SAMPLE CHAPTER: Personal Injury Module

Taking on a new case

1.1 Identifying the client, their objectives and the cause of action

At the start of every new case it is important to reflect on a number of basic but nonetheless fundamental points. These are the foundation stones of any PI claim. Get them wrong and the whole case could be heading for disaster.

(a) Identifying the client

In most instances the identity of your client will be immediately apparent, but this is not always so. For instance, consider the common scenario where an entire family is injured in an RTA. You are initially consulted by the driver on behalf of all the family members. You agree to take the case on, but who is/are your client/s? You may wish to represent the whole family. Alternatively, you might sense a potential conflict and offer to act only for the passengers, sending the driver elsewhere. And what about the children? They will need a litigation friend to be appointed from whom you will take your instructions. The litigation friend might be another adult passenger who will also be your client in their own right, but during the course of the case it is important to be conscious of the distinction. Once you have a clear view in your own mind about who you will be acting for, make sure that the clients themselves are aware of your decision so that there can be no room for misunderstanding.

(b) Identifying the client’s objectives

In PI litigation the client’s chief objective will generally be monetary compensation, but don’t take this for granted. Although the general public are much more aware these days of personal injury law, there are still some clients whose expectations will far exceed what you will be able to deliver. This has the potential to lead to client dissatisfaction later in the case so it is therefore important to make it clear from the outset precisely what end result you can reasonably expect to achieve for the client. Don’t be tempted to sweep these issues under the carpet for fear of upsetting and potentially losing a new case. If the client has entirely unrealistic expectations then reconsider whether it is a case you really should be taking on.

(c) Identifying the cause of action

Care must also be taken to ensure that the correct cause of action is identified at the outset and, equally as important, whether you have the necessary skills and experience to deal with it competently. Most PI practitioners will be familiar with the law governing straightforward road accidents, employers’ liability claims and occupiers’ liability cases. A more discriminating approach however needs to be taken with holiday accidents, criminal injuries, clinical negligence, industrial disease, child abuse, product liability, housing disrepair, MIB claims and actions against the police. If you are unfamiliar with the specific law and procedures relating to these types of claim then ask yourself if it would be better for a more experienced member of your firm to be dealing with the case, or at least providing you with close supervision. And if no one in the practice has the necessary expertise then think again about the desirability of taking the claim on.

1.2 Taking and confirming instructions

Having identified all the crucial characteristics of the case and satisfied yourself that it is one that you feel comfortable dealing with, you can proceed to take instructions.

Many firms use a specially designed questionnaire for this purpose. These can be as helpful for experienced practitioners as they are for more junior members of staff because they act as an aide memoir, thereby reducing the risk of failing to take a key piece of information or forgetting to give the client an important piece of advice that could prejudice the claim later on.

Among the issues you need to consider in the initial stages of a case are:

• in MIB claims, whether the incident has been reported to the police;
• whether evidence needs to be preserved or inspected;
• if the client is facing dismissal from their employer, whether a claim needs to be made in the Employment Tribunal;
• the need to maintain an accurate record of out-of-pocket expenses and the provision of care;
• where the client owns a business, the possible need for accountancy advice to ensure that any loss of earnings is recoverable;
• the desirability of keeping a pain diary;
• the existence of a ‘Before The Event’ legal expenses insurance policy;
• the possibility that some losses might be insured;
• arrangements for hiring a replacement vehicle; and
• whether care is being provided by the defendant.

Once the case has been accepted you must provide the client with written confirmation of the instructions. This is generally achieved by use of a client care letter together with the firm’s terms and conditions. The information must include:

• the name and status of the fee earner;
• the name of the supervising partner;
• the hourly rates;
• an estimate of charges;
• the instructions given;
• the advice provided;
• identification of the client;
• confirmation of the purpose for which the firm has been instructed and the scope of the service offered;
• reference to any work which might usually be within the scope of the retainer, but which you are expressly instructed not to deal with or which you are not proposing to undertake;
• any variations or limitations to the client’s original instructions which the firm feels it is advisable to impose;
• a description of the steps to be taken and the estimated time frame;
• the responsibilities and what is expected of the client in terms of information and participation;
• highlighted limitation periods that are applicable and the consequences if they are missed;
• an explanation of any potential conflicts of interest and any issues of client confidentiality;
• the payment of costs, disbursements and other charges, including whether costs are recoverable from any other party, and such further information regarding costs should be provided as required by Practice Rule 15;
• an explanation of the billing cycle and payment expectations including interest, if applicable, and the consequences of unpaid bills if appropriate; and
• reference to the firm’s complaints procedure.

