Client Care and Funding
Lawyers are required to discuss all means of funding with their clients. This information must be included in the client care letter or engagement letter. An electronic template denoting the letterhead of your consultancy practice is the best means of keeping the client informed about their case status.
The client is legally obliged to pay the lawyer if they “win” (which means achieving the quickest possible pre-action payout). Otherwise, there are no legal rights to recover the costs of the action from the other side before proceedings are issued. In case the claim is turned down or discontinued, the client will need to be indemnified.
General PI Litigation Procedures
Basic Legal Principles
(Not to be confused with the realities of life)
- Duty of Care
- Foreseeable Risk or Breach of Duty
- The Nature of the Duty:
- Reasonable Practicability
- Strict Liability
- Causation (not to be confused with the cause of the accident)
- Quantum
- Limitation
The Realities of Life
- How did it happen?
- Can we prove it?
- Contributory Negligence (applies equally to liability, causation, and quantum)
Beyond the Norm
Special Considerations
- Minors: Limitation, Litigation Friend, Court Approval
- Deceased Cases: Limitation, Law Reform vs. Fatal Accidents, Dependency
- Outside UK/Ireland: Office-based cases, Directives, Treaties, Funding, Applicable Law
Other Options
- Criminal Injuries Compensation Authority (CICA)
- Pneumoconiosis (Workers Compensation) Scheme
- Motor Insurers’ Bureau (MIB)
- Industrial Injuries Disablement Benefit (IIDB)
- Disability Discrimination Act (DDA)
Duty of Care
Where It Might Not Exist
- Occupiers, Employers, Reputable Contractors (but note the non-delegable duty of care for employers)
- Date of Knowledge / “State” of Knowledge (e.g., industrial injuries with latency)
- Vicarious Liability (Was the person acting in the course of their employment?)
- Psychiatric Injury (Primary or Secondary Victim?)
Foreseeable Risk or Breach of Duty
- Common Law: Subject to foreseeability and reasonable practicability
- Statute: Legal requirements depend on legislative wording; select the right piece of legislation
- If in doubt: Plead all relevant legislation (see Letter of Claim)
Causation
- Relevant in both accident and disease claims
- “Straightforward” accidents may become complicated due to medical evidence (e.g., spinal injuries)
- Psychological effects (e.g., functional overlay, PTSD)
- Always check medical records and accident book for consistency
Industrial Diseases
- Knowledge of each condition is essential to identify typical markers
- Determine if the condition is work-related, considering:
- Relationship to the work environment (e.g., occupational asthma, WRULD, RSI)
- Latency periods (e.g., HAVS, CTS)
- Other possible causes (e.g., RSI, WRULD, CTS)
- Consult appropriate medical experts
- Consider apportionment:
- Negligent vs. Non-negligent exposure
- Other contributing factors (e.g., psychological injury, smoking)
- Non-recoverable exposure (e.g., asbestos)
Quantum
General Damages (Pain, Suffering & Loss of Amenity)
- Ensure medical evidence is detailed for appropriate valuation
- Use guidelines and case law
Special Damages
Covers all losses and expenses, provided they are not too remote. Examples:
- Loss of earnings (including primary and secondary work)
- Loss of partner’s earnings
- Travel expenses
- Medication costs
- Pension loss
- Services (e.g., household assistance)
- Membership fees (e.g., gym, golf)
- Additional heating and electricity costs
- Loss of enjoyment (e.g., horse ownership)
- Small but relevant costs (e.g., batteries for a TENS machine)
Examples of Remoteness
- Mortgage arrears/overdraft interest due to absence from work
Future Loss
Consider:
- Remoteness and speculative claims (e.g., loss of promotion)
- Ogden Tables: Mathematical approach or lump sum
- Pension calculations (Auty approach)
- Double recovery prevention
- Full and Final Settlement vs. Provisional Damages
- Risk of serious deterioration or further significant conditions
- Award discretion by the judge
Mitigation of Loss
The claimant has a duty to:
- Seek appropriate medical treatment
- Obtain alternative employment or redeployment
- Consider Compensation Recovery Unit (CRU) deductions
- Understand benefit deductions and appeal options
Limitation
General Rules
- Accidents: Court proceedings must be issued within 3 years from the accident date.
- Disease Claims: 3 years from the date the claimant knew (or ought to have known) that they had a significant condition due to a third party’s actions.
Key Considerations
- What constitutes “significant”?
- When should they have known? (Subjective vs. objective test)
- Exceptions:
- Air travel accidents: Warsaw Convention (2-year limitation, strict liability)
- CICA claims: 2 years from assault date
- Clinical negligence: 3-year limitation
- Professional negligence (PI cases): 6-year limitation
Points to Remember
- Always provide limitation advice
- Err on the side of caution
- Issue and serve proceedings correctly
Service of Proceedings
Direct Access Barrister
- Must be served within 4 months of issue
- Check service address and registered office even after issue
- Special considerations:
- Companies in liquidation/administration
- Service on nominated solicitors
- Substituted service
- Limitation waiver and extensions
- Service without medical evidence or special damages
- Limitation as a defense consideration
Realities of Life in Litigation
Pursuing the Claim
- The burden of proof is on the claimant
- Key evidence sources:
- Accident book entries (must be consistent and signed)
- Medical records
- Witness statements
- DWP and HSE documentation
- Police accident reports
- Inquest depositions
- Relevant publications and meeting minutes
- Union safety representatives (rights under health and safety laws)
Evidential Matters
Liability
- Slip/trip claims require evidence of cause
- System of work (written instructions vs. notices)
- Res Ipsa Loquitur: Some accidents may imply negligence without direct proof
- Addressing denial through realistic settlement offers
Causation
- Aggravation of pre-existing conditions
- Delays in seeking medical treatment
- Large gaps in medical records
Quantum
- Loss of earnings (comparative analysis)
- Promotion prospects (union records, colleagues, past practices, appraisals)
- Services previously provided by the claimant
- Loss of enjoyment of hobbies
Contributory Negligence
- Burden of proof is on the defendant
- Considerations:
- Common workplace practices
- Condoned systems of work