The First Interview 115

CHAPTER 8

The First Interview

8.1 Introduction 115

8.2 Funding 115
8.3 Urgent matters 116
8.4 Advising the client 117
8.5 The client’s proof of evidence 118
8.6 Welfare benefits 123
8.7 Rehabilitation, early intervention and medical treatment 124
8.8 Conclusion 125
8.9 Further reading 125
8.10 Overview of matters to be considered at the first interview 126

LEARNING OUTCOMES
After reading this chapter you will be able to:
• identify the important matters that must be dealt with during the first interview
• identify any urgent action that needs to be taken
• take a proof of evidence.

8.1 INTRODUCTION
The first interview is the cornerstone of the solicitor/client relationship, and it is therefore
worthwhile making the effort to get it right. The Law Society’s Practice Note on initial
interviews, dated 6 October 2011, contains useful guidance on this topic and may be obtained
from The Law Society website. Reference should also be made to Skills for Lawyers, which
deals with how to conduct an interview. The interview will normally last at least an hour. The
client should tell his own story, and the solicitor will often complete a long and detailed
accident questionnaire, prior to drafting a proof of evidence. Detailed preparation at this
stage will save a great deal of time later. The matters that should be considered in preparation
for this first interview are examined below.
You should note that conduct requirements, such as checking for conflicts of interest and
obtaining evidence of identity, are not dealt with in this book, but should be strictly followed.

8.2 FUNDING
Many people are wary of solicitors’ charges, and are reluctant even to approach a solicitor in
order to enquire about making a personal injury or clinical negligence claim. Consequently,
some firms offer a free, fixed fee or reduced cost initial interview, in which they can give
preliminary advice about the viability of the claim and provide information about costs and
funding options.
Should the solicitor be instructed in relation to the matter, in accordance with Outcome 1.13
of the SRA Code of Conduct 2011, he must ensure the client receives, at the time of
engagement, the best information possible about the likely overall cost of the matter. This
includes information about funding options, disbursements which may arise and potential
liability for inter parties costs. Funding is discussed in more detail in Chapter 9.
116 Personal Injury and Clinical Negligence Litigation

If an urgent matter, such as a limitation issue, comes to light during the first interview, the
solicitor should bear in mind the question of funding prior to making lengthy or expensive
investigations on the client’s behalf.

8.3 URGENT MATTERS

If an urgent matter comes to light during the first interview, the solicitor should bear in mind
the question of funding prior to making lengthy or expensive investigations on the client’s
behalf, and should consider making an application for emergency public funding if
appropriate.

8.3.1 Limitation
Limitation is discussed in detail in Chapter 7. At the first interview in a personal injury or
clinical negligence claim, it may become apparent that:
(a) the three-year primary limitation period is about to expire (see 7.2). If so, the solicitor
should consider entering into a standstill agreement with the defendant or issuing
protective proceedings immediately (see 7.9.2);
(b) the three-year primary limitation period has recently expired. If so, consideration
should be given to issuing proceedings as soon as possible, including in the claim form
or particulars of claim, a request for a direction that the limitation period should be
disapplied (see 7.8). Thereafter, the solicitor should inform the defendant without delay
that proceedings have been issued, to minimise any claim by the defendant of prejudice
due to the passage of time;
(c) there is a question as to the client’s ‘date of knowledge’ of the injury complained of. The
client should be questioned closely regarding the earliest date on which he realised he
might have a cause of action, and how he came to that conclusion. The client’s medical
records should be obtained without delay in order to confirm the precise date of
knowledge. Proceedings can then be issued as in point (b) above, and thereafter it can
be argued that the limitation period has not yet expired because the client’s date of
knowledge of the injury is within the last three years. If this is not successful, an
application should be made for the court to exercise its discretion and disapply the
limitation period (see 7.8).
Having established when the primary limitation period is due to expire, it is important that
the time limit is recorded separately from the file in a diary system. The file itself may be
similarly marked with the date on which limitation expires. This double recording of the
primary limitation period is good practice, as failure to issue the claim within the limitation
period is a common pitfall, and one which may lead to a negligence claim by the claimant
against his solicitor.

8.3.2 Photographs
In most personal injury cases, persons seeking advice following an accident will do so
relatively soon after the accident occurs. If this is the case, a task, which is often overlooked,
will be to secure photographic evidence.

