The personal injury claims process in England and Wales is combative and often involves inflated opening offers on the claimant side, while claimant lawyers suspect defendants engage in similar tactics such as raising defences they know lack merit, according to academic research.
Meanwhile, it found “widespread general concern that market-driven reforms have led to a ‘dumbing down’ of the PI claims resolution process”.
The research was summarised in a paper comparing the claims process in England and Wales, the Netherlands, and Norway, delivered by Ken Oliphant, professor of tort law at the University of Bristol, at a British Institute of International and Comparative Law event last week.
It found that lawyers in the Netherlands favoured an essentially cooperative approach to claims resolution, although they acknowledged a more combative approach might be necessary. Meanwhile in Norway, “all sides [were] keen to emphasise the high levels of cooperation in the system”.
The qualitative research – with interviews carried out by academics from Bristol, Cardiff Law School, the University of Bergen in Norway, and the Erasmus School of Law, Rotterdam, Netherlands – found that in England and Wales, “lawyers on rival sides express greater antagonism towards each other than elsewhere. They say that the process is characterised by high levels of distrust”.
It continued: “For both sides, litigation is akin to ‘a game’ or ‘a trial of strength’. Some lawyers glorify in its combat like aspects.
“Lawyers here are more likely to boast of their ability to play ‘hard ball’ if the need should arise: ‘if you’re going to put the boot in, make sure your laces are done up’. Nevertheless, several lawyers stress the benefits of cooperation.”
PI claimant lawyers who spoke to the researchers admitted to inflating opening offers but accused defendants of similar tactics: “Raising defences they know lack merit; delaying proceedings to grind claimants down; trying to exploit the victim’s financial need by making low offers…
“They also look for possible conflicts of interest between claimant lawyer and client: Does the claimant lawyer want rid of the case because he’s on a fixed fee?”
Cost was “a preoccupation on all sides, inducing corner cutting and depressing quality”, the researchers found. Financial pressures were also admitted, mainly by claimant lawyers, in the Netherlands to influence decision making.
In Norway, personal injury specialists saw themselves as “members of the same ‘club’” who were “aware that Norway is a small country and that the community of personal injury specialists is very tight-knit”. This meant they feared their reputations “would suffer if they were to engage in sharp practice”.
The research found that this factor, coupled with the significant role of public compensation boards in PI claims and the generally high levels of wealth in Norway, all contributed to a less combative approach.
However, Professor Oliphant stressed: “In all the legal systems, legal professionals on every side accepted the need for a flexible approach tailored to the circumstances of the claim and responsive to the attitude of one’s opponent.”
Further, the research showed the importance of ‘legal culture’, which “can shape the ‘personal injury claims economy’ [how the business of personal injury claims is conducted] in different ways in different places, in some places projecting a strong professional ethos, elsewhere putting the main emphasis on business efficiency”.
In England and Wales and in the Netherlands, the researchers found concern that the opening up of legal services was depressing the quality of personal injury claims handling, in particular in both countries the prominent role of non-legally qualified paralegals and claims advisors.
The research concluded: “The strong professional ethos in Norway contributes to the more cooperative attitudes projected by those involved in the resolution of claims, and the higher degrees of mutual trust, than in countries where deregulation has proceeded apace in recent years.”
By contrast, in England and Wales and to some extent the Netherlands, a deregulated approach to legal services “has profound implications for the ways in which personal injury claims are ‘constructed’, and thus for how they are resolved in practice”.