10 November 2016
Replace judges with neutral facilitators to handle major personal injury cases, says QC
Braithwaite: time for radical change
A leading personal injury QC has held “board-level discussions” with claimant and defendant law firms and major insurers about his idea to replace the courts’ involvement in catastrophic personal injury claims with that of a neutral facilitator.
Bill Braithwaite QC said there was a better way than non-specialist judges trying complex personal injury cases.
“It is time for radical change,” he said. “When a major claim is notified, it would be possible for both sides to agree to appoint a neutral facilitator. That person could be a personal injury litigator, who has sufficient experience to understand and deal with all the usual issues which arise in a claim.
“The parties would therefore take charge of selecting the facilitator, unlike the position at present where the court imposes its selection, and where only the minority of High Court judges are from a personal injury background.
“In addition to selecting the neutral facilitator, the parties would want to agree what powers they would give to that person. The possibilities are endless; he or she could be limited to only one of the many forms of ADR, or they could be given a free hand to decide which method of ADR would work best for any individual issue.”
Mr Braithwaite argued that this was more than simply mediation or another version of settlement meetings. “It is a suggestion that we could and should use the whole range of ADR systems as and when we need them, in order to make the entire case run smoothly, not just to settle it at the end.”
He has garnered support from David Fisher, catastrophic & injury claims technical manager at AXA Insurance.
Mr Fisher said: “I fully support the process of neutral facilitation. No matter how well claimant and defendant teams may or may not be adopting a collaborative approach, sometimes issues or hurdles arise that have the potential to throw a claim off course and lead to unnecessary litigation.
“Neutral facilitation offers the potential to overcome such obstacles to the benefit of all parties, including the claimant.”
Last year, another leading personal injury silk, Andrew Ritchie QC, launched PIcARBS – the Personal Injury claims Arbitration Service – as an alternative to court-based adjudication of larger disputes.