Modern Claims Magazine Issue 12 MOD Supplement by Charlton Grant

â&#x20AC;&#x153;Getting to the heart of the issue is like putting together a jigsaw puzzle, and when the final piece clinks into place and we find out exactly how an incident happened, it is a fantastic feelingâ&#x20AC;?

Hilary Meredith, Hilary Meredith Solicitors

MINISTRY OF DEFENCE CLAIMS: A MILITARY OPERATION? Modern Claims speaks to a range of practitioners about specific legislative and cultural changes relating to claims against the Ministry of Defence (MoD) and how the industry should be working together to preserve access to justice.

S o l i c i t o r s

L i m i t e d

Military Claims Supplement 2015

Leave it to the experts Hilary Meredith Solicitors Ltd is the UKâ&#x20AC;&#x2122;s leading military law firm with a proven track record spanning decades and continents. Our military solicitors work with Armed Forces Service Personnel whose injuries may be catastrophic and life changing. Specialists in the Armed Forces Compensation Scheme, our experience helps to maximise the value of the claim. We can also assist with military wills and advise on a whole host of other legal issues. Ask about our reciprocal agreement scheme for law firms forwarding military claims.

www.hmsolicitors.co.uk

0800 124 4444

Meredith House, 25-27 Water Lane, Wilmslow, Cheshire SK9 5AR Central Court, 25 Southampton Buildings, Chancery Lane, London WC2A 1AL Hilary Meredith Solicitors Limited is authorised and regulated by the Solicitors Regulation Authority of England and Wales. SRA ID number: 561149.

THE EDITOR’S OVERVIEW W

hilst putting this supplement together, one thing has become abundantly clear to me and that is that the very nature of claims brought against the Ministry of Defence (MoD) is changing. Talking to industry specialists, there seems to be a number of clear-cut reasons for this shift, including legislative developments, increasing awareness amongst the military community that they can bring a claim if they have been unjustly treated, and an increase in lobbying for Access to Justice. Special thanks must go to Hilary Meredith and her firm Hilary Meredith Solicitors (HMS), our headline sponsors for this supplement. I caught up with the military claims specialist in her front cover interview, (which is featured from page 6) to find out what is new at HMS, what is in the pipeline and her views on this evolving section of the claims industry. I also spoke to two Barristers, David Knifton and

Ben Bradley from Exchange Chambers and Outer Temple Chambers respectively, to gauge their perception of the industry. Find out what they had to say on pages 10 and 14. Thanks also to all our contributors and sponsors who have helped to make this supplement possible. I hope you find this supplement a useful insight into a niche section of the claims market and if you have any comments, feedback or ideas on this supplement or for a future publication, I’d love to hear from you. Drop me a line on 01765 600909 or e-mail me via charlotte. parkinson@charltongrant.co.uk

Charlotte

Charlotte Parkinson, Group Editor, Modern Claims.

CONTENTS 05-18 THE INTERVIEWS

06 Interview with...Hilary Meredith

Charlotte Parkinson, Modern Claims spoke to the Chief Executive of Hilary Meredith Solicitors (HMS) about the complexities of dealing with claims against the Ministry of Defence (MoD), the potential impact of inexperienced practitioners moving into complex claims and what’s in the pipeline for the firm in the future.

10 Interview with...David Knifton

Charlotte Parkinson, Modern Claims, spoke to the Barrister at Exchange Chambers about how the nature of claims against the Ministry of Defence (MoD) have changed in recent years, and how the “combat immunity” doctrine could impact Claimants.

19-30 THE FEATURES 21 Adding value: Pagination - A win-win situation.

22 From strength to strength

Charlotte Parkinson, Modern Claims, spoke to the Barrister at Outer Temple Chambers about the legal reasons for a rise in claims against the Ministry of Defence (MoD), working to obtain just compensation levels for Claimants and aspirations for the future of his legal career.

Modern Claims Magazine - March 2015 Project Director Kate McKittrick kate@charltongrant.co.uk Group Editor Charlotte Parkinson charlotte.parkinson@charltongrant.co.uk Business Development Manager Martin Smith martin@charltongrant.co.uk Project ManagerBen Longbottom ben.longbottom@charltongrant.co.uk

Latest news and views from Hilary Meredith Solicitors Ltd, the UK’s leading military law firm.

25 Helping the Heroes – Advice for Injured

14 Interview with...Ben Bradley

Adèle Coates-Lyon explains why using a pagination company could help you in more ways than you might think when processing claims.

Service Personnel

Dramatic footage depicting the treatment and rehabilitation of young men whose injuries have had a devastating impact on their lives is tempered by their apparent unflappable determination to simply get on with life, as Andrew Sands reports.

26 Funding Claims: Bridging the gap

Mark Hartigan outlines why Clinical Negligence Solicitors are missing out when it comes to payments on account and explains how thousands of firms could significantly improve their cash flow.

29 Prosthetic Limbs: A new chapter

Amputation is for life. Abdo Sleiman Haidar explains why practising prosthetics for the last twenty years has shown him how lives can be completely transformed through clinical dedication and high-tech prosthetics.

30 The role of an Expert Witness in claims against the

Ministry of Defence

Mike Ginn explains how an Expert’s skills can help a legal team to make best use of established facts during a claim against the Ministry of Defence (MoD).

Contact 01765 600909

MC // Military Claims Supplement 2015

Tues 19th May Chelsea F.C. Stamford Bridge London

Programme coming soon To register your interest please contact Victoria Lang-Burns on 01765 600909, victoria.lang-burns@charltongrant.co.uk or visit our website www.modernclaimsevents.co.uk/ Headline sponsor

www.laird.expert

The Interviews

05-18

THE INTERVIEWS

MC // Military Claims Supplement 2015

Interview with... Hilary Meredith

Interview with... HILARY MEREDITH Charlotte Parkinson, Modern Claims spoke to the Chief Executive of Hilary Meredith Solicitors (HMS) about the complexities of dealing with claims against the Ministry of Defence (MoD), the potential impact of inexperienced practitioners moving into complex claims and what’s in the pipeline for the firm in the future.

Q A

How has the wider PI industry changed during the 27 years you have been working in it?

It has changed immensely – the most obvious being that I started in the industry pre-internet, I know, hard to believe or remember a time pre internet. As Articled Clerks, as we were then called, research was undertaken in The Law Library. Everything now is online with research at your fingertips. The rate at which we work has increased and for me working any time, any hour, where ever I am is now a necessity not a luxury. Global markets are connected at high speed and we talk to the other side of the world with an ease and informality that could never have been possible years ago. Long letters from solicitors should be a thing of the past and communication is now almost exclusively informal, online, by social media, skype or text. We always ask our clients how they would like us to communicate with them, there is a choice now.

Q A

How have the nature of claims against the MoD changed during your time working in the sector? I handled the first ever claim against the MoD and initially, they were in a state of shock and were

very naive to the whole process and the nature of some of the claims. There was a long learning curve and I actually helped them set up their claims handling process and explained what information they would need to trace an incident, it is difficult to understand how an organisation couldn’t find its own people. I set up a ‘letter before action’, which included every piece of information, including the cap badge, service number, rank and regiment - everything the MoD would need to trace a Serviceman involved in a claim. As litigants, we are one removed from the MoD now as they instruct external panel lawyers but we have enjoyed a good relationship with the MoD. We built a good rapport and a mutual respect as we were constantly battling the same defendant.

Q A

What are the challenges of being a niche and specialist personal injury practice?

The biggest challenge is retaining your profile in a niche area of law, especially when so many others are now swimming upstream. We have a long established reputation in this area though and around 60% of our work now comes from our existing clients. Reputation for delivering a good quality legal service to the military personnel is very important to us. Maintaining that presence in a niche market is

something we will never take for granted - we work hard to maintain it.

Hilary Meredith Solicitors accepts instructions from Bosnia, Kuwait, Canada and others, what are the challenges associated with handling claims on an international level?

