Conditional Fee Agreements, no win no fee to most people, were set up to allow those without large incomes and who could not gain legal aid the opportunity to set their claim before a court. Although accident use hit the headlines it has actually allowed people to resolve their grievances and disputes. These range from misrepresentation in house purchases through to employment and discrimination.

The Govt and Insurers for their own ends have created a narrative that this form of funding allowed claims to go to court that were not deserving and thus should be abolished. The insurers want us all to take out legal expenses insurance, using they hoped cheap panel solicitors. This latter expectation has been crushed by a recent supreme court decision. This will then leave the new Govt option of Contingency Fee Agreements, ie the US option. Instead of a fixed success fee the lawyers will take 25% approx of all damages. Which one do you think will drive up damages?

With more stringent limits on legal aid we are now facing fewer injured people being able to go to court, larger damages for those that do and reduced protection as After Event Insuranc is squeezed out and Before the Event insurance is priced too high to afford except by the rich.

All in all then is Conditional Fee such a monster that it has to be changed. It is a major plank in Access to Justice for all. Now we will return to LAw for the rich only. Should we not be opposing the government change so that accident victims remain able to claim for the negligence of employers

Bob

Bob,
You've got me here...! Insurers do not encourage claims to go to ocurt - in fact quite the opposite. The vast majority of claims for civil compensation are settled out of court. Percentage ending up in court is single figures, less than 10%.

As regards EL there is usually little point in going to court. If the (civil) negligence is not clear and obvious then the supporting allegations of breach of statutory duty (where applicable) will geenrally seal the fate of the employer. In addition the inabiltiy of amny (most?) employers to provide the evidence of sound risk management meanst hat insurers are often unable to mount any form of robust defence.

Those cases that end up in court generally do so because:
a) There is a serious point of law to be settled - think of Stark v Post Office or Chargot
or
b) There is a breakdown in negotaitions and a failure to agree on quantum, on how much should be paid in compensation.

But these are rare cases. When an employee has fallen off a ladder, there is no record of training, ladder inspections, employer clearly in breach of WaH Regs, the work could/should easily have been done from tower scaffold or cherry picker etc then it is more a case of agreeing the damages and trying to argue that since employee was experienced and had done work previously then there should be 20% contributory negligence.
Phil

Bob, I think that the pre-action protocols have more to answer for than improved access to legal advice, along with the demand by claimant solicitors that a risk assessment must be in place for all conceivable situations and insurers meek acceptance that a lack of said assessment will lead to a losing case.

Whilst the Woolf reforms were implemented for the best of intentions, their full effect was probably unseen at that time and are now in need of fundamental review.

Furthermore, and at risk of biting the hand that partially feeds me, insurers collectively have a strong vested interest in keeping large numbers of claims flowing through the system: it stimulates the insurance buying process by fearful businesses.

As one who regularly speaks to disgruntled business owners and frustrated safety practitioners on the subject of "runaway claims culture" I feel sure that this thread will be well populated and some extreme views stated. Mods will probably be active!

Firstly - the govt has cosy alliances with industry full stop. Insurance is big business. There are many MPs who would be against this, but they aren't in the inner circle.

Chargot was not a civil case, although the point about influence is taken.

Access to justice, whether civil or indeed being able to get a defence lawyer under legal aid if you are facing prosecution, is rapidly disappearing for those without the means.

I don't believe there was a lot wrong with the civil claim system except for the dogmatic emphasis on the pre-action protocol as if it were tablets of stone, thus tipping the balance too much to have-a-go claimants. Made in 1997 and it shows. It showed then actually (pre-accident RA and post-accident RA?). It could be done better nowadays.

Figures from Assocation of British Insurers are that legal fees stand at around 30-35% of total "claim" bill. But that is an average - for claims under c£10k the legal costs of delivering compensation can be around 90%. That means it costs 90p to deliver £1 of compensation... got to be wrong.

Good argument for upping limits for fast track claims? OR what about we move to a no fault compensation system. No more lump sums, simply a benefit - per week/month - based on a % of your average earnings?

A few years back I was told that legal costs for the New Zealand no fault system stood at around 3%. Under such a system there would still be a need for "elf & safety", regulation etc, employers would still have to pay premiums, and people who were injured would not be "out of pocket" but wouldn't get the large sums to spend (allegedly) on beer 'n' fags, fast cars etc. Guess who would loose out...??? Legal profession.
Phil

Phil

Sadlass,
Thanks for pointing out my mistake iro Chargot... perhaps I should have used Tomlinson, Poppleton or Uren. Interesting how many "landmark" cases are not concerned with employment scenarios...!

Just spotted prosecution of Warwick Castle following death of customer following fatal fall. The civil claim won't need to go to court...!

Stedman,
You are absolutely correct. What does interest me is the lengths people go to argue about compensation, legal costs of delivering it etc when the costs of prevention may well have been small. Compensation and legal costs only arise/need to be paid when an accident has occurred... prevent the accident, nothing to shell out!
I recall an HSE Press Release from last year re an operator run over by FLT when crossing factory floor to fetch labels. Corrective Action: move stroage of labels next to place where needed - cost, perhaps a few pence. Compensation - no idea but I think employee had badly broken leg so got to be £,000s

Phil

Phil

To follow on your prevention point, in the late 1990s I was in discussion with the risk manager of a large clothing company who were annually getting around £120,000 worth of claims for 'needle-in-finger' injuries from employees, supported by their union. While his original discussion was about a campaign to raise awareness, we parted on the idea of doing something about the sewing machine guarding.

Six months later the factory with the most 'needle-in-finger' injuries had designed an encapsulating perspex guard. After being fitted to 4,500 machines out of around 6,000, claims had dropped to around £40,000 worth. Where the guards had been fitted, there were no reported first aid injuries. Unfortunately as a 100% supplier to Marks & Sparks when the retailer changed policy to source from aboard, the clothing company closed with the loss of around 5,500 jobs.

However the Risk Manager maintained his input into a European Standards Committee and - with the support of the HSE, GMB trade union and the British Clothing Industry Association - in 2005 the concept of the encapsulating guard was incorporated into ISO 10821: Industrial Sewing Machines.

During the exercise it was discovered that the standard guarding had hardly changed in 80 years!

Oh yes, they contracted a local engineering company to make the guards and developed a nice little side line profit selling the guards to other clothing companies. And where the guards were fitted, on average, the machine operator's productivity increased 6% because it was easier to change the thread and access the needle.

Where fitted the guards eliminated these 'needle-in-finger' injuries. We generally concluded that had all the machines been fitted with the guards, the claims would have been eliminated. Problem solved.

Cheers.

Nigel

We are still falling into the trap that accident claims should be used to justify the demise of CFA when the system is a life saver to many other aspects of civil law. I do not have the statistics but I suspect the level of spurious claims is far lower than many believe.

Yes the pre action protocol needs an overhaul but that is not the fault of CFA, any system of funding will not resolve the issues. Also an increase in the small claim level to around £10k would mean that any costs would have to be met by the claimant out of the damages. The problem is that the same method of funding applies to EL claims as well as many other civil claim matters. The H&S EL claims are then used to remove a whole system which has worked well for many years.

The government wish that we all insure ourselves is all very well until you realise that it could mean that an insurance backed claimant will be fighting and insurance backed defendant - what price justice at this point. My point is that CFA is not responsible for the current EL problem and we should not necessarily support the wholesale elimination of CFA but rather support a change in compensation for work injuries and ill health. A new system that compensates quickly - not 5-10 years on as currently occurrs.

Bob