A guest post from Bill Braithwaite QC of Exchange Chambers
Over many years as a claimant-only advocate, I’ve held the firm view that lawyers who represent severely injured claimants should understand that it is important for them, for the litigation process, and for the individual claimant, to be in charge of the recovery, rehabilitation and litigation.
That may sound obvious and straightforward, but it’s common to see cases where the insurer or the defence solicitor are clearly controlling important areas.
Discharge from the acute hospital unit can be the first hint that the defence want to interfere; they offer a joint case manager, or an immediate needs assessment which they intend to turn into a joint case manager, and then start the debate about which rehabilitation unit would be best. It goes without saying that they are instructing the case manager to look at NHS units.
It can be very tempting to let them in because they dangle the hope of easy funding, and we all know that getting an interim payment takes time and might not fit in with the discharge timescale.
Of course, the problem repeats itself when discharge ‘home’ is on the horizon; let’s find the cheapest solution, in an inappropriate area, as distinct from looking for a comfortable home to encourage recovery and rehab, at the cheapest reasonable cost.
This area of discussion sometimes comes with the offer of a conditional interim payment – you can have the money if you agree to some stipulation. The conditions vary enormously, but the starting point for claimant lawyers should be that conditions aren’t a good idea.
Of course, if we really are in charge it might be possible and sensible to agree to conditions, depending on what they are. Pathfinder or route finder meetings are a potentially helpful, but potentially insidious, way forward – probably depending on who initiates the process, and whether the defence team is being genuine.
Very often, joint case management is on the agenda, sometimes even as a condition of co-operation (for example, ‘the instruction of the case manager will be on a joint basis’).
As a starting point, it tends not to work, for several reasons. First, it can create a conflict of loyalties, even though all case managers should know that their first duty is to the patient. Second, it restricts the communication between the claimant team and the case manager, which can be an important part of the recovery and rehabilitation process. Third, it encourages defence teams to interfere in clinical management.
Acknowledging, as I do, that lawyers should not try to interfere with clinical case management, it is nevertheless part of the claimant’s lawyers’ job to supervise, check, assess and decide whether the claimant is being managed appropriately.
After all, defendants are entitled to challenge the reasonableness of money spent on a case manager; I’ve had the experience where the case management company had to instruct its own solicitors in order to defend the allegation against them that they had spent money unreasonably.
Another area where I think we should be more assertive is in relation to medico-legal appointments. We tend to grant facilities to the defendant regardless of the claimant’s wishes. I often ask claimants what they thought of the experts, both claimant and defendant, and I hear horror stories about long travel distances, being kept waiting, inappropriate facilities bearing in mind their injury and problems, not having read the papers, discourteous manner, inaccurate recording, leading questions demonstrating defence bias, and very different written report compared to what was said in the consultation.
Also, I hear of claimants being asked to attend examinations week in and week out, month after month, all to be repeated in 12 months’ time. Not surprisingly, I think that claimants should be entitled to record the consultations with medico-legal experts, but that’s not what the recent case decided.
There are many other areas of rehabilitation, litigation and management of life where defendants try to take charge and where we must make sure that we don’t let them do so.
The last one I’m going to mention here, though, is ADR. I’m a huge fan of all forms of ADR, not just mediation, but more keen on evaluative processes (which, of course, mediation can be). It is really important, however, for claimants’ solicitors to analyse what the point of ADR is, and how it can be to the benefit of the claimant. Sometimes it’s just a fact-finding expedition by the defendant.
Having said all that, there are some genuine defence solicitors and insurers and, if you are confident that they really are genuine, then all forms of co-operation and collaboration can be worthwhile.
After all, we all know that we want to avoid court decisions, because by definition judges tend to know less than we (ie, good claimant and defendant lawyers) do about serious personal injury litigation and management.