Consultation Document Alternative Methods of Funding Money Damages Claims

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1 Consultation Document Alternative Methods of Funding Money Damages Claims March

2 CONTENT 1. Introduction 3 2. Purpose of Consultation 4 3. How to Respond 4 4. Current Position 6 5 Access to Justice 7 6 Proposed Options for Alternative Funding Mechanisms for 9 Money Damages Cases 7 Comparison with Other Jurisdictions 12 8 Scope of Options 14 9 Conclusion Consultation Questions 16 Page Annex A B C D E F G Extract from the Access to Justice Review that deals with Money Damages. Number of Legal Aid Certificates issued in Money Damages Cases from Percentage of Legally Aided Money Damages cases which were won or settled. Cost of Legal Aid Fund of Paying for Lost Cases. Average Cost to Legal Aid Fund of Lost Money Damages Cases Statistical Information provided by the Compensation Recovery Unit. Description of Alternative Options for funding in Money Damages Cases 2

3 ALTERNATIVE METHODS OF FUNDING MONEY DAMAGES CLAIMS 1.0 Introduction 1.1 In September 2010 the Minister of Justice announced a review of access to justice which examined how people could best be helped to secure access to justice in a cost effective manner. The Final Report of the Access to Justice Review (the Review), which was published in September 2011, was the subject of public consultation. 1.2 One of the recommendations of the Review was that most money damages cases, except for the more complex clinical negligence cases, should be removed from the scope of legal aid, provided that an alternative means of securing and improving access to justice can be implemented [Paragraph 5/106 of the Review]. 1.3 The full text of the section of the Review that deals with Money Damages (the term used in the Review) is attached at Annex A. 1.4 The Final Report recognised the Legal Service Commission s ongoing engagement with the Law Society on this issue, paragraph refers, and encouraged further work at paragraph We are attracted to aspects of the insurance based solution in money damages cases, but think that more details need to be fleshed out on its workings and that full consultation should take place before decisions are taken on whether or not to adopt it. 1.5 On the 2 nd July 2012 the Minister of Justice announced his response to the Review and published a Departmental Action Plan 1 setting out 38 projects to take forward the recommendations of the Review. In his statement to the Assembly, the Minister specifically mentioned the recommendations dealing with money damages. The Minister said: Work has also begun on developing an alternative approach to what are known as money damages cases. The Review recommended that such cases, which include claims for such things as injury from tripping, should be removed from the scope of legal aid once an alternative approach had been developed. The Legal Services Commission has been working for some months, in discussion with the legal profession and representatives of the insurance industry, to develop alternative arrangements, and good progress has been made. That is the kind of constructive engagement that I want to see replicated across the wider programme of work. 1 3

4 2.0 Purpose of consultation 2.1 The purpose of this consultation is to seek views on a range of options which would give effect to the basic thrust of the Review s recommendations as they represent alternative mechanisms which could fund money damages cases. This will be of interest to consumers, both those who are involved in money damages cases and those who pay insurance, the legal profession, the judiciary, insurance providers, bodies which may be involved in litigation on money damage claims whose policies, practices and procedures are affected, or influenced by legal aid and the public generally. 2.2 It is intended that following consideration of the responses to this consultation exercise, the preferred option will be developed in detail. 3.0 How to respond 3.1 When you are responding to this document, please state whether you are responding as an individual or representing the views of an organisation. If responding on behalf of an organisation, please make it clear whom the organisation represents and, where appropriate, how the views of the members were assembled. 3.2 Please submit your response to this consultation by post, fax or to: Money Damages Consultation Public Legal Services Division Department of Justice Massey House Stormont Estate Belfast BT4 3SX Facsimile Tel: Text phone Closing date 3.3 Responses must be received by 28 June. 4

5 Miscellaneous 3.4 Additional copies of this consultation document may be made without seeking permission from the Department of Justice (the Department ). Printed copies may be obtained in the post by contacting the Consultation Coordinator at the address above. An electronic version is available on the Department s website at Copies in other formats, including Braille, large print, audio cassette, computer disk etc may be made available on request. If it would assist you to access this document in an alternative format or a language other than English, please let us know and we will do our best to assist you. 3.5 Section 75 of the Northern Ireland Act 1998 requires all public authorities in Northern Ireland to have due regard to equality of opportunity between the nine equality categories and have regard to promote good relations between persons of different religious belief, political opinion, or racial group. Public Authorities are also required to meet legislative obligations under the Disability Discrimination Act 1995, particularly in the formation of public policy making. The Department of Justice is fully committed to fulfilling its Section 75 obligations on the promotion of equality of opportunity, good relations and meeting legislative requirements in Northern Ireland. 3.6 An initial screening of the policy has indicated that an Equality Impact Assessment (EQIA) and a Regulatory Impact Assessment (RIA) are not necessary. A copy of that completed screening document has been published with this consultation paper. Information relating to equality and regulatory impacts is however being sought alongside the consultation exercise. We will use the evidence provided in the responses to inform any further screening of the proposals. 5

