Injury claimant lawyers reject mandatory alternative dispute resolution

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Dec 18, 2017
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A government advisory body said that in certain cases judges could order injured claimants into alternative dispute resolution

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Forcing personal injury claimants into non-court options would lead to delays and unnecessary costs, lawyers acting for accident victims have argued.

Association of Personal Injury Lawyers was responding to a report from a government advisory, which recommended that compulsory alternative dispute resolution (ADR) should be explored.

The Civil Justice Council report, published in October, argued that judges could “make orders in particular cases compelling an unwilling party or unwilling parties to attend a mediation or engage in some form of ADR”.

Brett Dixon, the association’s president, said that while “alternative dispute resolution is certainly beneficial in some cases and can lead to earlier settlement … it is not appropriate for ADR to be mandatory at any stage of a personal injury claim”.

Dixon added that “not every case is suitable for ADR” and that making it a condition before claimants were allowed to issue court proceedings would be problematic, especially in cases where a claimant solicitor was instructed just before limitation. 

“It is very troubling to think that people might be forced to engage with a defendant’s resolution scheme without taking independent legal advice first,” Dixon said.

He warned that defendants who were not advised by lawyers “could, perhaps unknowingly, agree to a settlement which does not meet their needs, as is the case with the proposed rapid resolution and redress scheme for birth injuries which will pay only 90 per cent of the average settlement”.

Law firms ‘turning blind eye’ to cold calling personal injury victims

Solicitors are failing in their duties when cutting deals with claims management companies, the profession’s watchdog said in it its second strong warning over personal injury actions in less than two years.

Allowing third parties to breach professional rules by cold-calling potential claimants topped the list of concerns from the Solicitors Regulation Authority.

The watchdog was updating a warning it first made in March last year, suggesting that it believes a significant group of law firms are still flouting the profession’s rule book.

It also expressed concern that solicitors continued to strike referral agreements that breached the Legal Aid Sentencing and Punishment of Offenders Act 2012.

Law firms were “taking and acting on instructions from third parties without ensuring that the instructions originate from the client” and were settling personal injury claims without medical reports, it said.

The regulators also accused law firms of paying damages or sending cheques to third parties without accounting properly to clients.

There are also concerns that in extreme cases law firms brought personal injury claims without the knowledge of the named client.

While the vast majority of solicitors were doing the right thing, there were reports of concerning behaviour including a failure to meet and take instructions from clients, the watchdog said.

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