Volume ‘factory’ approach will undermine lawyers’ reputation.
It appears that a number of firms have entered the ‘under settlement market’ or are gearing up to do so. There are questions over whether this reflects a genuine desire to ensure that those affected are properly compensated for their original injuries/losses or whether it is an attempt by some firms to replace conventional personal injury work which they now regard as uneconomic. I fear it may be the latter and that, once again, some lawyers are failing to put the injured person at the heart of the process.
I have long held the view that the injured person is better served by a personal relationship with his/her lawyer rather than being exposed to the ‘factory’-type claims process. In fact, in all probability, it is that type of process that has created the ‘under settlements’ which some (perhaps the same firms) are now seeking to exploit.
Over the years my firm has been involved in a number of cases involving valuations of claims which have led to unrealistic settlements. However, my concern is that what the new industry envisages is a ‘call centre’-type approach where people will be encouraged to pursue claims even in de-minimis cases.
In relatively low-value claims is there a real concern for the client where lawyers are seeking to argue perhaps a 5-10% issue on a ‘stack them high’-type approach? In reality, clients should be encouraged towards closure rather than going through the same process again when, in many cases, this is unlikely to achieve any positive outcome.
A recent discussion with a PII underwriter revealed that as a firm dealing with a reasonable volume of personal injury litigation our PII premium could be adversely affected by what he described as ‘cannibalism’. He was referring to the new personal injury industry. Clearly those who are encouraging under settlement claims should pause to consider that their PII premiums may be increased as a consequence.
It is disappointing that as the insurance landscape appeared to be settling down personal injury may again be regarded as a high-risk sector because of this ‘dog-eat-dog’ scenario.
No firm is immune from mistakes. However, we try to reduce the risk of these through our personal (invariably face-to-face) relationships with our clients which encourages a greater understanding of their position. Yet, in the majority of cases in which we have been asked to accept instructions in the place of existing solicitors or to advise post settlement, we have found that the problems have emanated from what can only be described as the ‘factory’ approach.
Many practitioners working in firms similar to mine and working within their local community have had local clients come to them complaining about the service they have received from firms who are clearly acquiring high-volume work from all over the country. The usual complaints from these clients are:
- I never saw anyone.
- Each time I phoned a new person was handling my case.
- I only found out what was going on if I rang up.
- The panel doctor I was referred to had a number of people waiting to see him and I was only with him for two minutes.
I acted for a local client where the firm representing him were over 150 miles away from his home. His complaints concerning the conduct of this claim included all of the above and that in being urged to accept about £6,000 for a wrist injury the solicitors were ignoring another and more serious condition. Having taken over the case we subsequently investigated the other condition and secured a settlement of over £90,000.
Not all firms conducting high-volume cases in this way will fall short. However, it occurs often enough to create a pattern such that the concern is that this will be replicated by the industry which is now being created.
Whether we like it or not claims management and high-volume ‘factory’ personal injury processes have led to a situation where personal injury litigation is perceived as an industry in which there is no doubt that consumer confidence has been undermined. There can also be little doubt that the costs and procedural changes, which in many cases have led firms to discontinue their personal injury practice, are a direct consequence of this problem.
It is therefore regrettable that the new industry is likely to foster a volume ‘factory’ approach which may well further undermine the reputation of lawyers in this sector.
Alan Bacon is head of personal injury at BTMK Solicitors