QUESTION 1 Mr and Mrs Johnson were involved in an RTA. Mr Johnson, who was driving, fell asleep at the wheel causing the vehicle to career into the central reservation of the motorway. Although he escaped with relatively minor injuries, his wife sustained a serious head injury and brought a claim for damages. The Johnsons have two young children and Mrs Johnson, who was their primary carer, is no longer able to look after them. Responsibility for this has fallen to Mr Johnson. What can be claimed in respect of the value of the services being provided by Mr Johnson?   POSSIBLE ANSWERS YOUR ANSWER a. The commercial care rate less 25%. b. The commercial care rate less 33%. c. Nothing.

Wrong, the correct answer is C. Wrong, the correct answer is C. Correct. Following the decision in Hunt v Severs [1994] 2 AC 350 ,care provided by the tortfeasor is not recoverable. The claimant's lawyer should draw this to the family’s attention at the earliest opportunity and consideration should be given to arranging professional care on a commercial basis.

QUESTION 2 Tom, a PI solicitor, was having a quiet pint in his local when Jim, a man he knew only vaguely, asked him about a non-PI civil dispute that he was embroiled in. Tom listened politely and promised to read the scruffy bundle of papers that Jim had thrust into his hands. Jim asked him what he would charge but Tom dismissed the question, assuring Jim that he would look at the case for free as a favour. Unfortunately when Tom returned home that evening he placed the papers in a pile of paperwork gathering dust in his study and forgot all about the encounter with Jim. About four months later Tom ran into Jim in the street. Jim asked what was happening about his case and whether Tom had issued proceedings. An embarrassed Tom explained to Jim that as a result of an oversight he hadn’t looked at the papers yet but that he would dig them out when he returned home. To Tom’s surprise, Jim reacted angrily to Tom’s explanation and, despite profuse apologies, Jim threatened to report Tom to the Law Society. Should Tom take the threat seriously?   POSSIBLE ANSWERS YOUR ANSWER a. No. There was no retainer, so Jim cannot raise a complaint about the level of service. b. No. But Jim would be entitled to sue Tom if he suffered loss as a result of any negligence on Tom’s part. c. Yes. The fact that Tom was acting on a pro bono basis does not mean the client has no right to complain about inadequate service.

Wrong, the correct answer is C. Wrong, the correct answer is C. Correct. Tom has agreed to provide legal services to a client. The fact that he is acting pro bono makes no difference to the level of service that the client can expect to receive and it is not a factor that the Consumer Complaints Service would take into account when considering the adequacy of the professional service provided.

1.3 Considering risk

When we talk of ‘risk’ in a PI context, we are actually using the term in two distinct, though related ways. The first meaning, and the one most familiar to the PI practitioner, is the risk associated with the merits of the case itself; what we might call the ‘litigation costs risk’. The second way in which the word is used relates to risk in the sense of the ‘operational risk’ that the case poses to the firm. Both definitions of risk must be considered in the context of each matter.

(a) Litigation costs risk

CFAs have encouraged us all to think more clearly about the merits of a case in terms of the risk factor it presents to us, the claimant lawyer, and whether or not we are likely to get paid for all our hard work. The consequence of this has been the introduction of the risk assessment. For cynics the risk assessment is just another mindless exercise in box ticking. But if you go about it the right way, the risk assessment can be a very valuable tool in helping you to maximise the success and profitability of your practice.

The risk assessment helps you with the first real judgement call you have to make in relation to any new PI claim: ‘Do I take the case on?’ Of course by the time you have got to the point of carrying out the assessment, the decision to take on the claim will have, in the vast majority of instances, already been made. However, the risk assessment provides a window for sober reflection, a chance to stand back and take stock of the case, and an opportunity to reject it if you feel that your initial enthusiasm might have been a little misplaced.

More likely however, if there are weaknesses in the case, the risk assessment will enable you to identify them and set you thinking about a strategy to overcome them. The assessment will also present possibilities for risk reduction; steps that can be taken to nullify the risks and their potential for harming your firm. Consider for instance the importance of early disclosure, the need to take statements from key witnesses or the desirability of seeking an order for a split trial. These measures can then be incorporated into your case plan.

