Tracking the impact of Covid-19 on personal injury claims

In May 2020 we looked at the impact of Covid-19 on personal injury claims which can be found here. At that point the Scottish Government had just announced Phase 1 in the country's route map through the crisis. The civil courts were operating at a vastly reduced level and virtual hearings had only really taken place in the Inner House of the Court of Session (appeal court). This article looks at where we are now, 6 months into the pandemic and what the future might look like.

Litigated Claims and the Virtual Courtroom

The 'Technology v Tradition' debate has been discussed for many years in relation to the Scottish Courts however the impact of Covid-19 has accelerated the use of technology as part of court procedure more quickly than any of us could have imagined. The majority of practitioners are keen for these changes to remain in place and indeed Lord Carloway, the Lord President, stated that “This is not the time for a defence of tradition,” he said. “The cry of ‘it’s aye been’ cannot prevail. We have to seize the momentum and opportunity to respond to the particular challenge.”

The Scottish Courts & Tribunals Service has also recognised that whilst Covid-19 restrictions provided a significant challenge, it also provided a genuine opportunity, and a huge amount of progress has been made in a very short space of time.

As at September 2020, Scotland remains in Phase 3 of the route map however the Court of Session is now operating as a fully 'virtual' court. The Sheriff Appeal Court, the majority of Sheriff Courts and the All Scotland Personal Injury Court have similarly moved towards a digital based approach to business. It remains the position however that there are no civil jury trials for the time being.

Inevitably the transition into virtual litigation has had some teething problems however, through necessity, the legal profession has adapted quickly and the introduction of technology has resulted in greater efficiency across the board. In cases based on legal submissions only (i.e. where no evidence is required) virtual technology works well. Agents and clients are able to appear from the comfort of their own home or office, and the use of technology will undoubtedly result in cost savings going forward.

In terms of proofs (trials), where witness evidence requires to be led, further work is required on that front. Whilst some proofs have been able to proceed virtually this becomes more difficult in cases which involve leading evidence from several witnesses and where there are large numbers of documentary productions. It is also crucial, if a virtual system is truly to operate effectively, to ensure that a witness is not being guided or prompted in any way by a third party. Where a case is likely to turn on the credibility and reliability of a particular witness, or witnesses, parties may prefer for that evidence to be given in a court room setting. Similarly, where there are voluminous productions for witnesses to refer to this may make proceeding virtually more difficult. There is also the fact that whilst most lawyers will likely have had access to the necessary equipment and resources required, some parties, particularly lay witnesses, may not have the same means at their disposal. The lack of a stable internet connection or outdated IT equipment may mean that proceeding virtually is not reliable, or in some instances simply not possible at all.

Further guidance has been published in respect of the All Scotland Sheriff Personal Injury Court which states the default position moving forward is that all proofs will remain on a virtual basis, unless the court directs otherwise. If a party considers that a proof is not able to be conducted virtually the Sheriff has the discretion to order that a "live" hearing should take place, on cause shown.

Factors which the court is likely to consider relevant to that issue are set out in a recent Practice Note and include the following:-

• The number of issues to be tried and the extent of agreement or disagreement over primary liability (duty, breach thereof, causation); contributory negligence; and quantum.
• Scope and nature of issues to be tried. Are all the issues to be tried clear and well defined or is there a risk of a hearing punctuated by objections?
• Number of witnesses. A large number is likely to increase witness management and scheduling problems for the parties and the court.
• Duration. Proofs which are likely to extend to multiple days or exceed the court days allocated.
• Type of witnesses. Involvement of party litigant. The involvement of lay witnesses who have communication or language issues. Witnesses with connection or privacy issues.
• Evidence from multiple skilled persons and/or which is of a highly technical or complex nature or requires reference to multiple documents.
• Documents. The requirement for large numbers of documents to be put in evidence or referred to.
• Other factors – specific features making a case unsuitable for a virtual hearing.

