Complex injury cases have more in common with complex commercial disputes of similarly high value than with fast-track personal injury litigation, the Forum of Complex Injury Solicitors (FOCIS) has said in response to the Civil Justice Council’s call for evidence on GHR.
Julian Chamberlayne, chair of FOCIS, said: ‘A party to a multi-track claim who makes a reasonable choice of solicitor for the type and scale of the claim in question ought to be able to recover at up to market rate for that work. Otherwise, the full compensation principle is eroded.’
FOCIS submitted that complex claims involve large teams of medical and non-medical experts, voluminous disclosure of loss records and calculate the lifetime impact of disabling injuries on all facets of the claimant’s life. Trials usually take place in the High Court, typically lasting between one and three weeks, and the average damages in the FOCIS data set was £4.5m with some cases attracting awards of tens of millions.
Its submission invited the Civil Justice Council to adopt the same approach for complex injury claims as taken by Mrs Justice O’Farrell in Ohpen Operations UK Ltd v Invesco Fund Managers Ltd [2019] EWHC 2504 (TCC). There, O’Farrell said: ‘Solicitors providing such skill and expertise are entitled to charge the market hourly rate for their area of practice.
‘The hourly rates charged cannot be considered in isolation when assessing the reasonableness of the costs incurred; it is but one factor that forms part of the skill, time and effort allocated to the application.
‘It may be reasonable for a party to pay higher hourly rates to secure the necessary level of legal expertise, if that ensures appropriate direction in a case, including settlement strategy, with the effect of avoiding wasted costs and providing overall value.’
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