A requirement for personal injury claimants to engage in alternative dispute resolution (ADR) would result in delays and unnecessary costs, the Association of Personal Injury Lawyers (APIL) has warned.
The Civil Justice Council (CJC) has suggested that compulsory ADR should be considered further. Interested parties were given until today to respond to a consultation on the findings and recommendations of its report.
APIL has filed its response, arguing strongly against compulsory ADR in personal injury cases.
“Alternative dispute resolution is certainly beneficial in some cases, and can lead to earlier settlement, but it is not appropriate for ADR to be mandatory at any stage of a personal injury claim,” said APIL president Brett Dixon.
“Not every case is suitable for ADR. To make it a condition that in order to issue court proceedings you must have tried a method of ADR could be problematic if a claimant solicitor is instructed just before limitation, for example,” he said.
“And joint settlement meetings are stalling in high-value clinical negligence cases because of uncertainty about the discount rate. Not using ADR must be an option in order to maintain full access to justice and prevent cases from dragging on”.
Locking injured people out of the courts through compensation schemes run by defendants risks forcing them into agreeing to under-settlement, according to Dixon.
“It is very troubling to think that people might be forced to engage with a defendant’s resolution scheme without taking independent legal advice first. They could, perhaps unknowingly, agree to a settlement which does not meet their needs, as is the case with the proposed rapid resolution and redress scheme for birth injuries which will pay only 90% of the average settlement,” he explained.
“A great deal of work is undertaken in both higher and lower value injury claims to ensure cases do not go to court unnecessarily. The low-value claims portals, joint settlement meetings, and mediation are all used effectively as a means of ADR in personal injury cases, and the vast majority settle before court. Compulsion is both unnecessary and unjust. To continue to improve the voluntary up-take of ADR, the focus should be on signposting to alternative methods of settlement at appropriate times during the case.”
“The bottom line is that an injured person should always have the option to have their case heard in court,” he said.
Speaking in October, Civil Justice Council chairman Sir Terence Etherton described ADR as “a very effective means of resolving civil disputes quickly and cheaply”, but added that it was unclear “why it is not used more frequently”, prompting the need for the investigation.