Personal injury and clinical negligence

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.

Personal Injury

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 2020

  • In an attempt to limit fraudulent claims, the government will be cutting personal injury claim compensation from April 2021 onwards. The reform proposes fixed tariff compensation awards for soft-tissue injuries that take less than two years to heal, which is significantly less than current estimated average damages. For example, for injuries lasting 18 to 24 months, current estimated average damages are £4,750 – the proposed fixed tariff compensation award is £3,910.
  • 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.
  • The Ministry of Justice proposed a new claims portal, to be developed by insurers, for claimants in low-value PI claims. This would run alongside an existing portal, currently accessible only by claimant lawyers. ‘Official Injury Claim’ – the portal – will be for those looking to make a personal injury claim of up to £5,000. The idea is to make the process simple and accessible, especially to those without legal help. Claimants, representatives and compensator organisations have been able to register with the site since January 2020; it’s currently set to go ahead from April 2021.
  • The Legal Aid, Sentencing and Punishment of Offenders Act of 2012 (also known as LASPO or the Jackson reforms) withdrew legal aid for most clinical negligence claims, placed a ban on referral fees in personal injury cases, and ruled that successful claimants can no longer recover success fees or after-the-event insurance premiums from the losing party. As a result, the legal sector has become more competitive, with some 3,500 firms in 2016 competing for the same population of claims according to PwC, and larger PI firms have been diversifying into related areas like clinical negligence. Mergers have been the only option for some firms, further adding to the trend for consolidation in the legal market. Law firms are also investing more time and money in marketing strategies in order to target clients directly.
  • The NHS paid out £2.36 billion in clinical negligence damages in 2018-19, an increase of almost 50% on the previous year. The NHS Confederation, a lobby group for the service, proposed measures including setting fixed recoverable legal costs for low-value cases of compensation up to £25,000 and a voluntary alternative compensation scheme for birth injury cases. In 2019-20, total payments decreased by 1.5% to £2.32 billion, despite the NHS actually receiving more new clinical negligence claims (a 9.4% increase from 2019 to 2020). The use of alternative dispute resolution such as mediation has also increased, a welcome development for many.
  • The coronavirus pandemic prompted the creation of the Coronavirus (Covid-19) Personal Injury Protocol, which was launched in March 2020 and lasted until 30 June 2020. A total of 155 law firms and insurance companies signed up to it with the idea of mitigating the impact of Covid-19 on access to justice for injured claimants. Under the new protocol, organisations agreed to freeze all limitation dates in personal injury cases and implement a hotline which covers failure to comply with the freeze.
  • NHS Resolution launched the Clinical Negligence Scheme for Coronavirus in order to support changes in provisions of care that arise from the Covid-19 pandemic. It is expected that claim numbers could increase again in the aftermath of coronavirus.
  • 2020's lockdown period resulted in a dramatic decline in the number of personal injury claims being filed: the Compensation Recovery Unit recorded 94,733 claims in the second quarter of the year, a 35% decline compared to the same period in 2019.