If there was to be a minute’s silence for each road and workplace death in the UK last year, the silence would stretch for an entire day and much of the following morning. Despite being one of the world’s safer countries in which to work and travel, too many people still die unnecessarily. Civil claims for a fatality have the potential to slip through the net of access to justice. This is highlighted in responses (including APIL’s) to the Ministry of Justice post-implementation review of the consequences of the Legal Aid, Sentencing and Punishment of Offenders Act.
The capped 25% success fee leaves remuneration for claimant representatives at levels so uncommercial that, reluctantly, many of them are no longer able to do the work. In some fatal cases there are no general damages at all. A bachelor was asphyxiated at work. Liability was not admitted and proceedings were issued. A corporate manslaughter charge was dropped following investigations and a two-week inquest involved 25 witnesses. The civil claim settled through a case management conference. There were no past losses or general damages, so no success fee could be taken even though grade D, E and A fee-earners spent a combined 162 hours on the case. There was no remuneration for the risks taken on the case.
Even when damages for pain and suffering in a fatal case are paid, it is usually necessary to deduct the full 25% for a success fee in order for the case to be anywhere near viable. The 10% uplift in general damages, a meagre concession, is negligible. It simply is not sufficient to compensate for the deductions for success fees and ATE premiums.
The relatives of the next man to die at work might not get their ‘day in court’. This is erosion of access to justice in full swing. For a negligent defendant, it is much cheaper to kill than it is to maim. And that is if the law recognises the relatives at all. In England and Wales, an unmarried partner, no matter the length of the relationship or number of children, is no more eligible for statutory bereavement damages than a stranger. We look to Scotland for the solution, where claims are treated individually – and with much greater fairness.
Potential for change is emerging in some areas relating to fatalities. The MoJ is consulting on establishing an Independent Public Advocate who will act for bereaved families after a public disaster and support them through the public inquiry and inquest. People who need legal aid for representation at inquests are having their arguments heard – finally – since a review launched this summer. It is a sad indictment of our society that is has taken some very high-profile atrocities and tragedies for progress to happen.
President, Association of Personal Injury Lawyers