[Link] The client

The client may attend the interview with an array of bruises and abrasions (soft tissue
injuries). These will heal or fade relatively quickly, and an important piece of the claimant’s
evidence will be lost. The claimant’s solicitor should therefore ensure that good colour
photographs are taken of the client’s injuries for subsequent disclosure. Such photographs
will form very tangible evidence of the severity of the injuries sustained, when the case comes
to be considered some months or years in the future. In cases where the client may suffer
embarrassment at being photographed, or indeed in any case where a degree of sensitivity is
 The First Interview 117

needed, specialist medical photographers are available, for example at larger teaching
hospitals.

[Link] The location of the accident

In road traffic cases, it is usually necessary to visit and take photographs of the location of the
accident as soon as possible after the accident, because the layout of the road may change as
time passes and/or the road may appear different depending on whether it is photographed in
summer or in winter, especially if there are lots of trees or vegetation which could obscure a
driver’s view (see 10.9.5).
Where accidents at work are concerned, it is good practice to obtain photographs of any
machinery or equipment involved. Any delay may mean that the equipment involved is
replaced and/or disposed of. Similarly, if the accident involves allegations of a defect in a floor
surface, it would be helpful to obtain photographic evidence of that floor surface before it is
corrected.

8.4 ADVISING THE CLIENT

It is important for the solicitor not to lose sight of the fact that the client has come into his
office seeking some meaningful advice, which he hopes will lead him to a decision as to
whether he has an actionable case against some other party. The client therefore needs to have
the best information available, in a form that he can understand, so that he can make an
informed decision as to what to do next. It is best to set out the strengths and weaknesses of
the case, based on what has been said by the client. The importance of the limitation period
should be explained to the client if this is likely to be an issue. The solicitor should also
explain to the client that it is for him to prove his case by evidence and that anything short of
this is not enough. He should be informed of the basis of his case, and the level of proof
needed by the court to prove it. The client should be left in no doubt that it is his case, to be
proved by his evidence, and that he bears the risk that his case may fail. As such, he should
think seriously prior to instructing his solicitor to issue proceedings. The solicitor should give
an indication as to whether he believes that the case is likely to succeed, but he should make it
clear that the assessment is based on the limited information available at this early stage. In
any event, if the solicitor is considering taking the client’s case but will be paid under a CFA or
a DBA, it will be necessary for the solicitor to conduct an assessment of risk at an early stage in
order to decide whether or not to accept the client’s instructions on that basis.
It may be that the solicitor advising the client will be required to produce to his superiors a
report, from which his superiors will make a risk assessment in relation to whether or not the
client should be accepted on a CFA or DBA basis. The risk assessment report may also
consider such things as whether it is proposed that the client covers his own disbursements,
or whether the firm is prepared to fund them on the client’s behalf. The client is likely to press
for an indication of the likely level of damages that may be recovered. Giving a firm indication
based on inadequate information should be resisted. Instead, the solicitor should explain to
the client why an assessment would be premature at this stage. The solicitor will not be in a
position to assess the value of the claim until medical evidence dealing with diagnosis and
prognosis has been obtained.
One reason for not giving a provisional indication of the likely level of damages is that the
client may be found to have been contributorily negligent. This principle should be explained
to the client, first to try to elicit whether the client has any reason to believe that it will be
relevant to his claim and, secondly, to act as a warning to the client that it is likely that the
opposition will try to allege that he was contributorily negligent.
The client should also be advised that he must prove every head (or type) of loss against his
opponent. Although it is the case that the client is able to claim all he has lost as a direct result
of the accident, he must also be in a position to prove every head of that loss to the court if he
118 Personal Injury and Clinical Negligence Litigation

