Could arbitration really be used in personal injury, or is this more of a message to the judges?
At the Westminster Legal Policy Forum’s recent Jackson event, it was interesting to hear Rod Evans – a prominent defendant lawyer – raise the prospect of personal injury lawyers turning to arbitration instead of the courts.
I doubt that was the effect that the Court of Appeal was going for when it made its decision in Mitchell.
From Evans’ comments, it seems there is a growing sense that in this new comply-or-die environment, the courts are no longer the best place for resolving disputes – or no longer ‘fit for purpose’, as one QC has apparently put it.
But could PI firms really turn to arbitration, or is this simply talk, designed to send a message to the senior judiciary?
Certainly lawyers in general seem supportive of the idea, and it could be that talks are informally starting to take place among the bigger claimant and defendant firms.
How far they get may depend on whether things actually calm down in the courts in the next few months. And of course for arbitration to work, it would depend on claimant and defendant lawyers being able to agree on a set of rules.
But if arbitration did become the new forum for resolving PI cases, while it might be one in the eye for the judiciary, it won’t bother the Ministry of Justice.
On the contrary, from the government’s point of view, the more cases that are pushed out to alternative dispute resolution methods, the better.
Rachel Rothwell is editor of Litigation Funding magazine