Litigation, as with the world in general, has changed significantly in 2020. We could not have ever possibly foreseen how during this year we would all have to move rapidly to working remotely and digitally. It may well have accelerated changes in many firms towards digitalisation and a more agile way of working. It is likely that solicitors sitting behind desks each day in a crowded office might be a thing of the past.
How will this huge change which has been thrust upon us affect the way we run our cases? Inevitably, there will be changes which are obvious; for example there are very likely to be more remote court hearings.
It may well be that costly expert conferences in person are less common and no doubt a defendant at the cost budgeting stage will argue for a reduction in the expert phase because conferences or expert appointments can take place virtually (thereby reducing the amount of travel time).
I have given thought in this article about how the pandemic might impact on litigation over the coming years and how it will affect the way we run our cases in the future. I have set out five potential ways in which our way of working may change and the possible challenges we might all face.
- Interim payment applications may need to be made at a very early stage
The NHS has been put under huge strain over the last few months. Thousands of our routine operations have been cancelled. There is going to be a significant backlog for treatment in the NHS when lockdown is eventually eased and this means that clients, who may have waited a long time for surgery, may face an even longer wait. It should always be a matter of good practice to seek interim funds at the first available opportunity to allow our clients to undergo privately funded treatment. It has long been well established (Law Reform Act 1948) that the claimant does not
have to rely on statutory services for treatment. We must act proactively and decisively in making early interim payment applications to allow a claimant to access privately funded treatment to avoid any delay in waiting for such treatment or rehabilitation under the NHS. A defendant may well be resistant to such an approach, but interim payment applications are going to become ever more important to secure early funds to ensure that claimants have the best possible opportunity to access rehabilitation quickly.
We have seen that lockdown has unfortunately already had a significant impact on rehabilitation as, in many situations, clinicians have been unable to provide hands on therapy. The need to have an effective rehabilitation programme up and running as early as possible is paramount.
To secure early interim payments means ‘front loading’ a case, namely running a case proactively right from the start; in the form of obtaining early preliminary expert evidence, witness evidence and drafting an outline Schedule of Loss.
- Loss of earnings claims are up for grabs
It remains to be seen what arguments the defendant might raise when faced with loss of earnings claims at joint settlement meetings or a trial. For the claimant’s part, the coronavirus pandemic may be used to advance arguments in support of a larger loss of earnings claim.
For example, where a claimant has been involved in an accident pre 2020 but may be fit for some sort of work, there may be an argument that he has a significant handicap on the open labour market. Nobody knows what an economic recession might look like in the coming years or what level of redundancies might be linked to Covid-19.We can advance an argument that even where a claimant might be fit for work, the prospects of any residual earnings are limited (particularly where a claimant is disabled under the Disability Discrimination Act).
It may well, therefore, be open to a claimant’s solicitor to argue on behalf of his or her client that there is a long-term loss of earnings claim because there are so few jobs open and available to the claimant. Conversely, it will be interesting to see how the defendant approaches some loss of earnings claims. Take for example a claimant who was injured pre-2020 but was working for a firm who has now ceased trading as a result of Covid-19.
Would the defendant seek to argue that absent the accident, the claimant would have lost his job in any event and therefore the loss of earnings claim should be capped at the point when the claimant’s employer closed?
It is potentially a novel argument and one which might not find favour with a trial judge, but I can foresee circumstances where it will inevitably be advanced and when it might well
- The parties should be able to case manage without the Court imposing directions
Although the courts have coped admirably with the lockdown by moving swiftly to remote hearings, there is inevitably a backlog in the listing of some hearings. For example certain hearings, such as trials, may well not be suitable to take place remotely.
Experience can vary nationwide, and whilst in London the courts have been able to operate effectively to minimise backlog, this is not always the case with courts in other parts of the country. It is likely that in the majority of cases the lifetime of an average case will have been prolonged because of the pandemic.
