There are numerous advertisement in papers and on television suggesting that it is easy to obtain redress for personal injury, or perceived injury, at no cost to oneself. How does this work?
Legal Aid is no longer available for claims of personal injury, for example those sustained in a motor accident. The citizen consumer, claimant, injured party - let us call him or her C - wishing to go down this road must find a solicitor wishing to take the case on a conditional fee arrangement, i.e. no win, no fee.
C, or the solicitor on his behalf, will take out an insurance policy, known as after-the-event insurance, to meet the costs of the defendant (usually in effect an insurance company) if C loses the case. If C wins the case then the defendant mus pay C's costs, and C's solicitor is entitled to a success fee, i.e. an uplift or extra amount on the costs normally payable.
The law has recently been clarified by the Court of Appeal judgement in the case of Calley v Gray, 17th July 2001. This case decided that the losing defendant must pay to C the amount of the reasonable premium for the insurance, and also that the defendant must pay the success fee or uplift element in the costs, not to exceed 20% of the costs normally payable.
Most cases are in practice settled. The potential uncertainties, risks and costs mean that usually the case is not worth fighting, that is taking it to trial.
In negotiating a settlement the solicitor acting for C will seek to recover the cost of the insurance premium, usually several hundred pounds, and the success fee, the uplift of 20% on his costs. While it takes both sides to come to a settlement the defendant knows that if the case is not settled and goes to trial and he ultimately loses he will have to pay those additional costs. The defendant will also know, or infer, that the solicitor acting for C is operating on a no-win-no-fee basis. This, he thinks, means that the solicitor is of the opinion that C has a strong case because otherwise, he would have refused to act because if C loses the solicitor will have to bear his costs himself.
However, the insurance companies have been refusing to pay the premium and uplift costs of one well-known company in this field, alleging that they are excessive, and the firm is subject to DTI investigation.
If anyone has firsthand experience of no win, no fee cases Alec Samuels would be interested to know what it is. Please tell the Editor in the first instance.
It was said that, as a result of pressure by Government and the Competition Commission, prices of new cars came down by perhaps some 10%. Of course the price you received for your old car similarly came down 10%, so the consumer was no better off in a part-exchange situation.
Alec said "I notice that despite the alleged price reduction, in many cases most or all of the collateral free benefits have been withdrawn, such as servicing, car club membership and insurance. Now prices are edging up again and Britain remains the most expensive country in the world for new cars and petrol. Government, the Office of Fair Trading, the Competition Commission, consumer organisations and the media should monitor the situation and keep consumers informed of the true position of prices here."
Alec repeats his warning about ticket agencies. "This ticketmaster thing has become a real abuse" he says. All too often Theatres, Concert Venues and Exhibitions do not sell their own tickets, you get referred to a ticket agency. They operate press button phones and delays occur, often punctuated by messages telling the caller how much his or her call is valued.
There is a booking fee and, often, a handling charge, and it costs you a lot of money on your telephone bill. The Theatre gets the work done for nothing, and the customer has to pay through the nose.
"This abuse should be exposed and stopped", says Alec. "Government has passed legislation to deal with ticket touting; this booking fee abuse is as bad".
I said above that Legal Aid is no longer available for claims of personal injury. Legal Aid has been fundamentally changed by the Access to Justice Act 1999 and overall responsibility for Legal Aid, new style, now rests with the Legal Services Commission.
The new Community Legal Service deals with civil matters i.e. non-criminal matters. Legal Aid is available for a limited category of cases such as family cases, principally children's cases, public law cases such as involving public authority such as a Local Authority, mental health, community care, asylum and immigration, clinical and medical negligence. The criteria for obtaining legal aid are tough. For family cases there the Child and Family Court Advisory Service (CAFCAS) to promote mediation and settlement wherever possible. If property is recovered in a family case e.g. the ex-wife obtains ownership of the former matrimonial home, a statutory charge for the cost of the case is usually imposed upon the home, payable when the house is sold when the last dependent child "leaves the nest".
Legal Aid is only obtainable through a specialist franchised firm of solicitors, approved for that type of work, in order to ensure good standards.
Criminal Legal Aid is administered by the Criminal Defence Service. A duty solicitor is available for the person arrested and detained at a police station. In court, criminal legal aid is "free" but if a conviction is obtained the court may order the defendant to pay costs in addition to any compensation or fines. The solicitor must hold a criminal work franchise.
The Criminal Defence Service may employ public or state defenders, lawyers working full-time in the criminal courts and paid a salary, not fees. The defendant will still have the right to choose his own solicitor.
We all have to insure our motor cars, usually our homes and possessions. and often our life through mortgage, pensions and savings schemes. Yet rarely do we take out personal accident cover, and rarely legal expenses and costs insurance. The premiums are modest and could be added to our motor or house insurance, thus obtaining piece of mind.
Information about legal aid can be obtained from the Lord Chancellor's Department, the Legal Services Commission, any court office, the Law Society, a CAB or a solicitor. On the web justask.org.uk is an excellent first stop.
Click Logo to Return to
Main Magazine Index
back to menu