6 4.0 Current Position 4.1 Money damages cases currently fall within the scope of the civil legal aid scheme. All applicants for civil legal aid in such cases have to satisfy the financial eligibility test and a legal merits test. These tests are set in the Legal Aid, Advice and Assistance Order (Northern Ireland) 1981 (the 1981 Order) and the Legal Aid (General) Regulations (Northern Ireland) 1965 (the 1965 Regulations). 4.2 In respect of the legal merits of applications for funding, the decision making is subjective as it is based on whether in the decision makers view, that on the facts presented, the applicant has reasonable grounds for taking (defending or being party to) proceedings as required by Article 10(4) of the 1981 Order, and it is reasonable in the particular circumstances of the case that funding should be granted, Article 10(5) of the 1981 Order refers. There is a high instance of appeals when initial applications are unsuccessful and these are often refused by the Appeals Panel or granted when further information which was not submitted at the outset becomes available. The administration of appeals places a significant burden on the resources of the Commission. 4.3 Typically applications for civil legal aid in respect of money damage claims represent 25% of the applications for civil legal aid. Details of the number of applications for funding for money damage cases are given at Annex B. Typically the applications include claims for negligence, road traffic accidents, tripping, medical negligence and accidents at work. 4.4 When civil legal aid is granted to applicants in money damage cases, there is no real cost to the legal aid fund for the majority of the cases. If someone bringing a money damages case, supported by legal aid, wins then their legal costs will be met by their opponent as the costs are paid by the unsuccessful losing party. If the case is settled and there is a shortfall in the costs and the defence does not accept some elements of the successful litigants costs these have will have to be paid by the legal aid fund in the first instance but the statutory charge will apply. This means the Legal Aid fund recoups the legal costs expended from the assisted person s damages. Details of the percentage of successful cases funded by legal aid are set out at Annex C. 4.5 If someone in receipt of legal aid is unsuccessful in their case, then the Legal Aid fund will have to meet their costs. If a case is lost, the principle of cost protection for legally aided work usually means that the successful defendant has to bear its own costs. The cost to the legal aid of paying for lost cases is set out at Annex D. 6

7 4.6 The costs incurred by the legal aid fund when an assisted party loses comprises the fees for solicitors and barristers, expert witnesses, court fees and other expenses. As can be seen from Annex E the cost to the public purse of lost cases was on average 2.8 million over the last 7 years. In addition the Commission has the hidden costs of administering these cases. 4.7 The total cost of administering applications for money damage claims, including the costs of processing appeals against refusal of applications is circa 333.5K. 5.0 Access to Justice Review 5.1 The Review proposed that most money damage cases should be removed from the scope of legal aid, provided that an alternative means of securing and improving access to justice can be implemented. While there may be certain types of money damage claims or specific cases which will require, at least for the immediate future, access to legal aid funding to enable these cases to be brought, the majority of cases could and should be brought without the benefit of public funding. 5.2 The Department proposes that viable alternatives should be introduced to support the majority of money damage claims. Any such mechanism should deliver the following objectives: (a) (b) (c) (d) (e) expand access to justice by removing the glass ceiling imposed by the legal aid financial eligibility test any mechanism should not be restricted by the financial means of applicants; speedier decision making and commencement of claims as solicitors should be able to determine whether a case is meritorious; reduction in the number of speculative claims as losing cases would have a real penalty for plaintiffs and / or their legal representatives; successful defendants (whether public authorities or insurers) should be able to recover their costs from plaintiffs; reduction of cost to the public purse in bringing these cases (both to the legal aid fund and the administrative costs of the Commission). 7

