Market round up: March 2022
Talk in the personal injury world has not been dominated by the Official Injury Claim (OIC) portal for once, with the unexpected events during the Court of Appeal’s much-anticipated hearing in CAM Legal v Belsner taking centre stage.
At the start of the second day, the Master of the Rolls, Sir Geoffrey Vos, took the very unusual step of scrapping the hearing and ordering that a fresh one be arranged before 31 July, with the Senior Costs Judge, Andrew Gordon-Saker, invited to sit as an assessor.
As a reminder, it was hoped the case would bring clarity to the issue of informed consent to deductions from damages in personal injury cases, Mr Justice Lavender having held in 2020 that law firms had to spell out in their retainers the costs clients could be liable for beyond what was recovered from defendants. This was the case even if the solicitors ultimately capped their recovery.
Checkmylegalfees, which acts for CAM Legal’s former client, said at the time that millions of clients may have claims as a result. The Court of Appeal heard that there were 900 cases stayed pending the outcome of the test case.
On the first day of the hearing, Sir Geoffrey suggested that work done under the pre-action protocols was contentious business, notwithstanding the fact that the established legal position is that – for the purposes of Solicitors Act 1974 assessments – it is non-contentious work.
Of course, many claimant solicitors handling low-value personal injury claims use a contingency fee agreement for pre-issue work and a conditional fee agreement once the claim is issued; so finding that pre-action work is contentious business would make the former unlawful and unenforceable.
There was alarm from claimant lawyers on the legal Twittersphere about how the hearing went on the first day and overnight CAM Legal and the Law Society, which has intervened in the case, made written submissions. This led Vos LJ to start the second day by saying the “ramifications are more profound than appeared at the start of the case” and needed more time than was available to consider.
As well-known injury solicitor Peter Todd tweeted on the second day: “The penny seems to have dropped overnight of the full implications of the court rejecting this appeal. Bench now in reverse gear… Court of Appeal adjourns #Belsner appeal until ‘the summer’, to allow for more detailed consideration of the seismic impact of ripping up the century old law on contentious and non-contentious costs and the chaos that could ensue otherwise.”
Mark Carlisle of Checkmylegalfees.com said: “We welcome the court’s appreciation, particularly following the submissions developed on Tuesday, that this appeal does not just concern legal fees deducted from the compensation of those involved in RTA claims, but instead involves fundamental elements of legal costs law, the decisions on which will potentially ripple far into the future.”
Until decades of costs law is ripped up, we always have the OIC to detain us. The second quarter data was much the same as the first quarter, with claims numbers low and fewer than 10% of users representing themselves. No wonder the Motor Insurers’ Bureau is commissioning research to understand why more litigants in person are not using it.
There was a tacit recognition of how user-unfriendly the portal is when the Ministry of Justice (MoJ) published a simplified guide to bringing a claim. The 64-page users guide published last April was widely criticised for being hopelessly complicated and the MoJ’s is just 14 pages, written in fairly plain English.
But where it fails just as badly as the MIB guide is the advice on valuing non-whiplash injuries. Asking members of the public to consult the Judicial College Guidelines and work out where in the damages range it suggests for a particular injury theirs sits is ridiculous. It is the system’s fatal flaw.
The new guide cautions that “the amounts included in this publication are only guidelines and the full circumstances of the accident should be considered when assessing the value of your injuries”. That should be nice and easy for non-lawyers to do.
Away from RTA, the Department of Health & Social Care finally published long-awaited plan for fixed recoverable costs for fast-track clinical negligence cases. To the surprise of absolutely nobody, it chose to set the fees at levels recommended by defendant representatives on the Civil Justice Council working party whose work underpins the proposed regime, rather than higher ones put forward by the claimant side. (Readers may recall that the working party could not reach a consensus on the numbers and so each set out their own.)
Such is the government’s self-interest in the level of fees paid by the NHS that one might suggest it should delegate it to an independent body. Of course, if one did suggest it, the answer would undoubtedly be a resounding no.
First4Lawyers managing director Qamar Anwar summed up the general response from the claimant side: “This all has a very familiar ring to it, mirroring what has already happened in personal injury for so called ‘lower-value claims’, where, despite the best efforts of the government, claimants have shown they still need legal help but are severely limited by the number of law firms able to help them.
“It is true that legal costs have risen in recent years. However, this is only in line with the overall increase in all costs associated with medical negligence claims. Furthermore, NHS Resolution’s accounts for the year 2020/2021 show, in fact, that while its own legal costs went up, those of the claimants came down.
“The government should focus on finding out what is causing negligence in the first place rather than attacking the system that supports innocent victims when things go wrong.”
