FOCIS response to CJC 'Cost of care consultation'
Response from the Forum of Complex Injury Solicitors to the Civil Justice Council's 'Cost of Care in Personal Injury Claims' Consultation.
- The Forum supports the Guidance's intention to encourage the provision of more information on the Claimant's likely care needs to both parties at an earlier stage than is commonly the case and supports the use of the document "Care Information Schedule" (CIS) to support that end. However many complex cases proceed as split between liability and quantum. The document should therefore be served only as part of quantum preparations and at the same time as factual witness statements as to quantum are served. A Defendant should serve a response to the CIS within 42 days raising issues, observations or questions on the document to ensure common understanding on the base facts.
- The Forum does not support encouraging solicitors to use similar instruction letters to care experts. Although many of these cases can be superficially similar they are all substantially different in detail. If solicitors use stock letters to experts then experts will simply stop reading them! Cases involving significant injury which are likely to be affected by the proposed best practice guidance are generally handled by senior and experienced solicitors who can be trusted to draft their own instruction letters to care experts. The Care Information Schedule will provide all the quick access standard information that is needed.
- Subject to the views of the care experts providing the reports, the Forum agrees with a template for the standard format for care reports to enable Claimant and Defendant reports to be compared with greater ease.
- The Forum does not agree with the guidance proposals where they suggest that the Local Government Association National Joint Council rates should be used as a starting point for the valuation of hourly rates for care. What will begin as a starting point will soon enough become the norm. We appreciate that these rates are readily available and convenient, but we do not believe that they accurately reflect the true cost of care as paid by families on the ground once an award has been implemented. It is generally not possible consistently to employ the right care staff at these basic rates. The rates used should be those local and available to the family following appropriately undertaken research by the care expert. The care claim is likely to be overwhelmingly the largest part of the Claimant's claim and its accuracy is therefore absolutely crucial. Proper research should be the norm not the NJC. An experienced case manager's reported experience is typical: 'NJC rates are frequently used as a matter of convenience to reflect the cost of past and, less appropriately, continuing family care. Commercial rates are 'always' (sic) higher'.
- The Forum does not agree that care and help by family members should generally be treated as equivalent to that provided by the Local Government Home Help Services on the NJC Scales Spinal Point 8. The role of family carers especially in the more serious cases involves considerably more than Home Help employees can undertake. The management of feeding and gastrostomy lines would be an obvious example as would antisocial hours gratuitously provided both at nights, weekends, holidays. Considerable case management is regularly undertaken gratuitously often with significant skill and persistence. If necessary gratuitously provided services should be assessed so they are correctly divided between routine domestic duties as envisaged by the consultation document and the more complex and/or antisocial element that invariably applies.
- The Forum is concerned and cautious about reference made to the Housecroft -v- Burnett deduction. The Forum agrees with the proposition that the Claimant should propose and justify a deduction (if any) in the Schedule of Loss and that the Defendant should justify any alternative in the Counter Schedule. Common Law in this area should not however be supplanted.
02.03.2010
Adrian Desmond
Chairman for FOCIS
NOTE:
The Forum of Complex Injury Solicitors
FOCIS members act for seriously injured claimants with complex personal injury and clinical negligence claims, including group actions. The objectives of FOCIS are to:-
- Promote high standards of representation of claimant personal injury and medical negligence clients,
- Share knowledge and information among members of the Forum,
- Further better understanding in the wider community of issues which arise for those who suffer serious injury,
- Use members' expertise to promote improvements to the legal process and to inform debate,
- Develop fellowship among members.
See www.focis.org.uk for further information.
Membership of FOCIS is intended to be at the most senior level of the profession, currently standing at 27 members. The only formal requirement for membership of FOCIS is that members should have achieved a pre-eminence in their personal injury field. Three of the past presidents of APIL are members of FOCIS. Firms represented by FOCIS members include:
Anthony Gold
Boyes Turner
Charles Russell
Digby Brown
Field Fisher Waterhouse
Freeth Cartwright
Girlings
Hodge Jones & Allen
Hugh James
Irwin Mitchell
Kester Cunningham John
Kingsley Napley
Leigh Day
Linder Myers
McCool Patterson Hemsi & Co
Osborne Morris & Morgan
Pannones
Parlett Kent
Potter Rees
Prince Evans
Russell-Cooke
Russell Jones & Walker
Stewarts Law
FOCIS has been the name since 2007 of the organisation formerly known as the Richard Grand Society (founded in 1997 based on the concept of the American 'Inner Circle of Advocates' which had been formed in 1972 by Arizona and San Francisco Attorney Richard Grand).
Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.
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