How Long Will My Claim Take? How Much Will I Get? How Much Will it Cost Me?
The three most commonly asked questions in my experience as an injury compensation lawyer. Until 1st April the cost question was easy to answer – nothing. But the other two questions are very difficult to answer. I tell my clients that there are factors that influence valuation and timescale that are outside of my control. Typically, they are the response or otherwise of the injury to treatment options and the defendants response, or lack of it.
The timescale of a claim with a pragmatic and sensible defendant is considerably less than with one who either ignores correspondence or who puts forward spurious and unmerited arguments. There is a direct correlation between the length of a claim and the relevance of the arguments presented on the one hand and the legal costs bill on the other.
There has been much in the press in recent years about “fat cat lawyers”, particularly in the context of clinical negligence claims. The overwhelming majority of clinical negligence claims are brought against the NHS, so in effect, against the state and Government. Claims against the NHS cost the taxpayer a staggering amount of money. Hence there is cross party political pressure to reduce that cost. Rather than target the source of the problem – the overstretched medical professionals who make mistakes – the Government and media seek to blame lawyers. They conveniently miss the fundamental point that if there were less mistakes there would be less claims and it would be cheaper on the public purse.
Against that backdrop we are in a changed legal landscape post 1st April 2013, since on that date the so called Jackson Reforms took effect in the Legal Aid & Sentencing & Punishing of Offenders Act (LASPO). That means that we are no longer able to recover all of our costs from the responsible defendant and some portion of legal costs will now be deducted from injured client’s compensation. ‘No Win No Fee’ agreements are still in place but the guarantee of 100% compensation is now incompatible with good client service.
The media impression of lawyers is frequently of a self-centred and self-serving profession. In my experience that is totally wrong. Clearly we do want to make a reasonable living but the overwhelming majority take a pride in fighting for the rights of the individual injured person against a “deep pocket” insurer to whom one man’s post injury misery and changed life is simply a figure on a balance sheet. We don’t, contrary to some suggestions, want to make gratuitous profit from the injured, quite the opposite – we want to fight for rights and we at Express campaigned vehemently against the change in the law on costs recovery.
So, against that backdrop, imagine my consternation and frustration at a very typical conversation I have had today. All claims against the NHS are dealt with by the National Health Service Litigation Authority (NHSLA) who are similar to an insurer. The claim that I was calling about concerns a mistake made during surgery and the NHSLA have admitted breach of duty – i.e. the surgeon made a mistake. Hence, the next step is to consider the correct value of the claim. The NHSLA have made an offer – it’s about a third of what the claim is worth and was rejected. I rang the NHSLA (at their request) to discuss the areas of agreement between us and the areas of disagreement in order to crystallise the real issues between us & to commence negotiations over values. This is a very worthwhile exercise and one that the courts encourage so that we can bring a claim to a speedier conclusion and to reduce legal costs in the process. The entire civil legal system is underpinned by this tactic. I rang a few days ago and spoke to the third different case handler in 3 months. She told me that she was new and she would need to read the file and asked me to ring back in a couple of days. I duly did so. She listened to me and then told me that she couldn’t comment as she was leaving next week and will leave a note on the file. Hence, I entirely wasted my time today. Little if any progress has been made by the NHSLA in the last 4 months and it appears that little will be made in the next few weeks. Four file handlers in as many months. If you only work there for literally a couple of weeks you cannot possibly assimilate a caseload and progress it. But, unfairly, the press blame the claimant lawyers.
In terms of the legal costs conundrum, the issue raises various questions. Surely no one will suggest that I should not be paid for endeavouring to move the matter closer to settlement, but the costs of today’s call and the proceeding call have been wasted – they will not achieve progressive (or any) action. The insurance industry has lobbied the Government very successfully. They say the cost of litigation is excessive and should be reduced. They further say that car insurance premiums will be reduced when the law changes – they won’t! But the insurance industry doesn’t take responsibility for the costs inflating inefficiencies it habitually produces. That “story” is NOT an isolated incident.
The key to the conundrum of perceived high legal costs is inefficiency but time and time again that is not the fault of claimant lawyers! Lawyers have to respond to the actions (or lack thereof) of others and always fight for the rights of the injured client. If we failed to respond to defendant’s inactivity in these circumstances we would reduce the costs bill but would sacrifice the interests of our clients. Good lawyers will never do that and hence high legal costs indicate much fight and that is what the injured client needs. So why are lawyers criticised? Shouldn’t the criticism be levied at the insurers? And why, should, the claimant pay for the insurers errors out of his/her compensation?