A number of experts have been able to virtually assess claimants, but this has been variable and experts in some disciplines, such as in the field of neuropsychology, have had to delay assessments until they can be safely done in person. The will mean that large numbers of expert appointments have not taken place and therefore there is going to be substantial backlog of assessments in some disciplines when lockdown is finally eased further. I think it is inevitable that cases which you would have expected to have settled in the next 12 months might well take another year or so because of the delay in obtaining some expert evidence.
The Civil Procedure Rules have always required the parties to co-operate, see for example paragraph 1.4 (2) (a) which encourages‘the parties to co-operate with each other in
the conduct of the proceedings’. The court will want to see evidence of collaboration. For example, I have very recently received an order listing a costs and case management conference (CCMC) in five months’ time, which reminds the parties to attempt to‘make such progress as is practicable in relation to matters such as disclosure and witness evidence’. A CCMC is a hearing before a judge where a timetable
for the litigation is set and the parties are ordered to take certain steps by a certain date to progress the case to a trial. The order I describe above encourages the parties
to agree certain steps in the litigation before the CCMC, such as a date to exchange lists of documents and witness statements. But why stop there? It is open to sensible parties to agree for a date of exchange of expert evidence, and even to attempt to timetable a case in such a way that there is very little for a judge to decide at any subsequent CCMC.
It will require collaboration and pragmatism, but we’ve seen lots of examples of this over recent months and I hope it will continue beyond the pandemic. It may well be in all the parties’ interests to seek a quicker resolution to a claim than waiting an inordinate length of time for a CCMC to be listed. Delay is not going to help a claimant in most circumstances and progress will always be beneficial for all involved.
- Cost Budgets might need to be completely reworked
At a CCMC, the judge will also order ‘costs budgets’, which permits the parties to spend a specified amount of time and money in various different phases of the case. I have described how there may well be significant delays in litigation because not only will experts not have been able to examine claimants in person, but the courts have not been able to list some hearings, whether that be a CCMC, pre-trial review or trial.
This means there will be a significant amount of directions which have not been complied with. We saw that the Rules Committee early into lockdown permitted the parties (until the end of October) the ability to vary directions by agreement by up to 56 days without a court application. In many situations, this will not be enough and an application will need to be made (usually by consent and the court will often be amenable to such an application given the extenuating circumstances) for a wholesale variation of the case management timetable. What does this however mean for costs budgets?
Whereas previously a case might be budgeted on the basis of reaching a trial in the next 18 to 24 months, you may find that the trial is now much further away. This could potentially mean further disclosure, for example if you have a case manager involved, there will be much more case management work to factor in to the issue / pleadings phase or disclosure phase within the budget. You may find that there are some phases of the ordered budget which are now simply not enough because of the extended lifetime of the case.
For example, will witness statements need to be updated? If a case is prolonged for another 12 months, do you need to factor in taking further witness statements to reflect a change in functioning, work or rehabilitation; or even to describe the impact of Covid on the claimant’s life? Will the case that has been listed for a split trial because of uncertainty regarding the claimant’s long term prognosis, now no longer require a trial on liability only because of the passage of time, and is it capable of being heard in one trial? There are numerous different contingencies to bear in mind when considering whether the costs budget which was set pre-lockdown is now still sound. I suspect that there will be numerous cases whereby costs budgets may need wholesale redrafting to take into account delays and also potential new developments (for example if the claimant has unforeseen surgery or his condition deteriorates / improves).
We must be extremely vigilant as always in checking and rechecking our costs budgets and I would advocate reviewing every single costs budget you may have on file to check whether it is still fit for purpose. Any applications should be made in a timely fashion, given the aforementioned potential delays waiting for a CCMC listing.
- Periodical Payment Orders may be offered more frequently
The Ogden tables are statistical tables used by the legal profession to calculate future losses in personal injury claims. In July 2020 the 8th edition of the Ogden tables were released, and one key change in the table was the reduction of life expectancy.
