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How Not to Litigate in Catastrophic Personal Injury Claims - Bill Braithwaite QC, Head of Exchange Chambers

10/02/17. Of course, one strong view is that you shouldn’t litigate at all in major personal injury claims – ADR is so much more flexible, and allows the parties to control the process. However, some cases do seem to come to court, and I had a recent court experience – my first for a long time because, although I finalise about £50 million of claims a year, I rarely need to seek the court’s help.

Briefly, the claimant had staggered across a suburban road late at night, had paused in the centre of the two lanes he was crossing, apparently to wait for the oncoming car, but had then started off again into the path of the car.

We started with a settlement meeting, at which the defence team didn’t seem to expect to have to make an offer, on either liability or quantum. When they did, the offers seemed to us to be ridiculous - we recovered almost three times the percentage they had offered on liability.

Two days after the settlement meeting they increased their offer, and four months later they increased it again.

This was a case very similar to Eagle v Chambers, where the Court of Appeal had changed a finding in favour of a drunk pedestrian from 40% to 60%, saying that a “car can do so much more damage to a person than a person can usually do to a car”.

We went to trial, and offered to discuss compromise at the door of the court, but to no avail.

We had an independent witness who was really excellent, and who had a grandstand view of the entire event. The defence was that the driver couldn’t have seen the pedestrian because he was not conspicuous, even though their own expert described the road, as seen by the witness, as well lit. Their expert had to concede that he had failed to mention in his report one significant source of lighting, which would have helped the defendant to see the claimant, even though it was relevant – not impressive. He also had to concede that, if the independent witness’s account was accurate, the claimant must have been in the road for at least six seconds. As the defendant never saw him until her car hit him, she really was very negligent.

I wonder whether ADR would have stopped this case going to court? It does require willing parties on either side, and I'm not sure that was the case here. It would have saved the insurer an awful lot of money, because we recovered more for the claimant than we would have taken in negotiation – by way of example, if the claim is worth £5 million that’s an extra £750,000. Also, it was an old CFA, so we have a 100% uplift on both liability and quantum! And, instead of finalising the whole case before the discount rate changes, they now run the risk that even a modest lump sum would increase by a million pounds if the rate drops.

For litigators, the message is almost always the same; make sure that you have good evidence. So many cases which you read about give the impression that, had the lawyers sorted the evidence out properly, the result would have been different. This demand for evidence permeates all personal injury and clinical negligence litigation – only two weeks ago, as I write, a judge distinctly preferred one obstetrician to another, causing the NHS Trust to lose a seven day case. The judge said about the defence expert: “I am afraid that I found Mr Howe’s complete disavowal of the appropriateness of having any regard to the fetal head circumference when considering the ventricle width, to lack rational foundation….”. In clinical negligence terms that is the ultimate criticism.

I can't say that we should avoid trial at all costs, because this is an example where being forced to fight has produced a wonderful result on our side. It is the exception, though, and it doesn’t make me want to change my methods – it’s so much better to control the process, and guarantee the result.

Bill Braithwaite QC
Head of Exchange Chambers

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