wishes to recover damages in respect of it. It should therefore be explained to the client that
damages are made up of general damages (for pain, suffering and loss of amenity) and special
damages (everything the client has had physically to pay for and other quantifiable losses as a
direct result of the accident). For a detailed analysis of the subject of damages, see Chapter 15.
It will assist greatly, when it comes to proving his losses, if the client has kept a detailed record
or account of his out-of-pocket expenses. To this end, the client should be advised at the first
interview to keep all receipts for expenses incurred as a direct result of the accident, and that
it is his responsibility to do so. Common examples are prescriptions, the cost of items lost or
damaged beyond repair in the accident, and taxi fares to the out-patient or physiotherapy
departments. Similarly, with respect to general damages for pain and suffering, although the
client’s distress may be keen at the first interview, by the time of trial his recollection may have
dimmed, to the extent that he has forgotten many of the minor losses of function he suffered
in the early stages of recovery from his injuries. The client should therefore be advised to keep
a diary if he does not already do so, to record, for example, the fact that he is unable to sleep
due to pain, or is unable to dress himself unaided or to do housework, and to record how long
these disabilities last. Any number of tasks, either recreational or work-related, should be
recorded so that they are not forgotten later when it comes to preparing the client’s witness
statement.
It is particularly important in clinical negligence cases that the client is made aware of the
difficulties in pursuing the claim, and especially that he must establish not only a breach of
duty, but also that the breach was causative of the damage that resulted (rather than the
underlying illness or injury being the root cause of the loss). If the client is paying for the
litigation privately, the high costs involved must be explained to him clearly. The solicitor
should also explain the difficulty in giving a preliminary view on liability without first
obtaining all the client’s medical notes and at least one expert’s views.

8.5 THE CLIENT’S PROOF OF EVIDENCE

Client questionnaires are used frequently in personal injury work. The questionnaires are
designed to elicit certain basic information about the client and the accident. Increasingly,
law firms ‘capture’ these basic data about the client by keying the details into a case
management system. This has the advantage that once ‘captured’, the data are available for
use subsequently throughout the life of the claim.
The client’s proof of evidence should not be confused with the client’s witness statement.
Although they are both statements taken from the client, they serve different functions. The
proof is the ‘rough copy’, which may include irrelevant material and suspicions or ‘versions’
rather than facts provable by the client in court. The witness statement contains only those
matters which the witness can prove, and is disclosed to the opposition at the relevant stage in
the proceedings.
The function of the proof is to obtain the fullest possible detail from the client, and only later
to sift out what is strictly admissible as evidence. The proof can be taken at the end of the first
interview when the client is still present, or from notes made at the time in conjunction with
the questionnaire.

8.5.1 Contents of the proof

The proof should commence with the client’s full name, address, date of birth and National
Insurance number. It should state his occupation and whether he is married. If he was
admitted to hospital, it should state his hospital number. The proof is intended for use by the
client’s solicitor and barrister, and, subsequently, in the preparation of the client’s witness
statement; as such, it should be the fullest possible statement from the client relating to the
incident, the events immediately following the incident and its long-term effects. The client
should begin his narrative at the earliest point in time that he feels to be relevant.
 The First Interview 119

Following the client’s personal details, the proof should next detail the date, time and location
of the incident. It should then follow through chronologically and meticulously:
(a) the events leading up to the incident;
(b) the circumstances of the accident, including a clear explanation of the mechanics of the
accident itself;
(c) what happened immediately after the incident;
(d) why the client feels that the incident was caused by the negligence of some other
person;
(e) what medical treatment was given and injuries incurred; and
(f ) how the client feels that the incident has affected his day-to-day life.
The solicitor should bear in mind that the proof will form the basis of the witness statement,
and that, usually, the witness statement will be ordered to stand as the witness’s evidence-in-
chief at the trial. It is important, therefore, that the proof is detailed in its description of how
the incident actually happened, and the effect the incident has had on the client’s day-to-day
life. All aspects of the client’s life should therefore be considered in the proof. The following
areas should always be covered, including an estimate in weeks or months of how long the
incapacity affected the client’s life, or confirmation that the incapacity is still continuing:
(a) Everyday tasks which he is unable to do for himself, eg dressing, bathing, housework,
shopping, driving. This will be important if a claim is made for loss incurred in
employing someone else to carry out these tasks.
(b) Recreational activities such as sports, hobbies, gardening, DIY in maintaining the home
and the family car. The client’s inability to participate in sports will have an effect on his
loss of amenity claim for general damages. The client should also be asked whether he is
a member of any sports team or club, and about any prizes or trophies he has won as
further evidence of his level of commitment. The inability to carry out jobs of
maintenance around the home will similarly affect his claim for loss of amenity. If the
client gives evidence that DIY is a hobby, details should be obtained of any projects he
has undertaken. This will also affect his special damages claim for the labour element of
the cost of having to employ someone else to fulfil those tasks in the future.
(c) Whether and to what extent the injury has affected his sex life. This area of loss of
amenity should always be broached with the client, as the stress of an accident can often
bring about a degree of sexual dysfunction, even if the injury itself would not
immediately suggest that such was the case.
(d) Specifically, whether the incident will affect the client’s ability to continue with his
employment, and the extent to which he is affected. It may be obvious that the client
will never work again, or will be unable to work in his pre-incident position but will have
to retrain, or that he intends to return to his pre-incident employment but is unsure
whether he will cope. Details should also be obtained as to the client’s position if he
were to be made redundant, and the degree of difficulty he would have in obtaining
similar employment elsewhere because of his injuries.
It is important that all of the above issues are considered and, if relevant, that they are covered
in the proof in some detail, as there is little point in the client and/or his solicitor knowing the
extent to which the incident has ruined the client’s life, if this is not articulated sufficiently to
the court. If a matter is not covered in the client’s witness statement, the chances are the court
will never hear of it; and if the court is not made aware of all relevant matters, the claimant’s
solicitor has not achieved one of his main aims, that of maximising the client’s damages.
Before finishing the proof in personal injury cases, the client should always be asked whether
he has had any pre-existing incident injury which may affect the current case.
120 Personal Injury and Clinical Negligence Litigation

