Personal injury lawyers may turn to arbitration to avoid the confusion created by Mitchell, it has emerged.
Rod Evans, immediate past president of the Forum of Insurance Lawyers, raised the prospect at an event held by the Westminster Legal Policy Forum last week.
Evans said he has heard two QCs suggest that arbitration might be a better option than the courts for personal injury – with one suggesting that the courts are no longer ‘fit for purpose’ following Mitchell. The defendant lawyer has also been directly approached by a claimant law firm on the issue.
‘We are certainly going to start looking at avoiding courts and going to arbitration. There is a feeling that arbitration is a better route to go down,’ Evans said.
Arbitration might be particularly attractive in cases such as catastrophic injury, where lawyers are concerned about courts refusing to admit their experts’ evidence due to missed timetables. This evidence can be difficult to obtain in fields where there are only a limited number of experts, who are also practising surgeons and doctors.
Explaining how arbitration might work, Evans said: ‘Leading defendant firms would go to leading claimant firms, and would agree a set of arbitration rules. We would simply be using the same rules each time.’
Evans criticised the lack of consistency in how courts across the country are enforcing the sanctions regime, which means that lawyers ‘haven’t got a clue what we are doing’.
He added that, while a planned 28-day ‘buffer’ measure enabling parties to agree time extensions between themselves would help the court system, ‘it won’t stop the trip wire litigation that has now started – and it is naïve to say that [the sanctions regime] can’t or won’t be used as a trip wire’.
Christopher Malla, partner at defendant firm Kennedys, told the Gazette that the combined effect of rising court fees, a reduced service from the courts, and the potential damaging effect of the Mitchell ruling may drive some lawyers to consider arbitration instead, particularly where they feel they are working in an ‘environment of fear’.