Bar Focus | Taking stock

The implementation of the Jackson reforms is certainly going to shake up the world of personal injury litigation but ultimately that may not prove to be a bad thing. Within some sections of the personal injury Bar, practitioners have been able to make huge sums each year out of very straightforward work which, in truth, may not call for specialist input. That cannot continue post-April. The new environment will suit those forward-thinking, client-centred barristers who recognise that their continued success (indeed their continued existence) depends upon being able to demonstrate added value, problem solving skills and a commercial outlook.

Adjusting to change is always a challenge. When major change is accompanied by delay in providing full details of the new rules, it is hardly surprising that dissatisfaction results and that businesses struggle with change management. As 1 April rapidly approached, many personal injury lawyers were working flat out to plan revised business models while coping with new instructions and ensuring that clients were signed up to favourable funding arrangements before the changes to effect. Only when the dust has settled, will we really be able to step back and look properly at the new landscape. When we do, we may not view it with quite the same doom and gloom as heralded 1 April 2013.

The personal injury Bar will undoubtedly change shape. Ring-fencing of counsel's fees for drafting and advisory work in the lower value, high volume work is out. With success fees no longer being recovered from the other side and solicitors' profits being squeezed, barristers will have to be able to demonstrate, even in the higher value claims, that their services will add value to the case. Some barristers who have previously chosen to maintain a high volume fast-track practice at the expense of developing into the more complex multi-track work will re-think that strategy. There may seemingly be more competition for the bigger cases but astute solicitors will look for a proven track-record, experience and genuine commitment to achieving the best outcome for the client when selecting counsel for serious injury claims. The need for barristers to be able to demonstrate real added value in personal injury work may be new but it is certainly not a bad thing. Anyone providing professional services in the modern era ought to expect to be subject to the added-value test. The gravy train has been and gone.

Real-life advocacyBy and large, successful personal injury lawyers are a practical bunch. We do not spend our time arguing over esoteric legal points. Rarely do claimants have much interest in the law; what they seek is timely advice and assistance to solve real-life problems. The family who have lost their main breadwinner need to restore a source of income as quickly as possible. The paralysed client wants solutions to obstacles such as getting accessible accommodation and transport and planning for a changed future. The withdrawal of legal aid from personal injury led to solicitors and barristers adopting a more business like way of thinking. There has not been much love lost between claimant lawyers and insurance companies lately but I will give the insurers credit for generally being commercial in their outlook. It is no surprise that when there are experienced teams on both sides, pragmatism often prevails with settlements being the norm in this area.

Those who have adopted this pragmatic, problem-solving approach are perhaps now better equipped to respond to change. If the experience in my own chambers is anything to go by there is cause for optimism. There is a real willingness to adapt and to consider new ways of working in collaboration with solicitors. As to the best solutions, time will tell. Offering consultancy services on a fixed fee basis may prove a cost-effective solution for solicitors to help manage risk in an environment where margins are tighter. While direct access is becoming more common at the Bar, I believe that the Bar's strength lies in what it can offer as a referral profession and specialist supplier of advocacy services. I truly believe that those who have suffered serious personal injury are best served by having a specialist solicitor and specialist counsel and that competing with each other would erode quality.

The role of the advocate in personal injury litigation underwent significant change well before Lord Justice Jackson even cast his eye in our direction. The modern advocate recognises that cases can be won or lost outside the courtroom. Advocacy encompasses so much more than arguing the case at court. Developing the evidence, presenting the quantum case in an attractive and compelling way in the schedule of loss and being pro-active in negotiations all form part of the advocacy in the case.

As specialist advocates, the Bar can focus on such aspects of the case working in partnership with solicitors who will take the lead on much of the other case preparation. "No win, no fee" has sharpened the focus and has brought the concept of risk assessment into play. Fears expressed at the time of the abolition of legal aid for personal injury matters that risks would not be run and of conflicts of interest arising have not really materialised. Personal injury barristers and solicitors adapted to those major changes and can adapt to Jackson.

Working togetherWhat I have found particularly encouraging in the last couple of months is the willingness of solicitors and barristers to speak openly about the changes and to work together to find solutions. I suspect that the question: "What can we do for you?" has been uttered from the mouths of personal injury barristers and their clerks far more than ever before. I hope that this spirit of genuine cooperation continues. In other areas I have seen changes drive a wedge between the two branches of the profession. I am pleased to note that during this period of change I have felt the opposite. I have encountered a real sharing of ideas. Barristers now have to understand the bigger picture in which they are operating. For some, that involves a bit of a role reversal: really listening instead of doing all the talking. Those that are willing to take on new ideas and to adapt to new working practices are likely to do well. Those who cling to the old stereotype of the barrister who is knowledgeable in the law but clueless when it comes to commercial realities may struggle.

An interesting side effect of the impending changes has been that early instruction of counsel has been the norm in the last few months. Partly that has been born of a desire to have the whole legal team signed up to enforceable conditional fee agreements before 1 April. The introduction of costs budgeting provides a good reason for this front-loading approach to continue. Barristers will need to be ready to assist with case plans and costs budgets. While many serious injury cases need time for a true picture of future needs to emerge, it will be essential post-April for the case to have a clear direction and route map to conclusion by the time of the first cost budgeting hearing. This is an area where the advocate can and should assist. A clear plan from the outset not only assists with costs budgets but more fundamentally benefits the client. In this regard, I believe the changes to be introduced will have a positive impact on the quality of service.

The recent experience of increased early instruction will generate case studies from which barristers may be able to point to measurable added value. I have noticed for example in one recent case that we are heading towards trial much more quickly than might be considered usual. Having been instructed early, my work on the case has come forward. The amount of work I am doing is typical for a case of its nature. I do not expect to do more or to generate more fees than I would usually. However, I do expect the client to benefit from an earlier resolution and my solicitor is likely to see an earlier return on costs.

I do not underestimate the concerns that legitimately exist in relation to the rapid introduction of significant change. The personal injury sector will see job losses and I feel for those for whom this will bring hardship. However, times of change also bring opportunities and I believe the opportunities are there for those who have the desire to achieve a good outcome for the client and who are willing to find ways to work within the new framework.

Over recent months I have spoken to many lawyers about the forthcoming changes. There are naturally still concerns but I believe that there is a growing confidence that those who do a proper job will not only survive but will thrive in the new climate. The opportunities are there. Those who peer through the doom and gloom will see them and will be well-positioned to be successful in the post-Jackson world.