8 5.3 To establish what types of alternative mechanisms could support money damage claims moving forward, a Reference Group was established which included representatives from the Law Society, the Bar, Insurers and Public Authorities. Six alternative funding options were identified and this consultation paper seeks the views of interested parties on which option they prefer and why. 5.4 It is intended that once a preferred option has been identified, that option will be developed in detail including how such an option could be delivered in practice. 5.5 The Department recognises that while it is focused on those cases which are supported by legal aid that any alternative funding mechanism could equally impact on privately paying litigants. As such the introduction of an alternative funding mechanism could change the approach to money damage claims beyond those cases funded by legal aid. 5.6 The information about the total number of money damages claims was secured from the Compensation Recovery Unit (CRU) which is required by legislation to be notified of all claims for damages. The CRU provides compensators and customers with details of Social Security benefits paid in respect of accidents, injury or disease for which compensation is awarded. The information provided by CRU is set out at Annex F. This information can be used as an approximate estimate of the total number of money damages claims in Northern Ireland. 8

9 6.0 Proposed Options for alternative funding mechanisms for money damages cases 6.1 The Money Damages Reference Group considered a range of options which seek to give effect to the recommendations contained in the Access to Justice Review. Discussions produced six options which while by no means an exhaustive list, does reflect approaches which are actually operational in other jurisdictions. The Department will consider any other options which consultees believe are more appropriate in the Northern Ireland context than those set out in the current consultation paper, while still meeting the objectives set out at paragraph 5.2 above. 6.2 A high level summary of each of the options can be found below. A more detailed description of each of the alternatives with accompanying advantages and disadvantages is set out in Annex G. 6.3 Option 1 Money Damages remain in scope of Legal Aid as part of the Funding Code The proposed Funding Code which has been the subject of extensive consultation 2 does not include money damages in one of its priority areas for legal aid. As such the decision on whether to grant legal aid in particular cases where the client was financially eligible would be determined by applying a merits test based on consideration of the interaction between likelihood of success, the scale of damages likely to be awarded and the projected costs. For example if the prospects of success were assessed as very good (80% or more), legal aid would be awarded provided that damages were expected to exceed projected costs; but if prospects of success were moderate (50-60%), legal aid would not be awarded unless the damages were likely to exceed costs by at least a factor of four. The Code also makes provision for granting of Investigative Help, which is necessary in some cases to establish prospects of success, and would only be made available if the damages claimed were in excess of 5,000. The Funding Code was designed to ensure that decisions made in these cases and the spending of public funds were made on a proportionate basis against the considerations that would apply if the cases were being funded privately. This option produces modest cost savings both in terms of the legal aid fund and the cost to the Commission of administering legal aid. 2 Consultation papers issued by the Commission on the Funding Code (November 2006), proposed Criteria (June 2009) and proposed procedures (June 2009) available at 9

10 Option 2 Conditional Fee Agreement with set success fee being paid by the losing defendant Conditional Fee Agreements (CFAs) are an insurance based product which enables individuals to take or defend proceedings without the support of public funds. In essence a CFA allows a solicitor to represent a client on the basis that they only get paid in prescribed circumstances, namely if they win the case. In a winning case the costs will be paid by the opponent. Under a CFA the client would be exposed to the costs of their opponent, as well as their own costs, if they lose the case. Accordingly a CFA will be underpinned by an insurance package which guarantees payment of the opponent s costs. As a solicitor only gets paid if they win a case, a success fee is typically payable for the risk the solicitor takes in running the case. The solicitor s success fee is paid by the losing defendant and the client will therefore keep 100% of their damages. The client will have to pay a premium for the CFA, the amount of this will be known in advance of taking the case and it will only become payable if the case is won. This option produces significantly higher savings than option 1, both in terms of the legal aid fund and the cost to the Commission of administering legal aid. Option 3 Conditional Fee Agreement with set success fee being paid by successful plaintiff This Option is a variation on Option 2. The only difference in this Option is that the solicitor s success fee will be paid by the successful plaintiff and not the losing defendant. This Option is based on the assumption that the risk of running the case is a matter between the plaintiff and their legal representative and as such the success fee should be between them. This option produces the same savings as option 2, both in terms of the legal aid fund and the cost to the Commission of administering legal aid. Option 4 Contingency Legal Aid Fund (CLAF): a percentage of damages paid into the fund to sustain it for future cases. While CFAs are individual agreements for each plaintiff, a CLAF would be a generic scheme to support money damages claims which would ultimately be self financing. The CLAF, in a similar way to the existing Legal Aid scheme, would consider applications for support for cases 10

