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Five ways Covid-19 may change litigation

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Litigation, as with the world in general, has changed significantly in 2020. We could not have ever possibly foreseen how during this year we would all have to move rapidly to working remotely and digitally. It may well have accelerated changes in many firms towards digitalisation and a more agile way of working. It is likely that solicitors sitting behind desks each day in a crowded office might be a thing of the past.

How will this huge change which has been thrust upon us affect the way we run our cases? Inevitably, there will be changes which are obvious; for example there are very likely to be more remote court hearings.

It may well be that costly expert conferences in person are less common and no doubt a defendant at the cost budgeting stage will argue for a reduction in the expert phase because conferences or expert appointments can take place virtually (thereby reducing the amount of travel time).

I have given thought in this article about how the pandemic might impact on litigation over the coming years and how it will affect the way we run our cases in the future. I have set out five potential ways in which our way of working may change and the possible challenges we might all face.

  1. Interim payment applications may need to be made at a very early stage

The NHS has been put under huge strain over the last few months. Thousands of our routine operations have been cancelled. There is going to be a significant backlog for treatment in the NHS when lockdown is eventually eased and this means that clients, who may have waited a long time for surgery, may face an even longer wait. It should always be a matter of good practice to seek interim funds at the first available opportunity to allow our clients to undergo privately funded treatment. It has long been well established (Law Reform Act 1948) that the claimant does not

have to rely on statutory services for treatment. We must act proactively and decisively in making early interim payment applications to allow a claimant to access privately funded treatment to avoid any delay in waiting for such treatment or rehabilitation under the NHS. A defendant may well be resistant to such an approach, but interim payment applications are going to become ever more important to secure early funds to ensure that claimants have the best possible opportunity to access rehabilitation quickly.

We have seen that lockdown has unfortunately already had a significant impact on rehabilitation as, in many situations, clinicians have been unable to provide hands on therapy. The need to have an effective rehabilitation programme up and running as early as possible is paramount.

To secure early interim payments means ‘front loading’ a case, namely running a case proactively right from the start; in the form of obtaining early preliminary expert evidence, witness evidence and drafting an outline Schedule of Loss.

  1. Loss of earnings claims are up for grabs

It remains to be seen what arguments the defendant might raise when faced with loss of earnings claims at joint settlement meetings or a trial. For the claimant’s part, the coronavirus pandemic may be used to advance arguments in support of a larger loss of earnings claim.

For example, where a claimant has been involved in an accident pre 2020 but may be fit for some sort of work, there may be an argument that he has a significant handicap on the open labour market. Nobody knows what an economic recession might look like in the coming years or what level of redundancies might be linked to Covid-19.We can advance an argument that even where a claimant might be fit for work, the prospects of any residual earnings are limited (particularly where a claimant is disabled under the Disability Discrimination Act).

It may well, therefore, be open to a claimant’s solicitor to argue on behalf of his or her client that there is a long-term loss of earnings claim because there are so few jobs open and available to the claimant. Conversely, it will be interesting to see how the defendant approaches some loss of earnings claims. Take for example a claimant who was injured pre-2020 but was working for a firm who has now ceased trading as a result of Covid-19.

Would the defendant seek to argue that absent the accident, the claimant would have lost his job in any event and therefore the loss of earnings claim should be capped at the point when the claimant’s employer closed?

It is potentially a novel argument and one which might not find favour with a trial judge, but I can foresee circumstances where it will inevitably be advanced and when it might well
be successful.

  1. The parties should be able to case manage without the Court imposing directions

Although the courts have coped admirably with the lockdown by moving swiftly to remote hearings, there is inevitably a backlog in the listing of some hearings. For example certain hearings, such as trials, may well not be suitable to take place remotely.

Experience can vary nationwide, and whilst in London the courts have been able to operate effectively to minimise backlog, this is not always the case with courts in other parts of the country. It is likely that in the majority of cases the lifetime of an average case will have been prolonged because of the pandemic.

A number of experts have been able to virtually assess claimants, but this has been variable and experts in some disciplines, such as in the field of neuropsychology, have had to delay assessments until they can be safely done in person. The will mean that large numbers of expert appointments have not taken place and therefore there is going to be substantial backlog of assessments in some disciplines when lockdown is finally eased further. I think it is inevitable that cases which you would have expected to have settled in the next 12 months might well take another year or so because of the delay in obtaining some expert evidence.