The country has seen a massive loss of life due to Covid-19. When faced with a claim by an older claimant, I would not be surprised to see the insurer be more willing to offer PPO’s to conclude the case. While PPO’s are common place when there are concerns of life expectancy, they might become even more attractive to an insurer where there is a risk of a second wave, or even a more localised spike in infections, and potentially those at risk have a heightened chance of loss of life.
This might sound extremely cynical, but where insurers might previously have been reluctant to offer PPO’s, preferring to settle the case on a lump sum basis to get the claim off their books, there may now be a wind of change which means that insurers are keener to offer PPO’s on the basis that there is a potential heightened risk of a shortened life expectancy due to a possible second wave, particularly if the claimant is in a vulnerable category and / or might live in a care home.
What has been so encouraging to see over the last few months is the way that parties have been able to collaborate, co-operate and find new and innovative ways of working together. I have seen some fantastic examples of the parties being pragmatic and sensible to achieve a fair solution for all.
Hopefully the ‘darker days’ of the post Mitchell era when parties were almost encouraged to catch each other out is long gone (in 2013 The Court of Appeal upheld a strict judgment in a landmark case involving then government minister Andrew Mitchell which established a hardline approach by the courts towards costs budgeting. This judgment was then used by some parties to seek an advantage in litigation where one party had failed to comply with the strict application of the rules).
I hope instead that as lockdown gradually eases and as a country we begin to emerge from this crisis, a sensible and pro-active approach to litigation continues.
The importance of identifying priorities in rehabilitation
After a life-changing injury, such as acquired brain injury, it can be tempting for the injured person and their loved ones to want to ensure that they get as much of the best quality rehabilitation that the state can provide or that money can buy, writes Irwin Mitchell’s David Withers.
This is because it is generally accepted that the greatest recovery is made in the first few years, particularly in the case of acquired brain injury.
When an individual sustains a traumatic brain injury, there are a range of disciplines that may need to be involved including, but not limited to: physiotherapy; occupational therapy; neuropsychology; neuro-psychiatry; neurology; neuro-surgery; dietician / nutritionist; speech and language therapy; personal trainer; counsellor; and support workers. The injured person’s passion for rehabilitation is absolutely vital. If and when that goes, it can be very difficult to regain that motivation. Mind-set in rehabilitation is critical.
A case manager’s role is to co-ordinate the rehabilitation. This includes introducing therapists at the right time. An injured person’s goals and aspirations must be identified.
The case manager and the injured person and their family must then formulate a rehabilitation strategy, focussing on what will make the greatest difference.
In the author’s experience, achieving a major goal will build momentum, leading to smaller goals being achieved rapidly thereafter. If a case manager overwhelms the injured person with too much rehabilitation, they will become disengaged.
Every rehabilitation programme will be different, rightly so as it should be tailored to the injured person’s needs. However, generally speaking, it is often sensible to rehabilitate the physical limitations through physiotherapy and the cognitive and emotional changes through neuro-psychology initially.
After progress has been made, an occupational therapist can be introduced, potentially to assist with returning to work or identifying strategies to maximise independence insofar as possible.
Another important factor is ensuring that the rehabilitation feels like it is part of “real life”. An injured person may have spent months in hospital. Although there is of course a time and a place for rehabilitation at home or in a clinical setting, in the author’s experience, injured people generally want to be able to return to some sense of normality insofar as possible quickly after discharge.
This means that the rehabilitation specialists need to fit around that person. Effective rehabilitation is about identifying goals, creating an exciting plan, monitoring progress and achieving them. This leads to momentum, motivation and the desire or passion to keep getting stronger. If rehabilitation is likely to be a long-term need, the integration of the package into real life is particularly important.
The author has experience of representing a severely injured person who was interested in pubs and bars. He had the capacity to make these decisions. The support team, working with the speech and language therapist, facilitated him being able to go.
They were able to educate him about the risks of consuming alcohol (again, which he had capacity to make decisions about), and work with him, in real-time, on his engagement with others.
He was able to return to doing something that he was passionate about. This made him more engaged in the less “real-life” rehabilitation sessions that he was having at the time.
