No Win No Fee Lawyers - and other myths

Listening to politicians and some parts of the media you would think that there was a new breed of solicitor called a ‘No Win No Fee Lawyer’. You would also think that they were responsible for most of what is wrong with the world.

The reality could not be further from the truth. Until about the year 2000 most claims for compensation were pursued with the benefit of legal aid for those who did not have the means to pay their lawyers privately. That system actually worked quite well. Most claims succeeded so the taxpayer was rarely called upon to foot the bill. This was normally paid by the offending party.

In 1995 the Conservatives introduced the conditional fee agreement (CFA) to assist those who were not entitled to legal aid but still did not have the means to fund expensive litigation. These were the first no win no fee agreements. Lawyers could charge an uplift to reflect the risk of not being paid – the success fee. There was also an insurance policy to cover the other side’s costs if a claim did not succeed. These ‘additional liabilities’ were payable by the successful claimant out of damages subject to a maximum of 25%.

Then in 2000 the Labour Government extended the scope of CFAs as they were keen to abolish legal aid for almost all compensation claims. To meet the criticism that it was unfair that victims had to suffer a reduction for the additional liabilities, they changed the regulations so that the losing party had to pay them – thus massively increasing the amounts insurers had to pay to successful claimants. Legal Aid has since largely disappeared for damages claims.

So a CFA or no win no fee agreement is the only way that someone other than the wealthy can pursue a claim. There is no such thing as a no win no fee lawyer. If a person has a good case but is of modest means there is no other way of funding the case under the scheme created by successive governments. All lawyers are required to discuss this option with clients.

This also dispels the myth that CFAs encourage spurious cases. Why would a lawyer pursue a case with no realistic prospects of success when he would never be paid for it? The reality is that solicitors carefully assess the merits of a case. If there is a reasonable chance of winning the solicitor will take on the case. If there isn’t then it won’t be taken on. So in fact only those cases with merit are pursued. How this somehow gets us to a mythological compensation culture beggars belief.

So please do not be deterred from asking your lawyer to run your case on a no win no fee basis. For the vast majority it is in fact the only  realistic option.

www.eadsolicitors.co.uk

5 Tips for dealing with lawyers!

It never ceases to alarm and surprise me that many people are still a bit afraid of instructing lawyers. Of course, I have been one for thirty years so I would say that. But believe me; it is not as scary as you might think. Most lawyers I know are human!

They just want to do the best job they can for their clients.

So here are 5 tips to make your experience of instructing a solicitor run smoothly –

1. Make it clear what outcome you are expecting. It is your case. In many situations this is obvious. ‘I want to buy a house’, is fairly self explanatory. But that might not always be the case. I have acted for victims of medical negligence who are more interested in an explanation or apology than in the amount of any compensation. Others might seek disciplinary action against those at fault. Not all outcomes are necessarily viable. So say what you are looking for. Make sure the solicitor understands this and ask them to clarify it in a letter. So from day one you will be working together towards an agreed goal.
2. Be clear about what the cost will be. All Solicitors are under a duty to explain this, so never be afraid to ask. In particular you should ask what funding options exist. You should be told anyway but nobody will mind if you want to be sure. Although Legal Aid will shortly disappear from many types of case, it is still available in many cases too. There are many no win no win options which, despite their bad press, can ease many concerns about legal fees.
3. Don’t be afraid to ask how long it will all take. Some matters are quicker than others. A house purchase can be done and dusted in a month or so. A Medical Negligence or Industrial Disease case can take years. So it is best to know that from the start and to set realistic expectations.
4. Establish the lines of communication. In other words find out who to speak to if you have a concern or simply want an update. There may times when your solicitor is away from the office or tied up in a meeting. They might even be on holiday! But someone should always be available to help. Never be afraid to ask on day one, who that will be. If you call and need to speak to the solicitor who is unavailable ask for a telephone appointment so there is an agreed time when you will receive a call. Or send an email. This is a very quick and safe means of communication and most lawyers these days know how to switch on a computer!
5. Ask what you can do. You and your lawyers should be a team. You may have documents or, names of witnesses. Any information that you get you should pass on. Never tell yourself it is unimportant. If you think it is significant then it probably is.

