Fixing the legal costs of serious injury claims
When I meet someone for the first time outside of work and they ask me what I do for a living, I am usually met with the reply “Oh, you are an ambulance chaser”. The public perception of what a personal injury lawyer does has, for many years, been a very negative one and so many people have a “one size fits all” attitude to what we do.
However, on those occasions when I am feeling rather bullish and defensive of my almost 20 years’ experience of helping injured clients get their lives back on track, I explain exactly what I do as a serious injury solicitor and by the end of the conversation, I usually earn the respect of the person I am talking to.
I explain that the clients I help have often suffered life-changing injuries; injuries that have left them unable to work, unable to care for themselves and with a future that will now take them on a very different path to the one they had been on before their accident.
The claim process is just that; a process and one which it is my job and my pleasure to guide my clients through, trying to remove the stress of the litigation process from them as far as I practicably can, whilst at the same time doing all that I can to get them the help, the treatment, the rehabilitation that they need to aid their recovery.
Yet in 2013, thanks to Lord Justice Jackson, the wheels were set in motion to hinder access to justice for all claimants, as he too took a “one size fits all” approach and decided to reduce and fix the costs that solicitors could recover on any claim worth up to a maximum of £25,000. This bracket of award encompassed the vast majority of personal injury settlements, but the blanket approach, which was clearly aimed at targeting lower-value and fraudulent claims most commonly arising from low speed road traffic accidents, affected so much more than just these claims.
For example, a claimant injured in an accident at work and who had suffered a broken arm or a broken leg might have a claim valued at the higher end of the bracket towards £25,000 but not enough to breach the very top end to escape fixed costs. That claimant may be faced with a denial of liability, meaning that court proceedings must be issued and his or her claim proceeds to a fully contested trial, involving reams of disclosed documents, multiple witnesses and potentially disputed expert evidence.
For any solicitor to provide his or her client with the best possible chance of winning their case at trial and receiving the compensation that they are lawfully entitled to, a case such as this would involve an incredible amount of work. Legal costs and disbursements would run into tens of thousands of pounds. As such, with Lord Justice Jackson taking the approach that this case should be treated exactly the same as a 6 week whiplash injury arising from a low velocity impact claim, many law firms simply could not afford to have good, experienced lawyers running these claims for genuinely injured clients. In some cases, some firms could not even afford to take these claims on, even if they were strong on liability, as it was simply not economically viable for them to do so.
Lord Justice Jackson’s most recent proposal (albeit that he first made it some two years ago now) has struck fear into the heart of every reputable law firm undertaking predominantly serious injury work, as he seeks to raise the settlement limit at which fixed costs will apply to £100,000. This once again will capture the vast majority of serious injury claims.
However, whilst at best there might be a very small argument to support a limit of £25,000, I cannot see how there can possibly be any justification to increase the limit by such a substantial margin. I have settled cases involving very serious injuries, many with long-term effects, which fall into this category (perhaps limited due to the absence of a large loss of earnings claim for example) and which have taken several years to conclude, involved input from multiple medical experts and in many cases, have required recourse to court proceedings.
The amount of work that goes into such a claim to ensure that I am able to do the best possible job for my clients is significant and as I am a very experienced solicitor, legal fees might also be high but would be fully justified. If fixed costs are brought in for any claim up to £100,000 in value, this will lead to any solicitor with more than 8 or even 4 years’ experience fee earner hitting the maximum fees that they can recover very early on in the claim. It then becomes uneconomical to take these claims on in the first place.
“Very senior solicitors shouldn’t be running claims valued at less than £100,000” I hear you say. Well the reality is that the percentage of claims valued in excess of £100,000 relative to the total number of claims made is very small and that particular work is being fought for by and divided up between so many law firms. Ultimately, senior solicitors have built up a wealth of experience over many, many years and every claimant should be entitled to the benefit of that experience on ANY serious injury claim, not just a case worth 6 figures or more. A claimant with a claim worth £50,000 will feel that their case is just as important as a claim worth over £1 million and rightly so, because it is.
There is no substitute for experience, but Lord Justice Jackson seems intent on driving out the more senior, more experienced solicitors from personal injury work. If I had a penny for every claim I have settled on which the first argument raised by the insurers in any costs dispute is “This case did not require such an experienced solicitor”, this would be a moot point for me as I would be laying in a hammock on a beach in Mexico.
The knock-on effect of these proposed reforms is, who would now want to qualify to become a personal injury lawyer? Unless you are in the fortunate position of working for a firm doing high value multi-track work where you can jump a few rungs up the ladder and cut your teeth on the only work that will ultimately give you a career in personal injury law, you will be resigned to doing fixed cost work for many years. And who knows, by the time you get a few years under your belt, Lord Justice Jackson may have had another slow year and decided that the fixed cost limit should be raised to £250,000. After all, who cares about the clients, it’s all about hitting the ambulance chasers in the pocket isn’t it?
Original Article by Ben Simons for Anthony Gold – See the original article on Lexology here