Blog: Surviving the consequences of Covid-19

Coronavirus

Malcolm Henké, head of Horwich Farrelly’s large and catastrophic injury group, provides a perspective on the potential challenges and opportunities that come with Covid-19 when looking at large and complex injury litigation.

On 17 November 2019 when the first case of coronavirus was detected in Wuhan, Hubei Province, China, nobody could predict that some four months later a previously unheard of virus would wreak havoc around the world.

Like every other industry, the coronavirus outbreak has presented many challenges for the legal and insurance industry. However, with challenge comes opportunity, none more so in ways the sector can increase co-operation and reduce the level and length of disagreement.

For many years, claimant and defendant lawyers have paid lip service to cooperative working practices which, while bringing about some improvement in claims conduct, still fall far short of a fundamental move away from the UK’s existing adversarial systems. Rehabilitation, pre and post-action protocols and other overriding objectives certainly suggest that there is an element of consensus in the air, but these claims steps remain partial solutions to lessen the impact of a full scale dispute.

Now is the time to look upon this unprecedented change as an opportunity to explore alternative methods of claims control. As Brexit slips into obscurity, the industry can look to our European neighbours and take stock of the behaviour of countries like Germany where rehabilitation is looked upon by claimants as a right without condition, and where returning the claimant as closely as possible to their pre-accident state is a true goal rather than a throwaway line.

All too often, whenever change is discussed the ‘level playing field’ is used as the test of what is or isn’t fair. That concept supposes that the claims process is a game of sorts where both parties are equal. But of course, that is not the case.

Victims of serious accidents are never equal because they are in a position they would never have wanted nor wished for. It is, therefore, important to recognise the inequality between the parties and look not at how cheaply a claim can be disposed of, but how genuinely the claimants needs can be addressed without great sums being spent in arguing about every single issue that comes into play.

Accordingly, the industry should look on the current unique climate to be one where it genuinely strives to find and explore alternative claims handling strategies. Agreeing restricted limitation extensions or more time for defences is merely scratching the surface. What we need to do is bring together the ideas and aspirations of the numerous experienced lawyers and insurers now locked down at home and create a whole new landscape for our industry.

No matter how progressive each body may be, that the ways in which the courts, law firms and experts are able to progress all categories of claims, has been seriously impacted. All cases will be approached with transparency, fairness and flexibility, and requests for leeway and assistance where genuinely sought will be responded to sympathetically.

We believe that, with a little goodwill from all stakeholders, new working practices can provide a more efficient and effective way of working. Parties on both sides of the litigation arena to consider approaching these claims in a different light and to join the industry in bringing this discussion alive. In short, a greater reliance on the parties to be constructive and proactive. After all, it is clear that leading firms within this field are from a resource perspective better equipped than the underfunded court system.

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