Controlling Complex and Catastrophic Cases

The recent decisions such as Swift v Carpenter [2018] EWHC 2060 (QB) serve to deliver some useful reminders for insurers and their lawyers that trials are  rarely a sympathetic forum to conclude cases.
In Swift we saw a hard fought trial on most issues deliver a reduction of less than 15% on average by reference to the claim by head of loss over the amount awarded. We saw Roberts v Johnstone applied …… but ….. with leave to appeal granted, further stoking the fires of claimant legal teams desperate for change.

I am in no way critical of those that had a go in the case: I still carry the scars from Wright v Sullivan and Emma Hughes and there are often very good reasons why cases need to be fought. However the case reminds us of the lesson we all have to keep in mind, namely the inevitable sympathy that the judiciary will have for the injured party and that blunting this view down the Judge’s telescope is never easy.

It is within this context that I look again at the way we handle these cases from inception. The need to manage, control and influence has never been greater in my view. Leveraging opportunities remains a critical challenge for handlers and their lawyers alike, forever wary of the trap of transactional claims handling, “going through the hoops”. The discount rate hiatus has (frustratingly) shifted the dynamic in some of our cases whilst we await to see what the Lord Chancellor does to correct the some-might-say maniacal actions of his predecessor.

However the need to have a focussed plan and a desire to hold the initiative remain critical to what we at least try to do.

In October 2018, the Serious Injury Guide celebrated its first 5000 days from the inception of the idea by Collin Ettinger and I. The progression of the Guide (aka the Code) in this time has been challenging, fascinating and rewarding in equal measure.

In some cases the intention to work in a transparent and collaborative way is not reciprocated, the opposing claimant lawyer (probably with counsel in tow) suspicious of our motives, intent on maximising the award and minimising the opportunities we have to meet the “real” 100% principle.

However in many cases over the years it has been a revelation to see how initial suspicions evolve in one case, transforming the way future cases are then handled. The Guide has become an established tool we reach for when dealing with these cases. It does not mean we have to agree on everything (a panacea that is unlikely ever to be reached) but it provides a framework through which we can advance the dispute to full resolution or on the issue that divides us. I fervently believe that the first 5000 days have established that this approach benefits claimants.Of course there will be further challenges.

If nothing else the actions of Liz Truss has taught us to expect the unexpected. However it may just be that the events prove a watershed in that it has encouraged the Lord Chancellor and the Government to look at the system that has been allowed to develop in recent years.

They now know that we are far exceeding the 100% principle (a principle to which I entirely agree we should adhere) if strictly applied and that compensation in this jurisdiction far exceeds payments in our European counterparts, at considerable additional expense to the UK economy and all insurance premium payers. They are beginning to understand that the whole exercise is not necessarily a binary calculation of loss; it is an estimate, no more and no less.

One thing we can be sure of is that the field of complex injury promises to continue to be a fertile source for debate, legal challenges and reform.