COMMENT
Respecting rights of PI victims
The plight of personal injury sufferers has been brought into sharp focus by the zeal of insurers in challenging compensation, says Jeff Zindani
If anything is certain about the conduct of the insurance industry and their advisers it is their relentless zeal in challenging the rights of personal injury victims to just and decent compensation.
This is not a new phenomenon, with many examples being found from the early challenges to the provisions of the Factories Acts.
Recently, we have seen asbestos victims and their families having to overcome complex causation arguments to obtain compensation.
The real change in recent years, with legal aid being abolished and the introduction of conditional fees, has been the sustained attack by the insurance industry on the basis upon which solicitors are able to represent personal injury victims - their right to be paid a reasonable sum for work reasonably incurred.
Technical challenges to conditional fee agreements based on badly drafted legislation have created a form of 'economic terrorism'.
Claimant practitioners fear for their livelihoods as they await clarification from the courts.
We have an Alice in Wonderland funding system, with costs judges more important than the High Court bench.
Form and technical linguistic nuances have prevailed over common sense and justice.
Denying a solicitor remuneration for acting for a client effectively takes away the rights of personal injury sufferers, because law firms undertaking this work will pull out of the market as they see its commercial viability disappear.
A further consequence of this approach has been practitioners' reluctance to seek clarification or to improve existing rights.
The reward through poor success fees cannot justify the risk.
Take employer's liability law, where we find a plethora of important regulations that have not been properly tested in the more than ten years since their introduction.
This has led to an ossification of the law for workers who, even through trade union firms, are not prepared to break new ground as they may end up effectively paying the bill.
A linked, but separate matter, is the role of claims management companies.
In many quarters, they have become commercial pariahs embodying all that is bad in a market-driven compensation industry.
They are portrayed as money-grabbing ambulance chasing companies that do not serve the interests of consumers.
However, when we go beneath the surface and look at some of the benefits of these companies a different picture emerges.
If we travel around the run-down housing estates and the Victorian workplaces that still exist in Britain we are unlikely to find pinstriped solicitors being prepared to represent the poor.
Broadcast advertising is more likely to appeal to modern consumers than word of mouth from traditional law firms.
The sustained attack on claims management companies misses the crucial point that there is a 'justice gap' which they are filling.
The abuses that have taken place will be ameliorated as these companies become more 'market sensitive'.
Arguably, this has already happened with some of the larger companies tightening procedures and companies new to the market offering more ethical services.
The notion that these companies are changing Britain into a US compensation society is as risible as comparing British compensation awards with those in the US.
Health and Safety Executive statistics show that most workplace accidents are preventable by employers.
We also know that about a third of accident victims do not make claims.
The real villain in the piece is not the claims management companies or claimant solicitors but the conduct of the insurance industry which appears to be fighting a cold war long after it has finished.
Naturally, in any civilised society the rights of insurance companies also have to be respected.
However, the failure to balance those rights with those of personal injury victims has led to an unacceptable state of affairs where they are being denied access to justice.
They deserve more than this.
Jeff Zindani is a solicitor and managing director of specialist on-line claimant personal injury company Forum Law
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