The proof should always end with the client’s signature and the date on which it was prepared
so that, if the client dies prior to the conclusion of the case, the proof will still be of use
evidentially.

8.5.2 Proofs in relation to different types of incident

The following types of incident will require the proof to cover certain areas in particular
detail.

[Link] Road traffic incidents

When taking the proof in the case of a road incident, it is important first to have in mind the
stretch of road in question. A large-scale map of the area in question is invaluable at this stage,
as it will cut short any unproductive argument as to how or where, for example, the road
bends. If the client has difficulty explaining how the incident happened, it can be useful to get
him to draw a sketch of the relative position of the vehicles involved, or to use toy cars to
illustrate what happened. Care should be taken to ensure that the client is entirely clear about
the following matters:
(a) the direction in which he was travelling;
(b) the time of day;
(c) whether there was anyone else in the car with him;
(d) the weather conditions;
(e) the speed of travel;
(f ) familiarity with the car;
(g) familiarity with the road;
(h) whether there were any witnesses;
(i) the make and registration numbers of all vehicles involved;
(j) who he believes to be responsible for the incident and why;
(k) what happened immediately after the incident;
(l) exactly what he said to anyone after the incident;
(m) exactly what anyone said to him, and whether anyone else heard what was said;
(n) whether the police were called and, if not, why not;
(o) if the police were called, which police force and the name of the officer attending;
(p) whether the client is aware of any pending prosecutions (eg, whether he was warned
that he might be prosecuted, or that he might be needed as a witness in the prosecution
of the other driver);
(q) whether he is comprehensively insured and the amount of excess he has to pay on his
own insurance policy (his uninsured loss);
(r) whether he is the owner of the vehicle, and details of the owner if he is not.
If the client wrote anything down at the time of the incident, such as the name and address of
the other driver(s), this should be retained. If he explains what happened, for example by
referring to the offside and nearside of his vehicle, the solicitor should check that he
understands what is meant by those terms. Clients may believe that they have to speak to their
solicitor using words which they would not normally use in everyday speech, and
consequently they may use words that they do not fully understand. For the avoidance of
doubt, the solicitor should check with the client that when referring to a vehicle’s ‘offside’ the
client means the driver’s side, and that ‘nearside’ refers to the side of the vehicle nearest the
gutter.
In road traffic cases, it is vitally important to trace and interview witnesses as soon as
possible. It is unlikely that the witnesses will be known to the client and they may prove
difficult to trace if not contacted immediately, and in any event their memory of the events
 The First Interview 121

will fade quickly and will therefore be of less use evidentially. The question of whether there
are any independent third party witnesses is of central importance, because the case will be
much easier to prove if an independent witness can be found who is prepared to give evidence
to a court that he saw the incident and believes that the cause of the incident was the fault of
the other driver. If the client does not have any details of witnesses, the police accident report
may have statements from witnesses whom the solicitor can contact. The police should be
notified of all incidents involving personal injury, and will prepare a report on the incident
including witness statements (see Chapter 10).

