COVID-19: a new dawn for injury litigation?
As we wake up in a world only previously predicted by science fiction writers, lawyers face significant new challenges to ensure that injured claimants are able to obtain access to justice and to prevent a catastrophic backlog in the civil court system.
Remote hearings are, of course, no new thing - routine hearings have been conducted by telephone hearing for years. Rare though has it been that a judge would hear complicated application hearings or costs and case management hearings, let alone trials, by telephone or video as must now become commonplace.
As we move deeper into the pandemic and the lockdown which it entails, each day brings a new piece of guidance from senior members of the Judiciary on the importance of continuing the work of the civil courts and establishing the means by which that should be done. Save for the largest of trials scheduled to start without the time or means to be conducted remotely, hearings remain listed and settlement discussions continue.
On one view, those claimants who are in the claim process and adequately equipped by means of expert evidence to settle their claims on an informed basis are undoubtedly the lucky ones. Here lies the significant danger of coming months for injury litigation more as without those core medical reports, traditionally prepared after a face to face examination, injury litigation could grind to a terrifying halt.
The time must therefore now have come for medico-legal doctors to enhance their digital offering and perform video examinations in order to provide, at least, a provisional view on condition, causation and prognosis in most cases: MedCo's recent reversal of its initial decision not to allow remote medical examinations seemed, frankly, inevitable in the current climate. This relaxation of traditional examination methods will enable a sensible (though inevitably, not perfect) valuation of claims to be made so as to facilitate settlement discussions and/or expedited quantum hearings, particularly where necessitated by the claimant's age, vulnerability to COVID-19 or general state of health.
Assuming the video examination process proves to be of merit, the possibility arises that face to face examinations in areas of work like psychiatry will become the norm in the post-COVID era. Inevitably there are pros and cons,
- Pros: costs attendant to a physical examination will be reduced e.g. travel, no more skirmishes between solicitors over whether the defendant's chosen expert offers consultations in the 'right' area of the country, every examination will be recorded and therefore open for close scrutiny (though whether that is a good or bad thing may depend on how favourably you received the judgment in Mustard v Flower and others  EWHC 2623 (QB)).
- Cons: increased legal costs, findings of physical injury experts may be less accurate without the ability to get hands on the patient, the increased difficulty of establishing rapport through a screen.
No matter the cons, one suspects that video examinations are currently the lesser of two evils if the alternative is for injured claimants to languish without means or support, and for defendants to face a quarter or half year backlog of claims which will flood in when the pandemic eases.
So, what can defendant lawyers do to act to further the overriding objective whilst still acting in their client's best interests?
- Work with claimants' lawyers to find creative solutions e.g. resolve problems like the absence of medical reports by agreeing the use of video examination facilities.
- Agree consent orders revising current directions timetables to permit longer extensions of time to be agreed between the parties if dates cannot be met or consider whether a stay should be applied.
- Minimise use of the courts by reducing the number of applications which need to be made in any case – a Judge is unlikely to look favourably on a defendant who attends a hearing arguing minor points.
- Spend now on the technology you need to be able to facilitate day to day working now. You will get a return on your investment in no time at all if you are adequately equipped for remote hearings moving forward.
- Find and work with Counsel who are equipped to work paperlessly and discuss with them their tips for digital file management and sharing: indexed bundles are great, individual files which replicate exactly the index to your instructions with clear file names are even better.
- If a solution cannot be agreed, then consider the use of standstill agreements to avoid the need for claimants to issue and incur significant court fees before limitation expires. Alternatively, agree to extend time for service of the Particulars of Claim;
Above all, now is most certainly the time to keep the overriding objective at the forefront of your practice and to work cooperatively with opponents to support the work of the courts for the benefit of us all, now and in the future.
 Although it seems inevitable that individual court centres may be forced to close their doors from time to time as they lose staff to self-isolation.
 39 Essex Chambers has taken the lead in establishing a virtual JSM protocol to ensure that settlement discussions can run effectively without the structure of a court-led timetable: https://www.39essex.com/39-essex-chambers-remote-jsm-protocol/
 As in mesothelioma claims.