By: 8 November 2016
QC calls for radical change in personal injury litigation

One of the country’s leading personal injury barristers is calling for an end to court intervention in catastrophic personal injury claims and a radical change in the way that they are handled.

Bill Braithwaite (pictured), a QC with Exchange Chambers, believes the current system is flawed and is proposing a scheme called neutral facilitation to replace it. Under neutral facilitation, when a major claim is notified, both sides would agree to appoint a neutral facilitator. Ideally, the facilitator would be a personal injury litigator, who has sufficient experience to understand and deal with all the usual issues which arise in a claim. The parties would therefore take charge of selecting the facilitator, unlike the position at present where the Court imposes its selection, and where only the minority of High Court judges are from a personal injury background.

“It is time for radical change,” said Braithwaite, who has held board level discussions with claimant and defendant law firms and major insurers who also believe there is a better way than non-specialist judges trying complex personal injury cases.

“In addition to selecting the neutral facilitator, the parties would want to agree what powers they would give to that person. The possibilities are endless; he or she could be limited to only one of the many forms of ADR, or they could be given a free hand to decide which method of ADR would work best for any individual issue.

“It is really important to stress that this is not just mediation, nor is it another version of settlement meetings. It is a suggestion that we could and should use the whole range of ADR systems as and when we need them, in order to make the entire case run smoothly, not just to settle it at the end.”

David Fisher, Catastrophic & Injury Claims Technical Manager at AXA Insurance, believes neutral facilitation will find favour with insurers as well as claimants.

“I fully support the process of neutral facilitation,” said Fisher.

“No matter how well claimant and defendant teams may or may not be adopting a collaborative approach, sometimes issues or hurdles arise that have the potential to throw a claim off course and lead to unnecessary litigation. Neutral facilitation offers the potential to overcome such obstacles to the benefit of all parties, including the claimant.”