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Regaining the art of co-operation: Andrew Ritchie QC on the case for arbitration for personal injury and clinical negligence claims.
Many shipping, building and commercial disputes are resolved by arbitration. So why is arbitration not used to resolve personal injury and clinical negligence claims?
Arbitration should be used. It will be quicker, much more co-operative and flexible and less expensive than the current civil justice system. There are powerful reasons in existence now for turning away from use of the civil justice system as the only means to resolve personal injury and clinical negligence claims.
So what should parties in personal injury and clinical negligence claims do? I suggest that we need to take back control over the process of resolution. That can be achieved best by constructing a robust and fair arbitration system or systems. The key to the justice in such a system lies in the quality of the judges, so I suggest that experienced, independent, personal injury and clinical negligence silks should be the arbitrators. The key to procedural fairness in such a system is reliance on the Civil Procedure Rules before April 2013 where the overriding objective was justice between the parties. The key to keeping the costs in such a system reasonable is for the parties to agree hourly rates in advance on both sides at around, say, 10% below the market rates, thereby creating certainty and abolishing the need for lengthy costs’ hearings.
The benefits
The benefits of arbitration are multiple. All of the inefficiencies and the costs of the county courts and the High Court will be avoided. There will be no court costs, no costs budgeting hearings, no waiting around at court for hearings to be started, no last minute adjournments, no lost trial bundles, no lost skeleton arguments. There will be no Mitchell strike outs, no wasteful procedural punishments for minor infringements of timetables and most important of all there will be co-operation between the parties lawyers. Co-operation is at the root of efficient handling of claims. My experience of having set up one such system is limited for the company is in its infancy. Others may find a more polished route.
In practice
E-filing: Under the system which I propose, to start the arbitration the Parties simply download and sign the Arbitration Agreement, setting out the agreed hourly rates. This is then fi led (uploaded) through an internet based court e-system which is paperless. Pleadings and orders, witness statements and medical reports are uploaded onto the system. The parties and the arbitrator have a user name and password to access all of the filed documents.
Running the procedure: The parties set the timescales. If they cannot reach agreement, they contact the arbitrator who makes a decision either on paper or at the end of a telephone hearing.
Early neutral evaluation: When the evidence is complete an early neutral evaluation will be requested from the arbitrator and that will settle the claim if the parties accept the evaluation. The parties can arrange a joint settlement meeting whenever they like or if necessary a mediation.
Arbitration: If no settlement emerges the claim can go on to a final arbitration hearing (trial). Arbitration hearings are face to face and take place either in the arbitrator’s chambers, or in the solicitors’ offices, or in commercially hired rooms. Rights of appeal from arbitrators’ decisions are restricted to points of law in the main. But the Court of Appeal rarely allows decisions on the facts to be appealed in any event.
Conclusion
Despite the enormously high quality and undoubted independence of our High Court and County Court judges, it is time for a change away from litigation. A change away from a service which is no longer always civil and no longer focused on justice between the parties. A change away from an expensive, slow, inefficient, heavy handed system which encourages lack of co-operation. It is time for the parties, the insurers and the injured to co-operate again. To litigate through arbitration. To settle with properly paid professional advice under the guidance of experienced arbitrators.
So I suggest that we arbitrate, not litigate. It is better for our clients, whether they are insurers or those injured by tortfeasors.
Arbitration should be used. It will be quicker, much more co-operative and flexible and less expensive than the current civil justice system. There are powerful reasons in existence now for turning away from use of the civil justice system as the only means to resolve personal injury and clinical negligence claims.
So what should parties in personal injury and clinical negligence claims do? I suggest that we need to take back control over the process of resolution. That can be achieved best by constructing a robust and fair arbitration system or systems. The key to the justice in such a system lies in the quality of the judges, so I suggest that experienced, independent, personal injury and clinical negligence silks should be the arbitrators. The key to procedural fairness in such a system is reliance on the Civil Procedure Rules before April 2013 where the overriding objective was justice between the parties. The key to keeping the costs in such a system reasonable is for the parties to agree hourly rates in advance on both sides at around, say, 10% below the market rates, thereby creating certainty and abolishing the need for lengthy costs’ hearings.
The benefits
The benefits of arbitration are multiple. All of the inefficiencies and the costs of the county courts and the High Court will be avoided. There will be no court costs, no costs budgeting hearings, no waiting around at court for hearings to be started, no last minute adjournments, no lost trial bundles, no lost skeleton arguments. There will be no Mitchell strike outs, no wasteful procedural punishments for minor infringements of timetables and most important of all there will be co-operation between the parties lawyers. Co-operation is at the root of efficient handling of claims. My experience of having set up one such system is limited for the company is in its infancy. Others may find a more polished route.
In practice
E-filing: Under the system which I propose, to start the arbitration the Parties simply download and sign the Arbitration Agreement, setting out the agreed hourly rates. This is then fi led (uploaded) through an internet based court e-system which is paperless. Pleadings and orders, witness statements and medical reports are uploaded onto the system. The parties and the arbitrator have a user name and password to access all of the filed documents.
Running the procedure: The parties set the timescales. If they cannot reach agreement, they contact the arbitrator who makes a decision either on paper or at the end of a telephone hearing.
Early neutral evaluation: When the evidence is complete an early neutral evaluation will be requested from the arbitrator and that will settle the claim if the parties accept the evaluation. The parties can arrange a joint settlement meeting whenever they like or if necessary a mediation.
Arbitration: If no settlement emerges the claim can go on to a final arbitration hearing (trial). Arbitration hearings are face to face and take place either in the arbitrator’s chambers, or in the solicitors’ offices, or in commercially hired rooms. Rights of appeal from arbitrators’ decisions are restricted to points of law in the main. But the Court of Appeal rarely allows decisions on the facts to be appealed in any event.
Conclusion
Despite the enormously high quality and undoubted independence of our High Court and County Court judges, it is time for a change away from litigation. A change away from a service which is no longer always civil and no longer focused on justice between the parties. A change away from an expensive, slow, inefficient, heavy handed system which encourages lack of co-operation. It is time for the parties, the insurers and the injured to co-operate again. To litigate through arbitration. To settle with properly paid professional advice under the guidance of experienced arbitrators.
So I suggest that we arbitrate, not litigate. It is better for our clients, whether they are insurers or those injured by tortfeasors.
Regaining the art of co-operation: Andrew Ritchie QC on the case for arbitration for personal injury and clinical negligence claims.
Many shipping, building and commercial disputes are resolved by arbitration. So why is arbitration not used to resolve personal injury and clinical negligence claims?
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