Co-operation at the coalface

The sheer size of the British Coal multi-party action has led to firms working for a common goal, writes Chris Fogarty.

After several years of case preparation and a hearing in the High Court that lasted 102 days, more than 100,000 former British Coal miners can breathe a little easier.

In what is the longest-running industrial disease dispute in British legal history and one of the largest personal injury cases ever, Mr Justice Turner ruled last month that six former miners crippled by lung disease while working in mines owned by British Coal were entitled to compensation.

The 500-page ruling opened up the prospect of £1bn in compensation for more than 100,000 miners who were exposed to lung-choking coal dust in their daily work.

The verdict was a hard-won victory for the grime-covered men who toiled in the bowels of the earth during the 1940s, 1950s and 1960s – and a triumph for the “well-heeled” lawyers in their “high-rise” offices.

They took a complicated legally-aided action against a particularly determined defendant and in the process struck a blow for a civil legal aid system currently groaning under the weight of heavy political, public and press pressure.

Perhaps more significantly, the British Coal case also offered an insight into a growing legal trend – multi-party actions.

Popular in the US, personal injury lawyers here say that multi-party actions, or MPAs, will become increasingly common in British courts. The British Coal case helped set a framework for how the courts and judicial system can manage such cases.

More specifically, it showed how lawyers from rival firms and chambers could, contrary to received wisdom, work alongside each other successfully in the interests of their clients.

It certainly helped that three of the firms acting for the plaintiffs in the British Coal case had worked together before. National personal injury specialists Thompsons, Sheffield's high-profile Irwin Mitchell and Welsh legal giant Hugh James had collaborated successfully on the “vibration white finger” (VWF) case.

Last summer, seven former pitmen won compensation from British Coal for damage to nerves caused by the regular use of vibrating tools in a decision that could see 12,000 miners receive up to £50m in compensation. But the VWF action pales into insignificance beside the more recent respiratory diseases tussle.

By late 1995, more than 100 writs had been served and British Coal had been notified of 6,000 other pending cases. Further, 20 different law firms had already started more than 100 cases, leaving plaintiffs with no single voice to fight with.

In October 1995, both plaintiff and defence lawyers approached the High Court in Swansea asking for the appointment of a single judge to manage the litigation. In November of that year Mr Justice Turner was appointed.

Now that they had a single case to fight, plaintiff lawyers banded together in January 1996 to form the less-than-snappily-titled British Coal Corporation Respiratory Disease Litigation Solicitors Group. In a perfect example

of case management, Judge Turner decided to call the 20-firm group “SG”.

Other firms representing miners could apply to join the SG and indeed, under court orders, could be legally forced to, though it never came to that.

For all its cut-throat membership rules and grandiose title, the SG, say its constituent firms, was notable for its informality.

The SG appointed a co-ordinating group of firms (or CG): Irwin Mitchell, Thompsons, Hugh James, Leeds-based Nelson & Co, Yorkshire firm Towells and J Keith Park & Co in Liverpool. Essentially, these were the firms which felt they had the resources and energy to tackle such a case.

As one lawyer involved describes it, there was “no standing on ceremony” within the CG; there was no chairman and no set hierarchy. It was, in fact, run along the kind of socialist principles that their coal miner clients would have no doubt heartily approved of.

Instead of rigidly delegating responsibilities, the group shared out work among themselves, with Hugh James, for example, dealing with Welsh issues and Nelson & Co with expert witnesses. The massive task of discovery was co-ordinated by Irwin Mitchell.

However, the six firms established a rota that saw five to six lawyers each day digging through acres of British Coal archives. That process alone took several months and concluded with 18 photocopiers being used to produce two million discovery documents.

The sheer scale of the exercise stretched the resources of the smaller firms. “We had to relocate people from other departments to cope,” says Jim Gladman, one of nine partners at Nelson & Co.

Gladman says each firm recognised its own strengths and weaknesses, and at no time did Nelsons feel it was being bullied or shut out by the bigger firms.

“There were no power struggles – we wouldn't have tried to run the whole thing on our own,” he says.

John Pickering, who heads Irwin Mitchell's personal injury department, adds: “We focused our energies on defeating the defendant, not pulling ourselves apart.”

The co-ordinating group kept in contact largely through telephone conferences and fax machines, with few face-to-face meetings. Having said that, the lawyers apparently got on well when they did meet, even sharing a drink or two after work.

By and large firms were allowed to get on with the job in hand and any problems or potential flashpoints between the lawyers were dealt with by a small group of solicitors. Their solutions were then fanned out to the group as a whole.

Evans, from Hugh James, says that the trust and informality of the CG was the key to its success.

“I don't think anyone involved had any doubt about the ability of others,” says Evans, adding: “There's a little luck in that I suppose.”

The plaintiff firms were also helped by the Legal Aid Board, which gets the thumbs-up from the lawyers involved for its “professional attitude”, and Judge Turner, who wins universal praise. One lawyer describes him as ruling over the trial with a “iron fist in a velvet glove,” adding: “He set a cracking pace.”

The good relationship between the plaintiff firms continued after the judgment was handed down on 23 January with what amounts to an informal “no poaching” of potential clients rule developing along the geographical lines of the firms.

Further, this month the SG is negotiating with British Coal's claim handlers to swiftly settle claims with those miners with the most serious illnesses.

Yet despite the apparent ease with which this case progressed, questions remain as to how to run future large-scale MPAs.

A key issue is whether a panel of larger PI specialist firms with the experience and staff should automatically become involved.

“I'm in favour of a panel system,” says Evans. “I know some of my colleagues will say, 'well you would say that wouldn't you'.”

However, Evans says if certain firms have built up the experience and have the resources to marshal a large-scale MPA they should become part of a pool of legal talent.

“I don't think that pond should be allowed to become stagnant,” adds Evans, who is not in favour of smaller firms being shut out, especially if they uncover the grounds for an MPA.

Roger Maddocks, a Thompsons partner based in Newcastle also believes it is “crucial” to have firms with the experience and resources involved in large actions.

But Gladman worries that talent and experience would simply be trapped in one or two big firms. He says there is a role for smaller firms if they have the resources and manpower to draw on, warning that some firms could easily get swamped.

For his part, Pickering suggests that there may need to be a panel of judges with the case management skills and in-depth experience to take on MPAs.

Lawyers involved in this case also concede that the potential for legal disaster in multi-party actions is never far away.

In the VWF case, the Legal Aid Board gave the contract to a two-partner firm in Sunderland, a situation one senior PI lawyer described as “ludicrous”.

A judicial review of the decision only ended after the firm split and a compromise was reached to share the work out between larger firms.

Thompsons Edinburgh and Glasgow partner Laurence Lumsden, who was a close observer of the British Coal litigation, says firms involved in future multi-party action risk becoming bogged down if they take a rigid, ego-driven approach to case management.

“It can become very slow because there is a committee approach being taken,” says Lumsden, who is representing a number of Scottish miners. “Obviously it stands to reason that 10 people around a table may fall out about certain things at certain times.”

Certainly the 20 firms taking the British Coal case did, according to lawyers involved, have their disagreements.

But their ultimate success may provide a blueprint – albeit an informal one with few strict do's and do not's – for lawyers and firms who follow their multi-party path.