Guest post by Matthew Tuff, new president of the Association of Personal Injury Lawyers
Tuff: Law on bereavement damages needs to change
Personal injury lawyers deserve respect for the work they do. We help injured people to piece their lives back together.
Championing the good work of personal injury lawyers is one of my priorities during my time at the helm of APIL. Despite some reduction in hysterical headlines about personal injury claims in recent years, negative perceptions and misunderstandings linger about the motivations of claimants and the lawyers who represent them.
Campaigns to improve, and protect, the law on personal injury usually start on the back foot because of this. The benefit to society of a fair legal system, and the value of legal representatives, should be understood.
APIL’s ‘Rebuilding shattered lives’ campaign tells the real stories of injured people who have been able to turn to the law, and lawyers, for help. It is a long-term campaign to overturn poor and damaging perceptions, and to see the back of the hackneyed jokes and pot shots about chasing after ambulances. The aim is to protect personal injury law for victims of negligence.
My presidency began with helping to highlight the abuse of the rules on fundamental dishonesty. For the last 10 years, injured people risk having their claims dismissed if, on the balance of probabilities, they are found to be ‘fundamentally dishonest’.
But unscrupulous insurers do not face any sanctions if they drum up spurious accusations of fundamental dishonesty, leaving them to throw allegations around. Some use their deep pockets to try to financially and emotionally exhaust vulnerable injured claimants in a bid to avoid paying claims.
It is comparable to the use of SLAPPs (strategic litigation against public participation) and is just another form of corporate bullying. APIL has highlighted this issue and raised it with the Legal Services Board and Solicitors Regulation Authority. We will continue to call for an end to abuse of the rules.
This year will mark the 10th anniversary of the Serious Injury Guide, which is a collaboration between APIL, the Forum of Insurance Lawyers and several major insurers. I am a user of the guide myself and find it to be the gold standard for resolving catastrophic injury claims valued at more than £250,000.
Claimant and defendant representatives agree to run a claim under the guide, and work towards the common aim of attempting dispute resolution as early as practicable. Communication is open, relationships are built between all parties, and trust develops. The injured person is placed at the heart of the process and there is a mutual benefit for all involved, including cost savings.
An astonishing example from one claimant representative was the reduction in legal costs. She had two very similar clients with almost identical injuries. The work in progress for the case run under the Serious Injury Guide was roughly half of that which had not. APIL and I will continue to promote the guide to gather more signatories throughout this landmark year.
I do not have the room here to cover all the campaign issues on APIL’s agenda, but one which is striking chords throughout APIL’s membership is the call for an overhaul of the law on statutory bereavement damages in England, Wales and Northern Ireland.
Like many personal injury lawyers, I have had to look a bereft relative in the eye and deliver the news that, in the eyes of the law, they are not considered close enough to their lost loved one to be eligible for the compensation.
The law on statutory bereavement damages does a poor job of compensating a bereaved person for the loss of life which could and should have been avoided. It is out of touch with the way people in the UK live.
Half of all babies in the UK are born to parents who are not married or in a civil partnership with one another. Yet fathers of such children are excluded from receiving statutory bereavement damages if the worst happens and their child dies because of negligence.
Scotland already has a modern law. The statutory payment in England and Wales amounts to £15,120, and £17,200 in Northern Ireland. In Scotland, bereavement damages are calculated on a case-by-case basis, with no set figure or amount, ensuring a more bespoke amount is paid, depending on the nature of the relationship with the victim based on ties of closeness, love and affection.
While civil justice reform could seem to be too far down the list of policymakers’ priorities, the model for a better system for statutory bereavement compensation is already there, and working, within the shores of the UK. APIL continues in earnest to get this issue on the parliamentary agenda.
Lord Woolf must weep when he sees exactly what he has championed for so many years being trashed quite cynically by ‘the usual suspects’ without sanction. I write as a retired defence lawyer.