And the more you carry out risk assessments, the more they will become second nature – part of your instinctive strategic thinking. This in turn will improve your skills of evaluating the viability of new enquiries and their potential for earning your firm a profit, or making a loss.

(b) Operational risk

Professional indemnity insurers like us to consider not only the risks associated with the merits of the case but also the risk posed to the firm itself in an operational sense, rather than in terms of winning and losing. This has been recognised by Lexcel, which requires accredited firms to adopt a proactive approach to the management of risk issues, with the express aim of reducing the incidence of negligence claims and complaints.

The Lexcel Office Procedures Manual (3^rd Edition) incorporates an initial risk assessment as part of the file opening procedures. PI practitioners in Lexcel-accredited firms don’t have any option other than to comply, but those who have no such requirements in place may nevertheless wish to borrow from these guidelines as a matter of good practice.

Lexcel encourages lawyers to think about each new matter in terms of the individual risks it presents to the firm. Fee earners must judge whether the matter is ‘ordinary’ or ‘high’ risk, attributing the case to the latter category if:

• there is a novel or unusual aspect of law involved;
• a foreign jurisdiction is be involved;
• the value of a potential claim is unusually high (consider advising on the maximum claim the firm is covered for); or
• the client has transferred this matter to the firm in circumstances where they were dissatisfied with the advice or service provided by their previous advisers.

(Lexcel Office Procedures Manual (3^rd Edition))

There is an ongoing duty to keep assessing operational risk throughout the life of a case and to report changes to the designated person in the risk profile. For instance the firm’s costs exposure might be significantly increased by the involvement of a third party to the litigation.

QUESTION 3 The defendant, while driving a car, suffered a sub-achronoid haemorrhage and collided head -on with an oncoming Land Rover, injuring the three child passengers as well as the driver. Investigation revealed that the defendant, who was 22, had no relevant medical history and was completely unaware of the problem. He was otherwise a fit and healthy young man who played for his local football team and was a keen swimmer. Given this information, do you feel that this case should be taken on under a CFA?   POSSIBLE ANSWERS YOUR ANSWER a. Yes, there is a prima facie claim for all four people travelling in the Land Rover. b. No, the claim is too risky. c. Only take on the children’s claims.

Wrong, the correct answer is B. Correct. Wrong, the correct answer is B. The defendant can raise the defence of automatism. In the absence of any indication of a ‘smoking gun’ in the medical records, or any evidence that the defendant was aware of his condition, it will be difficult to establish a case of negligence against him. Similarly there is nothing to suggest that the driver of the Land Rover was in any way to blame. The unusual facts of this case make it simply too risky to take on under a CFA.

1.4 Creating a case action plan

Having dealt with the preliminary file-opening issues, you are now ready to sketch out how you plan to achieve the objectives agreed with the client. To be able to proceed with a clear strategy in place has several advantages. Case planning will focus your energies and prevent case-drift. Not only will it enable you to see the wood for the trees but it will also allow other fee earners working on the file to see precisely where you are at any given time in relation to the bigger picture.

Lord Woolf, no less, has supported the use of case plans in PI litigation, particularly as an aid to ensuring that the principles of proportionality are adhered to. So this should mean that you are unlikely to have any difficulty in recovering the costs of preparing it.

Case planning is a requirement of the Legal Services Commission in certain complex or multi-party cases. It is also a key constituent of Lexcel. Section 8.12 of the Lexcel Office Procedures Manual (3^rd Edition) says:

‘Every matter should have a clear strategy. This will need to be established at the outset and then kept under review. The case plan will need to take into account all the circumstances of the matter, but the client’s objectives in particular.’

The importance of strategic thinking, whilst undervalued ten years ago, is now mainstream, and preparing a case plan at the outset of each matter will be second nature to many practitioners. A popular approach is to take a standard case plan for a typical PI case and then customize it, taking into account both the value of the claim and the difficulties facing you on liability.

Finally, once your case plan has been prepared, send it to your client for agreement. By doing so, they too can get an overview of the case and see each step in the wider context. Not only is this good client care but it may also pay dividends in terms of the client’s commitment to the litigation process and cutting down on those disrupting telephone enquiries.