Person on phone

Malcolm Henke, Partner, Horwich Farrelly and Paul Paxton, Partner Stewart Law provide a perspective on the potential consequences of Coronavirus.

Since the advent of APIL and Foil, the implementation of the Woolf reforms and the creation of both the Rehabilitation Code and Serious Injury Guide, parties have been encouraged to work together in a consensual manner; to reach settlements which would benefit all concerned.

However, fortresses have been maintained, armoury kept in good order and safety in numbers still played a part whenever parties met.

After years of adversarial case handling, some positive changes evolved with cross party agreements, protocols, pathfinder meetings and the occasional social gathering.

So the Cold War ended, we enjoyed courtesy and cooperation and all looked good.

And then on the 17 November 2019 the first case of Coronavirus was detected in Wuhan, Hubei Province, China. Although obscure at the time, some four months later, that previously unheard of virus has started wreaking havoc around the world. Borders have closed, restaurants and shops are deserted and we are all encouraged to remain at home in splendid self-isolation.

So how does that affect the world of large and complex injury litigation?

In short – considerably.

Although the Government’s ‘contain, delay, research and mitigate’ policy seemed likely to give us some time to consider the full impact of Coronavirus, in practice, we have advanced so quickly into the delay phase that few, if any firms, were fully prepared. Issues immediately arising include:

  • Medical appointments / assessments are being cancelled with experts not prepared to put vulnerable claimants at risk.
  • The experts themselves not prepared to attend joint statement meetings or conferences other than by phone.
  • Under resourced courts giving little if any guidance as to how parties should deal with court deadlines, attendances and hearings (save Master Davidson – see O’Driscoll v F.I.V.E. Bianchi S.P.A.).
  • Lay clients (on both sides) being encouraged to travel and attend conferences or trials.
  • Retaining sufficient healthy staff able to work from home without a fall in standards and productivity.

These are not easy issues to address – particularly with such short notice. It might be appealing for some firms to think about some tactical wins that might be available but we would hope that any such behaviour would quickly be frowned upon by the judiciary.

Where to now? We conclude that there needs to be an urgent and considered review of current procedure and process.

We believe that, with a little goodwill from all stakeholders, new working practices can help overcome these hurdles and that, in the longer term, they can provide a more efficient and effective way of working. We encourage our colleagues on both sides of the litigation arena to consider approaching these claims in a different light and to join us in bringing this discussion alive.

Specifically we would like to explore:

  • A greater flexibility on the part of the courts to allow the parties to agree extensions by consent.
  • Standard directions reducing the need for CMC attendance – not a return to the past but recognition that most directions share a common aim and appropriate sanctions for delay can still be included.
  • The lodging of agreed summaries setting out case, position and timetable and encouraging courts to intervene only when required.
  • Introduction of 3 monthly calls between claimant and defendant representatives to discuss timetabling and issues and report into the court with no attendance required unless relationships have broken down and management is required.
  • Reductions in the need to produce expert evidence in circumstances where claimant needs are remarkably similar in certain; a lets agree the costs and discuss the need approach…
  • Trial date set at point of allocation to avoid delay and tactical manoeuvring.

In short, a greater reliance on the parties to be constructive and proactive. After all, it is clear that leading firms within this field are from a resource perspective better equipped than the underfunded court system.