David Withers is a partner and solicitor-advocate at Irwin Mitchell LLP, leading a team specialising in life-changing injuries including severe traumatic brain injury, spinal cord injury and amputations.
Case managers and lawyers – the power of collaboration amid Covid-19
The Covid-19 epidemic has had a disproportionate impact on societies most vulnerable, due to social, financial and medical needs, write legal executive Jack Sales and clinical case manager Alexandra Hitchcock…
With many clients falling into this category case managers and solicitors have needed to continue to work in a collaborative and responsive fashion in order to best respond to the clients’ changing needs.
This is compounded when the client is not the only person in the household and their care team’s needs also need to be considered.
Elderly family members and those with other medical conditions along with roommates working from home, children requiring home schooling and regular paid carers needing to self-isolate have made supporting clients’ needs more challenging.
This has required the breadth of consideration to be widened to ensure revised planning takes into account the needs of all involved, while keeping the client as the central focus.
Urgent need has often required initial reliance on social services and charities with mid to longer term support coming with solicitors accessing interim payments or additional services.
Increased funding to social services and charities has been beneficial to fill this void, such as food deliveries to people in need, volunteers collecting basic necessities and telephone support for those experiencing loneliness. However other services, such as home repairs and modifications have been delayed in the current crisis.
Having funding available to follow on when statutory or charity services cease is as important as the duration of these services is unknown and clients may not have the capacity to react.
The introduction of government restrictions has required a delicate balance of risk assessments to determine the clients’ health and financial support needs.
When clients require medical, case management and/or expert witness appointments to be completed in order to not only further their health but support their claim, a decision must be made as to whether the need falls within government guidelines and the level of risk of potentially introducing coronavirus into the household.
With many appointments suddenly not available, cancelations through the NHS and uncertain waitlists in the independent sector finding the best and safest fit for clients has required consistent review, understanding and close working by all involved.
Rehabilitation has been noticeably slower with a downturn impact on clients’ mental health, including low mood related to social isolation or anxiety related to the pandemic, slowing momentum for many who were previously progressing.
With rehabilitation planning taking clients’ clinical need and motivation into account, case managers have needed to work closely with clients, rehabilitation teams and solicitors to determine if continuing, delaying or ceasing treatment is the best option.
Although beneficial, some clients have been reluctant to utilise remote rehabilitation sessions or have found that they are less able to connect with therapists via video or telephone.
This has led to some choosing to wait for face to face appointments to become available at the risk of pausing or reverting aspects of their rehabilitation.
Other clients have managed remote sessions well with online appointments likely to have a permanent place in their continued rehabilitation and they require less travel and cost than face to face appointments.
As government restrictions lift but the potential for a second wave of Coronavirus looms, the client/case manager/solicitor relationship will continue to evolve as we progress rehabilitation in unprecedented times while keeping the clients current and long-term needs at the forefront of their rehabilitation plans.
Instructing a case manager is one of the first acts of the instructed legal team. Under the Rehab Code, the focus of the legal claim should be on rehabilitation at an early stage.
Often, case managers will work with clients over many years and it is vitally important to get this working relationship right as soon as possible.
They will need to be a “good fit”, have the right expertise and crucially be able to pro-actively progress the client’s rehabilitation and find solutions when they come across obstacles.
There have been few greater obstacles to rehabilitation than Covid-19 and the social distancing measures introduced which have given rise to additional barriers to rehabilitation for already vulnerable clients.
The past few months, even with some easing of restrictions, have had a significant impact on the availability and accessibility of much needed treatment for injured clients.
Whether it has been a barrier to getting rehabilitation off the ground in the crucial early stages of recovery or the setback of an interruption to an existing rehabilitation package, the impact can be felt acutely and can be a serious obstacle on the clients’ road to recovery, both physically and psychologically.
This can be compounded by social isolation for those living alone or additional strain on family relationships in what can already be a difficult set of circumstances following a life changing injury.
