The Serious Injury Guide – “is it seriously helpful?" An overview of the framework...

Background

The Serious Injury Guide (“SIG”) was launched in 2015. This followed years of development between APIL (Association of Personal Injury Lawyers), FOIL (Forum of Insurance Lawyers) and major insurance companies. The objective of this exercise was to help those who represent either side in serious injury claims, have a specially designed framework, which would run parallel to the principles of the Rehabilitation Code, but operate more acutely to the needs of claims of a serious nature.

The SIG was designed in mind for those claims where damages are expected to be over £250,000 (although one could argue that the framework of the SIG could still yet to apply to claims sitting below that bracket of a sufficient value).

There is a webpage which sets out details of the SIG, its signatories, an FAQ and an informative video with those who helped write the SIG (Serious Injury Guide).

In this article, I’ll try to distil that down (if I can) to what it’s about, how the SIG can be used to establish rapport between parties and in implementing rehab, but also impart some commentary as to my experience of the SIG as a Claimant lawyer.

Aims of the SIG

Those who helped draw up the SIG outlined the aims of being a signatory to the SIG as follows:-

• Establishing early dialogue between Claimant and Defendant insurer/representatives
• Mapping out a short/medium/long term route between the parties to narrow down issues, such as on liability 
• Provide early access to rehabilitation to maximise the Claimant’s recovery, either through interim payments or directly funded on a joint basis
• Commitment between the parties to act through an environment of mutual trust, transparency and collaboration

To resolve claims within an appropriately agreed timeframe.

The key objectives to the above aims are outlined as follows:

1.    Early notification – Claimant representatives to make contact with the SIG contact for the respective Defendant Insurer as soon as possible upon their instructions from the Claimant.

2.    Case planning – this is central to the aims outlined. For the SIG to work, it requires the parties to collaborate on an agreed action plan, dealing with liability, rehabilitation, quantum evidence and ultimately settlement.

3.    Liability – the SIG encourages parties to work on liability investigations expeditiously where possible in a collaborative manner, sharing relevant information and evidence to that effect.

4.    Rehabilitation – discussion at the earliest juncture to consider effective rehab, where reasonably required, including the instruction of a case manager on a joint basis.

5.    Interim payments – willingness to make early and continuing payments where appropriate

6.    Part 36/Calderbank offers – no such offers, unless or until the parties have tried to discuss issues.

7.    Documents – commitment by both parties to obtain and disclose relevant documents promptly.

First contact and planning a “road map”

From a Claimant perspective, how that first contact is made and how that introduction is conveyed, will be crucial to setting the tone and relationship between the parties throughout. Yes, this is an adversarial system but the SIG is designed in mind to encourage parties to be pragmatic, reasonable and collaborative. It’s important to strike those sorts of tones, when making that initial notification to the Defendant Insurer.

My general approach to making initial contact and setting up a preliminary discussion, is to send an email notification to the Defendant Insurer, and invite them to a follow up telephone call/remote call. This allows you to “see/hear” that there is a “person” on the other end and make that human connection. Both parties will likely disagree with points each makes in due course in the interests of their respective clients, but at least that can all be handled amicably when you make that initial, human connection.

The SIG helpfully sets out some of the initial information the Claimant representative may want to share with the Defendant Insurer. At paragraph 2.3 of the SIG it provides examples such as:

• Name, address, date of birth and NI number of claimant (Such personal data should not be sent in one letter because of the risk of fraud.)
• Date, time and place of accident or date of onset of condition giving rise to the claim 
• Factual outline of accident and injury if available
• Who is said to be responsible and relationship to Claimant
• Any other party approached
• Occupation and approximate income
• Name and address of employer if there is one
• Current medical status in summary form (e.g. inpatient or discharged)
• Any immediate medical or rehabilitation needs if known
• The identity of the firms’ escalation point of contact
• Protected party status on a without prejudice basis.
• A reference to the claim being conducted within the Guide

There isn’t a “hard and fast” rule as to what information you should be providing; for instance, it may be so early that it wouldn’t be appropriate to speculate on earnings and employment information without further instructions (which may be difficult to do if your client is still in hospital or receiving treatment in a rehab centre). However, it should provide some obvious points to help the Defendant Insurer get the basic and core information.

The purpose of this initial information exchange is valuable to the Defendant Insurer. It enables them to get an appreciation of the potential size of the claim, it’s issues and where they would need to set the size of their reserve. On the Claimant side, by providing necessary information at that early stage, it opens the door to exploring early rehabilitative input, as well as immediate financial support to the injured Claimant.

As part of that first contact, it is advisable from the Claimant perspective, to go into it with an idea and list of potential case managers who could conduct an Immediate Needs Assessment (INA) fairly quickly.

This can sometimes be an initial hurdle, as the Defendant Insurer may have particular preferences for a case manager/company, if to be done on a joint basis instruction. I’ve often found picking up the phone to the Defendant Insurer resolves any concerns they may have about certain choices I’ve proposed, and in any event, by offering a range of choices for a case manager, that more often than not heads off any potential debate (although I accept not all the time).

