Collaboration in personal injury claims – a two-way process
Posted on 16th March 2018
I recently attended a seminar about understanding Defendant Insurers in Personal Injury claims and how to work collaboratively with them to achieve better outcomes for all parties concerned. I found the seminar to be useful in terms of giving an insight into the way a claim is managed by a Defendant Insurer and how Insurers look to resolve the issues of liability and quantum as early as possible. However I did leave the seminar thinking why in practice this was not always my experience with Insurers.
As a Solicitor I handle both fast track and multi-track cases. When liaising with Defendant Insurers, my client’s best interests are at the forefront of any negotiations. In Personal Injury claims, it is in the best interest of my client that their claim is dealt in a timely manner to ensure the client can get on with their life and put an end to any stress arising from their injuries and being involved in litigation.
I have dealt with a number of claims which have settled within a period of 4-6 months, which is no doubt welcomed by my clients and Insurers alike. However I have also represented clients where settlement negotiations have take much longer time i.e. over a period of 2-3 years. In my experience there are a number of reasons for this, which can include ongoing treatment for the client, medical evidence is yet to be finalised or the issue of liability is still under investigation and court proceedings are issued to resolve the claim. My clients understandably question why their claim is taking so long to conclude and I appreciate the idea of going to court can be daunting for someone who has no experience of the court process.
It is my experience that unfortunately the conduct of the Defendant Insurer has on occasions contributed to the delay of the early resolution of the claim. In order for a claim to be dealt in a timely manner, I would like to see Insures be more proactive and address these following issues:
- Respond to the issue of liability within the time period allocated by the relevant Civil Procedure Rules. If there are good reasons why a response cannot be given by the relevant deadline, Claimant Solicitors ought to be contacted with an explanation as to the reasons for the delay and an extension agreed between the parties.
- Where liability is denied, provide disclosure to support the denial and any counter allegations. Disclosure should be provided promptly and not gradually.
- Applications for pre-action disclosure are not made without any thought. Such an application is made where Defendants continuously fail or refuse to provide disclosure, which is required to allow a Claimant Solicitor to assess the issue of liability and hopefully narrow the issues between the parties.
- Refusing to resolve the issue of liability or quantum until Court proceedings are issued. Unfortunately this is something we continue to see happen. Attempts should be made by Insurers to engage in dialogue to address these issues rather than wait to see if proceedings are issued.
- Engage in the rehabilitation code and provide Claimants with access to private treatment to allow them to mitigate their losses.
- Make reasonable attempts to release interim payment where this has been requested for treatment, recommended tests or to assist the Claimant with financial difficulties due to for example time off work. Where interim payments are refused for tests or treatment, this can unfortunately delay the progress of claim and cause more hardship to the Claimant, as they have to resort to the NHS for medical treatment.
- Access to Claimant’s medical records prior to the issue of Court proceedings. Medical records are sent to the medico-legal expert for review and comment and this in my opinion is the best approach to deal with the issue of causation. Where a Court orders disclosure of medical records, this should no doubt be complied with.
- Making direct contact with Claimants. This is not welcomed under any circumstances and Insurers should have systems in place to ensure this does not happen.
It is very much in the best interests of Claimants that both Solicitors and Insurers work collaboratively. However until the above issues are addressed by Insurers, it is my view that litigation unfortunately cannot always be avoided.