Many therapists have been able to use the benefit of available technologies to offer remote sessions to mitigate the impact of Covid-19 but this is not suitable for all therapies and not possible for some clients who do not have the availability of, or capacity to use, such technologies.
This creates a “black hole” of much needed treatment for many clients. Additionally, although some of the current challenges may be shared by clients, often their needs are unique meaning there is no “one-size-fits-all” approach that can be applied.
As a result, it is more important than ever for the legal team and the case manager to work closely and pro-actively together to find alternative and innovative solutions to these problems.
This is not limited simply to rehabilitation but the need to ensure even the most basic needs can be met for the most vulnerable clients, such as charities who can provide and deliver groceries to those who are vulnerable, shielding and on low incomes.
It is often the case manager who is on the front line, seeking solutions to problems, finding alternative ways of delivering rehabilitation and attempting to increase a client’s independence and quality of life, but it will require the expertise of the legal team to secure funding, primarily by way of interim payments, to ensure positive solutions can be put into effect without delay.
Clients may also require assistance with financial advice to address any concerns about their ability to meet outgoings such as rent, mortgage payments and utility bills. This may be provided by way of advice from a financial planner, for example, or the use of charities that can provide guidance and assistance with financial concerns.
The legal team can also consider the need for securing larger interim payments to cover the increased costs of care in these times; including the additional costs of ensuring that all necessary Personal Protective Equipment is available.
In addition, the collation of the supporting clinical records by the legal team can play a huge part, not just in securing funding, but in allowing medico-legal experts to assess the full picture when recommending treatment and further needs. This in turn can be crucial in ensuring clients receive the best compensation to meet their long-term needs.
A collaborative approach by the legal team and the case manager has never been more important than here and now to ensure the client remains at the forefront of everything we do and to maximise their recovery.
We recently worked together on a case where a client has been faced with the types of challenges outlined above.
The client suffered a lower limb orthopaedic injury restricting his mobility.
He also suffers with psychological symptoms including low mood, anxiety, suicidal ideation and outbursts of anger which impact on his thinking and engagement in activities of daily living.
The client lives alone and has little by way of a support network in the local community other than a care package provided by the Local Authority.
His rehabilitation was due to commence just as the lockdown struck in March 2020. The client was left isolated, unsure of his welfare and unclear of the impact on his rehabilitation.
Working collaboratively and proactively, Irwin Mitchell and Bush & Co Rehabilitation were able to support the client and find solutions to the unprecedented challenges posed by Covid-19.
In case management terms, we were able to identify local charities who could deliver groceries to the client who was shielding. Psychological and physiotherapy support was sourced independently as the client has difficulty engaging in statutory service virtual provision.
On the legal front, we were able to ensure the client’s legal claim enabled there to be funding available under the Rehab Code to allow Bush & Co Rehabilitation to implement treatment. There were also regular telephone calls with the client to discuss his needs and keep him updated on actions being taken to ensure the client was a part of the process.
The client was unable to engage in video assessments and so telephone assessments were arranged. It became apparent the client’s psychological presentation meant he had difficulty engaging in any remote appointments without significant support provided by someone else in the home.
Therefore, with some easing of restrictions, face-to-face assessments were arranged. This required the need to risk assess and ensure Personal Protective Equipment and safeguarding measures were followed.
Despite the obstacles posed by Covid-19, these were not allowed to be a barrier to the client’s rehabilitation. The client has remained motivated to engage in the rehabilitation process and any disruption and delays caused by the lockdown have been mitigated to ensure motivation and engagement levels are maintained.
Jack Sales is a legal executive specialising in serious injury cases at Irwin Mitchell. Alexandra Hitchcock is a clinical case manager at Bush & Co Rehabilitation.
Changes to life expectancy…
And the definition of disabled in personal injury cases…
By David Withers of Irwin Mitchell LLP.
In personal injury cases, lawyers use “The Actuarial Tables with explanatory notes for use in Personal Injury and Fatal Accident Cases”, otherwise known as the “Ogden Tables”.
