Rehabilitation in Practice Janet TilleyColemans CTTS
The Civil Justice Council – Role & Remit Promote awareness of Civil Justice & make recommendations for improving: • Service Delivery • Access to advice & information • Representation To consider existing practice & procedure & make proposals for improvements.
A Need For Change? The 2004 Conference • Gather Industry Information • Identify Opportunities to promote better practice within the CPR.
Is there a use for the CPR? • The Duty to consider early rehabilitation – Voluntary • Provision of funding by the Compensator – Voluntary • Claimants argument – Voluntary • Education – Limited • Immediate needs report – Voluntary • Effective Sanctions – None
Output – Overriding Principles • Well being of the claimant – Paramount • The Extent of compulsion & sanction. • The opportunity of co-operative intervention. • Pre-issue focus to reduce the need for proactive judicial intervention.
Output – Outline of Rehabilitation Process Proposals (Post-Issue)
Access to Rehabilitation Group “Considering How to make rehabilitation play a more central role in the compensation system.” • To assist Government in promoting early access to rehabilitation & delivering process. • To initiate a programme of Judicial awareness. • To carry out a knowledge sharing &review exercise.
Early Access to Rehabilitation – The Protocol Period • The Personal Injury Pre-Action Protocol. • The Personal Injury & Rehabilitation Pre-Action Protocol. • Process amendments in low value claims. • The Pre-Action Protocol • Streamlined Personal Injury Process
The Pre-Action Protocol – Minor Amendments • Rehabilitation within the Protocol. • Creating a Monetary vs Non-Monetary Balance • A Personal Injury & rehabilitation protocol • Amending the notes for guidance • 6.3 The Protocol • 3.14 & 3.20 Experts
Streamlined Personal Injury Process Amendments Claimant solicitor sends early notification to defendant/insurer within 5 days of instruction. FIXED COSTS AND FIXED SUCCESS FEE NO OTHERSIDE COSTS LIABILITY NO ATE Defendant considers liability. No further Investigation by Claimant solicitor. 3 weeks RTA 6 weeks EL/PL Defendant/Insurer must either accept or deny liability (admissions are binding) Defendant/Insurer denies liability Usual Process CFA INCREASED SUCCESS FEE INCREASED ATE PREMUIM Defendant/Insurer accepts liability
Streamlined Personal Injury Process Amendments – Continued Paragraph 61 (Consultation Paper): “Where the Claimant’s needs have not already been met, and where it is appropriate, an offer of rehabilitation should also be made at this stage. It is recognised that to have best effect, rehabilitation needs to be provided as early as possible, usually before a claim is made. Moreover rehabilitation is often needed where no personal injury claim is being brought. In these circumstances we do not believe that rehabilitation should be dependent on the claims process or await a claim being made.”
Streamlined Personal Injury Process Amendments – Continued Paragraph 62 (Consultation Paper): “The Government and other interested organisations are therefore currently taking forward initiatives on rehabilitation as a separate strand of work. These are very much aimed at meeting rehabilitation needs as early as possible. However, the proposals to address rehabilitation as part of the claims process will ensure that those cases where the Claimant’s needs have not already been met are identified, so that appropriate rehabilitation can be provided.”
Streamlined Personal Injury Process Amendments – Continued Treatment Treatment Assessment Telephone Needs Assessment Solicitor Identification
Statement of Intent Definition: “A Statement to confirm that parties have considered rehabilitation, state whether each considers it appropriate and if both consider it appropriate have agreed to discuss/have agreed rehabilitation needs that are reasonable and proportionate to the claimants needs and the value of the claim.”
Statement of Intent – Continued At what point in the Process? • Protocol – by letter/document “At the earliest possible stage.” • Streamlined process within the consultation paper. • Streamlined Process – Ministry of Justice Sub Group
Statement of Intent – Continued Streamlined Process within the Consultation Paper: Claimant solicitor sends early notification to defendant/insurer within 5 days of instruction. FIXED COSTS AND FIXED SUCCESS FEE NO OTHERSIDE COSTS LIABILITY NO ATE Defendant considers liability. No further Investigation by Claimant solicitor. 3 weeks RTA 6 weeks EL/PL Defendant/Insurer must either accept or deny liability (admissions are binding) Defendant/Insurer denies liability Usual Process CFA INCREASED SUCCESS FEE INCREASED ATE PREMUIM Defendant/Insurer accepts liability
Statement of Intent – Continued Streamlined Process: Treatment Treatment Assessment Telephone Needs Assessment Solicitor Identification
Disputed Need – Part 8 Applications – Continued Dispute: • Use in higher value claims – where there is failure to agree on: • The reasonable & proportionate needs of the claimant. • The rehabilitation provider. • Payment of the treatment costs.
Disputed Need – Part 8 Applications – Continued Orders: • Further medical evidence. • Further detail from the rehabilitation provider with the cost detail. • Liability directions to promote resolution – • ADR/Mediation • Permission for declaratory proceedings • Decide if the rehabilitation proposed is “reasonable & proportionate to need & value based on invaluable evidence.
Disputed Need – Part 8 Applications – Continued The Downside: • The status of the INA report • Satellite Litigation • Sanction • Claimant – Percentage reduction in costs Payment of the application • Defendant – Percentage increase in costs Payment of the application • Human Rights issues – Yes & No
Post Issue – Rehabilitation in Litigation • The statement of Rehabilitation • A “Catch all” • Embodiment in the Particulars of Claim
Post Issue – Rehabilitation in Litigation Where need is not agreed: • Would the Claimant benefit from rehabilitation treatment? • Identify the treatment required/suggested. • Has treatment taken place? • If not, why not? • Has treatment been the subject of mediation/application – if yes attach agreed needs statement/order.
Part 36 Offers For: • Format of a Calderbank offer – works in Family Law. • Gives the Court necessary power. • Incentiveses Claimants to accept • Encourages compensators to make early offers. Against: • Sanctions sufficient to apply. • Sharpens Confrontation?
The Allocation Questionnaire & Sanctions • The Allocation Questionnaire: • The Protocol question. • Incorporating a specific rehabilitation question: • Has rehabilitation been considered? • Imposition of directions. • Sanctions: Monetary & Non-Monetary Sanctions • Costs of the applications • S • CPR 44.3 (5) – “Specific Flagging”
Where do we go from here? The View of the Judiciary The Access to Rehabilitation Group • To assist Government in promoting early access to rehabilitation & delivering process. • To initiate a programme of Judicial awareness. • To carry out a knowledge sharing & review exercise.