Martin Partington: Spotlight on the Justice System

Keeping the English Legal System under review

Posts Tagged ‘personal injuries

Practitioners and academics: new alliances

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In my book Introduction to the English Legal System, I argue that legal academics play an important role in the development of our understanding of the law and that their role should be given more recognition than it sometimes has had in the past. (See Chapter 9, section 9.10).

Recently, however, my interest has been stimulated by stories in the professional legal press concerning a rather different collaboration between the world of legal practice and the academic world.

A number of firms, particularly those engaged in personal injury litigation, have been working with academic statisticians  and ‘decision scientists’ to try to understand what are the variables that are in play when litigation is under consideration and thus trying to understand better the risks of taking particular cases on and to predict better the potential outcome of issues that are being litigated. This may help practitioners to decide whether a case should settle, or be fought through to trial.

The firms concerned think this may be beneficial both for small value large volume groups of claims, as well as high value claims. One finding that has emerged from this work is that the models that are being used  suggest that the upper level of the Judicial College Guidelines on damages for different types of injury is almost irrelevant in most cases.

It is possible that this approach might also be used by the Courts and Tribunals service to analyse cases that pass through the courts. It might help, for example, in making determinations on which cases might be suitable for the small claims track or the fast track in the allocation of civil disputes in the county court – a possibility hinted at by Sir Ernest Ryder in a recent speech where he said:

Digitisation will, if we are sensible, provide us with the opportunity to gather data on the operation of our justice systems in ways that we have often been unable to before. It provides us with the opportunity to make our justice systems more adaptive; but again, only after proper scrutiny and discussion.

It seems to me that these initiatives will grow in number in the near future. What will be needed is proper evaluation of these tools to see whether they do in fact assist in both legal and judicial practice, and how they might be developed.

For press reports on these initiatives see https://www.legalfutures.co.uk/latest-news/hodge-jones-allen-embraces-predictive-modelling-pi-work; and https://www.legalfutures.co.uk/latest-news/leading-law-firm-joins-forces-lse-professors-find-ways-predict-litigation.

Sir Ernest Ryder’s speech is at https://www.judiciary.gov.uk/wp-content/uploads/2018/02/ryder-spt-open-justice-luxembourg-feb-2018.pdf

 

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Public expenditure review: impact on the Justice system (2): the future of personal injuries litigation

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A totally unexpected announcement in the 2015 Autumn Statement relates to how personal injuries cases are to be dealt with in future. The statement says (at p 125):

3.103 Motor insurance – The government will bring forward measures to reduce the excessive costs arising from unnecessary whiplash claims, and expects average savings of £40 to £50 per motor insurance policy to be passed onto customers, including by:

••removing the right to general damages for minor soft tissue injuries (Claimants will still be entitled to claim for ‘special damages’, including treatment for any injury if required and any loss of earnings);

••removing legal costs by transferring personal injury claims of up to £5,000 to the small claims court.

This announcement has caused consternation amongst PI claimant lawyers since, by moving many more cases into the small claims track, they will not be able to claim their costs from the insurers when they win. This will result in many claimant lawyers giving up this type of work.

Two consequences seem likely to follow:

First, insurers will be able to put more pressure on claimants to settle on terms dictated by the insurers.

Second, claims management companies may well try to find ways to move in to this work.

Despite the fact that many claimants may end up with a lower level of damages than they might have done had they been represented by a lawyer, many will think that the estimated reduction in insurance premia is a price worth paying to ensure that the costs of small claims are more proportionate than they currently are.

There might, however, be another way of looking at the issue.

In Ireland, the Injuries Board – established by Act of Parliament in 2003 – can deal with all personal injury claims on line. The injured party submits details of the accident and the injury; the insurer makes an offer; and this is assessed by an independent assessor with practical experience of PI and familiar with current trends on the awards of damages by the courts.

There is no compulsion to use the system, but it is free to claimants who win their case, and the services costs much less for the insurers (though still makes an annual surplus).

An analogous scheme already operates in the UK for dealing with tenancy deposit disputes.

The full statement  is downloadable at https://www.gov.uk/government/publications/spending-review-and-autumn-statement-2015-documents.

For the Irish Injuries Board, go to http://www.injuriesboard.ie/eng/

Written by lwtmp

November 30, 2015 at 12:51 pm