AVOIDING UNDERSETTLEMENT: THE FINAL "ESSENTIAL CHECKLIST" & A USEFUL LINK

June 3, 2014 · by · in Avoiding negligence claims, Civil Procedure, Useful links

The final list in the “essential checklist” series is on “avoiding undersettlement”. The day the course was held the Law Society Gazette had published Rachel Rothwell’s piece on Why Cannibalism is coming to PI.  One delegate noted that he had heard an advert on the radio, asking if listeners wanted to sue their solicitor, on the way to the course.  This list was provided by the group “Money’s Worth”.

“UNDERSETTLEMENT” GENERALLY

What is surprising about issues relating to undersettlement is that there is very little on the topic, more particularly in relation to strategies in relation to avoiding undersettlement (I have a few links below).

MONEYS WORTH

AVOIDING UNDER SETTLEMENT

 

1. Do your quantum research – JCB Guidelines, Kemp and Kemp, Comparable cases.

2. Ensure that the Client has reached the final stages of recovery – avoid settling too early.

3. Obtain a medical expert report regarding prognosis.

4. Draft and include special losses.

5. If necessary obtain counsel’s opinion.

6. When negotiating with the other party ensure that offers are backed up with evidence.

7. Manage the client’s expectations.

8. Obtain interim payments to assist the client with their finances through the recovery period, as this can take off pressure during settlement negotiations.

9. Check that the defendant has the means to fund the claim.

USEFUL GUIDANCE FROM ELSEWHERE: LOCKTON

A useful checklist is provided by Callum McLean of Lockton also in response to Rachel’s article. His whole piece is essential reading. For instance:-

“How to reduce the risks?

  •  Ensure you have clearly identified the claim quantum – and ensure your process for identifying quantum is thorough and robust.
  •  Avoid blanket restrictions on the amount of time spent on a file before settling
  •  Where a client is keen to settle, or there circumstances which make it attractive to the client to settle early, ensure that these are flagged clearly on the file, and that the consequences of such a settlement are clearly explained to the client.
  •  Ensure any such advice is in writing and recorded on the file
  • Be able to demonstrate how your systems, procedures and supervision work in practice to reduce the risk

If you have had any undersettlement claims in the last 3 years, being able to demonstrate to insurers that you have reviewed the cause of these claims, and put in place new, effective controls, will significantly enhance the risk profile of the firm at renewal.”

WHY ISN’T THERE MORE MATERIAL ON AVOIDING UNDERSETTLEMENT?

If anyone wants to send me more material and will gladly provide details/give links. It is, perhaps, indicative of a professional that is, more or less, totally hopeless at looking after its own interests.

It is notable that APIL is now providing courses on how to sue solicitors.  “Professional Negligence: Jackson’s new marketplace” stating that professional negligence represents “a silver lining in these troubled times”.  

COMING SOON TO THIS BLOG: SERIES ON “AVOIDING UNDERSETTLEMENT”

It is clear that:

  • Most cases will settle.
  • The client’s best interests are served by the original case being handled properly.
  • A sensible system has to be in place to prevent undersettlement and (just as importantly) record the reasons for settlement.

So this has provided the inspiration for the series that takes over from the “Surviving Mitchell” franchise (avoiding undersettlement).  This is primarily aimed at personal injury practitioners but much of the guidance given will be of general application.

 

 

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