[Link] Tripping/slipping incidents on public roads and pavements

Tripping and slipping incidents occurring on public roads and pavements are governed by
s 41 of the Highways Act 1980, under which the highway authority (usually the local district
council responsible for the area in which the fall or trip took place) has a duty to maintain the
highway, which includes the pavements used by the public (see 3.5). It is for the claimant to
show that the highway was not reasonably safe. Uneven paving stones or the sites of road
improvements with poor temporary surfaces usually claim the most victims. Local authorities
sometimes contract out such road works to independent contractors, in which case it may be
advisable to sue both the contractor responsible for the safety of the site and the local
authority which delegated the improvement work to them. If the client can show that the
highway was not reasonably safe, the authority must show that it has taken such care as in all
the circumstances was reasonably required to ensure that the highway was not dangerous.
Applying the above rule to the client’s proof, it will be necessary to ask the client:
(a) the time of day;
(b) the weather conditions;
(c) whether he was in a hurry or was running at the time of the incident;
(d) whether he was carrying anything which obscured his view;
(e) whether there was a warning sign to take care and, if so, what the sign said;
(f ) whether there were any witnesses;
(g) what sort of shoes the client was wearing; and
(h) the exact location of the incident.
It will then be necessary to procure photographs of the location without delay, as the local
authority may act quickly to repair the relevant area as soon as it becomes aware of a possible
claim, in order to show that it has taken such care as in all the circumstances was reasonably
required.

[Link] Incidents at work

The nature of the work process that gave rise to the incident must be thoroughly understood
from the outset if the case is to be dealt with properly. The client should be asked to explain:
(a) his job title;
(b) what that involves in the work process;
(c) the level of training or instruction received;
(d) the level of seniority he held;
(e) the level of supervision over him;
(f ) whether he can recall any written or oral confirmation of his work duties;
(g) a description of his usual duties;
(h) what he was doing on the day in question that gave rise to the incident;
(i) whether anything out of the ordinary occurred that day;
(j) details of other similar incidents known to the claimant;
(k) any representations made by a trade union about the machine or system of work;
122 Personal Injury and Clinical Negligence Litigation

(l) any comments made at health and safety meetings;

(m) any witnesses to the incident or the unsafe practice.
Trips and slips make up a large proportion of incidents in the workplace and therefore, in
addition to the above questions, the client should be asked such questions as are relevant from
[Link] above.

EXAMPLE
John is an instrument artificer employed to work at a chemical plant. Part of his duties is to
check the temperature of certain chemicals stored in large tanks above ground on the site.
On the day of the accident, John climbed to the top of a storage tank and removed the
outer cover. Without warning, John was blown backwards by excess pressure in the tank,
causing him to fall from the tank approximately 4 metres to the ground. Because the
chemical was corrosive on contact with the skin, John suffered burns to his face and
hands, as well as a damaged spine and broken left leg. John tells you that he has done the
same task many times before without incident, but he believes that whoever last checked
that particular tank failed adequately to secure the inner seal, so that when he next
opened the outer seal the sudden change in pressure was like releasing a cork from a
bottle. John tells you that he is usually accompanied by a fellow employee when doing
these checks, as the company’s safety policy requires this. On the day of the incident, his
colleague had telephoned in sick, but the duty manager had not called in anyone else to
take his place. John also tells you that the company used to have a nurse on site to deal
with minor injuries, but when the last nurse ceased to be employed she was not replaced.
John believes that this was because of the expense involved. John also believes that his
burns would not be so severe if he had received first aid more quickly.

In the above example, if, when describing any part of his duties, John becomes unclear, he
should be asked to explain it again, perhaps drawing a sketch to assist his narrative. It is
important that there is no misunderstanding at this stage, as the solicitor will probably use
this information as the basis for his statement of case. In addition, if the solicitor is unsure
from the client’s explanation precisely how the incident happened, it is also likely that a judge
will be similarly confused. It is therefore vitally important that any ambiguity is resolved at
this point. If ambiguity remains, facilities should be sought for a site inspection. Where the
place of work is privately-owned property, and may be a dangerous environment for the
visitor, the solicitor must always seek permission from the employer for a site inspection. The
inspection can be carried out with the claimant’s expert engineer if the accident involves a
piece of machinery.
In the above example, it is necessary to include in the proof John’s suspicions as to:
(a) the cause of the incident;
(b) disregard of safety policy; and
(c) his belief that the burns were worsened by delay in treatment.
All these matters will have to be checked, however, as the chemical engineer who inspects the
plant may conclude that the incident had a completely different cause, possibly involving
contributory negligence by John himself. It may be apparent to the engineer that the tank is
fitted with a large pressure gauge that John should have checked prior to opening the tank.
Similarly, the company safety policy may specify that rubber gloves and a full face mask must
be worn when working with corrosive chemicals, and that the burn time for that particular
chemical is less than 30 seconds, in which case having medical personnel on site would have
made no difference to John’s injuries.
 The First Interview 123