11 considered to have merit. If a case is lost the CLAF pays the solicitor, disbursements and some or all of the winner s costs. If the case is won, the loser pays the client s solicitors and other fees in the normal way and a percentage of the plaintiffs damages are paid into the CLAF to support future cases. There are no success fees payable in a CLAF, nor is there a personal insurance underpinning the CLAF. An application fee may be payable to assist the CLAF being self financing. The CLAF would require initial pump priming capital until the turn over of cases produced a surplus. This may represent expenditure comparable to several years worth of funding given the life cycle of claims. If the scheme was successful then it would build up funds out of which administrative expenses as well as costs paid to successful opponents could be paid. This option would not deliver short term cost savings to the legal aid fund and would in the early years increase the administrative cost of administering this option. If the Commission was to be responsible for the scheme. Option 5 Jackson Model Lord Justice Jackson conducted a review of civil litigation costs in England and Wales 3, the majority of his proposals have been accepted by the government and will come into force in England and Wales in April The proposals retain the CFA arrangements (see description in Option 2) which have been place in England and Wales for many years. However the Jackson proposals end the ban on contingency fees in England and Wales, where the solicitor s fee is linked to a percentage of the general damages. Jackson also proposes to end the recoverability of success fees and ATE (After the Event Insurance) which in future will be paid out of damages. Jackson believes this will give claimants a financial interest in controlling costs and seeking early settlement. Jackson also proposes that general damages should be uplifted by 10% to mitigate the effect of claimants having to pay success fees. The Jackson proposals seek to address issues which have arisen in England and Wales over some aspects of the operation of CFAs. This option produces the same savings as option 2, both in terms of the legal aid fund and the cost to the Commission of administering legal aid

12 Option 6 Contingency Fee Scheme This option would allow the plaintiff to bring a personal injury action, underpinned by an insurance package, which guarantees payment of their opponents costs should they lose the case. A percentage of the plaintiff s damages will be paid to the successful solicitor as an uplift to their costs. There will be no success fee in this Option. A comprehensive regulatory framework would be required to be drawn up to underpin this option. Contingency fees in an unregulated environment could lead to spiralling costs and increasing litigation challenging costs. This option produces the same savings as option 2, both in terms of the legal aid fund and the cost to the Commission of administering legal aid. 12

13 7.0 Comparison with Other Jurisdictions 7.1 Money damages cases are currently funded in Northern Ireland as set out in section 4 above. Those cases currently in scope of the Legal Aid scheme are subject to a financial eligibility means test and a legal merits test. While the annual cost of funding such cases is relatively low it is a recurring cost that cannot continue to be justified in light of the recommendations contained in the Access to Justice Review as adopted by the Minister for Justice. 7.2 It may therefore be of interest to note how other similar jurisdictions fund money damages cases. England and Wales 7.3 Personal Injury cases (apart from clinical negligence cases) were removed from scope of legal aid in 1999 on the basis that such cases could be pursued under CFAs. Under the CFA the solicitor does not receive a fee in the event that a case is lost; but to compensate for taking that risk, if the case is won they receive a success fee as an uplift on top of their normal hourly rate. 7.4 The plaintiff is able to secure after the event insurance (ATE) to cover the opponent s costs and the cost of the ATE premium itself should the case be lost. 7.5 CFAs as operated in England and Wales generally had a positive impact on access to justice, especially in regard to bringing litigation within the reach of those people whose financial circumstances meant that they were marginally over the financial eligibility limits for legal aid but who could not easily afford to fund their own litigation. However, concern about the overall cost of litigation in England and Wales and the emergence of a compensation culture associated with claims management companies and referral fees caused the government to appoint Lord Justice Jackson to review the system and make recommendations to improve its operation. 7.6 Jackson s proposals (option 5 in this paper) retain the CFA system (and end the ban on contingency fees where the solicitor s fee is linked to a percentage of the general damages) but ends the recoverability of success fees and ATE which in future will be paid out of damages, giving plaintiffs a financial interest in controlling costs and seeking early settlement. 7.7 Clinical negligence cases will also be taken out of scope in April 2013 but in recognition of concerns about the high cost of expert witnesses in such 13

