Client Alert: Serious Injury Guide

The Serious Injury Guide will come into effect from today - 12 October 2015.

Cases with a potential value (on a full liability basis) in excess of £250,000 will be covered by the guide. Parties may agree to operate the guide in relation to lower value multi track cases. The guide does not extend to clinical negligence and asbestos related disease cases.

Background

Representatives of both the Association of Personal Injury Lawyers (APIL) and the Forum of Insurance Lawyers (FOIL) have been working together to produce a guide designed to assist with the conduct of personal injury cases involving complex injuries. The Serious Injury Guide is intended to help parties involved in these multi track claims to resolve all or any issues whilst putting the claimant at the centre of the process.

Working in parallel with the Civil Procedure Rules, the guide puts in place a system that meets the reasonable needs of the injured claimant whilst ensuring the parties involved work collaboratively to resolve a case by narrowing the issues.

The Serious Injury Guide is the culmination of ten years’ work by APIL and FOIL. Keoghs’ Partner Andrew Underwood, has been involved from the outset, including helping to put together the pilot version of the guide, The Multi Track Code.

Intentions

The guide has the support of all specialist personal injury firms and many major insurers. The key objectives are:

1. To give early notification of claims to defendants and their insurers, when known.
2. Collaboration from dialogue between all parties involved to achieve efficient case progression through an agreed action plan.
3. A commitment to resolve liability by agreement within a maximum period of six months from the date of first notification.
4. A commitment to an early interim payment of disbursements in addition to base costs relating to liability, once liability has been resolved.
5. Discussion at the earliest opportunity by all parties to consider affective rehabilitation. There will be an appointment, where necessary, of an independent clinical case manager instructed by the claimant or subject to the claimant’s agreement on a joint basis.
6. A willingness by defendants to make early and continuing interim payments, where appropriate.
7. No Part 36/Calderbank offers will be made unless or until the parties have tried to agree and issue through dialogue and negotiation, but cannot do so.
8. There will be a commitment by all parties to promptly obtain and disclose all relevant documentation such as:
   • Liability documents;
   • Police reports in road collision cases;
   • Accident report documentation;
   • Medical notes and records;
   • Documents relating to past loss;
   • Case management records;
   • Other relevant non privileged material

The guide sets out the ways in which the objectives can be achieved. Details are given regarding this under the following headings:

• Collaboration and Case Planning. The parties will be expected to work together in order to narrow the issues throughout the claim, leading to resolution at the earliest time.
• Early Notification. The claimant’s solicitor should ensure that the defendant and their insurers are given early notification of the claim. The guide contains contents of what the early notification letter should contain.
• First Contact. At the earliest opportunity, but no later than 14 days after receipt of the notification letter, the defendant insurer must acknowledge correspondence and identify who is dealing with the claim. 28 days after receipt of the notification letter, the defendant insurer shall make contact with the claimant solicitor and the purpose of the first contact should be to establish lines of communication and deal with the various immediate matters such as views on liability, and any rehabilitation needs identified.
• Claims Involving Multiple Defendants. The claimant solicitor must be kept informed in the event that additional defendants are identified. It is expected that one defendant will coordinate correspondence with the claimant representatives.
• Ongoing Review and Forward Planning. Regular ongoing dialogue should take place between the parties with a view to agreeing the next steps required to progress the case.
• Rehabilitation. One of the overriding aims of the guide is to help claimants to access rehabilitation when appropriate. At the earliest practical stage the parties should consider whether early intervention, rehabilitation and medical treatment would improve the present long-term situation.

It should also be noted that procedures have been agreed regarding escalation when either party feels that the opposing case handler is not acting in accordance with the spirit of the guide. The first step must always be to exhaust attempts to resolve the point of concern by a dialogue or a meeting but if this fails then each firm/insurer will have a point of contact where any concern can be escalated.

With regards to dispute resolution, whilst ongoing dialog is fundamental it is recognised that alternatives may have to be considered. This includes considering the cooling off period, early neutral revaluation, joint settlement meeting, mediation and arbitration as well, of course as litigation.

Implementation

It is hoped that the guide will be used routinely in all cases where it applies. The guide will be subject to continuing review and oversight. It is anticipated that both sides will ensure handlers are aware of the guide and trained as necessary. APIL will oversee the operation of the guide and will have regular review meetings with insurer representatives and FOIL to maintain communication and discuss how to rectify any problems that might arise.

Keoghs’ View

This guide provides insurers with a platform for earlier notification of higher value claims thereby ensuring the cases are escalated to the right level within the organisation. The process ought to facilitate prompt reserve management and the ability to influence rehabilitation, life cycle and the issues generally.