The biggest problem is access to information; we rely very heavily on eyewitness statements. We can’t go out to Afghanistan (as an example), to investigate every single claim. The investigating is mainly paper based with much of the information coming from the defendant. Looking over specific case notes requires a high level of skill; it can be difficult to spot if there are any discrepancies in eye-witness accounts especially if much of the information is technical. Interviewing eye-witnesses and getting to the heart of the issue is like putting together a jigsaw puzzle and when the final piece clinks into place and we discover exactly how an incident happened, it is an amazing feeling. Quite often the actual events are completely different to the official report.

What difference has the recently obtained Alternative Business Structure (ABS) licence made to the firm?

‘The biggest challenge is retaining your profile in a niche area of law, especially when so many others are now swimming upstream’

MC // Military Claims Supplement 2015

Interview with... Hilary Meredith

We were one of the first to obtain an ABS licence and of course this enables us to invite people with talent from outside the industry on to our Board. They provide a commercial perspective and different level of thinking than most lawyers do. We have made some exciting new appointments from outside the industry that we are yet to announce, so watch this space.

Q A

What type of claims currently makes up the biggest area of work for the firm?

Currently, nearly 60% of the practice is made up of multi-track work. We have specialised in multi-track since the firm was formed in 2003. For practices only just launching into multi-track work, it is important to remember not to under estimate the weight of those cases and the financial liabilites which have to be carried for 3 or 4 years before pre settlement. Having founded the practice in 2003 with a large multi-track caseload, we were well aware of the financial tie-up. Nearly 40% of the office focuses on military work, with brain and spinal injury work. We also have a growing military and clinical negligence department which is expanding so we are currently recruiting good quality, experienced clinical negligence lawyers to join the team.

Q A

How does dealing with high value work add complexity to the claims process, how do you manage this in terms of time and costs?

The difference with the high value work is that we become very close to our clients and their families, we have to spend a lot of time getting to know the claimant in detail to construct a holistic life plan for the future. Managing client’s expectations and finding out exactly what they want out of the case is something we pride ourselves as experts at.

‘Getting to the heart of the issue is like putting together a jigsaw puzzle and when the final piece clinks into place and we discover exactly how an incident happened, it is an amazing feeling’

Q A

How could the decision taken by some low-value practitioners to move into high-value work, be damaging to clients, in light of wider pressures in the PI space?

We see this a lot as new players try to move into military work. These cases though have developed over the years to become extremely complex with unique issues such as Combat Immunity and Human Rights on the battlefield, military inquest work has become extremely complex and a mine filed if you are new and inexperienced. The additional problem with funding these cases which take around 3 or 4 years to settle can not be underestimated. Any business embarking on this work has to be able to withstand the lack of cash flow for that length of time. This is often something that is overlooked.

What impact could further cuts to the armed forces have in terms of levels of claims against the MoD?

Hilary Meredith Solicitors Hilary Meredith Solicitors Limited was established in October 2003 by Hilary Meredith, a highly experienced lawyer who has been an expert in catastrophic injury compensation for over 27 years, and has grown to over 50 strong with offices in Chancery Lane, London and Wilmslow, Cheshire. This niche claimant personal injury practice looks after clients whose injuries range from the straightforward to those of maximum severity. It is particularly recognised for its handling of Armed Forces accidents worldwide, the high profile of a number of its cases and the compensation recovered. The firm has won numerous awards that have been recognised throughout the industry. Hilary has received instructions from as far afield as Bosnia, Kuwait, Canada, China, Belize, the Falkland’s, Iraq and Afghanistan and recovered more than £60 million worth of damages for her clients. The firm currently handles many ground breaking cases including human rights law on the battle field, green

MC // Military Claims Supplement 2015

on blue and blue on blue friendly fire. Many of the firm’s cases set precedents and have improved safety standards reducing the risk of future injury and fatalities. It is also recognised for its campaigns for improvements through Parliament and the press. The practice also has excellent long established links with military Charities, including the Royal British Legion, SSAFA, Combat Stress, Help for Heroes and Sanctuary for Veterans, all of whom can be called upon to help the injured person. At a time of change for the legal profession, Hilary Meredith Solicitors’ experience of handling serious injury claims has allowed the firm to build up an unparalleled wealth of knowledge, expertise and experience. The firm is a true leader in its field.

Interview with... Hilary Meredith

Hilary Meredith

Solicitor/Senior Partner Chair of the Royal British Legion Solicitors Group Member of the Multi parliamentary Gulf War Group Editor in Chief, Claims Management Magazine. Hilary Meredith is Director and Partner at Hilary Meredith Solicitors Ltd, a Senior Fellow of APIL, a past APIL EC member (1998 – 2007) and a former Military SIG Co-ordinator. Since launching her firm in 2003, Hilary has established Hilary Meredith Solicitors as a market leader in the field of personal injury. Dealing with high profile brain and spinal cord injury cases with particular interest in claims on behalf of the UK armed services worldwide, the firm has collected a number of leading industry awards and accolades in recent years. Hilary is a Law Society Panel member, panel member of Headway and SIA, member of AAJ and IBA, Chairman of the Royal British Legion Solicitors Group and member of the Parliamentary Gulf War Committee.

‘There will be more accidents on training courses and on manoeuvres when practising for war, unfortunately this seems inevitable’

The claims will rise as the number of cuts increase, particularly with the levels of cuts forcing Reservists to take the place of and work alongside the regular Army. This is a recipe for disaster, the skill sets and fitness levels are just not there. Cuts made in higher-level ranks, the ones with experience, is also a worrying move. I predict there will be more accidents on training courses and on manoeuvres when practising for war, unfortunately this seems inevitable.

Q A

What is next for HMS?

At HMS Ltd we never stand still or rest on our laurels; we’re always up to something! I’m working on a major project at the moment, which is just coming to fruition; it will be unique and has never been done before. It is very exciting and could triple the size of the firm over the next 2 years, watch this space!

Hilary continues to work tirelessly for all her clients who have suffered life changing injury and in particular with armed forces personnel at military rehabilitation centre RAF Hedley Court in Epsom. Her goal is to improve quality of life for the armed forces and particularly for those after medical discharge, through adapted housing, rehabilitation, increased mobility and vocational work. She regularly lobbies Parliament and the Select De4fence Committee with issues affecting the Armed Forces including the recent SARAHs Bill, Requests for an AFCs check list by MoD and campaigning against The Fog of Law papers. She is currently Editor in Chief of the Claims Management Magazine and has made many media appearances for TV and Radio including Panorama, World in Action, Sky News, News at 10 and most National and Regional news programmes. Her Twitter site currently attracts over 1000 followers, including MP’s, Service Charities and Defence Journalists. Hilary’s latest assistive technology initiative, which involves providing complementary touch screen, iPads to seriously injured clients, has met with widespread acclaim across the board. The iPads are preloaded with practical and legal advice to guide clients through the claims process. In addition, the firm’s “Face to Face” initiative allows clients to speak to their solicitor via skype link from their own home. In a changing legal services marketplace, Hilary’s passion, drive and commitment to innovation marks her out as one of the UK’s most recognisable and well regarded personal injury solicitors. Hilary is currently the official sponsor of Jamie Burdekin, the wheel chair paralympian who won a bronze in Beijing and is currently ceded 5th in the world. Hilary is also involved in a campaign to provide specialist equipment to reduce the effects of blast injuries by road side bombs in Afghanistan (see website petition at (House of Commons petition)). Hilary (in any spare time) enjoys, golf, skiing and sailing.

MC // Military Claims Supplement 2015

Interview with... David Knifton

Interview with... DAVID KNIFTON Charlotte Parkinson, Modern Claims, spoke to the Barrister at Exchange Chambers about how the nature of claims against the Ministry of Defence (MoD) have changed in recent years, and how the “combat immunity” doctrine could impact claimants.

Q A

Why did you decide to pursue a legal career?

As a youngster, I had always dreamed of becoming an RAF pilot. However, when I was aged around 9 or 10, I watched a few episodes of “Crown Court” on TV. For those not old enough to remember, it was a programme which ran during the 1970s, in which the courtroom drama of a criminal trial was recreated using actors as barristers, judges and witnesses, but with a jury made up of members of the public. Each trial was heavily edited so as to fit within three 25 minute episodes, with a voice-over to explain some of the less dramatic evidence. I was completely hooked, and made up my mind I wanted to be a barrister. Although it has been many years since I dealt with a criminal trial (except when sitting as a Recorder), I have never looked back on that decision. Although I rarely go to court nowadays, I still find the job every bit as exciting as it appeared when I was 9 or 10.

