By Warren Collins & Marc P. Weingarten
“World in motion – speed your changes. Close your distances, find your angels. Lose your fears and meet your dangers.” Jackson Browne (1989)
Introducing the Plaintiff
Our client, SM, is American as apple pie. Born and raised in Wilmington, Delaware, she graduated from high school, and, as an accomplished trumpet player was persuaded to join the US Army National Guard marching band. At the same time, she studied music at the University of the Arts in Philadelphia.
SM’s time in the National Guard cemented her desire to serve her country and, after college, she signed up for full-time US Army service. And serve she did. SM quickly progressed from a marching band private to supporting the highest-ranking diplomats in the United States. Later, she served in some of the most frightening war zones across the globe, first in Bosnia and then, after being hand selected by President George W. Bush, she served as Executive Assistant to the Presidential Envoy in Iraq.
Following her army service, SM moved through various government security agencies before finally ending up in The Hague, Netherlands, operating as Business Services Executive for NATO. After her time at NATO, SM set up her own business providing conference services for US governmental agencies. And like so many of our clients, she suffered life-changing injuries just as her fledgling business needed her full attention.
SM’s accident1 occurred in London, England, in June 2014. She was organizing an international conference for the U.S. Department of Defense at the Mayfair Millennium Hotel on Grosvenor Square, near the U.S. Embassy, to discuss business regeneration in Afghanistan. On Monday June 16, 2014, SM went to the hotel’s conference meeting room at around 06:30 am to make sure everything was in place. She then returned to her room in the hotel. At around 07:30 am, she went to sit at the desk to work on her laptop computer. That is her last memory before the accident.
After regaining consciousness, SM found herself on the floor. The desk chair leg had broken and collapsed. She had struck her head. SM tried unsuccessfully to stand up. She crawled to the telephone to call for help. Her words were slurred. After a short while, paramedics arrived and SM was taken by ambulance to St. Mary’s Hospital. She has no recollection of her time in the hospital nor the days after discharge. She just wanted to get home.
The First Month After the Accident
For the first month, SM suffered daily from severe headaches. She felt dizzy and nauseous, and her speech remained slurred. She noticed some loss of sensation and weakness to the left side of her body and would occasionally walk with a limp. SM saw a neurologist in Philadelphia who suggested follow up tests.
However, she had a new business to develop, and in mid-July 2014 she undertook a pre-arranged trip to Afghanistan. Although SM was not feeling great, it would have been a logistical nightmare to postpone the trip or send someone in her place, as it had taken months to arrange a visa and put security arrangements in place. That trip was a disaster, as SM could not function. Her headaches were so severe that she was sent for an MRI scan in Afghanistan. By now it was clear to SM that this was a significant injury and she decided to seek legal advice.
Developing the Case
On June 20, 2014, the American author of this article received a message about a call that had come in at 3:40 that afternoon from a potential client. The message read:
“Suffered concussion in a hotel accident in London, UK – happened Monday morning. They kept her in hospital until Tuesday – flew back Wednesday and got back this past Wednesday night – wanted to let him [MPW] know that her speech is not 100% yet.”
A series of telephone conversations followed to uncover preliminary information about SM’s case. And so this odyssey began.
Initial Instructions and Considerations
Of primary concern in all injury cases is the statute of limitations. SM’s accident occurred within days of initial contact, so there was no concern with respect to the statute expiring in either the U.S. or English jurisdictions. That gave us the time and flexibility to gather preliminary information and documentation to help decide if the case had sufficient damages and indicia of liability to justify the time and expense of litigating. Those questions were quickly answered in the affirmative. SM was able to provide us with a photograph of the chair after the collapse, a copy of the Incident Report created by the hotel, and the details of her medical treatment, both in London and after her return to the United States.
Investigation by the author revealed that the hotel where the accident occurred had no business interests or affiliates in the States, making it clear from the outset that the matter needed to be litigated in the United Kingdom, and most likely in London.
The American author called the U.K. author of this article on July 14 to discuss jointly representing SM. We had known one another for over twenty years, having met at an AAJ Convention. Subsequent AAJ meetings resulted in an enduring friendship and we always talked about finding an opportunity to work together on a legal matter of significance.
This case would prove to be the vehicle to that end.
