Why Do Serious Injury Claims in England and Wales Rarely Go to Trial?
It’s often assumed by the public that serious injury claims in England and Wales end up being decided by a judge sitting in court. After all, they involve complex medical issues, with life-changing consequences for the injured person and their family. So, surely let the judge decide how much the claimant should get?
The total compensation awarded in complex injury cases can run into the millions of pounds, but only after an enormous amount of skilled legal work from the lawyers involved in the case. So, it might surprise laypersons that most serious injurycases settle (in excess of 96%) and resolve without the necessity of a full trial on liability or quantum.
This is not due to the simplicity of the issues or to the modest nature of the injuries – far from it. It is because the English civil justice system forces the parties to the claim to identify strengths and weaknesses, exchange evidence, and evaluate the risks involved long before trial.
Whilst serious injury claims are frequently listed for trial, this only serves to put further pressure on the parties to ensure they have all the evidence they need to enable serious and meaningful negotiations to take place before the court hearing.
Is there an early focus on resolving the question of liability in serious injury claims?
In serious injury litigation cases, liability is addressed at an early stage. The Pre-Action Protocol for Personal Injury Claims applies to lower-value cases, where the expected damages require the claimant to set out the factual and legal basis of the claim at the outset, supported by whatever evidence is available. The defendant is then required to investigate and provide a reasoned response.
Whilst serious injury claims are conducted without the requirement to adhere to a strict protocol, it is expected that the spirit of the protocols should still mean that matters are dealt with expeditiously. Indeed, the Practice Direction on Pre-Action Conduct makes it clear that it expects parties to do all they can to avoid unnecessary litigation, with costs sanctions as the penalty for failing to do so.
It is therefore relatively common for defendants or their insurers to make an early admission, after which the case focuses entirely on the consequences of the injury and the level of compensation required.
Even where liability is contested, English courts expect parties to clearly identify the points of disagreement and get to the crux of what is in dispute and what’s not.
What is the role of medical and expert evidence in serious injury claims in England?
In serious injury claims, obtaining the right medical evidence is at the centre of the whole claim. Medico-legal evidence from multiple experts is usually required. The severity of the claimant’s injuries usually means that follow-up reports are required on an ongoing basis. As a result, it is often impossible for the parties to assess final damages until a firm prognosis can be made with confidence. This means that cases may take many months, if not years, to reach a conclusion.
However, during this time, the parties will exchange expert reports covering not only the medical position, but also care needs, whether the claimant’s accommodation needs adaptation (or even changing altogether), if there is a requirement for assistive technology (and if so, what types), and future loss of earnings. These reports are usually prepared by acknowledged experts in each field and remain subject to strict procedural rules.
Once both sides have digested all the expert evidence, the likely range of damages can start to be assessed. There may still be differences between the parties, but they are usually about the extent of the injury or loss, rather than whether compensation is due at all. By this stage, going to court for an assessment trial becomes less attractive, due to the extra costs involved. In other words, it becomes a question of whether the costs, delay, and uncertainty of a hearing are justified when both parties are in broad agreement about what the case entails.
How do English judges manage serious injury cases and control costs?
English judges play an active role in managing serious injury claims through case management conferences and cost budgeting. At the case management conference, the parties must justify the steps they propose to take.
The costs budgeting hearing requires the parties to provide a detailed estimate of the legal costs each expects to incur throughout the proceedings. The court will then state the extent to which it approves each budget.
Serious injury claims are expensive to run. A sensible settlement reached earlier can often deliver a better outcome for all involved.
What effects do interim payments have on settling serious injury cases?
Another reason serious injury cases settle is the need to support the injured claimant while the claim progresses. Where liability is admitted, interim payments are often made to fund rehabilitation, care, equipment, and adaptations to accommodation.
Once the claimant’s immediate needs are being met, the case becomes less adversarial. The emphasis shifts towards long-term planning.
Isn’t settling a serious injury claim a weak option?
It would be wrong to think that serious injury trials never happen. Some cases do need to be decided by a judge at court. Liability is not always admitted in serious injury claims. Expert evidence cannot always be agreed upon. Still, such cases remain in the minority.
Settling a case is sometimes seen as a soft option. That may be the case with some lower-value claims.
However, lawyers who act for seriously injured or catastrophically injured claimants, and indeed their counterparts acting for the defendant, are usually highly experienced specialists with years of experience behind them. They are equally expert at balancing risk and reward for their clients and know that getting the best result doesn’t always involve their clients in “having their day in court”.