Q A

What type of claims and cases do you deal with most on a daily basis?

I only deal with high-value personal injury and clinical negligence claims, and no longer accept instructions where the value of the case is less than £250,000. Virtually all my work is on behalf of claimants, especially

‘There is, however, a danger that lawyers will be less willing to take on the riskier cases as a result, particularly when they are fighting against a body such as the MoD, which has almost limitless reserves behind it, and can afford to contest such cases all the way to trial’ those who have been the victims of brain injuries, spinal cord injuries, amputations or other catastrophic injuries. Last year I settled claims with a total value of £29m. A good deal of my workload involves members of the Armed Forces who have been injured during the course of their service.

What are the specific challenges associated with managing high-value and complex claims and why did you choose to specialise in this area?

It is fundamental to dealing with such claims that I get to meet the client at the outset

(usually at their home), so that I can get a real understanding of their condition and needs, and can explain how the claim can be used to help them. My aim is always to make life better for the client, notwithstanding their catastrophic injury, by ensuring that their rehabilitation needs are met as the claim progresses, and by formulating a comprehensive Schedule of Loss as the basis for negotiating a settlement at the conclusion. I find it enormously satisfying, often having met the client when they are at their lowest ebb, to see a case through to a successful conclusion, knowing that my input has made a real difference to the client’s quality of life for the future.

Q A

How have claims against the MoD changed in recent years in light of external pressures (cuts etc)?

The changes to Conditional Fee Agreements (so-called “no win-no fee” cases) which came into effect in April 2013 are bound to have an effect on such claims. In the past, lawyers would be willing to take on risky cases because they could recover a success fee (up to 100% of their normal fees in appropriate cases) if they won, which would pay for those cases where they lost, and recovered no costs at all. However, the success fee has now been capped at 25%, and must be taken out of the client’s damages, rather than paid by the other side. Whilst that may be OK in a simple whiplash claim, like MC // Military Claims Supplement 2015

Interview with... David Knifton

‘I have encountered many injured personnel who have felt abandoned by the Armed Forces, particularly when they have suffered injuries which have brought their military careers to an end’ many personal injury lawyers, I find it totally unpalatable that a seriouslyinjured claimant should have to pay part of their lawyers’ costs out of the damages which have been awarded to compensate them for their injury. As a result, I never seek a success fee in such cases. There is, however, a danger that lawyers will be less willing to take on the riskier cases as a result, particularly when they are fighting against a body such as the MoD, which has almost limitless reserves behind it, and can afford to contest such cases all the way to trial.

Are young people who make a successful claim against the MoD adequately protected in terms of financial planning/guidance on settlements etc?

Any experienced solicitor will take steps to ensure that a client receives independent financial advice regarding the investment of their award, so as to ensure not only that it maintains its value to meet future costs, but also that the client does not lose any entitlement to state benefits. In many of the most severe injury cases, damages for future losses are now awarded as an annual payment (a periodical payments order), which increases each year in line with inflation, and is guaranteed to last throughout the client’s lifetime. The certainty of knowing that future needs will be met by a guaranteed annual payment is particularly important at a time when interest rates are extremely low, but awards are assessed on the assumption that investment of the award will generate a net rate of return of 2.5%.

How could the growing number of inexperienced legal practitioners moving into the military claims space to replenish lost revenue, impact claimants and affect your role as a Barrister?

MC // Military Claims Supplement 2015

This is an area of real concern. Any client who has suffered a serious injury during their military service deserves the highest quality advice from lawyers with a proven track record in handling such claims. I worry that some clients will be unable to distinguish between the lawyer with a proven track record, and the lawyer who merely claims to have one. Lawyers dealing with such claims need to have a sound understanding of the difficult issues which are often involved, and to be able to give advice based upon experience. Whilst the major legal directories (Chambers & Partners or the Legal 500) can point someone in the right direction, there is no substitute for a personal recommendation. I would advise any injured serviceman or woman to ask colleagues who may have brought claims for details of their solicitors, but to research the firm through its website and through the directories. If a surgeon was going to operate on me, I would want to know how many similar operations he had successfully performed in the past. No client should be embarrassed to ask their proposed lawyer a similar question.

‘Those injured in the course of their military service due to negligence or breach of duty should be entitled to pursue compensation claims through the courts’

Are the Government investing enough into the rehabilitation/aftercare for those injured during military service, or should they be doing more?

There is no doubt that excellent facilities are offered at regional rehabilitation units and at the Defence Medical Rehabilitation Centre at Headley Court. However, I have encountered many injured personnel who have felt abandoned by the Armed Forces, particularly when they have suffered injuries which have brought their military careers to an end. The so-called military covenant should mean that those who have suffered life-changing injuries as a result of risking their lives in the service of their country receive a fitting standard of rehabilitation and support. On numerous occasions, however, the Government has been criticised by former Chiefs of the Defence Staff, The Royal British Legion and the Military Covenant Commission for failing to do more to support injured troops and their families. That is why I believe passionately that those injured in the course of their military service due to negligence or breach of duty should be entitled to pursue compensation claims through the courts, just as much as any employee injured whilst doing his employer’s work.

Q A

How do you anticipate the nature of military claims to evolve in the future?

A major issue on the horizon is the scope of the doctrine of “combat immunity”, under which liability for damages is excluded on public policy grounds for negligent acts or omissions in the course of an engagement with the enemy. The Supreme Court has, by a narrow majority, recently refused to strike out claims for injuries sustained as a result of IED attacks on inadequately-armoured Snatch Land Rovers, and friendly fire on a

Interview with... David Knifton

‘It will be fascinating to see whether the courts are prepared to examine decisions relating to the procurement of military equipment, in order to determine whether they were negligent, or whether they will decline to do so on the basis that such judgments are for politicians, not the courts’ Challenger tank due to inadequate technology or recognition training. In each case, although the injuries were undoubtedly sustained during the course of battle, the allegations of negligence related to procurement decisions and training, well away from the heat of battle. The Court stressed, however, that great care needs to be taken not to subject the military to duties that are unrealistic or excessively burdensome, given the inherent risks of armed conflict, and it remains to be seen whether the claims will ultimately succeed at trial. Similar arguments will arise in a series of cases in which I am currently involved, in which serious injuries were sustained due to the allegedly defective design of Pinzgauer patrol vehicles, concerns regarding which had been widely aired in Parliament and the press, before they were deployed in Afghanistan. It will be fascinating to see whether the courts are prepared to examine decisions relating to the procurement of military equipment, in order to determine whether they were negligent, or whether they will decline to do so on the basis that such judgments are for politicians, not the courts.

David Knifton David Knifton is a personal injury and clinical negligence barrister practising from Exchange Chambers, Liverpool, Manchester and Leeds. Called in 1986, he has built up a substantial practice in the areas of complex personal injuries, fatal accidents and clinical negligence. He is recognised in Chambers & Partners, The Legal 500 and Legal Experts as a leader in those fields. Acting primarily for claimants, he has extensive experience in handling claims for catastrophic brain and spinal injuries, claims involving the loss of a limb, serious psychiatric injuries, fatal accidents and claims resulting from abuse in care. In the last 3 calendar years, he has helped to recover damages totalling over £76m. His largest claim to date, acting without a QC, is a criminal injuries compensation case for catastrophic brain injury, in which he secured an award of £5.85m. Described by Chambers & Partners 2015 as “fiercely intelligent whilst also being tactically brilliant”, with “excellent client skills”, he is noted in particular for dealing with military claims. He sits as a Recorder in both the Crown and County Courts and is a member of the Personal Injuries Bar Association and the Professional Negligence Bar Association.

MC // Military Claims Supplement 2015

Interview with... Ben Bradley

Interview with... BEN BRADLEY Charlotte Parkinson, Modern Claims, spoke to the Barrister at Outer Temple Chambers about the legal reasons for a rise in claims against the Ministry of Defence (MoD), working to obtain just compensation levels for Claimants and aspirations for the future of his legal career.

