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The Better Regulation Task Force maintains that personal injury claimants' access to redress will be improved by restricting their access to legal support (see [2004] Gazette, 4 June, 3). Who is it trying to kid?
In its report 'Better Routes to Redress', the task force recommends that there should be an investigation into why the small claims limit should not be raised to £5,000 and whether contingency fees should be reintroduced. It considers how 'people with genuine grievances ... can have better access to redress....'
One could be forgiven for thinking everyone had forgotten the overriding objective of 'access to justice' for the injured claimant and that the main issue is now about how much the insurers have to pay in costs. Does the entitlement of the claimant to proper representation to secure the best award of damages to which he is entitled count for nothing now?
If the small claims limit for personal injury cases is raised to £5,000, lawyers will not be able to recover costs and so claimants will not have lawyers to act for them. That is precisely what happens at the moment for claimants with injuries estimated to be worth less than £1,000. They have to fend for themselves. Most will not bother claiming, even when they are clearly entitled to, partly because they do not want to tread the worrying path of litigation, despite the 'simplification' brought about by the civil procedure rules.
I suspect they will accept the insurance company's first offer rather than issue proceedings themselves. If they do decide to go to a hearing, representing themselves, they will more than likely face legal representation from the other side, paid for by the might of the insurers.
Is that access to justice? Who acts in the best interests of the claimant if unacceptably low offers are made in unrepresented cases? Insurers are fond of saying that lawyers should only get paid where they add value. What better example could there be of lawyers adding value? But it is value to the claimant, not the insurer.
The task force has ascertained that 55% of county court awards in 2002 were for less than £3,000. Is it suggested that because damages in this country are low, the lawyers add no value to the process for the claimant? The insurers complain that sometimes the costs outweigh the damages. Well, maybe the damages should be higher.
In any event, we now have predictable fees in road traffic accident (RTA) cases, which is what the insurers wanted and agreed to prevent the costs outweighing the damages. That limit is £10,000 and it benefits the insurer more than claimants' solicitors. We have agreed success fees in RTA cases run on conditional fee agreements at 12.5%.
Meanwhile, the Department for Constitutional Affairs announced recently that 'the Civil Justice Council has achieved a third industry agreement to extend the predictable costs scheme to include the level of success fee payable under a conditional fee agreement in employer's liability accident cases'. The success fee for solicitors will be 25% of base costs recoverable for all successful claims settled pre or post-issue at court on all cases of less than £500,000.
Top all this off with the possible reintroduction of contingency fees (another task force recommendation) in place of existing conditional fee arrangements and the claimant starts paying out of his damages if he wants a lawyer. Isn't that what was so repulsive about certain defunct claims management companies?
It seems access to justice comes at a price. The claimant pays either in money or in forfeit of assistance in pursuing the claim.
Graham Ford is head of the personal injury division at Leeds law firm Lupton Fawcett
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