A Brave New World: Personal Injury Practice Post-Jackson - Amanda Yip QC, Exchange Chambers

16/06/13. The last few months have not been an easy time for personal injury lawyers but I believe the response to the Jackson reforms is encouraging. The speed with which we were required to assimilate and adjust to major rule changes presented a challenge but, by and large, P.I. lawyers are a practical bunch and we have risen to that challenge.

In my view, the world of personal injury litigation was in need of some reform. It had become possible to make vast sums of money by conducting very straightforward claims which perhaps did not really call for specialist input. Personal injury barristers must now demonstrate added value, problem solving skills and a commercial outlook if they are to succeed (or indeed survive) in the new environment.

Personal injury litigation is an area of law calling for pragmatism and realism. Practitioners in this field deal with real-life problems on a daily basis. Rather than get caught up in esoteric legal points we seek to give clients timely advice and practical assistance. Settlements are the norm and the modern advocate will recognise that cases can be won or lost outside the courtroom. "Advocacy" includes developing the evidence, presenting the quantum case in an attractive and compelling way in the Schedule of Loss and being pro-active in negotiations. The withdrawal of legal aid from personal injury led to a more commercial way of thinking among both solicitors and barristers. "No win, no fee" sharpened the focus and brought the concept of risk assessment into play. Personal injury lawyers have adapted to previous changes and continue to adapt to meet the new challenges.

A welcome change in my own practice has been earlier involvement in many cases. For me, early instruction has always been the ideal but that has not always happened. I have seen many cases where solicitors have worked hard at case preparation before my first involvement. Sometimes this has not quite taken the direction I would have chosen. I might be brought in because the claim has become complex or some difficulty has arisen. In the past, in a claim of any substance, it was possible to virtually start again. Experts could be changed and the case put right. This may no longer be the case. Obtaining relief from sanctions has become harder. Further, the introduction of costs budgeting means that it is essential to have a "route map" for the case from the outset and to properly plan the work that needs to be done. Solicitors are recognising this and seeking counsel's input at an early stage. The advocate can and should assist with case plans and costs budgets.

This is not to argue for a greater involvement of counsel throughout the course of the case. A "front-loading" approach encourages efficiency and serves the client well. Early intervention with case management and interim payments can bring immediate and real benefits. Well directed, early preparation often reveals the true problems faced by clients and can lead to the earlier identification of solutions. The level of the final award is not the only thing that matters when managing a serious injury claim. It is possible to make a real difference to the client's rehabilitation and restoration of quality of life well before the case gets near to trial. The need for a costs budget brings a need for a proper case plan and some serious thought about how the case will be directed. For this reason, I believe the changes are having a positive impact on the quality of service.

I have been particularly impressed by the response of the junior end of our P.I. team in Chambers. There has been little time for them to dwell on any negative impact of the changes on their practices. They have been far too busy not only dealing with the vast numbers of new instructions received in March but also collaborating with solicitors to find new ways of working together. There is a real willingness to adapt and a recognition that they have to be able to demonstrate real added value. Doing so has brought a real focus on what it is that the Bar can do well. Specialist advocates direct the case towards and at trial. In the more straightforward matters, cost-effective solutions are required. Offering consultancy services on a fixed fee basis might be one way to assist solicitors manage risk in an environment where margins are tighter.

At both ends of the scale, my impression is that there is genuine cooperation between the two branches of the profession. There is a willingness to speak openly and to work together to find solutions. There has been a real sharing of ideas. Barristers now have to understand the bigger picture in which they are operating. Those who are willing to take on new ideas and to adopt new working practices are already thriving. They will continue to do so even as the full impact of Jackson is felt.

Amanda Yip QC
Exchange Chambers 

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Animals Act 1971, Strict liability and Statutory Defences - Caroline Wood, Sovereign Chambers

15/06/13. Leeds County Court considered the application of S 2(2) of the Animals Act and the defences in the case of Preskey v Carl Sutcliffe (1) Emma Sutcliffe (2) LTL 25.3.2013, Document no. AC0136. The claimant was injured at a pub managed by the first and second defendants when their boxer dog, Frankie, bit the claimant on the face. The court found that the claimant had restrained the dog by straddling her and holding her back with his arms around her chest, did not let go of the dog when asked to do by the second defendant and, as a consequence of being restrained, the dog bit the claimant. The incident occurring after hours and therefore the defence was not covered by the defendants’ public liability insurance.

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Building a Comprehensive Argument for Claimants - Bill Braithwaite QC, Head of Exchange Chambers

14/06/13. A phrase I like using to all those involved on the claimant’s side of a catastrophic personal injury claim is: “How can we help the defence lawyers and insurer to see the real nature of the problems suffered by the Claimant?”.  That summarises the nature of our job as advocates for the injured. Long before a case goes to court – which rarely happens nowadays – we need to present the claim so that the defence can appreciate the nature of the disability and handicap, the effect on the claimant and his or her family, and the resulting need for...

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