Q A

Why did you decide to pursue a legal career?

I’m not sure that even now I know the answer to that question. The job hasn’t turned out quite how I expected it to be, but equally, most of the time, I couldn’t have asked for a more fun-filled; flexible and occasionally horrendously stressful career. I was a debating geek at school and thought it would be nice to be paid to exercise that kind of skill in a more constructive way. Everything flowed from there; the next thing I knew I was doing a law degree and before I knew it, I was in Chambers and the snowball began! Almost nothing beats the feeling of going to trial (except probably, winning at trial).

Q A

What are the most complex case(s) you have handled to date and why?

I was involved in both of the recent ‘assisted suicide cases’. R (Purdy) v DPP [2009] UKHL 45; and R (Nicklinson) v MoJ [2014] UKSC 38. These cases were both considerably complex; but at the time I was acting for an intervener and so our role was focused on specific ‘right to life’ issues in the litigation. I have also just spent the last 2 years acting for a delightful former Sergeant Major in the Army (see: Downing v Peterborough and

MC // Military Claims Supplement 2015

Stamford NHS Trust [2014] EWHC 4216 (QB)). The Downing case was a very unusual catastrophic injury claim and fought virtually every step of the way, going all the way to trial on quantum (the liability issues settled just prior to the listed liability trial). Lawyers generally know how to run a catastrophic claim (e.g. brain/spinal injury) and you do so (regretfully) in circumstances where the prognosis is likely to be bleak – the patient will always remain catastrophically injured. However, in Downing, whilst it was our contention that the Claimant was catastrophically and permanently injured, the Defendant’s position was that Mr Downing was likely to improve. Had the Judge accepted the Defendant’s argument, the client risked being grossly undercompensated in the event of non-recovery. That puts a certain amount of pressure on the legal team’s shoulders, as the parties were miles apart on quantum. During this case, we had to deal with all the complexities of valuing a difficult claim with the additional complication of the Defendant suggesting that there was potential divergence of opinion on prognosis (although our primary submission was that there was no such divergence in reality). Coupled with that, this client was one of the most impressive I have ever had in 7 years at the Bar and the last thing we wanted to happen was for him to end up undercompensated.

What are the specific challenges that come with high value/complex claims and how do you work to overcome these?

One of my pupil-supervisors once said to me; “You’ll find that the value of your cases will increase with time, rather than their complexity”. He was right about that, the main thing about high value claims is not to panic as the issues (certainly in respect of liability) are generally similar, regardless of the value of a claim. For example, the issues that determine liability in a Road Traffic Accident (RTA) that cause catastrophic injury may well be identical to those being tried on the small claims track up and down the country. Often, Personal Injury (PI)/Clinical Negligence cases become complex not because of the law but because of medicine. It’s vital to understand the medicine but not necessarily in a way that a medic would understand the medicine. Even the most complex cases can be distilled down into a set of straightforward questions and evidence that doesn’t relate to those issues is usually peripheral. The key questions to ask are; what am I going to say to the judge in closing submissions? What questions does the judge ultimately need to answer in order to establish liability (or whatever needs to be established)? How is this piece of expert evidence going to help me to assist the judge in answering those questions? How can I make this piece of

Interview with... Ben Bradley

‘Lawyers generally know how to run a catastrophic claim (e.g. brain/spinal injury) and you do so (regretfully) in circumstances where the prognosis is likely to be bleak – the patient will always remain catastrophically injured’ evidence help me? These are the same key questions to ask in all litigation regardless of its complexity, whether they are Clinical Negligence, RTA, Military claims or other.

Q A

Have you noticed an increase in claims against the MoD since your year of call in 2007, if so, why do you think this is?

Yes; there are certainly legal reasons for the increase and there are bound to be more claims now that the principal of combat immunity (and the ability to plead it in the defence of an action) has fallen away in circumstances where the Claimant is not engaged in contact with the enemy. The case of Smith & Ors v Ministry of Defence [2013] UKSC 41, illustrates this point, as although the principal of combat immunity does still exist, it has been significantly watered down. Now, if military personnel are injured in the field but are not in enemy contact at the time, it is usually possible to claim. Similarly, where personnel are injured as a result of faulty or defective equipment issued to them, it is unlikely that a defence

of combat immunity will be available to the MoD. Smith has broadened the opportunities for those injured in the ‘theatre of war’ to bring claims. The military community is a very close one and when cases such as Smith are reported so widely in the press, it raises awareness for Claimants too; leading to more claims. A combination of changes in the law, technology, social media and greater awareness, all give rise to more claims.

Q A

Is there a danger that large volumes of unscrupulous claims against the MoD could tie up the legal system and the MoD itself, ultimately costing the taxpayer? We have to trust the justice system and Judges to do their jobs properly. Unscrupulous Claimants ought to be identified through the judicial process and in my experience, they often are. If there are fraudulent claims in the system, there are very able fraud departments in insurance companies that will need to weed them out at an early stage. I don’t think this area of work is sufficiently large in itself to

MC // Military Claims Supplement 2015

Interview with... Ben Bradley

‘The military community is a very close one and when cases such as Smith are reported so widely in the press, it raises awareness for Claimants too; leading to more claims’ clog up the court system on its own. Similarly, where the MoD has caused injury to those who have often made significant sacrifices to serve, it is right and proper that those individuals should be compensated appropriately.

What are the main issues associated with gathering and presenting evidence in claims against the MoD from an international perspective?

There is rarely an international element to these claims per se. The people involved are usually British Claimants, employed British Defendants on a British base, meaning any claims in regards to negligence are defined (in most cases) by English Common Law. Some solicitors forget that the 6-pack Workplace Regulations don’t apply overseas. Issues can arise when collating evidence and these mainly centre around National Security. Sometimes we have to act blind because (quite rightly) the MoD tell us some things cannot be disclosed in a public setting (i.e. a public trial). We have to trust the MoD’s lawyers to make sure they are undertaking tasks effectively. The disclosure exercise can raise interesting questions and issues about public interest immunity.

Is there a danger that inexperienced legal practitioners are beginning to move into handling claims against the MoD to replace lost revenue streams and what impact could this have on claimants?

It goes without saying that any legal professional should only undertake work if they are competent to do so. Of all the areas of work that I do, this is one area where the claims process really does need to be handled by a specialist, as there are significant risks of under compensating claimants. These claims often involve cross-over issues, such that the claims might be more appropriately classified as ones of Clinical Negligence (many claims relate to the manner in which medical officers have dealt with members of the services during medicals; following on-field injuries etc). If a solicitor doesn’t have Clinical Negligence experience, they should tread carefully before undertaking this type of work. Quantum is also necessarily complicated. Ill-health retired personnel suffer significant loss of benefits (e.g. accommodation; pension loss; salary) all of which needs to be quantified. There are some more complex questions, which need addressing too, such as; how does one deal with prospects of promotion in the Services? Members of the military are often highly regarded upon discharge – how does one plead an alternative career model for that individual, assuming that the Claimant would have gone on to undertake a further career on discharge from the Armed Services? All of these questions are necessarily speculative – an experienced solicitor is likely to possess the appropriate judgment so as to ensure that each of these issues is adequately and appropriately canvassed.

‘Where the MoD has caused injury to those who have often made significant sacrifices to serve, it is right and proper that those individuals should be compensated appropriately’

MC // Military Claims Supplement 2015

Q A

How are the cuts to the legal sector impacting both the sector itself and Claimants in terms of access to justice?

So far, not as badly as everybody feared, but it is becoming less commercially viable to undertake lower value work. As I understand it, clients are still walking through the doors of solicitors’ offices with potential claims. A negligently injured client is still entitled to compensation and there are firms who are still willing to undertake that work (and defend those claims), but there will come a time when those lower value claims are less profitable because of a lack of uplift. We have not yet seen the full effect of Qualified one-way Costs Shifting (QOCS), as very few trials will have fought to date where those provisions apply. Specific points to consider here are; does every QOCS case now have a commercial settlement value for the Defendant? Does that mean the Claimant will still face costs risks in every case (if faced tactically with an early and low Part 36 offer)? In turn, will the intended benefits of QOCS be negated through early (low) Part 36 offers?