The tables can be found at: https://www.gov.uk/government/publications/ogden-tables-actuarial-compensation-tables-for-injury-and-death.
The Ogden tables help actuaries, lawyers and others calculate the lump sum compensation due in personal injury and fatal accident cases.
The methodology is long-established: multipliers are applied to the present-day value of a future annual loss (net of tax in the case of a loss of earnings and pension) with the aim of producing a lump sum equivalent to the capitalised value of the future losses.
In essence, the multiplier is the figure by which an annual loss is multiplied in order to calculate a capitalised sum, taking into account accelerated receipt (getting the money before the loss is actually incurred), mortality risks and, in relation to claims for loss of earnings and pension, discounts for contingencies other than mortality.
Multipliers are calculated by reference to an annual assumed interest rate after tax and inflation, known as the discount rate.
The seventh edition had been published in 2011 and the life expectancy data used in the tables was significantly out of date. Multipliers published in the 7th edition of the Ogden Tables were calculated using mortality rates from the 2008-based projections; the 8th edition provides multipliers based on mortality rates from the most recent, 2018-based, projections (published at the end of 2019).
The most significant change is that the expectations of life (and hence the multipliers derived from them at all discount rates and ages) in this edition of the Tables are lower than in the 7th edition of the Tables.
This reflects both the lower decreases in mortality than previously projected between 2008 and 2018 and more pessimistic assumptions adopted by the Office of National Statistics (“ONS”) ONS regarding the future rates of improvement of mortality at some ages over the next few years, but especially at older ages.
The mortality projections do not include any allowance for the possible effects of the COVID-19 pandemic on future mortality, as the projections used were published before the outbreak.
It is likely that Defendants will increasingly raise challenges based upon Covid related factors (whether adverse implications for future employment, which will impact pension loss and/or life expectancy).
There has also been an important shift in the recommended approach to future loss of earnings claim. The definition of “disability” for the application of the tables has been changed. It is more restrictive.
The Claimant must qualify under the definition contained within the Disability Discrimination Act 1995 and for the disability to affect either the type or amount of work they can do.
The definition of disabled under the Equality Act 2010 is no longer applicable.
The definition of a “disabled person” as far as the application of the tables is concerned is as follows:
A person is classified as being disabled if all three of the following conditions in relation to ill-health or disability are met:
- The person has an illness or a disability which has or is expected to last for over a year or is a progressive illness; and
- The Disability Discrimination Act 1995 definition is satisfied in that the impact of the disability has a substantial adverse effect on the person’s ability to carry out normal day to day activities; and
- The effects of the impairment limit either the kind or the amount of paid work he/she can do.
If a person does not meet this definition, they are to be considered “not disabled”.
This is an important change for Claimants who have some residual earnings capacity but less so than they would have had but for the negligence.
In summary, when quantifying what the earnings would have been but for the negligence, the likely annual sum is multiplied by the relevant multiplier.
The multiplier takes into account the risk of non-negligent mortality (i.e. mortality that could have arisen even had the negligence not arisen). The sum is then multiplied by a discount factor taken from Tables A to D.
Tables A and B are for males; Tables C and D are for females. The same calculation is then undertaken for the residual earnings claim.
The Claimant then seeks to recover the difference between the calculations. Tables A to D take into account factors such as disability, age, and educational attainment.
Given the narrowing of which Claimants are classed as “disabled”, this means that proving that, despite there being a residual earnings claim, there will still be a loss of earnings will be more challenging.
If a Claimant is not “disabled” within the meaning of the Disability Discrimination Act 1995, the discount will be the same as the discount used to work out the earnings but for the negligence.
The Claimant will have to increasingly focus on providing that the amount per year will reduce and / or that their retirement age will be sooner because of their injuries. However, these will be difficult aspects to prove if the starting position is that they are not deemed to be disabled.
David Withers is a partner and solicitor-advocate at Irwin Mitchell LLP, leading a team specialising in neuro-trauma and other serious injuries such as amputations or significant poly-trauma.
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