English Jurisdictional Issues
Let’s start with the case’s jurisdiction. United Kingdom law? Nope. British law? Nope. The United Kingdom of Great Britain and Northern Ireland consists of three separate legal jurisdictions, each similar but with a separate court system: (i) England and Wales, (ii) Scotland, and (iii) Northern Ireland.
In English law2, the Courts will have jurisdiction in a personal injury action if:
- The accident occurred in England and Wales; or
- The defendant (or at least one of several defendants) is domiciled in England and Wales; or
- There is a valid contract agreeing to English jurisdiction.
Here, there was no issue. The accident took place, and the defendant was domiciled, in the English jurisdiction.
In addition to legal jurisdictional differences, this case presented interesting linguistic challenges for the plaintiff’s attorneys. George Bernard Shaw once said, “England and America are two countries separated by a common language.” This well-known quote is brought into sharp focus in the lexicon of personal injury law. Relevant to this case, examples of the “common language” referenced by Shaw include:
|Statute of Limitations
|Letter of Claim
|Letter of Demand
|Date format: day/month/year
|Date format: month/day/year
|Nursing Care expert
|Life care planner
There are many more different definitions, but you get the picture. Some of the major cultural differences within personal injury law6 between jurisdictions also impacted the attorneys’ litigation of the case. For instance, in stark contrast to American personal injury cases, in England, the following rules apply,
- There are no juries in personal injury cases.
- There are no depositions. Instead, the parties exchange written witness statements and written experts’ reports during the course of the claim.
- Lawyers do not attend independent medical evaluations by the experts.
- The experts on each side will meet/speak (without the lawyers being present) and prepare a joint statement setting out which issues are agreed/not agreed upon (with reasons for any such disagreement).
- There are generally two judges on a case: (1) a procedural judge who will set out the timetable for trial (directions), as well as a budget for how much each side can spend on recoverable costs and disbursements for each stage; and (2) a trial judge who will not be assigned until the day before trial.
- There are generally two lawyers on each side: (1) a “solicitor” who deals with all the evidential aspects of the case, and (2) a “barrister” who presents the case at trial. However, in bigger cases, the solicitor and barrister may work closely together at various stages to develop a mutual litigation strategy.
- Claimant lawyers do not work on a pure contingency basis. Instead, a complex Conditional Fee Agreement has been developed whereby the Claimant may have to pay a percentage enhancement of standard costs (capped at 25% of the general damages and past special damages).
- If they win, the Claimant recovers costs and disbursements from Defendant, but this is not an “open cheque-book,”7 and the dispute over this aspect often goes for months or years beyond settlement (as proved to be the position in this case).
- If Claimant loses, they generally do not have to pay the Defense costs unless Defendant has made an offer that the Claimant has failed to beat.8 These offers are common and therefore it is usual for the Claimant to take out an (After the Event (ATE)) insurance policy to cover this liability. These products are sophisticated and usually the premium is payable only in the event of a successful claim.
- Although this was not a road accident case, it is worth noting that in the United Kingdom, it is mandatory to have unlimited third-party motor insurance. This means that we often see multi-million pound settlements against regular motorists in car wreck cases.
- All personal injury damages are tax-free in the United Kingdom. While this is generally true for global settlements in the United States, there is authority for loss of earnings to be taxable if they are specifically identified as a separate loss by a court.
The injury sustained by our client in this case, as in all cases of significant injury, proved to be a double-edged sword. On the one hand, SM had suffered a traumatic brain injury of some consequence, making the case one with large damage potential. On the other hand, it also caused SM to be unreliable in cooperating with her counsel. She would often forget to follow up on requests for discovery, would frequently have to be reminded when she had appointments with examining physicians for either side, and could not be relied upon to transport herself to those appointments.
These reliability concerns were not too problematic for the first several months of the case, as SM lived in Philadelphia, close to U.S. counsel. This made it easy to give her the individualized attention her condition required. However, after she relocated to Virginia, difficulties arose. Counsel ultimately travelled to her residence to sort through boxes upon boxes of contracts, tax returns, bank statements, invoices, and checkbook ledgers. It was only through this hands-on approach that SM’s legal team could assure compliance with disclosure requests and, at the same time, substantiate the significant losses incurred.
