To act or not to act

Article prepared for Headway - the brain injury association

John Cahill illustrates the importance of finding a brain injury specialist from the outset. He also demonstrates how the non-specialist lawyer is likely to be penalised in the new era of civil litigation.

The Facts

In September 1988 James then aged 9, was riding his bicycle on a B road in Sussex when the Defendant driving his Ford Escort in the same direction overtook him at speed and collided with him. James suffered a linear fracture of the right occipital region, was knocked unconscious and had diffuse brain swelling. James' brain damage gave rise to alterations in personality, lack of concentration and memory together with a loss of intellectual performance.

The Difficulties

Over a period of ten years, five firms of solicitors were instructed to deal with James' claim as follows:-

October 1989 - A B Firm

July 1993 - C D Firm

February 1997 - E F Firm

May 1998 - G H Firm

July 1999 - I J Firm

In April 1999 James' case was set for trial. The trial was adjourned because the Judge decided that it was unclear whether James was a "patient" within the meaning of the Mental Health Act and thus whether he was capable of managing his affairs and importantly whether he could provide proper instructions to solicitors to advance his case. The Official Solicitor became involved in James' case at this point and in November 1999 Stewarts Law were asked to take over the conduct of James' case.

The Outcome

In January 2000 there was a three day court hearing to determine whether James had capacity and to formally deal with the issue of liability (i.e. who was to blame for the accident). At the hearing the Judge decided that James was indeed a "patient" and Judgment was entered against the Defendant. A trial, to establish the level of damages James should receive, was set for 3rd July 2000.

Between January and July 2000 my firm prepared a comprehensive schedule of James' losses. Following service of James' evidence on the Defendant, the Defendant increased their payment into court from £180,000 to £447,000. The increased payment into court was rejected and settlement was finally agreed and approved by the court at £615,000.

Conclusion

At the hearing on 3rd July 2000 the Judge made further Orders including those relating to costs. He concluded that the Defendant could apply for Wasted Costs Orders against all previous firms of solicitors. As a consequence of this Order it is likely that the five firms of solicitors instructed prior to Stewarts Law acting will not be paid for their work. Throughout, these firms demonstrated a lack of experience in dealing with the brain injured. Over ten years they were responsible for prejudicing James' damages claim. The question, "to act or not to act" for claimants in brain injury litigation, prior to accepting instructions is a question that should be carefully considered by all non-specialist firms. As this case demonstrates, if solicitors do not have the required expertise they are likely to be penalised.