THOMPSONS SOLICITORS’ RESPONSE - May 2008
About Thompsons
Thompsons is the UK's most experienced trade union and personal injury law firm. It has a network of offices across the UK, including the separate legal jurisdictions of Scotland and Northern Ireland.
Thompsons only acts for trade union members and the victims of injury, never for employers or insurance companies. At any one time the firm will be running 70,000 claims.
The firm participates regularly in government consultations on legislative issues.
Thompsons would not support a general pre-action protocol to replace the existing protocols and we are reassured therefore that this is no longer a serious proposal. We are happy with the existing protocols but they must be given teeth and be rigorously enforced by the courts.
We do however believe that the personal injury protocol is in need of updating and of being given real teeth in order to make defendants “behave” in litigation. We will use this consultation as an opportunity to make proposals in this respect and will not, therefore, respond in detail to the specific questions set in the consultation paper.
Real teeth for Part 36 through clearer and stronger guidance to judges
As a firm we have many examples where indemnity cost orders have and have not been given where we have beaten our own Part 36 offer.
What these illustrate is a lack of consistency by the courts. An updated personal injury pre-action protocol must include clear guidance to judges in awarding indemnity costs.
Because claimants are only entitled to such costs if they get a judgement, getting an order for indemnity costs, even by agreement, is rare. This makes the sanction toothless.
The risks to the parties are also very uneven. If a defendant fails to beat a claimant’s part 36 offer a year after the offer is made, then the penalty on the defendant is to pay usually no more than an extra 10% of the value of the case.
In contrast, if the claimant fails to beat a defendant’s Part 36 made a year before, then the penalty is likely to be a costs order which is generally a much higher percentage of the value of the case, and might well be as much as the damages recovered.
Examples:
1. Thompsons made a claim for a fireman in September 2005. The defendants denied liability in January 2006 and the claim was issued in June 2006. Thompsons made a Part 36 offer of £3,000 in August 2006 which was rejected.
Quantum, subject to liability, was agreed at £3,500 on in March 2007. And at the trial that month the judge awarded the claimant that amount.
The claimant was awarded 5% interest above the base rate on damages and costs from September 2006 to March 2007.
2. Thompsons beat a Part 36. The judge refused to award indemnity costs because he said the pre-action protocol letter was unclear.
Disclosure
In many cases pre action disclosure applications have to be made to obtain documents which are relevant to the issues in the action but which the defendants fail to disclose despite repeated requests from the claimant.
Part 48 of the CPR confirms that the costs of such applications should be awarded to the person against whom the order is sought. Although the court can take into consideration breaches of the pre action protocol when considering the order to be made on costs, some district judges are interpreting Part 48 to mean that the opposing party, although not being awarded costs, should not be ordered to pay the claimant’s costs of the application.
We believe this is unfair. Defendants are failing to disclose documents of fundamental importance to the issues in the claim (for example noise and vibration surveys in industrial disease claims), resulting in the claimant having to issue a pre action application for disclosure. Despite spending time and costs preparing for the application and the claimant then succeeding in the application, district judges are interpreting Part 48 in such a way as to deprive claimant’s of their costs.
Again, the updated protocol must include clear guidance to judges on the interpretation of Part 48.
Use of experts
Increasingly district judges are refusing to permit us to rely on expert evidence in complex accident and industrial disease claims.
In many cases the defendants deny liability and we rely on expert evidence for guidance on the issues. On allocation we have been prevented from relying on expert evidence on the basis that the trial judge will be able to make a determination of liability from the facts.
Complex patient handling cases and violence at work cases require input from experts. The recent case of Allison v LUL highlights the need for expert evidence in many types of case. Guidance should be given with regards to the type of expert evidence that will be allowed in the protocol.
Joint reports
Again increasingly we are experiencing defendant solicitors refusing to obtain a joint report. As a result we will get our own report. Judges are then refusing to allow us to rely on it. This gives defendants disproportionate advantage in a claim, if they know they can prevent a claimant relying on a report simply by refusing to have a joint report.
For claimants this is a no win situation that makes an already uneven playing field even more so. The consequence is that while the claimant’s counsel will have seen the report and given advice on the basis of it, the claimant cannot recover the cost of obtaining the report.
How can a claimant prove their case if they cannot rely on expert evidence?
Case management
While we agree with the rules committee’s enthusiasm for case management meetings, unless we are allowed to obtain an expert’s report we will not know whether a case should be issued in the first place.
ADR
Parties should not just be encouraged to resolve their dispute without the need for court action. As we said in our response to the Ministry of Justice’s claims reform consultation, there should be mandatory discussions between parties if liability is denied, just as there were before the insurance industry cut backs.