In a nutshell
Personal injury and clinical negligence lawyers resolve claims brought by people who have been injured, either as a result of an accident or through flawed medical treatment.
The claimant lawyer usually acts for one individual, but sometimes a claim may be brought by a group of people – this is a class action or multiparty claim. The defendant lawyer represents the party alleged to be responsible for the illness or injury.
In most PI cases the claim against the defendant will be taken over by the defendant’s insurance company, which will then be the solicitor’s client. Local authorities are common defendants in relation to slips and trips, while employers usually end up on the hook for accidents in the workplace. In a majority of clinical negligence cases, the defendant will be the NHS, although private medical practitioners and healthcare organisations are also sued.
What lawyers do
- Manage the progress of a case over a period of months, even years, following an established set of procedural rules.
- Attempt to settle the claim before trial or, if a case goes to trial, brief a barrister and shepherd the client through the proceedings.
Claimant solicitors
- Determine the veracity of their client’s claim and establish what they have suffered, including income lost and expenses incurred. The value of the claim (so-called 'quantum') will be based on this.
- Examine medical records and piece together all the facts. Commission further medical reports.
- Issue court proceedings if the defendant doesn’t make an acceptable offer of compensation.
Defendant solicitors
- Try to avoid liability for their client or resolve a claim for as little as possible.
- Put all aspects of the case to the test. Perhaps the victim of a road traffic accident (RTA) wasn’t wearing a seatbelt? Perhaps the claimant has been malingering?
Realities of the job
- Personal injury work is driven by the procedural rules and timetables set out in the Civil Procedure rules, which are strictly enforced by the courts.
- There is a mountain of paperwork, including witness statements and bundles of evidence.
- Claimant lawyers have close contact with large numbers of individuals and need good people skills.
- Defendant lawyers need to build long-term relationships with insurance companies. Clin neg defendant lawyers need to be able to communicate well with medical professionals and health sector managers.
- PI lawyers have large caseloads, especially when dealing with lower-value claims.
- There is some scope for advocacy, although barristers are used for high-stakes or complicated hearings and trials. Solicitors appear at preliminary hearings and case management conferences.
Current issues
October 2023
- Changes to the Qualified One-Way Costs (QOCS) are now applicable to claims issued on or after 6 April 2023, which will permit defendants to actively enforce cost orders against claimants. Initially, QOCS was intended to protect honest claimants from being laboured with the defence’s costs and made it virtually impossible for the defendant to recover costs upon a claim being settled. Now however, defendants can claim “the aggregate amount in money terms of any orders for or agreements to pay or settle a claim for, damages, costs and interest.” Thus, there is the very real possibility that a claimant could find their entitled damages are absorbed in offsetting the defendant’s costs!
- The so-called Whiplash reform introduced in 2021 cut personal injury claim compensation in an attempt to limit fraudulent claims. The changes introduced fixed tariff compensation awards for soft-tissue injuries that take less than two years to heal. For injuries lasting 18 to 24 months, current estimated average damages are £4,750 whereas the fixed tariff compensation award is £3,910. In February 2023, the Justice Committee announced an inquiry into the legislation, and the outcome of the inquiry is currently unknown.
- To address the pandemic backlog and relieve pressure on the NHS, by 2025, the government is expected to invest £8 billion to tackle ‘backlog, deliver an extra 9 million checks, scans and operations, and 160 community diagnostic centres.'
- Cancer patients have been particularly hard-hit by the effects of the pandemic, with patients facing delays for tests and appointments. Indeed, the research journal, Lancet Oncology, reported in August 2020 that there has been a significant increase in the number of avoidable cancer deaths as a result of these delays. Experts now predict that in the coming months there will be an increase in cases brought against the NHS by patients who were denied access to the necessary treatment.
- NHS Resolution has put aside £1.3 billion for COVID compensation payouts, £610 million of which is for victims of delayed treatments, misdiagnosis, and avoidable deaths, in preparation for the rise in cases.
- In 2022, maternity litigation reached a record high. In the NHS Maternity services clinical negligence is cost more than double the annual spend on maternity care, with a cost of £8.16 billion compared to the £3 billion annual spend.
- In 2023, the Association of Personal Injury Lawyers (APIL) ran a focused campaign on the impact of avoidable injuries. The event sought to build public support and awareness to prevent people becoming victims of negligence. The APILs Injury Prevention Week was introduced as a way of reducing compensation claims by reducing the number of accidents - as opposed to more drastic legal reform. Estimates reveal that 1.6 million people in the UK are victims of negligence. Previously, APIL’s Injury Prevention Week has covered topics such as the risk posed to pedestrians by vehicles, as well as last year’s focus on e-scooters.
- The last year has seen legal costs for clinical negligence cases rise across the board. In July 2022, NHS Resolution (a body within the Department of Health and Social Care) published their annual report indicating a rise in both claims and defence costs relating to clinical negligence. According to the 2021/22 report claimant legal costs rose by 5.1%, and damage payments by 10.3%.
- Claims under £5,000 for road traffic accidents or under £2,000 for other accidents will now be handled by the small claims court (which previously dealt with matters under £1,000). This means more serious injuries will now be handled in small claims court. It is important to note that solicitors can’t recover legal costs from defendants in small claims court, which means these cases will no longer be cost-effective for law firms, making it more difficult to get legal representation.
- All eyes were on the Supreme Court in March 2021 as a judgment was announced on the case Shannon v Rampersad, which involved the issue of care costs. The case hinged on whether care workers who ‘sleep-in’ during a shift with an injured person should be entitled to the minimum wage during those sleeping hours. While an employment case, it had interesting implications for personal injury lawyers, since night care is a key factor in calculating costs in personal injury litigation. It was ultimately ruled that the hours in question need not be included in salaried hours unless the person was awake for the purposes of working.