At this point of first contact, it’s recommended to agree to a follow up in the near future, once more information is obtained by way of records, or through the agreed rehabilitative input. Indeed the SIG outlines this at paragraph 5 whereby it states:

“Regular on-going dialogue should take place between the parties with a view to agreeing the next steps required to progress the case. Material changes in circumstances should be communicated immediately (e.g. death of the claimant, loss of capacity, significant medical deterioration, material change in care regime costs, risk of loss of employment etc).”

The SIG goes on to say in the dispute resolution section at paragraph 8, how it sees the continuing dialogue being pivotal to the process:

“Ongoing dialogue is fundamental to the process. The parties will continue to discuss the case on a regular basis and at the times agreed. Disagreement on one or more issue, however important, should not limit dialogue or discourage the parties from seeking agreement on those issues that might be agreed upon or narrowed. The aim in each case should be to be reduce the areas and scope of any disagreement so far as dialogue permits.”

The passage above is something which really resonates with me. It is sometimes unavoidable to disagree on certain points. What’s important is knowing where each other stands on that and each party can plan accordingly in respect to resolving that point of contention. That might be by recognising further expert and lay witness evidence being needed, but also considering forms of alternative dispute resolution to appropriately address that impasse between the parties at the relevant time.

Experts

This isn’t a self-defined section within the SIG, rather it appears as part of the ongoing review and planning section at paragraph 5 of the SIG. However, it is important to have dialogue between the parties as to who the expected core experts are going to be in this case. In a brain injury case, typically you’d expect each party to instruct experts in neurology, neuro-rehab, neuropsychology and neuropsychiatry. Often these experts have long waiting lists, so the SIG encourages the parties to have dialogue on this and not delay appointments where possible. Often there is a need to share such information, particularly in the case of neuropsychologists, as there is a 6 month gap required between neuropsychometric tests.

Rehabilitation

The overriding feature of the SIG, is that of rehabilitation. This is set out at paragraph 6 of the SIG.

What is made clear in the FAQs accompanying the SIG, is that the joint instruction of a case manager is not an obligation on either party. The SIG simply states that “there may be occasions when it is suitable to instruct a case manager on a joint basis, as this helps promote transparency and can assist with the funding of rehabilitation.”

On the majority of cases I have worked on, these have been on a joint basis. Practically, it is better when managing payments for rehab, as the Defendant Insurer deals with that, and it keeps admin and costs down in that respect. It also allows for efficient discussions in real time about rehab needs and recommendations.

There can be draw backs to working on a joint basis. Claimant Solicitors will often say there is an inability to pick up the phone to the case manager, unlike if the case manager was instructed on a unilateral basis. However, it’s what is appropriate for the client and the circumstances of their case. If that ability to pick up the phone to the case manager, or similar, is required, then the SIG respects the need to work in your client’s best interests.

Escalation procedure

This is an interesting feature of the SIG. At paragraph 7.1 it states:

“In the event that either party feels that the opposing handler is not acting in accordance with the spirit of the Guide the first step must always be to exhaust attempts to resolve the point of concern by dialogue or a meeting.

If such dialogue still fails to allay the concerns, contact should be made with the nominated contact point at the firm/insurer/handling agent (see notification stage above) in order to try to deal with the issue.”

Personally, I’ve not come across this process being used. I can appreciate from a Claimant perspective, such as where you are struggling to convince your counterpart regarding a request, you are then able to have a fresh pair of eyes from the nominated SIG Defendant contact, review the request. That being said, the nominated SIG contact for the Defendant Insurer in that instance, can’t exactly be said to be independent.

Alternative dispute resolution

Another key feature of the SIG is considering ADR.

This should form part of the dialogue fairly early on between the parties; perhaps not at the initial phase but early enough once it is known as to any “sticky” issues between them.

The SIG highlights the forms of ADR on offer to the parties which include:

• Early neutral evaluation
• Joint settlement meeting
• Mediation
• Arbitration

Joint settlement meetings have historically been the order of the day; however, I’ve started to recognise and experience the effectiveness of mediations, as well being open minded to the other innovative mediums being used to help parties settle and compromise.

On using mediation, I have to say, there are some great mediators out there and their value in helping the parties to narrow issues down, should not be downplayed.

Final comments

My experience of the SIG has been a positive one. The overriding feature of the SIG is the “spirit” it is trying to encourage parties to adopt.

Lawyers by their nature relish making persuasive points and trying to present strong narratives for their respective clients; however, what cannot be lost in that is trying to manage it through in the best possible way in the interests of the seriously injured party. One of the most interesting features here for me, is that the SIG is putting more of an onus on the Defendant party to consider the injured party.

The SIG isn’t designed to be a prescriptive code. It’s designed in a way to encourage parties to adopt sensible and reasonable standpoints and avoid getting so entrenched, it blinkers you to progressing other aspects of the claim.

Some may dispute the effectiveness of the SIG but I’ve seen how those Defendant Insurers who are signatories to it, in the main, follow the guiding principles and spirit of it well. This has enabled some claims to be handled much more amicably, even where there can be glaring and contrasting views on certain points between them.

The SIG has been with us for nearly a decade now and it is still going strong. Will it completely change approach in the future, or will it slowly evolve? It might even just stay as it is, although in law nothing ever stands still (unless it’s getting a discount rate change, that seems to take forever).