PI Brief Update

Summary of the PIcARBS Arbitration Service

15/07/15. The following is taken from a booklet published by PIcARBS.

The Personal Injury and Clinical Negligence claims arbitration service is designed for claims over £50,000.

Statute: Under the Arbitration Act 1996.

Procedural Rules: Guided by the CPR mainly but: no Mitchell strike outs and no costs budgeting. The overriding objective is justice between the parties not the convenience of the court or Arbitrator.

Arbitration Agreement: TheParties sign an arbitration agreement in PIcARBS format amended as they wish.

Stay: The Parties agree no Court proceedings will be started and any extant action stayed save for the purpose of enforcing the arbitration agreement and the award and for approval if C lacks capacity.

Limitation 3 years.

Paperless: The Arbitration process is paperless. Started and filed online through PIcARBS revolutionary and simple e-filing system. All pleadings and orders and correspondence with arbitrator and witness statements and expert reports and disclosure are filed and served online. Substantial costs savings. Hard copy can be delivered to the arbitrator for final or interlocutory hearings if the Parties so desire. The Parties register and have user names and passwords as will the arbitrator and counsel for quick internet access to the whole online file.

Early Neutral Evaluation: The Parties can agree to ask the arbitrator to carry out an ENE on paper and make a potential award when the evidence is pretty much complete. If accepted, the case is settled. If rejected the case continues.

Confidentiality: the rules make the arbitration confidential unless the parties decide otherwise. The standard form agreement contains a clause allowing the award to be published in an anonymised form on Lawtel etc.

Budgets: There is no costs budgeting. The Parties must inform their arbitrator and the opposition of the total base costs plus disbursements quarterly.

Arbitrators: The Parties can chose their own arbitrator or use a PIcARBS QC from the panel. Or the Parties can choose a panel of arbitrators. All arbitrators will be paid at set hourly rates during the course of the arbitration. Qualifications: arbitrators must be practising PI/Clin neg silks in established sets with clerks. They must complete a recognised course run by PIcARBS or a domestic arbitration qualification (from the Chartered Institute of Arbitrators).

Court fees: No Court fees

Accommodation for hearings: Most hearings will be by e-mail or telephone. Arbitration final hearings will be in the arbitrators chambers or at the solicitors offices or in commercial rented accommodation. The Parties hold an account at the end.

Costs:

The Arbitration Act: Normal costs orders between parties, the loser pays.

The Parties agree the recoverable hourly rates for solicitors, counsel and experts at the start of the arbitration or adopt PIcARBS default rates.

Lawyers hourly rates should be 10% lower than the usual civil litigation hourly rates.

Defendant’s costs: Claimant’s liability to pay the Defendant’s costs is capped at 80% of the total damages recovered so QOCS apply, unless C has BTE insurance. Defence hourly rates are agreed at the start.

CFAs allowed: LASPO CFAs as normal or DBAs.

ATE premiums: are not recoverable.

Paperless e-filing produces costs savings.

Administration fees: (1)The fee for commencement of a PIcARBS arbitration is £1,600 + VAT and covers (a) entry to the PIcARBS system and (b) signing up the chosen arbitrator or appointment of the arbitrator from the PIcARBS panel including signed agreement with arbitrator, (c) opening an individual Users home page and an individual arbitration file (d) providing efiling for the duration of the arbitration.

Filing fees: None.

Payment of arbitrators: the Parties pay the arbitrator throughout the arbitration on submission of arbitrator’s fee note. Account between the Parties at the end of the arbitration.

The ADVANTAGES FOR CLAIMANTS & CLAIMANT LAWYERS

All decisions taken by experienced PI/Clin Neg QC not District Judges or Circuit Judges with little/no PI/Clin neg experience.

Certainty over which arbitrator will decide the whole of the case.

Speed of throughput. Claimant lawyers will recover their costs faster.

Control over procedure.

Promotes co-operation.

Simplicity and flexibility of procedure.

Paperless e- filing and serving and communication with arbitrator –costs savings.

Early neutral evaluation – quicker resolution.

No Mitchell strike outs for procedural default – time and costs saving.

No applications for relief /extension – time and costs saving.

Less risk of professional negligence insurance claims – reduced PII insurance premiums.

No Costs budgets and no costs for the time preparing them – reduced costs.

Certainly over hourly rates recovered.

Cap on Defendants costs taken from damages at 80%.

No court fees to pay.

No delays caused by court delays.

ADVANTAGES FOR DEFENDANTS AND INSURERS

All decisions taken by experienced PI QC not District Judges or Circuit Judges with no PI experience.

Certainty over which arbitrator will decide the whole of the case.

Speed of throughput.

Control over procedure.

Simplicity and flexibility of procedure.

Paperless e-filing and serving and communication with arbitrator –costs savings.

Early neutral evaluation promotes early settlement.

No costs budgets and no costs for the time preparing budgets and attending hearings.

C must provide updated figures for base costs plus disbursements quarterly.

Certainly over hourly rates payable to Claimant lawyers.

Reduced Claimant lawyers’ hourly rates.

Defendants costs recoverable from damages up to 80%.

No court fees to pay.

No delays cause by the courts.

Less risk of professional negligence insurance claims.

Very limited appeals and appeal costs.

Perceived Disadvantages

Multiple defendants may not sign up.

Protected Parties need court approval for Protected Parties and orders for PPOS.

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