19 May 2021 | Comment | Article by Ciaran McCabe

ABI Week 2021: Litigation in Lockdown - The Implications of the Pandemic on Brain Injury Claims

As you well know 2020/21 will be remembered for very little else than the COVID 19 pandemic. Since Boris Johnson’s television broadcast on the evening of 23 March 2020 informing us that we should only leave our homes for limited reasons, we have lived under legal restrictions that have impacted on almost all aspects of our lives.

 I want to talk to you about how the pandemic and restrictions have affected the way we work and how it has impacted upon our clients with reference to my personal experience.

The last 8 months have had a profound impact on the way we operate as a firm of solicitors , how we progress cases and communicate and take instructions from our client’s, how we interact with our experts and counsel and how cases are progressed in the courts and ultimately settled.

 As we know back in March, we could see the lockdown coming down the tracks like an express train, the frantic few weeks before the lockdown were spent focusing in on urgent work on cases for example  cases which may need issuing at court while the courts remained open !

 A settlement meeting, we had scheduled just before lockdown, hinted what was ahead.

As you probably know settlement meetings usually occur at a barrister’s chambers or law firm office. The claimant and their legal team occupy on room, the Defendants legal team and insurer another and then there is a neutral room for negotiation.

 Due to their employer’s restrictions on business travel, the Defendant solicitor and insurer where unable to travel to our offices where the settlement meeting was to be held, they participated remotely in negotiations.

My clients attended as did Defendants counsel, but no handshakes – elbow bumps and social distancing were the order of the day! The new normal had arrived.  Liability was fortunately resolved at the meeting, but as the client lacked capacity the settlement had to be approved the court and this was done a month later remotely via video conferencing.

Following the lockdown courts moved online  relatively quickly, fortunately they already had in development their own video conferencing  Cloud Video Platform (CVP) which  is a secure digital network that gives the court service and the judiciary the ability to manage and conduct cases digitally with other trial and hearing participants, where those participants have access to the internet and have a laptop, tablet or smartphone.

As the lockdown restrictions continued into June, we were involved in a second settlement meeting acting for a claimant with a brain and spinal cord injuries following a road traffic accident in a claim worth well more than £15 million. In addition, due to the complex nature of the claimant’s personal circumstances his litigation friend was the Official Solicitor and in total there were 25 experts involved in the claim.

The settlement meeting was held on line via Microsoft Teams rather than 3 meeting rooms we had 3 virtual Microsoft teams meetings running,  in a settlement meeting running for over 7 hours .

 Flipping between virtual meetings for 7 hours from  home  , contrasts greatly with the dynamic of a settlement meeting pre lock down  which would in this case would have probably been held at  a Barristers Chambers in London  off Chancery Lane , a stone’s throw from the Royal Courts of Justice. 

 Sadly, we did not reach settlement for various reasons, but the intensity of 7 hours virtual negotiation was very draining, I can assure you.

Fortunately, in this claim, we did not require the injured claimant to be with us for that length of time as we were taking instructions from the Official Solicitor.  As no settlement had been reached, we faced the prospect of a totally online trial a few months later.  My first thought was that perhaps the logistical nightmare of such a high value trial with so many experts would help focus the Defendant’s mind and bring about the settlement terms we were seeking.

However a month before trial the impasse between us remained , there had been a few successful trials in London and Cardiff  I had read about , since the settlement meeting back in June but  I must admit the thought of entering a 10 day trial completely online was a sobering prospect even for leading counsel – on both sides!

Finally very close to trial the defendants compromised , they agreed to  our terms on the final sticking point the size periodic payment for care and case management .Who knows if the  pending online trial using an untested system, with so much scope for matters to take a turn for the worse or simply  technology to fail,  influenced the defendants compromising on the settlement we sought .But I believe it must have been factored in by them. There is a great liking for certainty as you approach trial amongst lawyers!

The settlement was approved online shortly after, bringing about an eight figure multi-million-pound settlement for the deserving claimant.

The final and most recent settlement meeting which we  successfully concluded again was completed conducted entirely virtually, with the client and his wife at their home providing instructions to us by Microsoft Teams and then allowing us to negotiate with the defendants.

In this claim there were 2 defendants who hadn’t reached an agreed position on the liability split between themselves, this led to long delays and a settlement meeting which ran for 8 hours.

This was very emotionally draining for the claimant who was providing instructions, it would have been, even if this had been in person, however  the additional struggle,  with the IT and the delays brought about much anxiety.

The claimant due to the nature of their injuries tired very easily and this was exacerbated by what is commonly now being referred to as “zoom fatigue”. All parties involved in the meeting find themselves focus on the screen for long periods of time and focusing on the conversation a lot more. Obviously for those with a brain injury even if moderate, this can extremally tiring.

In this case, after 8 hours I could tell my client was struggling and advised him and his wife that it might be best to sleep on the last offer and take a decision upon it in the next few days.

Fortunately, the defendants understood the position an accommodated our request and a settlement was reached in the next few days after the heavy lifting had been undertaking.

Technology has allowed cases to progress in lockdown and for claimants to settlements to be reached. “Necessity has definitely been the mother of invention “and we have all quickly up skilled our IT skills to cope.

However, I ‘ve reached the conclusion rather quickly thar for undertaking successful brain injury litigation, especially the client contact and negotiating aspects there is probably no better way that the old-fashioned way.

I think some of the advances we have made such as using electronic PDF court bundles and  meetings with experts more  by video conferencing will remain but there can be no substitute for  seeing their client in their home and witnessing their struggle first hand.

Two point illustrate this well , if your physically sat in the same room as the claimant and their family you are able to explain complex legal issues to them and by interpreting the subtleties of their  body language you are often able to interpret that further explanation is necessary . This is more difficult to do via Microsoft Teams and zoom and its very important that as the solicitor you have clear instructions when acting under virtual circumstances. If a client is visibly tired, I concluded that its best to take a break or adjourn for the day. The defendants cannot simply railroad a claimant into settlement especially in the current way of operating, we as the claimant’s solicitor need to control the process and protect our vulnerable clients

Finally, both clients and I have had a similar feeling of a “lack of closure” when we are settling claims virtually in the pandemic.

As a solicitor you have often worked closely with an individual and their family over many years and build a bond. I hope to meet up with clients whose claims I have concluded once the pandemic passes to wish them well and to just to have a cuppa and catchup face to face.

For more information and advice, visit the Hugh James Neurolaw page.

Disclaimer: The information on the Hugh James website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. If you would like to ensure the commentary reflects current legislation, case law or best practice, please contact the blog author.

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