Costs chaser James Green has long been a bête noire of personal injury lawyers. But following the landmark Herbert ruling, he is in demand not only from claims management companies, but also the very firms that have reason to resent him
James Green accepts he is unlikely to win a popularity contest among personal injury lawyers any time soon.
The costs chaser has become a pariah for firms dogged by former clients – now represented by Green – returning to claim back deductions from their damages.
The trouble is, Leeds-based solicitor Green now has the backing of the Court of Appeal. Last month he won a landmark case where a RTA victim successfully argued that her firm had not been entitled automatically to claim a 100% success fee. Until the ruling in Herbert v HH Law, Green was an irritant – now he is a threat. And more firms are eyeing up opportunities to join him.
‘What Herbert has done is brought the issue to the attention of a lot of people who might not have been affected by it,’ Green tells the Gazette. ‘Solicitors have to review their funding decisions fundamentally and their procedure in terms of explaining funding. To that extent it is a positive for everybody.
‘It opens up historical cases that have not been billed correctly. Post-LASPO, a lot of firms were reliant on costs experts going up and down the country telling solicitors – for a large chunk of money – about what they could do. Most followed that advice in good faith and are now sweating because the court has said [fees arrangements] are not legitimate.
Before I came along solicitors were resting on their laurels and ignoring their professional responsibilities when it came to keeping clients informed about what they are paying for
‘The door is only open because clients have not been billed correctly. There are tens of millions of pounds that have ended up in the bank accounts of a handful of solicitors who were in a unique position of being in charge of that money and keeping more than they should have.’
Green says he has been contacted on a daily basis by claims management companies offering potential clients – the same companies who guided the same clients to errant PI firms in the first place. He has also heard from PI firms wanting to tailor their communications with future clients and tap into his expertise. Green has even heard that PI firms may seek to run their own cost-challenge divisions – truly, this is a ‘dog-eat-dog’ world.
The problem can be directly linked back to the Jackson reforms and subsequent cuts to fixed fees for lower-value personal injury claims. Jackson enabled a 10% uplift in damages to cover deductions to pay for claimant representatives – with the lawyers given scope to take up to 25% from clients’ compensation. It was arguably naive not to consider that this would simply mean the vast majority of firms would routinely take 25%.
‘[Jackson] envisaged a scenario where firms would compete on success fee to attract cases,’ says Green. ‘But that assumes that any explanation of success fees would be given to the client. The conversation on 99% of occasions was “the law has changed and now we have to charge you a percentage of your damages. Everyone charges the same and everyone will take 25%”.
The door is only open because clients have not been billed correctly. There are tens of millions of pounds that have ended up in the bank accounts of a handful of solicitors… keeping more than they should have
‘What they are describing there is a damages-based agreement. They don’t explain to the client – or at least very rarely – that they are recovering a chunk of money from the insurance company. They have been paid twice. Most clients believe they have signed up to a DBA, albeit they don’t know what that is. They are happy as they feel the firm has done a good job, but when you say the firm also got money from the other side their demeanour changes dramatically.’
Green was head of an industrial disease practice before setting up his own firm in 2016. He was motivated originally by a sense of injustice over firms taking out what he sees as disproportionately expensive after-the-event insurance cover for clients who lacked the wherewithal to question it. (The Court of Appeal rejected Herbert’s submission that ATE was unfairly deducted from her claim.)
Green also accepts he has identified a business opportunity – the potential rewards for running thousands of cases could be lucrative for him, as well as beneficial to his clients. But he insists that firms which aim their ire at him are missing the bigger picture.
‘I understand I am not a popular person in the industry, but I have no fundamental problem with PI lawyers. I used to be one. I want them to thrive. They are under heavy attack from the government. My mission is not to make their lives difficult or speed up their closure: what I want to do is to help improve the industry so a reasonable deduction can be taken which is properly calculated, and the client understands what they are paying for.
‘I don’t think it’s unreasonable to charge a client up to 25%, but only if they know what they are paying for. Most clients put their trust blindly into a solicitor when the deduction is unjustified.
‘I want to help solicitors do their jobs. The vast majority of solicitors work hard to maximise the amount of compensation their clients can get. As long as the client knows exactly what the deductions are for, that’s fine. Before I came along solicitors were resting on their laurels and ignoring their professional responsibilities when it came to keeping clients informed about what they are paying for.’
His critics will continue to regard Green and his ilk as vultures, enticing clients to bring claims against solicitors they had previously been satisfied with. This antipathy will hardly lift when more letters come in from former clients with the JG heading at the top. But Herbert has given Green legitimacy and the incentive to continue. It would be foolish to ignore its lessons.