[Link] Clinical negligence claims

In a clinical negligence claim, the client is likely to be in a more confused or uncertain
position than in a personal injury matter. While a client is normally able to explain, for
example, what occurred during a road traffic incident, he may not understand the treatment
and care he received from a medical practitioner. The terminology will be unfamiliar and, in
the case of alleged negligence during hospital treatment, the client may not be able to recall or
identify the doctors or nurses who treated him.
When obtaining a proof in a clinical negligence case, it is important that every detail is
obtained, such as what exactly was said when the claimant attended at the hospital or when
the client was asked to sign the consent form.
Unless the alleged negligent act arises out of an illness not previously suffered by the client,
full details of any previous medical problems should be obtained. Other matters contained in
the proof could be as follows:
(a) the symptoms which led the client to seek medical advice;
(b) the information given by the client to the doctor;
(c) any questions asked by the doctor (eg, where the client went to his GP complaining of
headaches, whether the doctor asked the client if he had hit his head or whether the
client had been sick – questions which would lead a competent GP to suspect a severe
head injury);
(d) whether the client was given details of a diagnosis at that time;
(e) what form of treatment was prescribed;
(f ) whether the treatment was explained to the client, and whether he was warned of any
potential risks and the likely consequences of not receiving treatment;
(g) the name of the doctor who treated the client and his status;
(h) whether the client was receiving treatment from different doctors;
(i) whether the client asked for a second opinion;
(j) whether any witnesses were present at the consultation;
(k) any previous medical problems which could have affected the client;
(l) whether the client has complained to the hospital/doctor;
(m) whether the client has received any reply or relevant correspondence;
(n) whether an apology has been received.
This should be followed by details of the injury in the normal fashion.
In certain cases, it can be useful to ask what prompted the client to contact a solicitor. In some
cases, the client is advised by other medical professionals to seek legal advice as they believe
that a mistake may have been made.

EXAMPLE
A client injures his leg playing football and attends at the local A&E department. The
department is busy and, although the client is sent for an x-ray, the house officer fails to
spot the fracture and discharges the client immediately. The client is in considerable pain
for a number of weeks and eventually visits his GP, who refers him back to the hospital for
another x-ray. In such circumstances, the client may be told that in fact the leg is fractured
and that it was missed when the client first attended. Such information is clearly of
assistance in assessing liability.

8.6 WELFARE BENEFITS

It will be necessary to advise the client of the welfare benefits he may be entitled to receive
because of the incident. It may be months or years before the claim is settled, and if the client
124 Personal Injury and Clinical Negligence Litigation

is unfit for work, he may experience financial difficulties and feel pressured into accepting the
first offer of compensation from the defendant. The solicitor should give the client general
advice on the types of benefits that may be available to him in view of his inability or
decreased capacity to work, and to assist with the costs of mobility issues, household tasks
and child care requirements.
The law relating to state welfare benefits is complex and subject to frequent amendment. In
particular, the Welfare Reform Act 2012 (WRA 2012) is bringing in sweeping reforms over the
next few years. Details of the benefits which may be available are beyond the scope of this
book. If the solicitor is not fully familiar with the current situation regarding available
benefits, and the firm does not have a welfare rights adviser, he should give only general
advice and tell the client to contact Jobcentre Plus (an agency of the Department for Work and
Pensions (DWP)) for further information. The client must act quickly when seeking benefits,
as it is not always possible to back-date them.
The client should be advised that where he does qualify for benefits, if his claim is successful
there may be some recoupment under the Social Security (Recovery of Benefits) Act 1997.
This area is considered in detail in Chapter 16.
Lastly, when considering eligibility for benefits, it is necessary to have regard to whether the
receipt of compensation will take the claimant out of financial eligibility for means-tested
benefits. In Beattie v Secretary of State for Social Security [2001] 1 WLR 1404, Charles Beattie was
injured in a road traffic accident and rendered quadriplegic. He sued by his litigation friend
and Court of Protection receiver, Stephen Beattie. The claimant appealed a decision of the
Social Security Commissioner that he was not entitled to income support because payments
‘falling to be treated as income’ under a structured settlement took him beyond the limit on
income for the purpose of claiming income support. This issue was appealed because
guidance from the Public Trust Office suggested that, as long as the compensation was held
on trust and payments were made on a discretionary basis and were not used to fund items
that would normally be paid for using benefits, then those payments would not affect benefit
entitlement. In Beattie the court ruled that the agreement, as part of the structured settlement,
to make regular payments for a fixed number of years was in fact an annuity and was therefore
‘capital treated as income’ under reg 41(2) of the Income Support (General) Regulations 1987
(SI 1987/1967). The essential difference in this case is that the compensation was paid to the
Court of Protection, which would hold the money for the benefit of the patient, rather than
simply held on discretionary trust.

