large contingent of practices depend wholly or mainly upon personal injury litigation and many people have asked me recently where Jackson will lead them. What follows is an honest appraisal of the landscape, having spoken to a number of experts and tapped them for their wisdom.

One suggestion which I am prepared to say will never be implemented is the implementation of a no fault liability scheme. The Australian advocate, Tass Angelopoulos, tells me that the antipodean experiment was a mess. Such a scheme would provoke more claims at what I believe can only be greater overall cost particularly to the state which is a massive employer.

Green light?

Road traffic litigation is prolific. We now have in place two pre-litigation road traffic schemes both of which attach predictable costs to claims that settle. Nicholas Bevan, the solicitor who now runs an independent consultancy advising law firms on process and risk, is clear: mainstream work will remain in place but profit will be generated by efficiency and standardising as much as one can. Those who pay referral fees, often substantial, will have less leeway for only the balance will cover the cost of the job and their profit margin.

I have recently heard suggestions that the disposal process used to resolve those claims that do get issued might be reined in. Is a 100% success fee reasonable? Might it be lower for a matter turned over so rapidly?

The Jackson proposal that the client bear their own success fee and late premium can only be achieved by statute. The announcement on Monday that the government is going to consult upon ending the recoverability of additional liabilities must be a cause of immense concern to claimant firms.
Also on the horizon is a fixed costs regime for issued fast-track claims.

At present, issuing enables one to break out of the existing pre-litigation schemes mentioned above. What is more it is the plan that all injury work in the fast track would be captured, not just traffic claims. Not only is this seen as attractive because it imposes proportionality upon the claimant but the costs of costs go too. With a tariff there is no need for any assessment process.

Horror

I am a solicitor and proud of it but I am horrified at the suggestion that fixed costs would include the fees of counsel. There is a clear role for barristers. We need them. Simon Butler of Ely Place Chambers observes that to end the recovery of counsels fees as a disbursement would kill the Bar. He is right.

Where does that leave those who provide costing services to the profession? I have sought the wisdom of Michael Bacon and Teresa Aitken, both recognised authorities in the field. They predict a future of  budgeting and costs management. Multi-track work will be beyond fixed costs but that does not mean that it will be a licence to go mad. The senior judiciary are determined to make the concept of proportionality work. Lord Neuberger MR in a recent speech said that the Jackson figures spoke for themselves. Costs, simply, should not outstrip quantum. I know that Sir Rupert would like to see the recent Birmingham costs pilot, steered by His Honour Judge Simon Brown QC, introduced nationally and it would be compulsory. The court, using existing case management powers, would scrutinise costs early on and would maintain a watching brief.

What sort of work will prove most lucrative and so most attractive? Lesley Graves of ZL Consulting flags up clinical negligence and catastrophic injury work as the place to be. High levels of complexity and quantum render substantial costs proportionate. Interestingly, ZL offer what, to me, is a novel approach which I suspect will attract many law firm clients. Graves and her business partner, Zoë Holland, share a blue-chip background in their specialist area. They are brought in by firms that have cases but might not be utterly confident that every head of loss has been identified. A thorough audit of every single file regularly throws up opportunities to enhance damages and to elevate costs dramatically too. It is blindingly obvious that rather than chasing every scrap of work, firms should do a brilliant job of what they have sitting in front of them already.

Turning the tide

Last week a lawyer from the Birmingham office of Irwin Mitchell attended a talk I gave. He pointed out that stress and bullying are a major source of employment liability claims today. Historically, these cases have not been easy to win but now that we have recent detailed Health and Safety Executive guidance together with a growing emphasis on risk assessment the tide may well be turning.

Ultimately, the work will remain. I have just completed a road trip with the outgoing chief executive of the Civil Justice Council. He is adamant that injury work is not going to go away. Remember that many people with legitimate claims do not pursue them. Finding the work, doing it effectively and playing to your strengths is the way forward. It always was.

Professor Dominic Regan is a legal writer, broadcaster & speaker on civil litigation matters. He is professor at City University London & a member of the Civil Justice Council costs committee
 

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