Sunday, 24 March 2013

After the 1st April 2013 there is going to be a bit of a sea change in respect of how  personal injury claimants are able to pay for legal representation.  For the last few years if you were a claimant it was more or less standard for you to enter into a  contingency fee agreement " No Win No Fee" to fund your legal representation,  This meant that you were not charged an up front fee but  agreed to give your  lawyer a certain percentage of the money received if you won or settled your case out of court. 
The percentage of the damages that you had agreed to be paid to your solicitor in the event that you were successful at Court etc would then have been recoverable from the insurers and you would in most instances have received the full value of your claim.
In the event that you lost your case your lawyer would not receive a fee but you might still have had to  pay the Defendant's costs of the action.   Depending on the circumstances, these costs could be quite high. 

Well from April 2013 all that changes and I am afraid the changes do not benefit you as a Claimant.   The Government have now decided that this relatively well tried and tested method of a Claimant being able to fund their personal injury claim is to be no more.  The main beneficiary of this decision is the Insurance Companies as they will not be liable to pay the proportion of the monies that you agreed to part with in the event that your case is successful.  This government in it's wisdom have decided that Claimants should enter a Damages Based agreement with their legal representative. 

A Damage Based Agreement is a contract which will be entered into between you as the claimant and your legal representative (usually but not always a solicitor).  The agreement sets out how you will pay your legal representative for the service they work they undertake when handling your case.

A Damaged Based Agreement is a type of "No Win No Fee" arrangement under which your legal representative is only paid if the case is successful and receives nothing if the case is lost.  This agreement binds you to pay your legal representative a percentage of your damages which is agreed between both of you prior to your claim commencing

What is the difference then, well,  with a Damages Based Agreement the percentage of the damages agreed to be paid to your legal representatives from your compensation is not recoverable from the insurers yes that's right NOT RECOVERABLE FROM YOUR INSURERS so in simple terms if your claim is worth £1000 and you have agreed to 25% of your damages being taken in the event that you win your case then you will get £750.

Now how have the government decided to ensure that you are compensated for this loss,  it has recently been decided that the value of personal injuries will increase by 10% now I know my math's is not great but if I were a claimant and my case settled for £1100, and I had to pay my legal representative 25% that would leave me with £825.  Obviously as you can see you will receive some compensation but definitely not 100%.

You may well say its not fair for a  legal representative to retain a portion of your compensation but with 20 years experience as a litigator I must point out that many cases have to be financially front loaded by solicitors.   Unless the client is willing to pay for disbursements upfront and these include copies of their GP's and Hospital Notes which normally come to around £150 and their medical reports in support of their claim. ( I recently had to obtain three medical reports on behalf of a client and the total fees for the medical experts came to £4,500)  then it is the Solicitor who is financially compromised.

On many occasions once all the evidence is obtained, it becomes clear, that the the Claimant has not got a claim which would be successful if it proceeded to trial and the Legal Representative is out of pocket.  

We live in interesting times.

Saturday, 23 March 2013


I could blog on this but to be frank it is all beautifully summed up in this article written by Liz Phillips of the Guardian

Legal aid is being ruled out of court

Far-reaching changes will effectively prevent anyone earning more than £20,000 a year from obtaining help
From April 2013 it will be rare for anyone earning over £20,000 to qualify for legal aid. Photograph: Sang Tan/AP

From the beginning of April 2013 the chances of getting help with legal bills will be slim. The Law Society estimates 650,000 cases will no longer qualify, including 20,000 employment cases and 200,000 in family law.

The cut-off point to be able to get legal aid will be a household income of £32,000, and those between £14,000 and £32,000 will have to go through a detailed means test.

"It will become rare for someone with an income of more than £20,000 to qualify," says Richard Miller, head of legal aid at the Law Society. "The means test will be monstrously complex. It will cost thousands to process."

At the moment, workers can get help with preparing for an employment tribunal and representation at an appeal tribunal. The scale of the problem is evident – 20,203 employment cases were started under the legal aid scheme during the 2011/12 tax year. A further 6,842 new employment cases and appeals were started in this one.

"All help is going to be removed in these situations with the exception of discrimination cases," says Miller. Even then, people bringing claims will only have access to help via a phone line manned in three different offices round the country, rather than face-to-face meetings.

People who qualify for legal aid can still be asked to contribute to the costs, depending on their disposable income over £300. It is calculated on a sliding scale. The amount is being raised from 25% to 30%.
There is an allowance for access to legal aid in exceptional cases when it would be a breach of your human rights not to give it.

"In our view if you aren't able to present your case yourself then you should be able to get legal aid. If not, then you are being denied access to justice, which is a breach of your human rights. But the government thinks this will only apply in exceptional cases," says Miller. "I think there will be a lot of test cases to determine the boundaries."

Family law cases, which involve separation and divorce, child custody or financial issues, are an area that will suffer the biggest loss. Co-operative Legal Services, which will continue to take on legal aid cases, reckons 70% of family cases will no longer be on legal aid by next month.

Funding for people with housing, welfare benefits, debt and immigration problems has recently been removed. Although people can no longer get help with rent arrears, they will still be able to get legal aid once possession proceedings are issued.

Jayne Nevins, from legal expenses insurer DAS Legal Services, says: "This will affect the most disadvantaged in society. [Legal] insurance is often sold as part of your home insurance, but many on a tight budget are skipping taking it out."

The legal profession argues that the removal of swathes of legal aid will cost the taxpayer more because, rather than cases being solved in the early stages, problems will escalate and become more expensive to solve.

Earlier this month Lord Neuberger, President of the Supreme Court, warned that the cuts may lead people to take the law into their own hands if they feel they can't get justice.

Acas, the Citizen's Advice Bureau and other advice agencies are bracing themselves for a flood of unrepresented people turning to them for advice.

Other people may go to controversial no-win no-fee lawyers.

Saturday, 16 March 2013


Are you an agency worker?  Do you know your rights? For a full breakdown of your rights under the Agency Workers Regulations u need to read the Guidance at

I am still laughing about a case that we are dealing with. Our client is a Litigant in Person a thoroughly lovely person. She has brought proceedings in a matter and the Defendant' Solicitors a very well known and established firm of London Solicitors throughout the process having been dismissive and rude about her case, so you can imagine the delicious irony when having spent many many hours assisting her to prepare a 47 page statement in support of her claim and 9 other supporting statements from witnesses, and, having ensured that every statement made was supported by written proof from the Defendant' own documents, our client turned up at their rather beautiful offices to exchange witness statements only to find herself handed with 1 rather sad witness statement and upon handing over her own statements watching as the Defendant's Solicitors mouth dropped and eyebrows shot apparently off the top of his head especially as this self same Solicitor had informed our client previously that he had never lost a case . The moral never underestimate your opponent and never be arrogant enough not to request copies of documents listed in your opponents List of Documents. The final chuckle is that their witness statement is a rather sad and pathetic document.