Q A

Are the Government investing enough in the support for injured military personnel?

Many Claimants that I see come to solicitors because they were inadequately supported on discharge from the Services. For example, someone might be suffering from Post-traumatic stress disorder (PTSD), as a result of an incident they witnessed in combat, which is then not managed appropriately on discharge. Equally, I know of many injured personnel who have been in receipt of fantastic levels of support, both from the MoD and Military related charities, such as The British Legion.

What are your future aspirations for your legal career?

Interview with... Ben Bradley

Ben Bradley

‘If there are fraudulent claims in the system, there are very able fraud departments in insurance companies that will need to weed them out at an early stage’

Who knows? This profession never stands still. I want to keep challenging myself, I would like to try to take silk eventually (although this is a long way off!), before retiring early to run a ski chalet in the Swiss Alps. This of course may not happen on any level, in which case, I’ll have to hope that all of the post-Jackson-Armageddonstyle-prophecies for the PI/Clinical Negligence Bar don’t hold true!

Ben Bradley is recommended by the leading directories across his core practice areas of Clinical Negligence, Personal Injury and Travel Law. He undertakes a mixture of work across these areas of practice, generally beyond his level of call, for both Claimants and Defendants. Having been first identified by the Legal 500 as, “a star of the future” in 2012, this year’s editions of the directories describe him variously as “supremely talented and incredibly hardworking” (Legal 500, 2014), as someone who is “…incredibly experienced given his year of call” (Chambers and Partners, 2015), and as someone who “completes work…to a very high standard” (Legal 500, 2014). Recent clinical negligence instructions include cases in the field of ophthalmology (non-detection of glaucoma leading to partial loss of vision); numerous neonatal death cases (which included appearances at complex and sensitive inquests); birth injuries, resulting in cerebral palsy; and missed diagnoses of spinal fractures leading to cord injury and paralysis. Ben’s personal injury practice encompasses a range of niche specialisms. He has significant experience of running high value group action litigation for Claimants who have been injured abroad. He regularly represents former (and current) members of the military in claims against the Ministry of Defence. He acts for victims of historic sex abuse; he recently appeared as junior counsel for the Claimant at trial in the first claim to be brought against the Watch Tower Society of Britain (Jehovah’s Witnesses); judgment is awaited. He acts as junior counsel on a number of catastrophic injury cases, and as sole counsel for catastrophically injured appellants bringing claims under the CICA schemes.

MC // Military Claims Supplement 2015

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The Features

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THE FEATURES

MC // March 2014

MC // Military Claims Supplement 2015

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The Features

ADDING VALUE: PAGINATION - A WIN-WIN SITUATION Adèle Coates-Lyon explains why using a pagination company could help you in more ways than you might think when processing claims.

Sol Treasury solicitors now insist medical records are properly paginated and this is no bad thing. Without a doubt the biggest “no brainer” is to use a pagination company, not only for Clinical Negligence work but for multi track Personal Injury (PI) work and Industrial Disease cases as well, in particular for military clients whose medical records (F.Meds) can run into volumes and be stored in different locations. Wading through a mass of notes as a PI lawyer is hugely daunting and confusing but you have no need to worry – Medical Records UK are here to support you every step of the way. Not only will they sort, paginate and identify missing and incomplete records, they also undertake a summary of the notes and highlight any evidence in the notes you need to know about in advance. Accuracy and quality Unlike most medical agencies that use nurses part-time, reviewing notes on the kitchen table, Medical Records UK employs scientists full time who work from a professional office as a team. This ensures the accuracy and quality of the summary and pagination. The team at Medical Records UK, which includes an ex-Army medic, are the industry’s leading experts in military medical notes,

identifying missing records and where they are likely to be. This can range from anywhere, from Afghanistan or Selly Oak to the Regiment. There are also two forensic scientists on the team, as well as two human biologists, one of whom also has a background in Professions Allied to Health. The team also includes two sports scientists and two biomedical scientists. The scientists at Medical Records UK all have proven investigative skills and excellence in report writing as well as clinical experience. Innovative and secure Once sorted, paginated and indexed, the medical records are scanned into electronic format. Double screens are used, one displaying the notes and the other annotating as they are read. The resultant PDF is searchable and annotatable. The records and reports are then encrypted and provided electronically using a link sent in an e-mail to the instructing solicitor. This enables preservation of the integrity of the records, which is often lost during repeat photocopying. Onward sharing with experts and counsel is then also free. Recipients need only to be authorised to view the encrypted records. There is no extra charge for theses electronic records and hard copies are also provided in high quality, durable files. Award winning This approach is innovative and contributed to our recent Award for Medical Legal Provider of the Year 2014. Medical Records UK also won the Scoot Headline Award in 2014 for Business Innovation.

‘Not only will [Medical Records UK] sort, paginate and identify missing and incomplete records, they also undertake a summary of the notes and highlight any evidence in the notes you need to know about in advance’

WHAT OUR CLIENTS SAY “I had never thought of using a pagination company for a Personal Injury case but many notes are complex and it just makes sense to do so, freeing up our case handlers time to concentrate on the legal tasks in hand.” Hilary Meredith, Hilary Meredith Solicitors. “The services of Medical Records UK proved to be invaluable in deciphering over a hundred sets of veterans’ medical records both swiftly and accurately particularly since such records, given their age, rarely lent themselves to being legible” Ilesh Chandarana, Imperial Chambers. Instructing Solicitor in the Atomic Veterans’ case, litigated in the High Court 2008-2011. “They provided a very quick but thorough professional service. The records came back well organised and they prepared a very helpful chronology, all returned within a week of the bundles being sent” Paul Balen, Freeth Cartwright.

Added value The benefit to fee earners in time now spent concentrating on the legal work is immeasurable. In addition, the work undertaken can be charged as part of profit costs so the hourly rate is charged out at the grade of the instructing fee earner. Adèle Coates-Lyon is Managing Director at Medical Records UK. Medical Records UK is supporting Hockey for Heroes. To donate please visit: http://www.bmycharity.com/H4H2015 and quote ‘Medical Records UK’.

MC // Military Claims Supplement 2015

Case Study

FROM STRENGTH TO STRENGTH Latest news and views from Hilary Meredith Solicitors Ltd, the UK’s leading military law firm. CAMPAIGNING FOR MILITARY SERVICE PERSONNEL Hilary Meredith Solicitors is campaigning on a number of fronts for military service personnel at present.

to cover situations such as procurement and training incidents. We will be meeting with members of the Defence Committee to discuss this matter further.

MILITARY PERSONNEL ARE RECEIVING SUBSTANTIAL AFCS AWARDS WITHOUT THEIR CAPACITY, BENEFITS, OR FINANCIAL SITUATION BEING PROPERLY ASSESSED The MoD’s current policies for doing so are wholly inadequate. We believe further guidelines/checklists need to be implemented by the MoD to offer greater protection to such claimants. SARAH’S LAW AND ITS POTENTIAL TO ENCROACH UPON PI CLAIMS FROM MILITARY PERSONNEL – TRYING TO BRING COMBAT IMMUNITY IN THROUGH THE BACKDOOR We welcome news that the MoD will not be able to use the Social Action, Responsibility and Heroism (SARAH) Bill to avoid its responsibilities to members of the Armed Forces. Hilary Meredith has met with a number of MPs and members of the House of Lords in recent months to campaign for the rights of Armed Forces service personnel.

FIRM WELCOMES MILITARY HIGH COURT RULING Hilary Meredith Solicitors has welcomed a recent High Court ruling in which it was decided that the fixed success fee regime should not apply to members of the armed forces injured at work.

