I received an email asking about tips for defendants to use for delaying a claim.
As tempting as it seemed to disregard this, I interviewed a person last week from an adjuster’s firm (an ex-LPC student trying to get back into law) who informed me he had 600 (SIX HUNDRED!!) cases in his name.
Apparently this is average for his department. I was almost stunned into silence.
It was clear from his explanation that:
- they adopt a purely reactive method of working;
- their insurer clients take the hits on cutting cheques for PAD applications; and
- their clients accept paying a large number of claims, by allowing claimants to issue, as just “the cost of doing business”.
It seems they prefer the above approach compared to putting in place the correct staffing levels for a suitable allocation of work.
It’s not perfect
So from this it is clear that defendants need to find ways to slow down and delays claimants. While this can be frustrating for a largely claimant-focussed firm, I outline some tactics below.
1. Practice Direction for Pre-Action Conduct and Protocols
Use these against a claimant. It is a great tool. Go through the PD or Protocol and identify ANY step they have failed to take. You can go further and argue that a different way of handling the claim applies (normally this is used to try and push a PD governed claim into a Construction & Engineering Protocol governed claim).
The PD/Protocol should be lifted verbatim into your letter and quoted in open correspondence. State how they have failed to comply and that until they do so, issuing proceedings is premature, and you will rely on the letter in respect of costs.
Only a gambling claimant would run the risk of issuing when their poor conduct has been flagged.
Show a willingness to consider the claim fully once the claimant has completed the full steps required under the PD/Protocol.
This is a delay tactic, but you need to make sure that once the claimant has complied with the step(s) then you provide a full response or settle. This delay tactic can be a one time thing, unless the claimant has wholeheartedly failed to comply with the step(s) you have identified. You will not look unreasonable for this approach.
2. The “wild goose chase” aka the “I need more information” game
Sometimes a claimant’s solicitor will be stupid and gullible. You can make out that you are validating the claim but are unable to do so until they provide you with further information. It is vital that you are specific and provide a prescriptive list of what is required.
Refrain from using a purely standardised stock letter. You can have a list that is amended, but make sure you do not include information that has already been supplied or the other side will see through your efforts to delay.
An example I recently witnessed in our office was a fee earner who represented a claim where a drink driver crashed into a wall and side elevation of a house. It was a slam dunk (RTA law is clear, RTA insurer is known, identity of driver is known, he pleaded guilty to drink driving, etc). The claim was handled by a qualified and experienced loss adjuster so quantum was not allowed to get out of control. The defendant’s insurer demanded a pre-purchase survey from 10 years beforehand before they could consider raising payment. It was a ridiculous request and the fee earner should have issued proceedings. Unfortunately she just went and bugged the client for the document which delayed the claim for months as they had to retrieve the old conveyance documents.
She is unfit to do her job, I know. This tactic by defendants works on occasion. Just make sure your request is not too silly. Sometimes the better request is for a signed witness statement if no formal evidence has been served in support of a claim. It is not unreasonable in the circumstances, particularly if an expert report has not been obtained.
3. Make a lowball offer
A nuisance offer of 10-25% can be made if you need to delay. This is useful when you know your client is bang to rights but you need to delay the claim for whatever reason. It would be wholly unreasonable for a claimant to immediately issue when you are starting to engage in settlement discussions.
Make the offer in open correspondence. You can often double-layer this approach by making the offer but stating that you can only make the level of offer due to the limited evidence provided by the claimant (see section 2 above).
Before they come back to you they will have to advise their client, take instructions and prepare a response. This all takes time. Often the documents need to be approved by partners who are out of the office so it sits in a tray for a few extra days.
I would tend to recommend this for low value claims where you have limited or low costs exposure and the claimant’s appetite for litigation may be low.
4. Request a site visit
This falls under the validation head again. It tends to be for claims of a fast to low-end multi track nature.
You may want to settle the claim but find it difficult to attack the quantum. Instead of getting the claimant to increase their costs (e.g. expert report or quantity surveyor report), you could insist that your enquiry agent, who works on a fixed fee, could interview them or inspect property/documents/etc. Reserve your position until that time. Assert it would be against the spirit of the CPR to refuse this as it is a genuine attempt to narrow the issues.
Of course you will experience “delays with our enquiry agent” due to their diary, etc
[insert other lie here]. This may work against firms that are known for incompetence in litigation. A more astute operator may set you a reasonable deadline to meet, which if you fail to comply with, they issue proceedings. This is a riskier approach, but there is the potential that the enquiry agent may pick up some useful information on site that allows you to negotiate a better settlement.
5. This one is mainly insurance based – claim the insurer is still investigating your client’s coverage under the policy
Start off with placing a reservation of rights letter with the claimant. This will put them on tenterhooks.
Make it clear that you are not trying to be difficult, but your insurer client is having to address the coverage for your client under the insurance policy. This is particularly useful with incidents where either RTA or PL cover may apply (e.g. delivery drivers or couriers who cause damage).
There is a risk when reading the above that you think you are on shaky foundations with professional ethics (as there is good AIRMIC guidance out there), however you are lucky because nearly all reports from loss adjusters will state that the insurance company should consider XYZ under a policy and refer it to their underwriters for comments.
Naturally, each time the claimant chases you regarding this you can state that investigations into the coverage remain ongoing. Insurers are understaffed so this generally does take weeks. The claimant will be too scared to issue proceedings if they think there is going to be difficulty with enforcement of any judgment that is obtained.
Use this one sparingly and only when it genuinely applies. I cannot be seen to encourage dodgy lawyers!!
I think 5 is enough for now… Let me know if there are any other nominations for delay tactics: firstname.lastname@example.org
Over and out.