Covid-19 “should not be part of debate” on clin neg costs


Elsby: Whiplash delay helpful

The coronavirus crisis “should not be part of the debate” on the introduction of fixed costs for clinical negligence cases, the new president of the Association of Personal Injury Lawyers (APIL) has said.

Sam Elsby, consultant at Brighton firm Dean Wilson, has taken over from Gordon Dalyell without the chance to set out his stall at the APIL annual conference, which was cancelled due to the pandemic.

Fixed costs for low-value clinical negligence claims remain on the agenda, and Mr Elsby said they could work in theory, but it was “essential” to get the process right.

“APIL is concerned that we will end up with a system which is more complicated and costly, while being driven entirely by reducing costs.”

He said claimant and defendant lawyers were “quite far apart” on the issue. A working group set up by the Civil Justice Council failed to agree on the level of fixed costs for claims valued up to £25,000 in a report published in October last year.

Mr Elsby said he expected the government to launch a formal consultation, but APIL had “no idea” when that would be and it could be postponed to next year.

He said the need to protect the NHS during the crisis “should not be part of the debate”.

The new president said the courts had generally “coped well” during the crisis, with online issuing of proceedings working particularly well in the High Court.

However, there was anecdotal evidence of delays at the county court, where the majority of personal injury claims are issued, with courts taking four to five weeks to issue, rather than the usual five to seven days.

Mr Elsby said that, because the county courts were still paper-based, staff could not work on documents from home. He compared this to the High Court, where papers were sent electronically to judges and masters.

His experience of virtual hearings, which did not include trials, was that “preparation was the key” and ensuring everyone had the same electronic bundles to work from.

“They are no more than an extension of the telephone hearings that have been going on for a long time.”

In terms of client interviews, Mr Elsby said not having clients coming to the office and dealing with them by Zoom and Skype was “working reasonably well”.

He said the lockdown would reduce the number of new personal injury cases, as fewer people got into their cars or travelled to work, but this would increase again as the lockdown was relaxed.

“Anecdotally there does not seem to be any indication that many people in personal injury departments are being furloughed, as opposed to staff in conveyancing.”

Mr Elsby described it as “helpful” that the government’s whiplash reforms had been delayed until April 2021, and “one less thing for firms to gear up for in a crisis”.

However, APIL was still not convinced that the timing was right, any more than it was convinced that the new system was right.

He said APIL would continue its campaign to increase bereavement damages, currently set at just over £15,000, and there was “no reason why” the Scottish system should not be adopted here.

“In Scotland there is a much wider range of family members who can claim and awards of £100,000 are not uncommon.”




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