So if you have a legal problem, don’t be afraid of the lawyers.

They are often as nervous as you as they want to impress and do a good job.

www.eadsolicitors.co.uk

Think before you tweet!

The student who posted offensive tweets following the collapse of Bolton Wanderers footballer Fabrice Muamba has lost his appeal against a 56 day prison sentence –

http://www.guardian.co.uk/football/2012/mar/30/fabrice-muamba-twitter-loses-appeal

This emphasises again the need for great care in the use of Social Media. From the comfort of his living room Mr Stacey presumably felt that it was safe to post whatever he liked without considering the impact it would have.

Earlier this year a footballer got into trouble for posting a homophobic tweet –

http://www.guardian.co.uk/football/2012/jan/11/oxford-homophobic-tweet-gareth-thomas

And there was also the case of the barrister who was disciplined after insulting opponents using twitter.

We live in an age where social media seems to take over our lives. And there have been many benefits. I tweet on a regular basis.

But these cases demonstrate that posting on these sites does not place anybody above or outside of the law. Employees could lose their jobs or employers could find themselves sued simply because they decided to tweet first and think later.

Whenever you post something just stop and think –

Who is going to read this?

What effect will it have on them?

How might it rebound on me?

And then weigh up whether it is really worth it.

www.eadsolicitors.co.uk

Great news for asbestos victims

Asbestos is not a modern discovery. There is mention of a fire proof fibre as far back as the 5^th Century BC and possible references to illnesses of the lung from about the same time. But it is fair to say that it was in the 20^th Century that its use on an industrial basis really took off. Apparently a snow scene in the Wizard of Oz used white asbestos!

The real tragedy is that it is only now that we are seeing the real cost. Asbestos is known to cause serious lung disease including lung cancer and mesothelioma. The latter is almost always terminal.

There is normally a gap of 30 – 40 years between the exposure to asbestos and the appearance of symptoms of mesothelioma. This presents a logistical nightmare for victims and their advisers. And it was the subject of a major decision of the Supreme Court earlier this week.

This has become known as the ‘trigger litigation’. In essence the insurers for companies who were guilty of negligent exposure of their workers to asbestos were seeking to avoid having to pay compensation. Their argument was that the liability to pay was not theirs because the ‘trigger’ for the insurance liability was not the time of exposure but the start of symptoms which is usually many years later. This was a potential cause of massive injustice. By the time a victim suffers symptoms say 40 years after exposure many companies have long since disappeared. If there was no insurer around to deal with it then there was no compensation.

On 28^th March the Supreme Court decided that the ‘trigger’ is the time of inhalation of the asbestos and not the later date.

http://www.guardian.co.uk/business/2012/mar/28/asbestos-court-ruling-insurers-bill

This is a massive relief to thousands of sufferers. It is tragic that many died before being able to benefit from this decision but at least their families will now be able to claim. This is a significant decision from the Supreme Court who, not for the first time, have decided in favour of those blighted by the asbestos scandal.

If you or a family member have been affected by asbestos EAD Solicitors have a specialist team of lawyers who have pursued successful claims for victims and who will fight for maximum compensation.

www.eadsolicitors.co.uk

Don't forget the victims

There seems to be news reports every day about the rising number of claims arising from motor accidents. From the rhetoric of some politicians and the media it would be easy to believe that this is the fault of victims.

Time and time again we are being told that there is a compensation culture which is causing insurance premiums to soar. Not surprisingly this agenda is driven by the insurance industry. Only last week the Prime Minister said - “I am determined to tackle this damaging compensation culture which has been pushing up premiums.’

What this means is that a victim of a motor accident somehow feels that they are to blame if they pursue a claim.

Try telling that to the family of Cerys Edwards whose life was destroyed by a speeding driver –

http://www.bbc.co.uk/news/uk-england-birmingham-17139275

£5m in compensation might seem like a lottery win but in reality that will just about cover the care needs of a 6 year old for the rest of her life. For the injury itself the most that can be awarded is £265K. So if she lives another 40 years she will get just over £16 per day for being paralysed from neck down.