Parties should also consider whether a hybrid hearing is feasible, with some evidence being heard in person and the remainder virtually. Parties should also consider whether justice might be better served by the proof being discharged to a date when the court may again be able to accommodate live proofs without constraint.

Experts and Video Conferencing

Previously we discussed how experts were transitioning towards virtual examinations through the use of video conferencing rather than face to face appointments. This has had both positive and negative effects. Virtual assessments have allowed the instruction of experts who pre-Covid-19, could perhaps not have been instructed due to distance constraints. Travel and accommodation costs may have made the instruction unattainable.

Some medical examinations, however, still need to be carried out in the form of a face to face meeting. Consequently, the court process is likely to be delayed, leading to cases progressing more slowly than they would have done otherwise. Added to this is that a number of medical experts who also practice within the public sector have had to scale back private work as a result of the increased pressure on the NHS leading to longer waiting lists for medical reports required for litigation. 

Virtual appointments are not appropriate in every case. It may be that a virtual appointment is undertaken and a report produced as a provisional measure but if a later face to face appointment is still going to be required at a later date, prior to proof, that will undoubtedly lead to increased costs.

Rehabilitation

Virtual rehabilitation is not a new thing having often been utilised as a way of providing treatment to those in more remote locations but its use has almost certainly increased as a result of the pandemic. Treatments such as psychological therapy, physiotherapy and wider case management meetings can all take place effectively in a virtual setting. In a situation where those receiving the treatment are often at an increased risk of infection as a result of their injuries a virtual setting negates that risk and allows treatment to continue. For many, rehabilitation is a crucial part of the recovery process and therefore parties on both sides should be encouraged to utilise virtual treatments where appropriate rather than potentially stalling recovery/progress with no clear idea of when face to face treatment will again become the norm.

Care

We mentioned in our previous article the additional issues to be considered regarding care costs which are generally the largest head of claim in cases involving serious injury.

The NHS has had to place its response to the pandemic above that of those who would ordinarily be able to receive treatment. Appropriate practitioners are being redeployed elsewhere, leaving a growing queue for treatment.

The impact on NHS waiting lists means there is likely to a greater emphasis placed on private treatment as part of any personal injury claim. Treatment will depend on what is reasonable in the circumstances. However, given that treatment is not easily able to be obtained via the NHS at this moment in time, together with the threat of a second wave, we are likely to see arguments being made that private treatment ought to be obtained. Whether this will remain the position in the medium or longer term remains to be seen but what it does likely mean is an increase in the cost of these claims.

Employment

In May we touched on the impact of Covid-19 on the labour market. As the economic outlook remains clouded, it is likely that this will have a continued impact on the value of claims. With the furlough scheme ending in October and the threat of recession looming, vocational evidence will remain crucial in the assessment of any claim. What is also important is ensuring any vocational expert has a full understanding supported by clear factual evidence from an individual's employer about the impact Covid-19 has had.

The Way Forward

Many lawyers have been using digital strategies and remote working for a number of years however Covid-19 has proved to be a catalyst for change and that change has happened more quickly than anyone could have anticipated particularly in relation to the courts. Our eyes have been opened to what is possible and we should all seek to build on that rather than step backwards whenever "normality" resumes.

A huge amount of positive progress has been in a very short space of time to prevent court actions becoming stagnant and simply kicked into the long grass. However, with the courts still not able to operate at full capacity there is a backlog and parties must do what they can to address that.

The majority of practitioners have been quick to embrace the new virtual way of working and although some delays are inevitable we have certainly seen increased collaboration on both sides of the fence in personal injury claims and agents working together to come up with creative solutions to progress claims outwith the confines of a court timetable.

Covid-19 has created and will continue to create challenges for all of us but continued collaboration which recognises the interests of pursuers and defenders alike is key. There are often aspects of a claim which are non-contentious and parties should be encouraged to engage in greater discussion and adopt an approach which achieves a workable solution for all.