During this process, SM’s condition deteriorated, and she found it progressively harder to meet existing contracts for her business, as well as generate new clients; her business was failing along with her health. SM was experiencing all the symptoms associated with a brain injury, including forgetfulness, lack of attention to detail, and transient speech impediments.
It was necessary to obtain reports from U.S.-based experts in neurology and neuropsychology, particularly because SM had the type of injuries that are not visible to the untrained eye, and require expert analysis. Fortunately, we were able to retain outstanding experts in these fields.
However, because the area of expert testimony in the United Kingdom differs so greatly from the United States, the U.K. legal team attended expert meetings to navigate those differences. To say that the experts were taken aback by the requirement that they were to meet with the defense experts and prepare a joint report to the London court would be a gross understatement, yet they kept calm and carried on.
English Court Proceedings
Proceedings were filed with the High Court in London in April 2017. While liability for the accident was admitted, the cause of the symptoms and consequential losses were very much in dispute. By 2017, SM was suffering from significant financial hardship and, given the defendant-insurers’ refusal to make any voluntary interim payment, counsel made an application to the court, which was heard at the Case Management Conference in November 2017.
While the application for an interim payment was a partial success, the whole direction of the case was changed by the single swipe of the procedural judge’s (the Master’s) pen. The Master accepted Defense arguments that, given this was an English case, there was no need to involve a U.S. attorney at any stage in the claim. As a result, the Court would not allow for any budgeting of those U.S. costs, cutting off a key player in the legal team at the knees. This left SM’s legal team in the position of having to justify those costs to the Court at the end of the claim or pay them out of any damages SM ultimately recovered. But, as we often learn from these cases: it ain’t over ‘til it’s over.
Several evidentiary issues were also presented throughout these proceedings. For example, Defense instructed rebuttal experts in neurology, neuropsychology and neuro-psychiatry. They remained resolute that our client’s symptoms (and hence inability to work) were not related to the underlying accident. Nevertheless, we persuaded Defense to meet with us to explore settlement.
Settling the Claims
Settlement meetings are common in English personal injury cases. Some 95% of all personal injury cases that are filed with the court do not get to trial. These meetings usually last an entire day and, while the negotiations take place between the lawyers, the client is usually present and available to provide instructions on offers and counteroffers. It is also essential for the lawyers to ensure that the client is fully engaged and understands the settlement process.
Here, SM’s legal team knew that her symptoms caused her to drift off and disengage. Ideally, they needed SM present, but given her ability to get lost on her way to her local corner shop in Virginia, getting her to the settlement meeting in London filled us all with concern.
Defense were unwilling to meet in Virginia and so the parties agreed on a transatlantic plan. Attorney Collins travelled to Alexandria, Virginia, (at less expense than the client travelling to London) and joined the settlement meeting by telephone with the client, while the barrister attended in person in London. The time zone difference was a challenge but that was the least of the attorneys’ worries. After several hours, negotiations broke down. Defense offers were nonsensical, so plaintiff’s counsel pulled stumps9 and the meeting ended.
SM’s neurologist advised that her case would be strengthened by DTI (Diffuse Tensor Imaging) Scanning: a far more sophisticated and detailed form of radiological evaluation. DTI experts are rare, but SM’s attorneys were able to track down Professor Michael Lipton, a neuro-radiologist based in New York City. The DTI scan was the magic bullet this case needed: it showed organic brain damage that was most likely to be accident-related.
Upon reviewing this evidence, Defense was ready to re-enter into settlement discussions. A further meeting was held in July 2019, more than five years after the accident, culminating in a satisfactory settlement for SM. But, that was not the end of the case, as the English system allows a claimant’s counsel to recover legal fees and costs.
Attorney Fees and Costs
The recovery of legal fees and costs in English personal injury cases is a long, drawn out process, which can be quite surprising to those accustomed to simply deducting a pre-agreed contingency percentage of damages collected at the end of the claim. If only life were that simple.
In England, the process starts with drafting a formal bill setting out every task undertaken, how long each task has taken, and every disbursement incurred. This means that English lawyers must be extremely disciplined in recording time spent on a case, preparing written notes about claim progress. Once this formal bill is served, a whole new process begins. The Defense then serves a response (called “Points of Dispute”) to that bill, setting out their case as to the unreasonableness of the time entries. The Claimant then serves “Replies to Points of Dispute” and, usually, there are subsequent settlement discussions to resolve fees and costs. If a settlement cannot be reached, a judge will adjudicate and decide what is payable.
