Serious Injury Guide - our experiences so far

I expect most of us have run at least a few cases to resolution now under the Serious Injury Guide (SIG). Although its latest guide is relatively new, the principles have been in operation for a while. Coming to the end of the year I wanted to reflect on my experience of it so far and compare my view now to my view in 12 months' time - when even more claims have run through and we can see if barriers are coming down or going up.

Doing things differently

Our insurer clients that have adopted the SIG have, in my personal experience, adopted the spirit as well as the letter. There is a willingness to do things differently. That is, of course, partly because the previous process could be so drawn out and frustrating. We could be ‘frozen out’ until the claim had to litigate through limitation or lack of interim payments. There is also a realisation that the SIG is not going to work and barriers are not going to be broken down until there is a genuine desire to put the claimant at the heart of the process. We need to be seen to be doing more than trading interim payments for information.

My experiences with claimant lawyers under the SIG differs wildly. Some of the most well known in the industry and those confident in what they are doing have adopted the SIG to everyone's mutual benefit. Operating under the code has allowed me to settle spinal injury claims at sensible, evidence-backed figures within twelve months of an accident and traumatic brain injury claims have settled at well under two years. We have had open and continuing disclosure, often jointly appointed case managers and even access for my insurer client and I to meet the claimant, or at least their family. There is a recognition, certainly in relation to the latter, that when we see a claimant we understand their needs more and any uncertainties or concerns we may have from reading the black and white documents becomes clearer when there is a human being in front of you and you can see the issues for yourself.

One case was a real ‘eye-opener’ when my insurer client and I had formed a view of a claimant's family and their motives and on meeting them that view was blatantly misconceived. The stress of the accident on the family was more evident than it ever could have been reading the records.

Likewise some of the smaller, niche claimant firms - whilst not signatories - have welcomed the SIG principles. The core of the successes here has been the route map meeting - a face-to-face meeting with the claimant lawyer and preferably the claimant. In one spinal injury case earlier this year I had an early meeting which was open, frank and with ‘cards on the table’. Liability was a live factor and the reasons why were discussed on both sides. The claimant knew what he needed to make a life for himself, we were able to negotiate a settlement to enable him to move on outside litigation and before the whole negative process of prolonged litigation took hold.

Cases that have worked under the SIG can be hugely rewarding. It has shown to me that claims handling does not have to be about ‘old school hostility’ and ‘trading blows’. Cases can be objectively project-managed and we can make a difference to the lives of those catastrophically injured - and I don’t mean at the expense of overpaying. Payments made are informed and consensual rather than in a vacuum and forced.

Room for improvement

Unfortunately it’s not all positive, as I’d estimate in half of our cases we still have a negative experience.  The ‘culprits’, in my view are generally more likely to be some of the lesser experienced lawyers in the larger firms. Getting them to a route map meeting can be inexplicably difficult.

Many want the contents of the meeting agreed before there is even an attendance. There is a lack of understanding that the route map is to discuss and resolve issues if possible or plan a route to resolve them if it cannot be sorted there and then. A relatively high percentage want their counsel there. As it is has turned out so far the counsel has generally been far more reasonable and sensible. I recall one claimant lawyer going pale as his barrister offered us, without a second thought, the routine medical records we had been seeking for months.

Less amusing are the sharp practices. I have just been instructed in one case where my insurer client volunteered a substantial interim payment with promises of records, discussions on rehabilitation and to follow missing facts on the accident circumstances. Several months’ later calls and emails remain unreturned and none of the above has taken place but we are sure the money has been spent.

In two recent cases agreed route map plans have been thrown out of the window; agreed timetables and steps ignored. One lawyer recently took the interim payment and then said that the promised and agreed disclosure of records and statements was not going to take place as he didn't feel we really needed them. I was able to resolve that issue with a few calls. In another case we made a substantial interim payment with a view to having a meeting and making a further interim payment once some key steps in the claimant's rehabilitation had taken place. The claimant's solicitor refused to attend the route map when it was agreed offers would be raised and instead inexplicably issued proceedings. We simply made an aggressive Part 36 offer and the case was resolved. I am not sure that was to anyone's satisfaction.

These issues can be extremely difficult to resolve as often these are the lawyers that deal in correspondence not phone calls and finding a way through the minefield without proper engagement can be impossible.

There is real distrust and fear in some sections of the claimant fraternity. They feel that providing information equals a loss of control and that we are going to make ‘costs strings’ offers (be it Part 36 or Calderbank) before they have evidence. One claimant lawyer I have worked with on a number of occasions told me off the record of cases where that was happening and as a result while she was happy to meet me and my client, it was an exception rather than a rule.

I think one of the major issues with the SIG that is stopping it having greater effect is the ‘lack of teeth’. The mechanism of phoning the SIG contact point for that firm is one that has to be used sparingly and the chances of a good working relationship after that even more unlikely. I was therefore pleased that the SIG has been adopted into the pre-action protocols and hope that encourages more genuine engagement.

On reflection

So at the end of this year I think there is evidence of the SIG working. It works with the lawyers that probably already engaged with us anyway but that philosophy is, in my experience, spreading. I am resolved to keep pushing its merits and hope that the more distrustful sectors of the market start to engage. I'll be interested to reflect on whether that has worked this time next year.