By Lisa Cheyne, Medico-Legal Manager, SpecialistInfo

Image © Tero Vesalainen

Medico Legal News, Issue 7

By Lisa Cheyne, Medico-Legal Manager, SpecialistInfo

Issue 7

Supreme Court Ruling Imminent on Litigants in Person (LiPs)

The Law Society Gazette has reported that the Supreme Court has been asked to decide for the first time whether litigants in person (LiPs) should be granted special dispensation in a landmark case that could rewrite Civil Procedure Rules.

Mark Barton took his appeal to the court last November, arguing he was ill-equipped to understand the Civil Procedure Rules as a LiP. A successful appeal could mean the rules are changed to help the growing number of claimants without legal representation.

He brought professional negligence proceedings against law firm Wright Hassall in relation to a negligence claim against his former solicitors. Unrepresented, Barton emailed his claim form to Wright Hassall’s lawyers without confirmation that it would be accepted this way. The claim was subsequently ruled invalid.

A district judge ruled that Barton was not entitled to ‘special rules or indulgences’ and the Court of Appeal backed that decision.

In a one-day hearing at the Supreme Court in November, the appellant, now represented by Parklane Plowden Chambers on a direct access basis, argued that the rules are too complex for LiPs.

His lawyers told the court: ‘Judges at all levels appear to have substantially underestimated the difficulty that a LiP would have in relation to the commencement and service of a claim.’

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Medico-Legal Expert Questions Practical Delivery of Small Claims Rise

A leading independent medical reporting organisation, MAPS Medical Reporting, has responded to an academic’s call for an overhaul of the claims process before the government presses ahead with plans to increase the small claims limit from £1,000 to £5,000.

Reacting to comments made by Cardiff Law School academic Annette Morris at the Westminster Legal Policy Forum (and reported in the Law Society Gazette Thursday 26 October 2017) that ministers must ‘adapt’ the claims system and portal to handle litigants in person (LiP) before considering raising the small claims limit, David Stothard, an expert in the medical and legal aspects of personal injury claims and director of MAPS Medical Reporting, says that for LiPs not to struggle with the claims process would require a complete overhaul of the system.

The intervention follows confirmation from Justice Secretary David Lidington that the current government intends to proceed with a proposed Civil Liability Bill, which would see a 100% increase in the small claims limit for all non-road traffic-related personal injury cases and a fivefold increase in the limit for road accident cases.

“The idea of a system able to withstand thousands of lay people bringing forward claims up to the value of £5,000 – some of which would be medically complex - without help from qualified solicitors, takes quite a leap of imagination. It is incredibly ambitious, bordering on fanciful. Is the government tied up as it is with Brexit really going to commit to the kind of huge IT project that will be required to deliver a workable and fair system?”, Mr. Stothard asked.

“It’s extremely questionable if there is the political will for the substantial investment required and without it the likely outcome is chaos and gross unfairness. An implementation date of April 2019 as is currently being mooted by commentators is starting to look somewhat unlikely.”

MAPS Medical Reporting argues that without substantial changes to the claims portal, it would be near-impossible for litigants in person to effectively use the MedCo system.

David Stothard, managing director of MAPS Medical Reporting said: “Ms. Morris – repeating a government line - says that most minor injury claims are ‘straightforward and routine’, however the automated portal and MedCo systems are far from it.

“Selecting and appointing appropriate medical experts and procuring accurate medical reports are essential to lodging a claim and getting the best outcome for injured people. Unless the government really doesn’t care about the quality of the medical evidence or for that matter justice, you have to ask, if qualified professionals from major law firms have raised concerns about the efficacy and ease of dealing with MedCo, how will injured lay people cope?”

PI Sector Still Confident for 2018

A survey carried out by marketing collective First4Lawyers found that 69% of personal injury firms surveyed are expecting profits to rise and 76% envisage that turnover will increase.

First4Lawyers managing director Qamar Anwar said: ’Whatever the outcome of the government reforms, there will still be injured people looking for legal assistance. The question is where they will go and our analysis of the market shows that firms realise that they have to raise their game and their profile.

The government is preparing to raise the small claims limit and set fixed tariffs for soft tissue RTA claims. Both developments are likely to put greater pressure on firms operating in this field. The majority of respondents expect more closures, mergers and redundancies in the next 18 months, but most were confident in their own firm’s ability to adapt.

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New “Early Redress” Scheme to be Introduced for High Value Negligence Claims

Health Secretary, Jeremy Hunt, confirmed at the end of November that a new compensation scheme for expensive maternity negligence claims should be in place from April 2019.

After detailing the unsustainable costs of £500m last year settling obstetric claims, Hunt stated:

“Really when people go to the law, we have failed. If we get this right - if we can be more open, honest and transparent with families earlier on - it will, I hope, mean many fewer legal cases, although I am sure that the lawyers will always find work elsewhere.”

Following a consultation, the Department of Health will develop the rapid redress and resolution scheme with the aim of improving safety and patients’ experience and reducing costs.

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Expert Witnesses Surveyed

A 2017 survey of 800 experts for The Times by Bond Solon, has concluded that cuts to legal aid, rising numbers of litigants in person and the ‘hired gun’ are major concerns for expert witnesses.

Mark Solon, solicitor, says: “A high number of experts surveyed, 50 per cent, indicated they have felt stressed as a result of their work as an expert witness.

He elaborated: “Reforms introduced to the rules in 2013 means they have to comply with court timetables and tighter deadlines for reports. Changes in costs budgeting, proportionality and funding have also put a strain on experts within tight budgets.

“A litigant in person has the ultimate vested interest in winning and may not understand the rather unusual position of an expert witness — that although instructed by a party in a case and paid by them, the duty of the expert is to assist the court and not to win the case for one party.

“The fact that the litigant in person cannot afford a lawyer does not bode well for the expert being paid. Also, experts may have to hold the hand of the litigant in person who doesn’t understand the legal process and this could take a great deal of time, possibly unpaid.”

Additionally, the survey revealed that about 30 per cent of experts have been asked or felt pressurised to change their report by the lawyers who instruct them in a way that damages their impartiality. And 46 per cent feel that the ‘hired gun’ still exists, despite the provision in the rules made by Lord Woolf, the former lord chief justice, that an expert’s duty is to the court, not those instructing them.

“Solicitors need to understand the role of experts and should not consider them as an adversarial tool,” Solon says. “Judges need also to keep a careful eye out for bias. If lawyers put such pressure on experts, that is even more likely with litigants in person.”

Worryingly, around 75 per cent of experts say that they have come across unqualified expert witnesses who have provided poor quality advice.

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