Woolf reforms are an unrealistic Utopia

Without lawyers, the Woolf reforms sound like a brilliant idea – a court-managed process of dispute resolution in which everyone operating in the personal injury system conducts open, honest litigation with a general view to achieving a fair result for both parties.

In this new Utopia, defendants would recognise that the victims in cases of serious injury are entitled to substantial compensation once liability has been established. They would recognise that it was their responsibility to give the claimant real quality of life, whatever the cost. And they would refrain from attacking a claimant's credibility without good cause. If someone's life had been ruined they would do their utmost to deliver fair and adequate compensation within a reasonable time frame.

Unfortunately, the Utopia that Lord Woolf is expecting to deliver through his well-intentioned reforms is likely to remain a dream. The reality is that lawyers – and judges – have been trained to operate an adversarial system. Most practitioners have spent their whole lives immersed in the business of conflict. The chances of them changing behaviour overnight at this stage are as unlikely as that of global insurers willingly open their coffers to pay paralysed and brain-damaged accident victims the sums to which they are justly entitled.

Delaying tactics are often premeditated, in the hope that the case will just go away, or that when an offer is eventually made the victim will accept a smaller sum than is deserved, in order to put an end to the ongoing stress of the litigation process. Denying liability in cases where it is clear that liability should not be questioned – for example where drivers have already been convicted of dangerous or drunk driving – is common.

Not only do the victims have to cope with adapting to life-changing physical and/or mental disabilities, they are often also faced with a seemingly impenetrable legal system that delays, rather than assists, their fight for the compensation to which they are legally entitled.

Only through the assistance of determined lawyers are they likely to obtain a just settlement. Often, because of the mis-management of their claims, many never receive the expert help or financial resources needed to achieve the maximum rehabilitation that would make a vital difference to the quality of their lives.

Although the Woolf reforms are very well-intentioned, It is highly unlikely that they will improve the system for the victims of catastrophic injury. In some areas, particularly in the selection of expert witnesses, the reforms could create even further conflict.

Under the new rules, the procedural judge has the power to require only one expert to give evidence at trial. Instead of instructing two experts, one each for claimant and defence, only one expert will assist the court. The principle underlying the Woolf reforms is that parties will agree at an early stage on a range of experts acceptable to both sides. If they cannot agree, the court may select an expert to act as the joint expert.

In practice, the selection of witnesses in cases of serious injury is one of the great arts of personal injury litigation. Cases are won or lost as a consequence of the good or bad selection of witnesses. To claimants, it can mean the difference between being able to improve the quality of their situation, or not.

Furthermore, the reality is that some experts are on an almost permanent retainer for the major insurance companies and therefore are well-known to those who specialise in personal injury as “defendant” experts. Generally, claimant solicitors cannot provide an expert with a regular long-term line of work. Defendants almost always can. There is no doubt that defendants, therefore, can put considerable commercial pressure on experts and that experts are selected knowing the attitudes they have in these cases. Plaintiff lawyers are hardly likely to agree to an expert who is known to be a “defendant” expert. And if they did, would they not then lay themselves wide open to litigation from dissatisfied clients if the case was lost or settled for a derisory sum?

In theory the process sounds entirely reasonable, but I predict trouble ahead.

Presumably we claimant counsel will have an opportunity to question the selection process, either orally or in writing. Will we then be forced to engage our own experts in order to throw doubt on the chosen expert's ability, integrity, competence and fairness?

And we are not just talking about evidence from one expert witness. A complex case may call for a neurosurgeon or neurologist, a neuropsychologist, a psychiatrist, a spinal consultant and a fertility consultant – not to mention non-medical experts such as architects, care experts, occupational therapists and the rest. Multiply this by three for each case as both claimant and defendant appoint their own experts to question the court's expert and you have a recipe for disaster.

I am already facing pressure from a defendant's lawyer to accept evidence from a jointly appointed expert in a spinal injury case, where in my opinion the expert is simply not suitable from the claimant's point of view. There is pressure for my side to accept this expert “in the light of the Woolf reforms”.

The defendant's ability to delay, browbeat and pressurise claimants will not be diminished by the Woolf reforms. And until lawyers and insurers recognise that it is their duty to society to settle claims honestly, openly and fairly it is unlikely that the adversarial culture will change.

Ironically, the end result of the Woolf reforms could be that good-quality specialist lawyers on both sides decide to do without the courts altogether. If courts demonstrate their determination to impose their will on practitioners in personal injury work, where they simply do not have the experience to do so to good effect, lawyers on both sides will create their own system of dispute resolution.

Round-table consultations, by which lawyers on both sides get together of their own volition, without input from the court, have a fair chance of coming to a resolution without the need to go to court at all – provided the lawyers are of good quality and the insurers decent and humane.

This is already happening to a limited extent and the Woolf reforms may just be the catalyst that is needed to accelerate the trend towards a world where accident victims finally receive the justice they truly deserve.

Bill Braithwaite QC, a specialist in brain and spine injuries, practises from 2 Crown Office Row, London and Exchange Chambers, Liverpool.

How Woolf will affect PI litigation: key points

The Woolf reforms sound like a great idea – a court-managed process of dispute resolution in which everyone conducts open, honest litigation to achieve a fair result.

Nowhere is reform needed more than in cases of catastrophic injury, whether this is caused by a medical error or merely a tragic accident. The victims' lives have been wrecked; these individuals need swift access to a justice system that delivers fair compensation to cope with paralysis, other physical injuries, mental handicap – or, in the most tragic cases, all of these.

Sadly, the reality is that it can be many years before a settlement is reached. Woolf is absolutely right to seek to change the way we do things. Unfortunately, unless those involved act within the spirit of the reforms, the new rules may create even more conflict than existed previously.

There are three areas that are of particular concern: pre-action protocols, court management and the selection of expert witnesses.

Pre-action protocols

Pre-action protocols to ensure that full information is provided by the claimants at an early stage in proceedings will be very useful, provided there is goodwill on both sides. If there is not, this information will merely be used as ammunition by the defence.

Court management

How can we expect judges, who may never have previously handled heavyweight personal injury or clinical negligence cases, to hurry cases along where the parties fundamentally disagree?

Choice of witness

The choice of witness is one of the great arts of catastrophic injury litigation. Any attempt by defence lawyers to browbeat claimants into accepting “their” expert will be fiercely contested. The appointment of a joint expert could be so contentious that I predict trouble ahead (see main article).

Until lawyers and insurers recognise that it is their duty to society to settle claims honestly, openly and fairly there is little Woolf can do improve the situation for the many hundreds who are waiting for justice.

Bill Braithwaite QC (pictured)