Personal Injury has its head on the block. Again.

Every now and then, one area of law or another seems to be singled out by the powers that be as “the problem” or “the thing that is costing the system too much.” In recent years, that particular axe has fallen squarely over the neck of personal injury litigation.

By Jonathan Lindfield, Barrister St. johns Chambers

From the 2013 Qualified One-Way Costs Shifting reforms, to the Claims Portals for Low-Value PI Claims, the 2018 Whiplash Reforms, and the introduction of the OIC Portal in 2021—personal injury has taken blow after blow. When I joined the Bar in 2017, some of the older hands were already lamenting the end of the “double bubble” days where you could actually get paid twice for doing the same bit of work, singing songs that reminded them of the better times.

And then, after years of speculation, delay, criticism, more delay, consultation, and still more delay… on 1 October 2023, the civil litigation world was shaken up once again. Fixed Recoverable Costs were extended to all claims worth up to £100,000 with the introduction of the Intermediate Track.

Why A Focus on PI?

Don’t get me wrong – other areas were caught by these new fixed costs provisions. Credit hire practitioners were aghast to find pre-action costs were less than £2,000 in most cases. Lower-value commercial litigation had its margin wiped out. But, whether by accident or design, PI again seems to be the target.

Why do I say, “disproportionately affected?” It’s because whilst the million-pound settlements make the headlines, in day-to-day litigation, you can get some pretty serious injuries which require really careful investigation, and not recover more than £100,000 at the end of the day. I don’t know, but I suspect, that many non-PI cases that aren’t road-traffic based, will be able to escape. PI is almost certainly going to be the most widely-affected area.

To put this in context: imagine I get knocked down. I fracture my ankle. I now walk awkwardly on uneven ground, can’t stand for long periods, struggle with stairs, and have residual scarring and a future risk of osteoarthritis. Let’s say that attracts something in the region of £34,000 in general damages. Add two years out of work (£40,000 lost earnings), plus £5,000 for someone washing and dressing me whilst I couldn’t. That’s a total claim of nearly £80,000. Life changing sums. Serious by most people’s standards, and deserving of careful attention.

And in the past, it was. Serious enough for solicitors and counsel to get involved early, charging by the hour, ensuring no stone was left unturned. The client got the benefit of thorough case preparation—and lawyers got fair payment for their work.

But not anymore.

Welcome to the Intermediate Track

Now, that claim will be allocated to the Intermediate Track. It will be placed into one of four complexity bands during case management. These bands—replicated in the CPR—are supposed to represent escalating degrees of complexity, though bonus points to anyone who can tell me what half of them actually mean.

The court, using just the pleadings and the Directions Questionnaires (DQs), will decide:

• How complex the case is
• How many “issues” there are (not defined)
• How long the trial will likely last
• How many experts might be needed
• Whether there is a “serious issue of law or fact”

All of this will be determined before any directions are even set and is expected to be done on paper. These decisions directly affect recoverable costs at the end of the day, and any later request for re-banding requires a demonstrable “change in circumstances.” The parties get one tick box on the DQ to nudge the court in the direction they want. Anecdotally (and perhaps unsurprisingly), courts haven’t been routinely listing these for oral hearings.

Counsel? Forget About It,

But wait, there’s more.

If a solicitor wants to involve counsel to get the claim in top shape before declaring a final valuation on the Claim Form? No recovery. Pre-issue counsel fees are not recoverable. That means a whole lot less incentive to justify incurring the cost of an early opinion on prospects, quantum, or even which experts to choose. All of those things can really matter, particularly when litigation ought to be a last resort.

If a solicitor wants counsel at the hearing where the court assigns the band (if there is one)? Not recoverable.

If a solicitor wants advice on a sensible early offer from either party? Also not recoverable.

The DCP (Damages Claims Portal) should, but doesn’t, allow solicitors to issue with a placeholder statement of value and amend it later.

There’s no scope for budgeting anymore—CCMCs (Costs and Case Management Conferences) are effectively gone (hearings that formed a good portion of work for the PI Bar at this level). Standard directions are the new normal. CMCs (Case Management Conferences) will be rare.

The clear message? The system doesn’t want us arguing about these decisions – even when that matters. It couldn’t have written a more opaque set of rules if it tried, and then allocated very little inter partes costs at all to arguing over what those rules mean. It is perhaps unsurprising that, even since 1 October 2023, there haven’t been any notable authorities on it. Just when PI thought it had the benefit of everyone else going first (PI claims are only caught if the accident happens after 1 October 2023, not when the claim is issued), we’re no further on than we were 18 months ago.

Not Just Claimants

And let’s not pretend this only hits claimants.

Defendants are now actively disincentivised from running multiple arguments – they’re encouraged to keep “issues” to a minimum. There’s pressure to admit liability early, make quick calls on causation. Even if a defendant proves a claimant has been stringing them along dishonestly, they’re still stuck in fixed costs. The old escape hatch – where fraud lifted fixed costs – has vanished. (You might get 50% more, but good luck making it cover your spend.) Could this potentially lead to more fraud slipping through the net on a purely commercial basis?

Even Part 36, once the parties’ most potent costs protection (and the one that the celebs who have been litigating with the papers have all been learning recently), has lost its sting. Defendants get the difference between fixed costs stages so will never wipe out the Claimant’s costs. Claimants no longer get assessed costs from the expiry of their offer if they beat it at trial. Now, they’re awarded a 35% uplift on the difference between stage-based fixed costs. If an offer comes late—say after expert evidence is finalised (a REALLY important stage in PI litigation) —there’s almost no risk to a defendant who declines it.

Can The PI Bar Take Any More Punches?

Personal Injury practitioners might have a little cry in the corner. We’d be forgiven for thinking that Courts don’t want us. And if they do have us, they don’t want us to complain about any decisions they make. And if we do complain? Well, the recoverable costs on most interim applications are now capped at £333. Good luck.

But we’re not going anywhere.

Solicitors can’t change their business models overnight. Many firms are already sitting on hundreds of Intermediate Track cases, with no real playbook. Counsel may well need to accept cut-price deals to stay involved pre-action. But we’ll figure it out.

One idea that’s emerging: the “super conference.” With counsel’s fees only recoverable post-issue, the four-month window between issue and service will become key. That’s when the case must be shaped, polished, and prepped for its debut. That’s where we can add value, and that’s where we (might) get paid properly.

But let’s not undercut each other at the Bar. This can’t be a race to the bottom. The fees are prescribed for a reason.

Some practical tactics for the PI Bar:

• Work out some pre-action costs arrangements with your best solicitors for pre-issue assistance. Maybe fees will have to be modest, but find something that works for you, and get yourself on the case early. Then when you can recover your fees post-issue, you’ve already done some of the work.
• Hold a conference when an offer comes in – those fees are recoverable (but only after a Defence has gone in)
• You can recover for Joint Settlement Meetings (JSMs) and mediation, but not for written advice on offers. So push for a JSM. If refused, argue for unreasonable conduct.
• If a defendant raises fundamental dishonesty unreasonably, aim for a higher complexity band. It’s worth it if you win.
• If a claimant overcooks the case, make clear the benefit of Counsel attend the hearing to challenge it. It’s worth it if you win to your clients.

Let’s also use this as an opportunity to improve case preparation. No more missing big-ticket losses early on. (Yes, loss of pension, I’m looking at you.)

We Will Get Back Up Again

There is still a place for PI at the Bar, and there is still a full and fulfilling practice to be had. But these costs cuts must not be allowed to drag down standards or service. The fact that a case isn’t life-changing for a practitioner doesn’t mean it isn’t life-changing for a client. We keep our place by adding value, and bringing our key expertise and experience to these cases.

My fractured ankle might not make the headlines. But to me, it is huge. It is life changing. It matters. And it still deserves proper legal attention. If we start treating these claims as admin chores, nobody wins.

The PI Bar has always found ways to adapt. This is just the next round. To anyone practising, or just starting out in this area, keep going, there is still hay to be made. We’ll be singing when we’re winning.

We are not the problem. We are the consequence of a stretched, underfunded system—where public services are threadbare, employees work longer and harder, with multinationals looking ever closely at the bottom line. There are more drivers on the road and more construction jobs for the ever-increasing population. Is it any wonder people get hurt…? That’s not our fault. It’s reality.

And as those great philosophers Chumbawumba once said: We’ll get back up again. You’ll never keep us down.

Jonathan Lindfield, Barrister St. johns Chambers