Differences Between UK and US Personal Injury Law
This article is written by our guest writer Jeanette Miller. She is a solicitor in the UK.
In the UK the public perception of a personal injury claim in the US is that it is similar to a lottery win. We hear about crazy cases involving the likes of a million dollar payout for a McDonalds coffee spillage and assume that the American legal system is completely different to how we do things in the UK. I am a solicitor and own a personal injury law firm in Manchester, England and have considered some of the similarities and differences between our routes to seeking justice below.
Solicitors and Barristers
In the UK, there are effectively two main types of lawyer. A solicitor is not someone who stands on a street corner wearing stilettos! Solicitors are lawyers who have the right to practice in certain courts and who have client dealings. In the context of personal injury claims, most low value cases (worth less than £25,000) are conducted without the input of a barrister.
Barristers were, until very recently, forbidden from having direct dealings with clients but had to be instructed by solicitors who liaised with the client as a sort of go between. Barristers can practice in any of the courts in England and Wales whereas solicitors are restricted from practicing in some courts as they do not have “higher rights of audience”. Solicitors can take an additional test to receive these rights of audience but it is usually only criminal solicitors who will go down this route.
Barristers are usually only involved in higher value personal injury claims and claims where there is a dispute over liability. They are often called upon to provide an insurer an additional opinion which is often considered to outweigh that of a conducting solicitor, a little bit like the difference between a general doctor and a consultant.
Solicitors are regulated by The Solicitors Regulation Authority. Barristers are regulated by the Bar Association.
The training that a solicitor and barrister have to undertake to qualify is the same in the early stages of their career but after completing the first part of the academic stage, the requirements differ enormously.
Whilst the population of England and Wales are tiny in comparison to the USA, an English lawyer cannot practice in Scotland and vice versa. Scotland is considered a completely different legal jurisdiction.
Travel Injury Jurisdiction
European legislation plays quite a big part in the UK and as a result we have a simpler route to pursuing claims for compensation arising out of accidents whilst on holiday. For example, if injured whilst at a lodge on Safari in Africa, a UK domiciled victim could potentially sue a tour operator for the African lodge owner’s negligence. There are some strict criteria to be established to pursue a foreign claim successfully but the Package Travel, Package Holidays and Package Tour Regulations 1992 simplify the process of claiming for accidents abroad.
There is no comparable law for a US victim who is injured whilst on holiday and so if injured whilst on holiday abroad the claim would have to be pursued abroad.
Employer’s Liability Claims
Again, as a result of European Directives, the Health and Safety laws in the UK place a significant burden onto the English employer leaving them open to unlimited claims for compensation in the event of a breach of the law. There is no statutory “workers compensation” scheme in the UK although there have been some specific schemes such as a scheme for coal miners.
An employee must usually prove negligence or breach of a statutory duty if claiming against an employer and their compensation is directly related to the injuries and expenses they have incurred rather than for a set amount of compensation as is the case with many US workers compensation schemes.
The Role of Insurance in Litigation
The level of insurance cover a defendant may have rarely features in the mind of the English solicitor when commencing a personal injury claim. Most insurance is not limited in the same way as in the USA.
However, insurance is considered for very different reasons relating to the way in which solicitors are paid. In most cases, the losing party must pay legal costs and expenses in addition to the winning party’s compensation in the case of a claimant.
Contingency fee arrangements which are commonplace in the USA are unlawful in the UK in the case of most personal injury claims. This means that if you pursue a claim you are at risk of paying your opponent’s costs if you lose. For this reason, solicitors are duty bound to consider and arrange for an insurance policy to be taken out to protect a claimant from having to pay their opponent’s costs if they lose their claim. This product known as “After The Event” insurance has cost the insurance industry in the UK billions of £ and for this reason the whole legal costs system is undergoing radical change at the moment. It is thought that we will be moving towards a contingency fee based system but many solicitors disagree with this approach, not least because the amount of damages a claimant recovers is not remotely comparable to the level of the compensation awards in the USA. For example, the average road accident claim results in compensation of £2500-£3000 for the victim. If they were then required to pay 1/3rd of this to their lawyer, they would be far worse off than under the present system.
Damages Recoverable in Suits
Damages are separated into two separate “heads”
1. General Damages
This is compensation for any item that is incapable of having a price calculated for it such as pain and suffering and “loss of amenity.” We refer to previous cases and judicial guidelines to decide on the amount for say, a broken arm.
Sadly, the amount a personal injury victim receives for this head of damage is typically the smallest part of a claim. The larger aspects of higher value claims ordinarily consist of care and loss of earnings.
In the United States a jury may award damages for pain and suffering without, in most circumstances, any limit. This is an important part of civil cases in the U.S. as, in most circumstances, juries are not limited to any type of statutory limit on damages. Punitive damages are also recoverable in the U.S. The availability of these types of damages generally means that lawsuit recoveries are higher in the United States than there are in the United Kingdom.
2. Special Damages
The second head of compensation in a UK claim is referred to a special damages. This encompasses any item of loss that can have a price tag attached to it such as medical expenses, loss of earnings or vehicle damage.
Jury trials are extremely rare for personal injury claims and are usually only reserved for matters of public importance. Most personal injury claims are dealt with in the County Court where liability and quantum are decided by a single judge. This is in complete contrast with the United States where a jury trial sits in all tort cases (this includes all personal injury claims) to decide the outcome of the claim.
The jury trial system of the United States causes the elements of damages to vary and the amount of damages to be frequently different, and frequently higher, than those in the UK.
There is no English equivalent to a deposition. Witness statements are relied upon in personal injury claims but these are far less formal documents that do not involve the other side having the opportunity to confront the witness under oath for the purpose of formulating the statement itself. A statement must contain a statement of truth and if a witness or expert signs a statement of truth knowing that the content of the statement is not true, they could be found to be in contempt of court or even prosecuted for attempting to pervert the course of justice.
Claims Management Companies
Solicitors are heavily regulated in the UK and in particular the methods of marketing or “soliciting” for work were until recently very restricted. Solicitors cannot cold call or approach clients and solicitors’ marketing must be tasteful.
This onerous regulation lead to the evolution of the claims management company. Companies with some knowledge of the legal industry, sprouted up in the late 1990s and advertised their services as a form of broker between the solicitor and the victim. The claims company would then sell the case to the solicitor. Whilst referral fees were also banned by solcitors’ regulatory bodies, many firms renamed the referral fee as a marketing fee. So many law firms rely on claims companies for their work so that now, they have become lawfully recognised entities regulated by the Ministry of Justice.
However, there are plans to ban referral fees and claims companies completely in the imminent future.