Hilary, who was in the House of Lords on a number of occasions to listen to the debate on the SARAH Bill, says: “Our concerns were that the Bill would be exploited by the MoD, who could present it as a defence to escape liability in cases of their own negligence or vicariously. If this was able to happen, the Bill would stand in breach of the military covenant. “Lord Beecham raised these concerns in the Lords and invited Lord Faulks to confirm whether the MoD would not be able to use the provisions of the Bill to avoid paying compensation to members of the Armed Forces. “Lord Faulks reassured Lord Beecham that there was nothing in this Bill to prevent a claim being brought by a member of the Armed Forces against the MoD and noted his concerns against the backdrop of the recent combat immunity litigation. He stated that there is no need for anxiety as vicarious liability is not intended to nor will be altered in any way by the provisions of the Bill. Lord Beecham noted that this is now on parliamentary record and can be read as the correct interpretation of the legislation if this issue is raised.” THE FOG OF LAW AND LEGAL FRAMEWORK FOR FUTURE OPERATIONS We are campaigning to prevent the idea of Crown immunity being re-introduced/combat immunity being expanded

MC // Military Claims Supplement 2015

Three members of the military brought claims against the Ministry of Defence after suffering an injury during training, in each case arguing that the fixed success fee regime does not apply because they were not an ‘employee’. Prior to April 2013, civil procedure rules stipulated fixed success fees in certain employers’ liability claims. Each had lost their case based on the civil procedure rules definition of an employee. Mr Justice Supperstone ruled that the fixed success fee regime does not apply to each of the three claims and he allowed their appeals. The issue of the assessment of the success fee will now be referred to Master Howarth for determination.

‘Subjecting [military personnel] to fixed fees would prejudice access to justice for this very deserving claimant group’ Hilary Meredith says: “This judgment is absolutely spot on and it is a good point to take to appeal as military personnel are not employees and their cases should not be classed as EL cases. “Military cases face unique challenges to their claims such as combat immunity arguments which cost money to fight. Non-military cases do not have to contend with these issues. “To subject these cases to a fixed fee regime is tantamount to a breach of the military covenant and is not what was intended by the repeal of S10 of the Armed Forces Crown Proceedings Act back in 1987 – when its purpose was to place military personnel on an equal footing as civilians if they are injured. Subjecting them to fixed fees would prejudice access to justice for this very deserving claimant group.”

Case Study

‘Hilary Meredith Solicitors has secured £80,000 for an RAF aircraft engineer who was permanently downgraded and then discharged from service after developing occupational dermatitis during the course of her work’

APPEAL VICTORY FOR MILITARY CLIENTS Over 60 claims of noise-induced hearing loss will be heard separately in the local county courts of the claimants, rather than transferred centrally to the High Court, after an important legal victory by Hilary Meredith Solicitors Ltd. The claims have been brought by military personnel, who alleged to have developed hearing loss either in training, in combat, post combat or in a combination of those circumstances. Many causes have been given; from the lack of sufficient hearing protection equipment to the operation of military hardware such as guns or mortars.

after her 15 year engagement ended in October 2012. As a result of this, she was unable to complete the 22 years service required to qualify for a pension.

Hilary Meredith Solicitors instructed David Allan QC to fight for 29 of the 60 claimants after the Ministry of Defence made an application to transfer the cases to the High Court, with the argument that it would be more cost-effective than having each case dealt with separately. They opposed the MoD application on the grounds that they had already settled some hearing loss cases previously, so arguments relating to the complex issues involved did not hold; each case was fact-specific and some of these claims were well on their way to court and it was unfair to the claimants to further delay the outcome.

A former Marine, Liverpudlian Jamie was seriously injured in a car accident in 2000, leaving him wheelchair bound and unable to walk again. After 10 months of rehabilitation at the Southport Spinal Injury Unit, he began to attend wheelchair tennis sessions at a centre in the Wirral.

FIRM SECURES SETTLEMENT FOR AIRCRAFT ENGINEER Hilary Meredith Solicitors has secured £80,000 for an RAF aircraft engineer who was permanently downgraded and then discharged from service after developing occupational dermatitis during the course of her work. The client joined the RAF in October 1997. After being exposed to chemicals and dust and developing dermatitis, she was permanently downgraded to office work and then discharged from service

Commenting on the case, the client said: “After 15 years of service, the RAF left me high and dry and without a medical pension. I was forced out and given no support.” NEW SPONSORSHIP DEAL FOR FORMER MARINE Hilary Meredith Solicitors Ltd has extended its sponsorship of Paralympic tennis player Jamie Burdekin as he works towards the Rio Paralympics 2016.

Of the sponsorship, Hilary Meredith says: “It’s been a real thrill to work with Jamie over the last few years and we are delighted to extend our sponsorship as he works his way towards the Rio Paralympics. Jamie is a truly inspirational man who has shown real resilience and passion in the face of adversity – he’s a role model to so many of our clients, many of whom have suffered life changing injuries.” FORMER COMMANDO JOINS HILARY MEREDITH BOARD Hilary Meredith Solicitors Ltd has strengthened its senior management team with the arrival of Mark Farrell as Operations Director. Mark will take his place as a Director on an enlarged Main Board at Hilary Meredith Solicitors, which also now includes London-based partner Grant Evatt.

Mark Farrell has extensive experience in the legal, claims management and financial services sectors. He joins Hilary Meredith Solicitors from Nationwide Claims Solutions where he was a Director. Previous roles include CEO at Beresfords Solicitors and Managing Director at Capita. Mark also has extensive experience in the insurance sector, having worked at Aon and Royal & Sun Alliance. Grant Evatt is a specialist military solicitor who joined Hilary Meredith Solicitors in 2013. He has a long-standing association with the military having joined the Junior Leaders Regiment Royal Artillery aged just 16. After 12-months basic training, he volunteered for Commando Forces. Grant and 2 others from a group of 30, successfully passed the All Arms Commando Course at the Commando Training Centre Royal Marines and he was posted to 8 Battery 29 Commando Regiment RA in Plymouth. A qualified Platoon weapon’s instructor, military skiing instructor, parachutist and diver, Grant proudly served his country worldwide for 10 years before a knee injury brought his military career to a premature end. Hilary Meredith Solicitors Limited was established in October 2003 by Hilary Meredith, a highly experienced lawyer who has been an expert in catastrophic injury compensation for over 27 years. The firm has grown to over 50 strong with offices in Chancery Lane, London and Wilmslow, Cheshire.

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MC // Military Claims Supplement 2015

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The Features

HELPING THE HEROES – ADVICE FOR INJURED SERVICE PERSONNEL There has been much publicity over recent years, relating to injured armed forces personnel returning from active service in Afghanistan. Dramatic footage depicting the treatment and rehabilitation of young men whose injuries have had a devastating impact on their lives is tempered by their apparent unflappable determination to simply get on with life, as Andrew Sands reports.

hankfully, the help available to these young people extends beyond the newly developed prosthetic devices and rehabilitation facilities. Financial support is available by way of the Armed Forces Compensation Scheme (AFCS), and is generous to those with serious injury. It usually takes the form of a one-off lump sum component, along with a Guaranteed Income Payment (GIP), which is paid annually for life, and proofed against inflation by linkage to the Retail Prices Index. GIP is also free of tax. The relative few who are able to make a claim against the Ministry of Defence, can still claim under the AFCS, however, sums paid under the scheme would usually be abated against any award of damages. For example, the AFCS lump sum would reduce or extinguish general damages, and GIP would impact upon future loss of earnings. In some circumstances, a lump sum for lost earnings can be retained at the expense, or substantial reduction of GIP. Looking ahead Either way, claims under the AFCS and/or successful civil proceedings result in young service personnel receiving large amounts of money. The combination of youth, an armed forces background, and serious injury, may bring with it a certain type of vulnerability and naivety, based perhaps upon an incredibly intense, but narrow experience of life. Arguably, those factors would not leave many young claimants well equipped to make important decisions about a large award, which is meant to last for life. Take for example, the young man with a claim against the MoD. Upon the relatively quick payment of a lump sum award under the AFCS, he decides to buy an adapted brand new Range Rover, then foots the bill for a lads’ trip to Las Vegas, and pays off his father’s substantial credit card debt. What remains is just £10,000, and that doesn’t go very far. The car is too expensive to run and is sold far too cheaply for cash. Interim payments from the civil claim are squandered in a similar fashion. Finally, upon settlement, he decides that his GIP should be exchanged for a lump sum award for lost earnings. From his perspective, £350,000, looks more attractive than a tax free, index linked income for life. At say age 25, with an established pattern of poor financial decisions, the longevity of his final award is unlikely to be great. Of course, what is left out of the above example, is the advice factor. There are many missed opportunities in that

