FOCIS members respond to the consultation "Solving Disputes in the County Court: creating a simpler, quicker and more proportionate system"
Members of the Forum of Complex Injury Solicitors, FOCIS have responded to the consultation on disputes in the county courts. This response concentrates on questions which are likely to affect larger personal injury claims, as this is the area of work dealt with by FOCIS members.
We will not therefore attempt to answer all the questions in the consultation but only those which appear relevant to the work of our members.
FOCIS takes issue with comments made in the Ministerial Foreword and does not agree that:
There are too many claims being brought in to the legal system inappropriately
there is a
... move towards a compensation culture
"the phenomenon of individuals suing compames for disproportionately large sums, often for trivial reasons and without regard to personal liability".
FOCIS does not accept that there is a "compensation culture".
This has been confirmed on many occasions:
- In May 2004, the BRTF released its report Better Routes to Redress which examined the "compensation culture" in the United Kingdom. The report of the independent Better Regulation Task Force concluded that "the compensation culture is a myth".
- In October 2010, in his report "Common Sense, Common Safety", Lord Young of Graffham concluded that "the problem of the compensation culture prevalent in society today Is, however, one of perception rather than reality". In appendix A to the report Lord Young confirmed that among the many stakeholders who had responded to his call for evidence "there was a general agreement that the rise of a compensation culture is largely a myth perpetrated by the national press".
Whilst FOCIS supports the use of mediation to resolve claims we believe it is overstated to suggest that "87,000 claims would have been resolved earlier if mediation had been used more widely" and there is no evidence to support this claim.
The NHSLA will not usually agree to mediate a claim before most of the evidence, and consequently a significant amount of legal costs have been incurred. This will invariably mean that legal proceedings will by then have been issued by the claimant.
Whilst mediations are in some cases an appropriate way of resolving disputes they are not a universal panacea and in some cases increase the costs. There are many other forms of ADR that are regularly deployed by our members to achieve settlements.
The drafting of Part 36 and the exercise of judicial discretion in it's application has been a bigger practical issue for claimants than the use of mediation. Claimant offers when successful have been inadequately rewarded and hence Defendants have not always taken them as seriously as they should. The Part 36 requirement for offers to stay on the table to remain effective is difficult for seriously injured claimants whose losses are continuing to accrue and hence the value of their claims is often increasing as the claim progresses. Part 36 requires a radical overhaul, not just to add Lord Justice Jackson's proposed 10% incentive to Claimants, but also to add flexibility to reward Claimants who make effective earlier offers even if they have to withdraw or change that offer at a later stage in the case.
The full response is available to download: