Successful outcomes at proportional cost

Having provided quantum expert support for over 25 years, it has often occurred to me that a full-blown CPR-compliant accountant’s report is not always the most cost-effective or beneficial solution for my client.

No great insight there, but with cost pressures and even an attitude, dare I say hostility, to the use of the quantum expert evidence in some personal injury (PI) claims, is now perhaps a good time to
be creative?

Planning carefully how to use and deploy the skills of the quantum expert is surely the best way to achieve optimum results for your clients in the present costs conscious climate. Adding to that a mindset that will allow the creative use of that quantum expertise may just create the winning alchemy needed in the current tough PI litigation environment.

Quantum claim

Take the situation of an employed claimant unable to work, for example. If they have had a short absence, formulating the quantum claim ought to be straightforward. However, if that claimant is unable to work for long periods and/or has to switch jobs or careers, then the quantification of loss can rapidly become complex and the range of realistic variables diverse.

Workplace remuneration is more frequently drawn from a package, possibly a ‘pick and mix’ of basic pay, salary sacrifices (extra holiday for childcare, extra pension, etc), car benefits, staff discounts, mobile phone, tablet, home computer. Add to these perhaps a missed key performance indicator (KPI) bonus, a company share scheme (of which there are many types) and the potential impact on career progression, then one has a melee of loss components which are potentially very difficult to calculate.

While some solicitors will relish the challenge of calculating the resultant range of losses, others may feel they don’t want to get bogged down in the detail or may feel slightly off-piste with the technical aspects.

For those solicitors in the latter camp, they may first argue to have a quantum expert (and a claim involving a truly diverse and complex career may quite sensibly justify expert evidence) but then face rejection by the court. So the ‘Jackson savvy’ alternative may be to instruct the quantum expert to perform the range of necessary calculations as an ‘adviser’.

This subcontract approach (used by firms of solicitors large enough to support in-house accountancy functions) can be justified in cost terms on the basis that it is simply more efficient and cost effective for those with the relevant expertise to undertake such work (otherwise done by a solicitor, possibly at similar hourly rates but taking longer because they are less familiar with the territory.)

Beyond that, might we soon be seeing a situation where the court decides that the parties may have one quantum expert to ‘crunch the numbers’ – based on the evidential assertions from both parties? (The Civil Justice Council’s guidance to experts already requires experts to express separate opinions on disputed material facts.) Perhaps in the right cases this could be a very practical way forward, giving the parties equal access to expertise (of a kind which can sometimes be found in-house with defendants, as part of their overheads).

Preliminary review

Turning to the self-employed claimant, for a less complex case (say a short absence or the need for some obvious extra cost to replace the injured principal of the business), the solution I have outlined of using an adviser, on a subcontract basis, as a direct replacement for the solicitor’s (or counsel’s) input in the preparation of calculations and drafting explanations to advance the quantum loss (not unlike using specialist counsel) ought to be a practical and effective solution.

However, those claimants whose business may have been destroyed at a critical stage (for example at start-up, in its ‘early years’ or when about to diversify, expand or change in some way) ought to have good grounds for their loss to be advanced using expert quantum evidence.

But how in the current climate does the solicitor ensure that the case for such expert evidence is best placed before the court?

In such circumstances I recommend the use of a preliminary review and advice from the quantum expert. This approach is helpful for all concerned: the client gets the chance to explain their business and the impact of injury; the solicitor and counsel get an early stage clear view of the quantum dynamics and possibilities and the expert is able to restrict his or her focus to making a cost-proportionate contribution.

There aren’t too many complex cases that would not benefit from an early initial assessment from the quantum expert. In simple terms, a meeting between the claimant and the expert followed
up with written ‘advice’ on potential areas of loss and guidance on the quantum related evidence
to be gathered, the identification of key issues plus a detailed costs budget ought, as a package, give
the busy solicitor the basics from which a good argument can be advanced for the need for
expert evidence.

Also, at that point, the ‘advice’ does not require the expert to adhere to the rubric of part 35, although, of course, he/she will have to do so very carefully if providing a report under part 35 at a
later stage.

If permission for expert quantum evidence is refused, for a relatively modest investment the solicitor will have a good grasp on the quantum aspects of the case, the arguments in place to justify to a funding insurer the need for an accountancy adviser (now up to speed and ready in the wings) to be briefed.

If nothing else, the process described demonstrates that all reasonable steps had been taken to advance the claimant’s case. It remains to be seen how solicitors will ‘budget’ for the use of such expertise in their precedent H but, once again, the pre-issue involvement of the expert is highly advantageous.

It’s time for quantum experts to be flexible in how they offer their financial skills to support PI litigators and for solicitors, be they claimant or defendant, to keep in mind the potential alternative ways of advancing their client’s earnings loss case. SJ

Richard Formby is an accountancy expert witness and partner at Monahans Chartered Accountants www.monahans.co.uk