Building an early settlement

In the bad old days, personal injury lawyers on both sides were reluctant to make the first settlement proposal in case it was seen as a sign of weakness. They would also make early settlement proposals that were so wide of the mark they were ignored, or would only enter settlement negotiations after their briefs had been delivered.

Even today, in the vast majority of large personal injury and medical negligence claims, lawyers from both sides fail to get to grips with the issues of a claim quickly enough. As a result, they deprive injured plaintiffs and insurance or health authority defendants of the service that they are entitled to expect, they act contrary to the spirit of the Woolf report, and, worst of all, settlements are agreed at a far later stage than they could be.

The answer to these problems is to move away from the litigious environment that surrounds personal injury cases. As the Woolf report suggests, plaintiffs' claims should be formulated earlier, and followed by full responses from defendants after meetings between the experts, solicitors and counsel. Any litigation that is necessary should then be conducted efficiently and cost-effectively.

Another aid to the settlement of large injury and negligence claims are the representative bodies for lawyers. As the profession has acknowledged that personal injury and medical negligence claims are specialised areas of the law, the Law Society has set up panels and the Bar has formed associations (the Personal Injury Bar Association and the Professional Negligence Bar Association) that protect the interests of claimants and defendants by promoting a better understanding of their needs.

One aspect of this is the increasing realisation that, in the field personal injury and medical negligence, more particular specialist knowledge is often required, for example, if brain and other catastrophic injury claims are to be conducted properly.

But the general principles of reaching an early settlement remain. Of course, this is not always possible. Sometimes there is a genuine dispute on liability, so that it would not be profitable to spend time investigating quantum. In such cases, an application for an early trial of the issue of liability pursuant to order 33 rule 4RSC may be appropriate. In the vast majority of claims, however, there is no good reason for delaying careful consideration of the plaintiff's needs and how best to provide for them.

Medical and other quantum experts should be instructed early. Then there should be a meeting attended by the plaintiff or the plaintiff's family, the experts and the lawyers, where the best way to provide for the plaintiff should be decided and a detailed schedule of loss and damage produced. Then the defendant can prepare a response, and the areas of agreement and dispute can be identified.

IT also has a part to play in this process. A spreadsheet can be used to summarise the various heads of a claim, and can make variations to individual figures and/or multipliers. If it is distributed on floppy disk, it can be argued over and adapted in the course of conversations between opponents or members of the same team.

Once the schedule and the counter-schedule have been exchanged, meetings can proceed against a background of agreed issues. This approach nearly always leads to settlement, even when there is an element of uncertainty about the prognosis or about the issue of liability, because these matters can be factored into the discussion.

But even a thorough presentation of a claim and a response will not always lead to settlement, particularly where there is genuine argument over the rehabilitation and the level of care that the plaintiff requires. But, generally, a defendant is more likely to be willing to fund a rehabilitation regime if there has been open discussion about the plaintiff's needs.

A joint approach to rehabilitation and care is best, because no defendant can be expected to volunteer large interim payments to set up costly regimes before trial, especially since it is common knowledge that judges are reluctant to disturb a beneficial regime and replace it with an untried and untested cheaper alternative. However, it is usually possible to begin rehabilitation in a way that satisfies the needs of the plaintiff without prejudicing the determination of long-term requirements.

A joint approach also helps the judge if no settlement is reached, because he or she is then presented with reliable evidence about the plaintiff's needs. This helps remove speculation about the impact of future rehabilitation and will also make the plaintiff's advisers and family feel more confident about the suitability of any proposed regime. Meanwhile, the defendant and advisers will feel that what they are funding is both reasonable and feasible.