That is the problem with all of the talk about how much is spent on claims and how this affects premiums or the profits of insurance companies. The plight of victims becomes buried under the avalanche of rhetoric about a compensation culture that most commentators accept does not exist.

There will always be a small number of fake claims. They should be weeded out of the system by robust medical evidence and close screening by experienced solicitors. It is another myth of this debate that lawyers, who are not paid a penny in unsuccessful cases, are somehow encouraging spurious cases.

Anyone who is the victim of an accident caused by a driver, or any anybody else for that matter, should have access to independent legal advice. 

Damages for hacking v Damages for injury

There has been much coverage in the press about the compensation paid out to celebrities by News International following the ‘hacking’ scandal. This has clearly been a disgraceful invasion of privacy and nobody can have much sympathy for Rupert Murdoch’s company for having to make these payments.

But the amount the payments raises another interesting issue. That is the comparison between compensation paid to victims of hacking and that paid to victims of accidents. The latter have been subject to vilification by politicians, the press and insurance industry who say that we have a ‘compensation culture’ which needs to be dismantled.

So let’s look at some of figures that have been reported for victims of hacking. Jude Law got £130k. In an earlier settlement his ex, Sienna Miller, accepted £100k. These are to compensate the victims for injury to feelings etc and not for financial losses.

According to the most recent Guidelines Personal Injury Damages such awards would only be received for the most catastrophic of injuries.

For example, to get an award of £130k you would have to suffer a moderate brain injury with permanent consequences including moderate to severe intellectual deficit a personality change, an effect on sight, speech and senses with a significant risk of epilepsy and no chance of working.

If you lost the sight in one eye and the other carried a serious risk of deterioration in the other eye then you might expect £100k although that is at the higher end. You might get something approaching £100k for loss of a lung with lengthy pain and suffering with permanent scarring.

Now you cannot compare the two and I for one would never begrudge the damages paid to those who endured the invasion of their privacy. But we also need to get things in perspective before dismissing other victims as just being part of a culture of looking for easy money. To get anything approaching the damages paid to these celebrities you have to have suffered a permanent, life-changing injury. Those victims need all the support that they can get rather than constant, negative publicity.

Pro Bono - have we found what we're looking for? (update)

I first wrote this last year before the full extent of the legal aid cuts was known.

Since LASPO received Royal Assent the Law Society has called upon all layers to increase the amount of Pro Bono work that they do.

 http://www.lawgazette.co.uk/news/pro-bono-no-substitute-legal-aid-wotton

 This is of course nothing to do with any U2 fan club.

In simple terms pro bono refers to  the provision of free legal services by the legal profession. Last year Michael Napier QC talked about setting aspirational hours of pro bono work. He says that his own firm Irwin Mitchell encourages its lawyers to do 14 hours of pro bono work a year.

Most lawyers I know, will probably do more than that per month. Much of the work done in preparation for public funding in a clinical negligence in the case is done at no charge. This can involve anything from the screening of new matters to initial investigation work in order to establish whether or not this is a potentially viable the case. How often do we advise potential clients in person and by telephone of the alternatives to litigation and to set them on the right path? This is often also the case in employment and criminal injuries cases. 

In addition to this and many lawyers do huge amounts of voluntary work; attending advice sessions at citizens advice bureaux and law centres. Many Courts also have a resource for free legal advice manned by volunteers.

What concerns me here is that the politicians could use up all of this talk about pro bono work as an excuse to justify cuts in public funding. The reality is that lawyers will always do their bit ; in fact they do a lot more than a bit!

This should not be seen as a replacement for a properly funded legal aid scheme giving equal access to justice to all citizens.

Of course it might be necessary for lawyers to do even more free work if this is the only alternative to a total collapse of our court system. With this in mind it is interesting to note the comments from Lady Hale of the Supreme Court indicating that these cuts are a false economy.

So I think we should expect the amount of unpaid work done by lawyers to increase but this should not deflect us from the tireless and continuing opposition to the cuts.

www.eadsolicitors.co.uk