8.7 REHABILITATION, EARLY INTERVENTION AND MEDICAL TREATMENT

It has long been recognised that a claimant’s long-term prognosis can be dramatically
improved by the intervention of rehabilitative treatment at the earliest possible opportunity.
Examples of such early treatment include surgery, physiotherapy, counselling, occupational
therapy, speech therapy and also adaptations to the claimant’s home to make his life easier.
The problem in the past was that many claimants were not able to find the funds to pay for the
necessary treatment until after their claims for damages for personal injuries were settled.
However, over time, insurance companies began to see the clear benefits of early intervention
for themselves, even if liability had not yet been determined. Extra sessions of physiotherapy,
for example, might speed up the claimant’s recovery rate to enable him to return to work
earlier than otherwise expected, if he was expected to return to work at all, and this might
result in a smaller claim for damages.
The Rehabilitation Code (the ‘Code’), which was drafted as a collaborative effort between
insurers and personal injury lawyers, was first introduced in 1999 and updated to its current
form in 2007. It can be found at the back of this book as Annex D to the Pre-action Protocol for
Personal Injury Claims (Appendix 2). Its aim, as set out in the introduction to the Code, is to
promote the use of rehabilitation and early intervention in the claims process so that the
 The First Interview 125

injured person makes the best and quickest possible medical, social and psychological
recovery. The Code is designed to apply whatever the severity of the injury suffered by the
client.
The Code provides a framework within which all those involved in the claim can work together
to ensure that the claimant’s needs are assessed at an early stage and appropriate treatment
provided as a matter of priority. Both claimants’ solicitors and insurers are required to
consider whether rehabilitation is appropriate and, if so, to raise the matter with the other
party. It should be noted that the provisions of the Code are not mandatory and that the aims
of the Code might be achieved by means of an alternative framework agreed between the
parties.
For the details of the provisions of the Code, you are referred to the Code itself. Further
assistance can be found in APIL’s Practice guide to rehabilitation, 2nd edn (2008).

8.8 CONCLUSION
If the first interview is handled correctly, it should save the solicitor a great deal of time in the
future. As personal injury litigation is ‘front loaded’, much of the essential work is covered
during or shortly after the first interview. If essential matters have been missed, old ground
will need to be covered again, which will lead to delay and upset for the client, and may allow
the opposition to gain the advantage. An overview of matters to be considered is set out below
at 8.10.

8.9 FURTHER READING

The Law Society Initial Interviews Practice Note, 6 October 2011
APIL Practice guide to rehabilitation, 2nd edn (2018)
126 Personal Injury and Clinical Negligence Litigation

8.10 OVERVIEW OF MATTERS TO BE CONSIDERED AT THE FIRST INTERVIEW

Accident

Free initial interview CFA

Trade union funding DBA

Funding
Pre-existing insurance cover After the event insurance

Private fee paying Public funding

Client’s proof/questionnaire

Photos of
Urgent considerations Limitation issues
injuries/locus
Financial concerns/
Rehabilitation welfare benefits

Advising the client

Personal injury Clinical negligence

Take proof of evidence. May be Take proof of evidence. Explain

able to give some advice on to client that view on liability
liability at this stage if case is cannot be given until notes
straightforward but will need to obtained and preliminary view
make further investigations. obtained from expert. Explain
Explain next steps to client. fully next steps.

Investigations