Time to make for the high ground

Let’s cut to the chase: the best part about conferences is the freebies.

Solicitors suddenly turn into scavengers when there’s a free pen or teddy bear in sight, walking away from the venue looking like some wildly unambitious looter. One thing’s for sure, there were be some underwhelmed wives and husbands receiving gifts this weekend as delegates returned from the Association of Personal Injury Lawyers conference in Newport.

They certainly won’t be bringing back many smiles, for this week has been the moment of realisation for personal injury lawyers. The countdown to change has begun.

There is no more lingering hope of a government climbdown on LASPO. Justice minister Jonathan Djanogly is not for turning (indeed, he wasn’t even for turning up, having cancelled his scheduled appearance at the last minute). Lords amendments were a ray of hope for the claimant lobby but will likely turn out to be a stay of execution - the game is up and it’s time to prepare for the future.

Indeed, the conference has felt like that period in a disaster film between seeing the wave on the horizon and the world being obliterated. It’s the moment when Will Smith or Bruce Willis takes charge and guides his family to safety, whilst hysterical extras flail about until they meet their doom.

Personal injury lawyers have to get to high ground and see this storm out - because, make no mistake, this is a perilous time for many. Income is about to take a nosedive and firms will have to decide their policy on success fees, which will no longer be recoverable from unsuccessful defendants.

Small-scale cases will be largely unaffected, particularly claims involving road traffic accidents, where insurers will still be unlikely to contest cases and the speed of the settlement makes the success fee largely immaterial.

But for complex, lengthy claims that need medical reports and painstaking analysis, it may be a cost the law firm can’t afford to take on. Firms will have to break it to victims of clinical negligence or industrial disease that without a near-certain chance of success (and it would be a brave lawyer who predicts that) the case is simply unaffordable. Those who continue to advertise themselves as ‘no win, no fee’ will probably have to include small print in the contract warning that fees will have to be charged if the case gets complicated; certainly one for the regulators to keep an eye on.

The irony of the government’s stance on personal injury is that, in trying to tackle the supposed compensation culture, it will have little impact on the types of cases it imagines form that culture.

Law firms have a year to get their business plans together and work out the boundaries for taking on cases, but they’re stabbing in the dark. Incoming president Karl Tonks was right to say his members need clarity on what qualified one-way costs shifting, the 10% uplift on damages and part 36 will mean in practice. If the government wants to implement LASPO in April 2013, as it promises, these are issues that have to be addressed.

It wasn’t not all doom and gloom in Newport but neither were people walking with the joys of spring. This is the calm before the storm - and there is uncertainty over how the landscape will look when APIL reconvenes next April.

The biggest interest in the freebies, amongst the teddies and baseball caps on offer from exhibitors, was the incongruous sight of complimentary handcuffs on one table. Many lawyers in Newport may soon feel they’re wearing them.

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