The Civil Procedure Rules have always required the parties to co-operate, see for example paragraph 1.4 (2) (a) which encourages‘the parties to co-operate with each other in
the conduct of the proceedings’. The court will want to see evidence of collaboration. For example, I have very recently received an order listing a costs and case management conference (CCMC) in five months’ time, which reminds the parties to attempt to‘make such progress as is practicable in relation to matters such as disclosure and witness evidence’. A CCMC is a hearing before a judge where a timetable

for the litigation is set and the parties are ordered to take certain steps by a certain date to progress the case to a trial. The order I describe above encourages the parties
to agree certain steps in the litigation before the CCMC, such as a date to exchange lists of documents and witness statements. But why stop there? It is open to sensible parties to agree for a date of exchange of expert evidence, and even to attempt to timetable a case in such a way that there is very little for a judge to decide at any subsequent CCMC.

It will require collaboration and pragmatism, but we’ve seen lots of examples of this over recent months and I hope it will continue beyond the pandemic. It may well be in all the parties’ interests to seek a quicker resolution to a claim than waiting an inordinate length of time for a CCMC to be listed. Delay is not going to help a claimant in most circumstances and progress will always be beneficial for all involved.

  1. Cost Budgets might need to be completely reworked

At a CCMC, the judge will also order ‘costs budgets’, which permits the parties to spend a specified amount of time and money in various different phases of the case. I have described how there may well be significant delays in litigation because not only will experts not have been able to examine claimants in person, but the courts have not been able to list some hearings, whether that be a CCMC, pre-trial review or trial.

This means there will be a significant amount of directions which have not been complied with. We saw that the Rules Committee early into lockdown permitted the parties (until the end of October) the ability to vary directions by agreement by up to 56 days without a court application. In many situations, this will not be enough and an application will need to be made (usually by consent and the court will often be amenable to such an application given the extenuating circumstances) for a wholesale variation of the case management timetable. What does this however mean for costs budgets?

Whereas previously a case might be budgeted on the basis of reaching a trial in the next 18 to 24 months, you may find that the trial is now much further away. This could potentially mean further disclosure, for example if you have a case manager involved, there will be much more case management work to factor in to the issue / pleadings phase or disclosure phase within the budget. You may find that there are some phases of the ordered budget which are now simply not enough because of the extended lifetime of the case.

For example, will witness statements need to be updated? If a case is prolonged for another 12 months, do you need to factor in taking further witness statements to reflect a change in functioning, work or rehabilitation; or even to describe the impact of Covid on the claimant’s life? Will the case that has been listed for a split trial because of uncertainty regarding the claimant’s long term prognosis, now no longer require a trial on liability only because of the passage of time, and is it capable of being heard in one trial? There are numerous different contingencies to bear in mind when considering whether the costs budget which was set pre-lockdown is now still sound. I suspect that there will be numerous cases whereby costs budgets may need wholesale redrafting to take into account delays and also potential new developments (for example if the claimant has unforeseen surgery or his condition deteriorates / improves).

We must be extremely vigilant as always in checking and rechecking our costs budgets and I would advocate reviewing every single costs budget you may have on file to check whether it is still fit for purpose. Any applications should be made in a timely fashion, given the aforementioned potential delays waiting for a CCMC listing.

  1. Periodical Payment Orders may be offered more frequently

The Ogden tables are statistical tables used by the legal profession to calculate future losses in personal injury claims. In July 2020 the 8th edition of the Ogden tables were released, and one key change in the table was the reduction of life expectancy.

The country has seen a massive loss of life due to Covid-19. When faced with a claim by an older claimant, I would not be surprised to see the insurer be more willing to offer PPO’s to conclude the case. While PPO’s are common place when there are concerns of life expectancy, they might become even more attractive to an insurer where there is a risk of a second wave, or even a more localised spike in infections, and potentially those at risk have a heightened chance of loss of life.

This might sound extremely cynical, but where insurers might previously have been reluctant to offer PPO’s, preferring to settle the case on a lump sum basis to get the claim off their books, there may now be a wind of change which means that insurers are keener to offer PPO’s on the basis that there is a potential heightened risk of a shortened life expectancy due to a possible second wave, particularly if the claimant is in a vulnerable category and / or might live in a care home.

Summary

What has been so encouraging to see over the last few months is the way that parties have been able to collaborate, co-operate and find new and innovative ways of working together. I have seen some fantastic examples of the parties being pragmatic and sensible to achieve a fair solution for all.

Hopefully the ‘darker days’ of the post Mitchell era when parties were almost encouraged to catch each other out is long gone (in 2013 The Court of Appeal upheld a strict judgment in a landmark case involving then government minister Andrew Mitchell which established a hardline approach by the courts towards costs budgeting. This judgment was then used by some parties to seek an advantage in litigation where one party had failed to comply with the strict application of the rules).

I hope instead that as lockdown gradually eases and as a country we begin to emerge from this crisis, a sensible and pro-active approach to litigation continues.

HIWIN

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