That is how things normally work . . . but not in SM’s case.
After settlement of the case, SM’s counsel served their bill, including all the legal fees and costs incurred on both sides of the pond, expecting major challenges. We knew the other side would fight hard against the award, because they engaged lawyers specialized in challenging costs to assist them. Additionally, Defendants requested and were granted multiple extensions of time to file their fee dispute. As a result, their Points of Dispute were due in January 2020 (long before the world began experiencing any COVID-19 lockdown restrictions).
However, the defendant’s extended deadlines passed without any submissions, so SM’s legal team applied to the Court (by then, in lockdown) and obtained a Default Costs Certificate, the effect of which was that every single penny they claimed was now payable by Defense. This was a huge increase from what SM’s counsel would likely have been awarded if defense counsel had not missed their deadline.
The Defense costs lawyer suddenly woke up to the enormity of his negligence. He pleaded with claimant’s counsel to agree to the Default Costs Certificate and said if they did not agree, he would apply to the court and explain that this was all down to a simple error. Although SM’s attorneys did not believe that Defense would make the application and expose to the world their mistake, they did.
The matter finally got to a hearing in October 2020. After a considered judgment delivered weeks later, SM’s counsel won. The judge accepted that more fees and costs may be payable than had the process taken the normal course, but this was entirely the fault of the Defense. The time limit for appealing that decision expired in mid-February 2021 but the Defense realized that an appeal had little prospect of success. It was finally over.
This case really was an homage to the wise words of Jackson Browne. Here, two AAJ International Practice Section members saw a “world in motion”—we sped change, we closed distances, found angels, lost our fears, and certainly met dangers. But it was all so rewarding.
About the Authors
Warren Collins is a Solicitor-Advocate (a hybrid creature somewhere between Solicitor and Barrister, and means that more people ask about the “funny little white wig worn in court” than his skills as a personal injuries lawyer) at Penningtons Manches Cooper in London. He is a long-time member of AAJ where he currently serves a Co-Chair of the Spinal Cord Injury Litigation Group and Board of Governors as well as vice-chair of the International Practice Section. He is winner of numerous awards for his work in catastrophic injuries. Warren is a Freeman of the City of London and a Trustee of a brain injury charity in the UK.
Marc P. Weingarten is a senior partner in the Locks Law Firm in Philadelphia, Pennsylvania, with offices in New York City and New Jersey. He currently serves as Co-Chair of the International Practice Section of AAJ, as well as on the Public Affairs, Public Education and International Relations Committees. Marc saw the Ramones in concert at least five times and unsuccessfully auditioned for “Who Wants To Be A Millionaire” a half dozen times. He has tried major jury trials to verdict in over ten states and has written and lectured extensively throughout the United States and Europe on trial tactics, evidentiary matters and mass torts, including asbestos. He can be reached by email at [email protected] and his telephone number is 001.215.893.3404.
1 To maintain SM’s anonymity, details of the accident are not included.
2 It is common to refer to “English” and “England” as short form and to mean “England and Wales.”
3 The English Courts used the term Plaintiff until the introduction of the Civil Procedure Rules in April 1999.
4 A Brief in England is the formal document that a solicitor instructs a barrister to appear in court.
5 The English Courts used the term Discovery until the introduction of the Civil Procedure Rules in April 1999.
6 Subject to very limited exceptions.
7 Another spelling difference.
8 Loosely analogous to this concept is Federal Rule of Civil Procedure 68. This Rule permits a defendant to make an offer to settle by offering a judgment on specified terms up to 14 days before trial. If the offer is rejected and the ultimate verdict is not more than the judgment offered, the plaintiff has to pay all defense costs incurred after the date the offer was made. A Rule 68 offer is a risk-shifting tool designed to encourage settlements in lieu of trial.
9 A British cricketing expression which means “abandoned the game.”
Warren Collins & Marc P. Weingarten, World in Motion: A Story of Transatlantic Collaboration in the International Practice Section, AAJ Int’l Prac. Section Blog (May 7, 2021), https://community.justice.org/blogs/aaj-blogs1/2021/05/07/world-in-motion-a-story-of-transatlantic-collab.