FAQs for legal representatives

1. What types of disputes or claims are suitable for Independent Evaluation?

Really, the question needs to be flipped around: what sort of disputes or claims would not be suitable for an early evaluation and facilitation of a resolution by an expert in the field?

The service was initially established for all types of personal injury and fatal accident claims, whether road traffic accidents, workplace or public liability claims.  IE resolves claims as diverse as helicopter crashes into the North Sea and injuries sustained while on holiday on the other side of the world.

Parties frequently turn to IE to resolve liability at a very early stage, and this is particularly so with road traffic accidents and some workplace accidents. Having had an evaluation of liability, and hopefully having been helped to forge a collaborative relationship, the parties may go off and deal with quantum themselves or may agree to come back to IE at some point in the future to resolve issues such as interim payments, issues of care or accommodation or quantum.

While the service was in its infancy, users said it was ideally suited to clinical negligence and it has been successfully extended to medical and dental disputes. Since then, IE has been successfully extended for every area that people have asked us to assist with.

2. Does there need to be an admission of liability?

No. Although IE was originally conceived as being perfectly suited to liability admitted ‘fatal’ claims, our users quickly realised that it was equally or even better suited to cases where liability – and possibly everything – was seriously in dispute.

Many disputes have been referred where one or even both parties are aware of the possibility of a claimant failing to prove their claim. This may be the case with personal injury claims, but it is equally applicable to disputes over contested Wills & inheritance.

Most people recognise that it is far better to have independent, subject matter expert tell the parties whether there is a valid claim before years and fortunes are spent fighting over the dispute.

3. What if everything is in dispute?

No problem. IE is used to dealing with cases in which everything is in dispute. Taking a road traffic claim as an example, we deal with cases in which the parties dispute all of the following: the factual basis of the claim, primary liability, contributory negligence, causation, fundamental dishonesty / fraud and quantum.

Experience confirms that the greater the number of disputes between the parties, the greater the IE’s potential for achieving an optimal resolution for both parties.

Because of IE’s bespoke ‘two-stage’ process of evaluation and then facilitation, our results are spectacular in terms of optimal resolution of the primary dispute and all ancillary matters. In the case of siblings contesting a Will, it is incredibly rewarding to save relationships that would otherwise be lost or blighted by contested litigation.

4. What size of claim can be referred to IE?

Typically the claims coming to IE have a full liability value of in excess of £100,000 up to £1 million.  However, there really is no upper limit on the claims that can be dealt with.  We are increasingly asked to assist in resolution of claims that are just above the Claims Portal limit of £25,000 up to £100,000, where the costs are almost on a par with the much higher value claims, and we are happy to do so.

5. Timing - when should I put a case into IE?

As each case has its own particular facts and circumstances, there is no ‘one-size-fits-all’ answer to this question.

Cases are now commonly referred to IE within days or weeks of the index accident and frequently prior to Inquests or issue of proceedings. There is every reason to refer disputes to IE early and not wait for proceedings to be issued, particularly as this may involve a Court issue fee of up to £10,000.

Experience shows that the earlier the parties engage IE the greater the potential outcome for all.  Once engaged, we assist the parties in co-operating with evidence gathering and building working relationships, rather than entrenched positions.  It is never too soon to engage, because we require there to be a sufficient evidential basis for a detailed forensic evaluation.

The Civil Procedure Rules now require the parties to consider ADR at every stage and this includes the pre-action period.  Since 1st October 2015, if a case gets to Court the judge who first looks at it will specifically have to consider Evaluation, pursuant to CPR 3.1(2)(m).

6. Is it ever too late to put a case into IE?

The simple answer is “no”. While the general rule is ‘the sooner the better’, it is frequently the case that, with a trial looming, the parties try a ‘Joint Settlement Meeting’ with their respective lawyers, who have been engaged in hard-fought litigation for a number of years.

IE is frequently used as a highly productive alternative, even at the 11th hour before a trial. Even after judgment, parties turn to IE for evaluation of appeals.

7. How do I go about putting a case into IE?

You usually need the other side’s agreement to have your dispute evaluated, so you should contact them and seek their consent.  It may be that the other side are reluctant to try any form of ADR or are unfamiliar with IE.  Please feel free to refer them to this website and either invite them to give us a call, or obtain their consent to allow us to call them.

There has been a rise in the number of litigated cases in which one party asks the Court to order referral for Evaluation.

8. How is the evaluator selected?

We understand the importance of ensuring the evaluator for each case is ‘the right person for the job’. We use the details included on the Information Protocols provided by both parties at the referral stage, and the mutually agreed dates put forward by the parties, to ensure an evaluator is selected who is a highly experienced legal figure with specialist expertise in the relevant area of law and who will be in an excellent position to evaluate and facilitate to produce the best possible outcome.

9. Why does there need to be an 'Evaluation' day?

The concept of having ‘a day in court’ is an important one for obvious reasons.  Settlements achieved via correspondence alone risk leaving parties feeling short-changed and as if nobody has listened to them properly.  IE is designed to ensure that the parties know that everything they feel is important has been heard and understood by the other side, and fully considered and taken into account by the Evaluator.

Feedback from both claimants and defendants, in all kinds of disputes, unanimously supports there being a face-to-face evaluation on neutral ground (in the event that the parties have not reached a resolution during IE’s Direction phase).   This face-to-face evaluation meeting is crucial so that the parties can have the necessary explanation as to how and why the Evaluator has reached their particular decisions and the evaluation figure.

It must be noted that in the majority of cases, the early phases of the IE process has sufficiently crystallised the issues and the parties have come so close together as to what will be the correct outcome at trial, that the parties were happy to resolve their dispute without the need for a face-to-face Evaluation.

10. Do the parties have to meet each other and / or get cross-examined?

No.  In advance of the Evaluation, the parties will have already submitted written evidence and have an opportunity to have their say at the appointment, but will not be cross-examined.  Unlike a Court trial, the parties retain control over the precise format of the appointment.  There may be occasions when a claimant does not wish to see or meet a defendant, and they will have their opportunity to put their case across to the facilitator in private and be guaranteed that it will be fully and accurately set out to the other side.

11. Where does the appointment take place?

Evaluations take place on neutral ground at IE’s premises just off Chancery Lane, London or, if it is more convenient for the parties, at IE’s premises in Manchester. It is hoped that IE will shortly also have premises in Leeds.

12. Who pays the costs of the process and the appointment?

For personal injury and clinical negligence disputes, the defendant or their insurer pays the costs of the process and the appointment, just as if they were costs in litigation.  A great deal, if not all, that is required for IE would be required for litigation in any event.  Accordingly, work done by a claimant’s solicitor in pursuing the claim via the IE route will be paid for by the defendant or their insurer in any event.

Different disputes have different fee arrangements. By way of example only, Wills & inheritance disputes and subrogated claims between two insurance companies may see the parties agree to split the cost.

13. What happens if the claim does not settle at the appointment?

If the case does not settle, lines of communication will be open and the Evaluator will assist the parties in agreeing a route map for the future of the dispute.  So far as possible, the Evaluators ensure that the parties have agreed directions even before the issue of proceedings:  this enables the parties to conduct the early stages of litigation without recourse to the courts and thereby avoiding the angst surrounding ‘Mitchell’ points for minor lapses and the distraction of cost budgeting hearings.  In the event that the IE appointment does not produce a resolution, there is a 56-day moratorium on issuing or advancing proceedings to allow the parties to reflect on their own case and each other’s offers of settlement.