The past, present and future: the pandemic’s impact on injury claims in England and Wales

As we reach the end of the year, we provide a short synopsis of what we have experienced whilst enduring the COVID-19 pandemic and offer some practical tips going forwards.

Procedural issues

At the start of lockdown in March 2020, court rules relaxed deadlines to enable parties to agree extensions of time of up to 56 days. This provision came to an end on 31 October 2020.

We have seen examples of claimants not complying with court orders and subsequently explaining that their non-compliance was COVID-19 related. The range of explanations has been wide, some genuine but some not. Requesting early evidence in order to take a tactical view before legal costs are incurred is essential.

The courts have been clear that any sense of taking an opportunistic advantage is unacceptable. In Stanley v London Borough of Tower Hamlets [2020] the claimant posted proceedings to the defendant’s office which had closed following the government-imposed lockdown on 23 March 2020, which resulted in the defendant missing a key court deadline. It was held that obtaining a procedural advantage as a result of the pandemic will not find favour with the court, even where the advantage was not obtained deliberately.

Insolvent co-defendants

With an increasing number of businesses going into administration or liquidation, inevitably it will become commonplace to be met with claims where parties to the proceedings are no longer trading.

In a long-tail claim, such as noise induced hearing loss, this is already relatively common. However, in shorter claims, such as those relating to acute injuries, defendants ought to be alive to the risks of claimants choosing not to pursue one or more potential defendants and instead pursuing the remaining defendant for the entire claim. The result being that one defendant is held fully liable for a claim that might otherwise have been apportioned between two or more.

It is open to claimants to restore defendant companies to the Register of Companies for the purposes of legal claims or, in certain circumstances, to claim directly against an insolvent defendant’s insurers under the Third Parties (Rights Against Insurers) Act [2010]. However, a defendant cannot force a claimant to do so.

Where defendants are jointly and severally liable for an injury/loss, claimants are free to pursue any and all defendants that they wish. This can prove problematic where one defendant holds evidence that another needs to defend a claim. For example, where an occupier of a property contracts another company to undertake its cleaning and maintenance obligations, the contracted company may be the one to hold all inspection and cleaning records.

Should the claimant refuse to proceed against an insolvent defendant, it may be open to a defendant to bring their co-defendant(s) into the claim under the Civil Liability (Contribution) Act [1978] or if the contractual position allows after settlement as a fresh recovery claim.

Psychiatric injury

Undoubtedly the impact of COVID-19 upon one’s mental health cannot be underestimated. A survey published by The Royal College of Psychiatrists in May 2020 noted that 45% of the psychiatrists surveyed reported a fall in their most routine appointments, leading to fears of a ‘tsunami’ of mental illness after the pandemic. The survey noted that many patients deteriorated as a result of the pandemic.

Claimants who prior to the pandemic were undergoing face-to-face psychiatric treatment, will inevitably have experienced disturbance to their treatment and some may not have responded as well to remote treatment.

In the case of declining mental health since the pandemic, medico-legal experts will need to be able to unpick causation and some may feel ill-equipped to do this. It is prudent to keep a claimant’s psychiatric recovery under review and to consider making interim payments to fund private psychiatric treatment.

Loss of earnings

COVID-19 will continue to have a negative impact on the UK economy with unemployment expected to reach 7.5% by Spring 2021. Claimants who once had a job for life may have been furloughed and/or made redundant. Arguably when unemployment is high, a claimant’s disadvantage on the more competitive labour market, will be greater. Defendants should keep reserves for Smith v Manchester awards and loss of earnings under review as we anticipate claimants will be seeking higher awards in settlement discussions.

Offers to settle

The litigation twists and turns caused by the pandemic will likely increase legal costs. With the festive season fast approaching, offers may be looked at in earnest by claimants. Defendants should also consider whether tactical global offers inclusive of damages and costs are sensible. December is always a good time for offers, but even more so this year.

Read other items in Personal Injury Brief - February 2021

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