respect. The starting point would be advice on a personal injury trust. That would provide protection of ongoing and future state benefit entitlements, which may be particularly important in the context of a reduced value award. However, the overriding consideration in our example would be the opportunity for the trustees to provide sound advice and guidance. The receipt of the AFCS award would be the prime opportunity for such advice to be given. Quite simply, an AFCS award is made as a consequence of personal injury and can therefore be managed under a personal injury trust. Similarly, receipt of interim payments should flag up the need for the same advice, if not provided or followed earlier. The advice factor As settlement of a civil claim approaches, factors such as GIP and the very similar periodical payments, can make for an interesting mix. In our example, GIP was given up in favour of a lump sum. Specialist financial advice at this crucial stage would assist in the claimant making the best decision. A clear explanation of the benefits of lifelong GIP, periodical payments, (or even both); particularly when contrasted with the headwinds inherent in a lump sum award, should provide clear guidance for the claimant and the trustees. With the advice factor added in, the outcome for our example claimant could be completely different. First, a more sensible but suitable vehicle was purchased. The lads’ trip still took place, and a good time was had by all. Following that, money was not squandered and a sensible, sustainable financial strategy was implemented. GIP was retained, and all is managed under a trust arrangement. Of course, not all claimants will take advice, but the opportunities for its provision,and if necessary, reiteration, should not be missed. Finally, what of the recipients of a substantial AFCS award, who do not have a civil claim? In those cases, there would be no experienced solicitor to ensure that appropriate advice is provided. Consideration of a personal injury trust along with sound, specialist financial advice, remains of the highest priority. Charity websites and information sheets handed out at Hedley Court may sign post the need for advice, but many are bound to miss out on such opportunities. Perhaps legal practitioners at advice clinics and the like are able to help fill that potential void. Andrew Sands is a specialist Independent Financial Adviser and a Director of Nestor Financial Group Limited.

MC // Military Claims Supplement 2015

The Features

FUNDING CLAIMS: BRIDGING THE GAP Mark Hartigan outlines why Clinical Negligence Solicitors are missing out when it comes to payments on account and explains how thousands of firms could significantly improve their cash flow.

linical Negligence solicitors throughout the UK are missing out on payments on account when the courts make costs orders – even though they are entitled to them in the vast majority of cases.

Research released by Just Costs Solicitors, indicates that in cases where solicitors obtain an order for costs, the courts are automatically making an order for a payment on account in just 15% of cases. In cases where the courts have not made an order for payment on account of costs, 80% of the time it is because solicitors have not asked for one. In only 5% of cases are the courts finding there is a good reason not to do so. A missed opportuntiy Just Costs Solicitors spoke to 1178 medical negligence partners at law firms throughout the UK for its research. Commenting on the findings, Nick McDonnell, Senior Associate and Northern Regional Manager at Just Costs said: “The Civil Procedure Rules state that where the court orders a party to pay costs subject to detailed assessment, it will order that party to pay a reasonable sum on account of costs, unless there is good reason not to do so. This research shows that claimant firms are missing out on the opportunity to significantly improve their cash flow by failing to secure payments on account. If an application is made for an interim payment, the research indicates that costs are being recovered in 89% of cases. Nick added: “Essentially, applications should not be needed if advocates simply drew the court’s attention to rule 44.2(8). If the matter settles by consent, a term for payment on account should be included in the order. Applications are needed when the costs agreement is by way of Part 36 – and if the application is made, the research shows that in the vast majority of cases they are successful in recovering the costs of their application.”

MC // Military Claims Supplement 2015

MARKET RESEARCH RESULTS Have there been more or less orders for payment on account being made since April 2013 (when CPR 44.2(8) was implemented)? More 30% Less 30% No change 40% In cases where you obtain an order for your costs, how frequently is the court making an order for a payment on account of your costs? Less than 20% of the time 30% 20 – 50% of the time 5% Over 50% of the time 50% All the time 15% In cases where the court does not make an order for payment on account of costs, why is this? The court has found there is a good reason not to do so 5% You have not asked the court to make a payment on account 80% Other 15% In cases where there has been an approved costs budget, are the courts more or less willing to make an order for payment on account at the end of the case? More 25% Less 0% Makes no difference 75% If the court does not make an order for payment on account, do you issue applications to obtain interim payments if they are not forthcoming by request? Yes No Sometimes

75% 10% 15%

Out of the applications you have issued, how often are they challenged? Less than 20% of the time 38% 20 – 50% of the time 17% Over 50% of the time 17% All the time 28% Are you generally being successful in recovering the costs of the application? Yes 89% No 11%

The Features

‘In cases where the courts have not made an order for payment on account of costs, 80% of the time it is because solicitors have not asked for one’

REALISING WORK IN PROGRESS Mark Hartigan and Jason Reeve explain why a new scheme combats cash flow problems against the ‘toxic combination’ of legal aid cuts and the shrinking of the PI market.

ersonal injury and clinical negligence law firms can now realise work in progress and improve cash flow, due to a new funding arrangement run by Just Costs Solicitors and Novitas Loans. The scheme offers unlimited funding and is available to law firms throughout the country – and has so far advanced in excess of £10 million. Widespread appeal Law firms can have considerable sums of money tied up in WIP, significantly constraining the money available for growth. Our solution is to advance the law firm a fixed sum, per case, that has reached a certain stage in its development. The size of the loan facility and the amount per case that can be drawn down is agreed per firm and interest is only charged on money drawn-down. While the money itself is advanced by Novitas, Just Costs Solicitors conducts a WIP audit on the firm which acts as an approval process. When the case settles, the money advanced on the case is repaid via the cost consultant, Just Costs. This is a very flexible source of funding with no personal guarantees required. We believe it will be of widespread appeal. Last year, Just Costs Solicitors and Novitas launched a costs advance scheme, equivalent to invoice discounting, which is now lending over £1 million every month to law firms. The costs advance scheme helps firms’ bridge the gap between applying for and receiving their case fees. Mark Hartigan is Client Services Director at Just Costs Solicitors and Jason Reeve is Managing Director at Novitas Loans.

‘Law firms can have considerable sums of money tied up in WIP, significantly constraining the money available for growth’

‘The size of the loan facility and the amount per case that can be drawn down is agreed per firm and interest is only charged on money drawn-down’ COSTS MANAGEMENT One of the most important changes introduced by the Jackson Reforms was costs management. Costs management can be split into three different stages:

1. Preparation of the initial budget As it can be difficult to rectify any errors or oversights in a budget at a later stage, it is important to ensure that the initial budget is drafted correctly.

2. The Costs and Case Management Conference Unless your budget has been agreed by your opponent, the Court will use the CCMC to scrutinise it, revise it and ultimately determine a limit on the recoverable costs. Appealing against the assessment of a costs budget can be a very difficult task. This is why it is important to ensure that a costs specialist is involved in some capacity at the CCMC.

3. Auditing Once a budget is approved, it is essential to ensure that you are conducting the case within the limits of the budget. It is important to cross-check the costs you have incurred against the amounts allowed in the budget as the case progresses. Because budgets are approved on a phase-by-phase basis, compliance cannot be guaranteed simply by checking that your total WIP is less than the total of your approved budget. Only a forensic audit of your papers will reveal if any phase of the budget has been (or is likely to be) exceeded.

MC // Military Claims Supplement 2015

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The Features

PROSTHETIC LIMBS: A NEW CHAPTER Amputation is for life. Abdo Sleiman Haidar explains why practising prosthetics for the last twenty years has shown him how lives can be completely transformed through clinical dedication and high-tech prosthetics.

iabetes, vascular diseases, war trauma, medical negligence and catastrophic injuries are the main causes of amputation. A person who suffers the loss of their limbs in the UK due to medical negligence or catastrophic injuries usually has a medico-legal claim in place led by a solicitor who may or may not specialise in this field. Lifetime prosthetic costing is then required by an expert Prosthetist. Medico-legal reports in the UK are increasing year by year as more amputees are seeking to claim. The prosthetic report will ensure that the claimant has sufficient funds to source his prosthetics privately throughout his life. Having prepared over 100 prosthetic reports for amputees in the UK and the Republic of Ireland, representing both the claimant and defendant; this has helped a large number of amputees regain mobility and improved their quality life by ensuring that the funds are available for them to receive private care. The NHS provision of prosthetics in the UK is variable betweens centres, geographical locations and from Prosthetist to Prosthetist experience. Generally speaking, it is not satisfactory and the current system can be improved to ensure that clinical and technical staff are trained well to deal with amputee prosthetic provision and also that the funding is available from the government for high end technology.

