Separating access from costs

Jason Rowley calls for lawyers to stop blaming each other and to search for a solution in the post-legal aid era to resolve current PI conflicts

As one of those representing the insurers of defendants in personal injury (PI) claims, I found the comments of Jeff Zindani (see [2003] Gazette, 30 January, 15) disappointing.

It would seem that all of the ills besetting PI claims are to be laid at the door of the defendants, or 'economic terrorists', as Mr Zindani describes them.

It is easy to confuse the phrase 'access to justice' with lawyers' remuneration.

There is no evidence to suggest that claimants are having any difficulty in obtaining access to justice through defendants' actions.

The fact that their representatives are having difficulty in recovering costs is not the same thing.

Anecdotally, claimants have difficulty bringing cases to court because of a lack of backing from the after-the-event (ATE) insurers.

Perhaps claimants' solicitors should be aiming their fire at those insurers instead if they are really talking about access to justice.

Let us not cavil about the role of claimants' solicitors.

They are there to be innovative and to challenge the status quo in terms of liability, causation and quantum.

Equally, let us be clear that the role of the defendants' representatives - both insurers and lawyers - is to challenge the extent of claims made where those claims appear to be unfounded based on current law and practice.

The end result, as Mr Zindani states, should be 'just and decent compensation'.

Assuming that the Court of Appeal reflected public policy in Heil v Rankin, there is no warrant for suggesting that the system we have fails to provide that compensation.

It is almost too easy to dismiss Mr Zindani's comments, which were aimed at recovery of costs, as ill-informed.

For example, the claims of those injured at work are said to have been stifled by the defendants' approach for some time.

But conditional fee arrangements (CFAs) did not appear until 1995, and only did so significantly in workplace claims when collective CFAs became possible in late 2000.

Whenever a claimant has an argument to put before a court, his entitlement to do so is inviolate - so why is the defendants' reciprocal right downgraded to a 'technical challenge'? The lawyers for each side argue for a strict interpretation of statute and case law when it suits their clients to do so.

The challenges by defendants to CFAs may have arisen as a result of badly drafted legislation.

Nonetheless, the legislation is there and paying parties are entitled to use it.

I use the phrase 'paying parties' deliberately, because the arguments are deployed by paying claimant's representatives just as assiduously when defendants are awarded costs.

Many members of the Forum of Insurance Lawyers (FOIL) are using collective CFAs.

They wish for certainty in respect of their retainers almost as fervently as do claimants' solicitors.

However, you do not hear defendant's solicitors complaining about this because they accept the claimant's entitlement to raise the arguments.

Furthermore, it is unattractive for lawyers to complain about their inability to draft legally binding contracts.

We need to discuss these issues without blaming one side or the other.

The issues should not be confused by reference to 'access to justice' to discuss levels of recoverable costs that are acceptable to all.

The government has largely left it to all of us to find our own post-legal aid solution.

As in mediation, we have had the positions of both sides set out through the court cases to date.

Unless everyone wishes to risk contracting trench foot through an endless battle, we now need to come together to produce a solution that will last.

Jason Rowley is the president of the Forum of Insurance Lawyers