Re: Autumn issue | Page 10

Let us tackle your legal issues. fund (and consequently the taxpayer) would not, for civil cases, be unbearable. That is not to say that Legal Aid expenditure as a whole was insignificant but the expense tended to be more to do with criminal and family law cases, where legal costs could not usually be recovered from anywhere other than the fund. Despite this, and in a bid to make inroads into Legal Aid expense, certain types of civil cases were, in the Access to Justice Act 1999 (AJA 1999), outlawed from receiving Legal Aid funding. These excluded matters were primarily personal injury claims and disputes related to a business (no matter how small). In place of Legal Aid for such matters, the law that was then passed, introduced the concept of the Conditional Fee Agreement (CFA) which basically promised clients that if they could find a solicitor willing to take their case on, they would not have to pay any legal fees up front but may have to pay something out of their compensation if they won. Call us on 0800 84 94 101 The unforeseen consequence of this was the growth of the claims industry, with claims management companies such as Claims Direct and Accident Group suddenly springing into life with huge marketing budgets, TV adverts, shopping mall stands and so on. It also meant that those law firms wishing to carry on dealing with such litigation had no choice but to buy into one or 8 more of these schemes, as not doing so meant that very little of that type of work would be attracted to the firm. Last year, the government recognised that perhaps the system needed further amendment. If you read my articles in the last edition of the magazine, you will know that I am not a fan of the compensation culture lobby. I think it has been exaggerated by the insurance industry to meet its own ends and we should not move too far down the road of denying people some basic protection from injury without careful thought. However, I can see that reform of the way that such cases are paid for was probably needed. The rules therefore changed on 1 April 2013 so that in any cases started on or after that date, if a client succeeded in a claim, the success fee of up to 25% of the client’s compensation would now be payable from the client’s money and not the losing party, as would any insurance that the client needed to buy to protect against having to pay the other party’s legal fees. In return for this, in injury claims, the ability of insurers to recover their legal fees from losing claimants would be restricted. It was thought by everyone at the time (including of course the government) that cases started before 1 April 2013 would still be governed by the old rule that the losing party paid the success fee and the insurance, which meant that the winning claimant would get to keep all of their compensation. In common with other law firms, that is what we therefore advised our clients. Unfortunately, in a decision handed down by the Supreme Court in July, Coventry v Lawrence, that understanding is no longer certain. The Court has decided that a challenge to the recoverability of success fees and insurance premiums for CFA cases, recently made by a set of insurers under the Human Rights Act, may succeed, and if so, could render the government culpable in respect of the drafting of the Access to Justice Act 1999. It could also affect the ability of claimants to protect their compensation from claims that the success fee and insurance premium should be deducted from it, even though such claimants would have been advised, quite properly, that no such claims on their compensation would be made. For the Supreme Court to reinterpret 15-year-old legislation (the AJA 1999, which has subsequently been repealed) in this way completely defies logic, makes advising clients next to impossible and creates unnecessary uncertainty concerning future unpredictable legal decisions that could be made. When considering any laws that may retrospectively affect decisions people have made concerning how they run their lives and businesses, legislators and courts should take much more care to avoid making the overall position worse. By Chris Randall 9