In the late 1980s and early 1990s Pannone Napier transformed the legal scene in this country, and sowed the seeds for much that was to come. Continuing our series on the figures who shaped the legal millennium, Nick Gillies takes a look at thefirm that changed the way personal injury cases were conducted in the UK.
In most areas of law there is a time you can point at and say “That is the moment when things changed.” Very few are as recent as the formation of the disaster law firm Pannone Napier, which in 1987 shook the world of personal injury and product liability work.
Personal injury law has had a terrible reputation throughout most of this millennium, but it started quite rationally with the Anglo-Saxon system of absolute liability and fixed payments – this much for the loss of a nose, that much for the loss of a leg – a sort of institutional Kemp & Kemp.
The trouble started when in the 12th century, Henry II encouraged the use of the Royal Courts, with their concepts of equity. Equity should have extended to equal access to lawyers, but it never did, in this country or the US.
With rare exceptions, lawyers of ability were retained by the powerful, and even the exceptions were ground down by delay and overwork.
But from the mid-19th century, personal injury work began to be alleviated by the trade unions, which campaigned as much for better workplaces as more money. The unions funded legal actions by employees, and insurers came to give the law firms they used a grudging respect.
Generally, though, the large firms acting for insurers could play “divide and rule if there was more than one plaintiff” by setting one against the other, former Law Society president Rodger Pannone says. “Trade union firms could do 'creeping disasters' like asbestosis and sillicosis for their members, but they didn't have the resources for a class action.”
Strangely, the trade union firms were also very specialised. “Strangely”, because even in the 1970s big commercial firms were split into only two departments, contentious and non-contentious. Martyn Day, senior partner of Leigh Day & Co, who came to class actions from the related world of human rights work, says it is important that personal injury work is carried out by specialised firms. “You need to be able to put together a decent-sized team to do these actions. It's why the trade union firms never got into group actions – they are geared to the turnover of cases,” he says.
This was the world which Rodger Pannone and Mike Napier revolutionised with their firm. “Between them they changed the style of litigation,” says Davies Arnold Cooper senior partner David McIntosh. “Their unique partnership harnessing the power of their two firms created an ability seen only in trade union firms.”
Pannone was a partner and Napier an assistant in trade union law firm WH Thompsons, but they did not get to know each other until they had both left, Pannone to Goldberg Blackburn in Manchester, and Napier to Irwin Mitchell in Sheffield.
They also pursued different interests. Pannone was on the Supreme Court Rules Committee and the Lord Chancellor's Civil Justice Review Committee. Napier took the first Human Rights claim to the European Court of Human Rights.
More importantly, he had joined the American Trial Lawyers Association (ATLA), where he discovered how much more advanced Americans were in their knowledge of the problems of steroids, information that came in useful when, in 1985, litigation over the arthritis drug Opren began to balloon in the UK. The Opren case is what Day calls: “The beginning of the Pannone Napier world.”
It was the handling of the Opren case that seemed so revolutionary at the time, importing US techniques and utilising the ways of managing a group action developed by Tony Woolf – such as moving clients into defined groups to aid the lawyer's learning process – another alumnus of WH Thompson. Pannone says Woolf “never got the credit for being the real inventor of group actions”. The case had a High Court judge dedicated to it, a development only now enshrined in the Civil Justice reforms.
When Napier proposed that the partners of Goldberg Blackburn and Irwin Mitchell form a separate partnership the world of personal injury law was set to change, even if the pair didn't suspect it then.
“We didn't realise what a revolutionary thing it was to do,” Napier says. “It had never been done before. The partnerships did not merge, they all became partners in a third firm. It was a pooling of our expertise, not our firms.” So Pannone Napier was formed to deal with product liability claims. Within months the public would know it as something very different: the disaster law firm.
In the late 1980s and early 1990s the UK suffered a string of disasters: the Piper Alpha oil rig burned, Chinook helicopters crashed, there were train and plane crashes. The Herald of Free Enterprise ferry capsized at Zeebrugge, and the Marchioness pleasure boat was rammed on the Thames. The Bradford City football ground caught fire. And four school children were swept off a rock at Land's End and drowned in 1986.
The Land's End case was one of the first and perhaps smaller cases Pannone Napier dealt with, but it is the one both men spontaneously refer to when asked about their cases.
This type of work was very distressing to the pair. Pannone, normally loquacious, says only: “There was a cost to both of us.” In a rare moment of anger he tells of the QC who tried to justify a a drink-driving charge against him by saying he was suffering after an inquest into the Marchioness case. “I'd done 20,” Pannone says. “There are a lot of times when you put your arms round your clients.”
Part of the reason Pannone Napier closed down was that there were other people to do the work. But another reason was that they had seen too much. Pannone Napier's flowering was brief, but in the late 1980s and early 1990s it transformed the legal scene in this country, and sowed the seeds for much of what was to come, such as:
Judge-driven cases: the appointment of Mr Justice Hirst in the Opren litigation to keep the case moving.
Steering committees: Pannone Napier literally wrote the book on multi-party actions, the Multi-Party Action Guide, growing out of their recognition that they must involve all the law firms involved, and keep the pace up rather than proceeding at the speed of the slowest firm;
Hub and spoke work: where a law firm with expertise acts as the “barrister” for instructing solicitors (another US concept, and of wide application).
Putting nurses on the staff to aid assessment and interpretation.
Trans-Atlantic settlements: damages which take into account the higher awards in US forums.
Post-Traumatic Stress Disorder: first recognised in the actions following the sinking of the cruise ship Jupiter off Piraieus, while full of English school children.
But even as the public was coming to recognise the name, the firm was winding down.
Pannone and Napier moved on. Pannone sat on one of the committees instituting the Woolf reforms, and became president of the Law Society. His firm, Pannone & Partners, is now one of the leading commercial practices in Manchester, and the only one with an active personal injury practice. It also has what is perhaps the best divorce practice outside London.
Napier founded the Association of Personal Injury Lawyers (Apil) in 1990, and is vice-president of the Law Society. Irwin Mitchell, where Napier is still a partner, has a growing commercial reputation, and is big in both plaintiff and defence personal injury. It also has a good human rights practice, and is the firm a lot of people in trouble with MI5 and MI6 turn to.
Pannone Napier marked the beginning of a rush to a fairer system of justice for the individual, but the pair responsible for the radical changes in the area argue that there is still much to be done.
Leading lawyers believe US rules on discovery are better, the US legal system is still more open than the UK, and US juries, available in civil cases are, says Napier, “more bold and more up to date with the needs of society”.
Day believes that “America is a more positive place to litigate” environmental actions. He is carrying the torch of group actions into new areas, some of them untested, like disorders caused by electro-magnetic emissions from power lines, and tobacco, where the UK and US decisions are at odds with one another.
For the future, Napier believes that legal aid, which is to cover public interest claims, will fund multi-party product liability claims. “They are high-cost and not suitable for 'contingency' claims,” he says.
Both he and Pannone say that the US system is still more open to litigants than the UK. Pannone is campaigning for the wider use of punitive damages. He also believes that disclosure has “not been sorted yet”, though it is better than it was.
Perhaps of all the changes the pair have wrought on English law the most long-term one will be a belief, in Pannone's words, that “litigation is not a gladiatorial game of poker – it must be about justice and fairness”.