‘A person who suffers the loss of their limbs in the UK due to medical negligence or catastrophic injuries usually has a medicolegal claim in place led by a solicitor who may or may not specialise in this field’ Improving independence... Amputees attending The London Prosthetic Centre are provided with suitable prosthetics without financial restrictions, by experienced and dedicated Prosthetists and Technicians. Everything I do is about improving a patient’s independence and mobility. I am driven by their needs, what they face physically and psychologically in their daily lives. The types of prosthetics I provide them can remarkably change their lives. Many of our amputee clients are fitted with 5 or more prostheses allowing them to return to their pre-amputation lifestyle, hobbies or sports e.g. skiing, running, swimming, horse riding, hiking and cycling. In recent times, I have seen a number of improvements in the science of prosthetics. Modern prosthetic limbs are lighter, stronger, more cosmetically appealing and staggeringly close in function and aesthetic to the real thing. Many have electrical components operated by built in microprocessors that are self programmable or programmed by the Prosthetist

which are capable of automatically adapting their mechanical function for certain tasks of daily living. Of course, these new technologies are only as effective as the intimate fit and connection between the machine and man, which I believe is the most important part of a prosthesis. Technological advances... Technology comes with a cost attached to it. Most prosthetics manufacturers offer warranties between 6 months and 6 years maximum on prosthetic parts. This technology is available to everyone but unfortunately, only limited amputees are able to access this technology. Private wealthy individuals, war injured soldiers, and medico-legal cases are accessing this technology in the UK - mostly provided in private prosthetic clinics. A typical knee joint, which would cost £2,000 15 years ago, would now cost around £13,000 today. A new generation of electronic knees that improve functionality and confidence, whilst decreasing the risk of falling and conserving energy are priced around £40,000 for the knee joint. Bionic and electric feet, which have also been used lately to improve an amputee’s gait, range from £6,000 to £40,000. So, an above the knee prosthesis, that can offer safety and improved gait, can cost approximately £70,000 with a lifespan of six years. For a moderately active above the knee amputee in his mid40s, 15 years ago, the medico-legal costing would equate to approximately £20,000 every 5 years. A similar claim today would equate to approximately £100,000. With more technological advances on its way, where most researchers are looking to surgically integrate the human with prosthetics, the cost in my opinion will keep escalating. I am worried that this will create a “prosthetic class system” in prosthetics with people knowing that technology is available but not affordable. Abdo Sleiman Haidar is Consultant Prosthetist and Director at The London Prosthetic Centre. The London Prosthetic Centre is a leader in bionic and prosthetic technologies, providing the latest relevant innovations to their amputee clients from all over the world. They offer a customised clinical multidisciplinary pathway to each client ensuring that they meet their expectations. For enquiries: Tel: 0208 789 6565 Email: enquiries@thelondonprosthetics.com Website: www.thelondonprosthetics.com Address: Unit 20 Kingsmill Business Park, Chapel Mill Road, Kingston Upon Thames, Surrey KT1 3GZ

MC // Military Claims Supplement 2015

The Features

THE ROLE OF AN EXPERT WITNESS IN CLAIMS AGAINST THE MINISTRY OF DEFENCE Mike Ginn explains how an Expert’s skills can help a legal team to make best use of established facts during a claim against the Ministry of Defence (MoD).

here servicemen have unreasonably suffered injury or distress in non-warlike conditions, we owe them the right to claim compensation. I have performed as an Expert Witness in a number of cases for solicitors acting for servicemen claimants (or their families), but I have not been involved in such a case since 2005.

An Expert has a duty to the Court to report in an even-handed manner. However, the Expert generally feels obliged to explore every aspect of a case, which could be relevant to his client. An Expert must have a wide knowledge of the activities in his field. Concerning military helicopter operations, the Expert must know about every role – troop carrying, re-supply (with internal or external loads), Casevac, Search and Rescue, Anti-Submarine, Pilot Training, etc. In my case, additionally, being a former helicopter Test Pilot, I understand as much of the dynamics, structure, and performance of the helicopter(s) involved, as those employed speaking for the MoD. Probing deeper... The legal team rely on statements by the Claimant, and perhaps his colleagues, and also (if willing) responsible officers. Often there will be the reports and witness statements in an official Accident Investigation, or Board of Inquiry, these can be a mine of information. Such inquiries are well-conducted by unit personnel, sometimes with Staff support. Many facts and opinions may be found, with telling illustrations of the thinking behind the conduct of operations. The reports can lead to invitations to others to provide a statement, so as to probe deeper. However, while these reports or statements will generally give many useful facts, it is often the case that the conclusions drawn from them can seem to the Expert to be wide of the mark. This can be because the person charged with conducting an enquiry can be too close to the operation, and suffer from tunnel-vision. I have frequently advised that this had been the case. This emphasises that an Expert should be adept at thinking laterally, and questioning all assumptions, especially if the serviceman is no longer alive to make his statement. Looking at the evidence To illustrate my remarks I will discuss one case, where a Royal Marine was compensated after becoming a quadriplegic in an accident during an extensive training exercise in the jungle. The claimant was hit by a falling tree in a jungle clearing, during a helicopter hoisting operation,

MC // Military Claims Supplement 2015

required to evacuate a fellow Marine in anaphylactic shock, after being stung by hornets. The tree was almost certainly dislodged by the downwash of the (large-ish) Sea King helicopter. There was, fortunately, plenty of evidence from a Board of Inquiry and an Accident Report. There was also a Manual of Jungle Warfare, and the opportunity to get a statement from a former officer about its doctrines. The legal team had highlighted that perhaps commanders should have sent a smaller helicopter, available locally. Perhaps its downwash would have been less likely to dislodge the tree. They also identified the fact that the (other) Marine’s allergy was known about, because he was carrying adrenalin in his kit. So why was he in the jungle?

‘Often there will be the reports and witness statements in an official Accident Investigation, or Board of Inquiry, these can be a mine of information’ My Expert Report identified further that: (a) I doubted if the smaller helicopter would have failed to dislodge the tree. (b) The method of hoisting the injured claimant was by use of a torso sling, instead of a stretcher, which is normally obligatory for spinal injuries. This probably caused the initial injury to become paralysis. The helicopters had been mobilised from their carrier to the jungle without their stretchers, which the Commanding Officer claimed would reduce their carrying capacity. Here was something that looked like complacency. (c) The Claimant (a radio operator) was instructed to stand in the clearing, during the hoisting operation of the (other) Marine. He should, like all others, have stood clear. (d) The exercise planners apparently did not give real emergencies absolute priority over exercise realism. Casevac helicopters were to be provided by diverting an exercise helicopter, instead of having a dedicated, equipped Casevac helicopter on standby, with a doctor on board. (e) The Royal Marines wanted a tough and realistic exercise. However, their exercise planning was deficient, and the life of one of their family was ruined. It appeared that “realism” need not have suffered, by a requirement to give priority to real-life emergencies. This case shows how an Expert’s skills can help the legal team to make best use of established facts, and prompt them to obtain information from further digging. Mike Ginn, AFC, FRAeS is a Helideck Specialist and Aviation Expert Witness.

Guiding you through the minefield Making a claim under the Armed Forces Compensation Scheme? Entitled to a War Disablement Pension? Unsure about your legal rights? Whatever the issues faced by serving and retired members of the Armed Forces and their families, Hilary Meredith Solicitors Ltd is uniquely placed to provide the right advice. Our military solicitors have many years of service in the Armed Forces while our legal experience spans decades and continents.

Speak to the UKâ&#x20AC;&#x2122;s leading military law firm today on 0800 124 4444 or email: enq@hmsolicitors.co.uk

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