14 cases, the Government is considering retention of recoverability of ATE insurance premiums covering the costs of experts in this category of case. 7.8 In response to the Ministry of Justice proposals in England and Wales it has been suggested that some of the changes to No Win No Fee and ATE could have an adverse impact for example on solicitors taking up public interest cases or ordinary people holding powerful institutions and government to account. 7.9 There are a number of lessons for Northern Ireland from the English experience: I. CFAs are a mechanism that allows those who are financially ineligible for legal aid but of insufficient funds to litigate on their own behalf to bring proceedings. As such the English experience offers an expansion of the current access to justice. II. The English version of CFAs allowed for unforeseen consequences which should be avoided. Scotland 7.10 Money damages claims can be dealt with in Scotland either through an application for legal aid (which operates in a very similar way to the current system in Northern Ireland as outlined in section 4 of this paper) or through insurance based products Typically the insurance based product is a form of a contingency fee. The level of insurance premium payable depends on the type of claim. The solicitor informs the client of this amount at the start of the process. The insurance premium is payable if the claim for damages is successful The insurance covers the client s outlays and their opponent s legal expenses and outlays. It will indemnify the client in respect of the insurance premium for the policy if: a) The client loses; or b) If the claim is withdrawn by agreement with the provider, client and solicitor after the start date of the speculative fee agreement; or c) If, after a minute of tender (an offer to settle the claim), the client wins but a court awards damages that are less than the offer to settle, provided the solicitor has advised the client not to accept the minute of tender A success fee is also payable to the winning solicitor and it cannot be more than a hundred percent of the solicitors standard cost. The usual amount is normally in the region of twenty five percent. 14

15 7.14 However, this dual system (of traditional legal aid and insurance based products) is unlikely to produce a coherent and efficient system for a jurisdiction of this size. Republic of Ireland 7.15 In 2004 the government in the Republic of Ireland established the Personal Injuries Assessment Board (PIAB) which is run by the Insurance industry. The procedure for processing all personal injury claims (except clinical negligence) is controlled by the PIAB Its aim was to reduce the costs of personal injury claims by assessing compensation payable outside of the courts. However PIAB has no role in assessing liability, it will only assess the amount of compensation where there are no such issues in dispute The PIAB is now known as the InjuriesBoard.ie and in 2009 reported that actual savings were 44.1 million from avoiding the litigation system. The Access to Justice Review however, despite noting that system seems to work well, would not recommend it for this jurisdiction as they do not think the circumstances in Northern Ireland warrant the potential expense and risks associated with setting up such a scheme. 4 The set up costs were significant and it also has to cover its running costs. It does this by charging a fee to all claimants and by charging defendants Most insurers operating in Northern Ireland also operate in the rest of the United Kingdom. It is therefore unlikely, in the absence of a decision by UK insurers to support the creation of such a body, that a separate organisation would be created for the relatively small insurance market in Northern Ireland. 4 Access to Justice Review, Final Report page 84 para

16 8.0 Scope of Options 8.1 The Department would expect any of the options outlined above to include all money damages cases in the new County Court range which includes cases with damages up to 30,000. The County Court scale would add control and predictability regarding the costs of actions. 8.2 The vast majority of money damages claims that fall within the Court of Judicature range should also be included in any funding mechanism that was adopted. 8.2 Complex litigation such as catastrophic clinical negligence or death at work cases would likely remain within the scope of legal aid and be dealt with under the general Funding Code Criteria. The Department recognises these are difficult cases often requiring substantial outlay to establish liability issues. 8.3 Claims against public authorities such as assault and battery actions are also likely to remain within the scope of legal aid in the first instance and be dealt with under Section 8 of the Funding Code Criteria. 8.4 If a product covers a certain type of case but not others this does not mean that legal aid funding will automatically be available for these cases. 8.4 However clearly different options could lead to different scope decisions and therefore the fine detail of the exact type of cases that would remain within the scope of legal aid and what would be removed cannot be fully known until a preferred option is agreed. 16

17 9.0 Conclusion 9.1 The Department accepts that if some of the options were to be adopted they would significantly alter the legal landscape and the conduct of litigation in all personal injury cases including those not currently legally aided. 9.2 The Minister of Justice has accepted the Access to Justice Review s recommendations that alternative funding mechanisms for money damages cases should be explored. The Department recognises that these case types cannot be removed from the scope of legal aid until an alternative means of securing and improving access to justice can be implemented. 17

18 10. Consultation Questions 10.1 The Department is eager to obtain the views of as many consultees as possible on the options proposed 10.2 Questions Q1. Do consultees accept that if the Northern Ireland Legal Services Commission is to make savings on the legal aid spend that it is worthwhile exploring options for alternative funding mechanisms for money damages cases? If so, which of the options described would be your preferred option and why? Q2. Do you think there any other options not discussed in this consultation, for alternative mechanisms for funding money damages cases that would provide access to justice? Q3. Should any insurance mechanism be available to all solicitors or be confined to specific firms or panels of expert solicitors? Q4. What interest is there from providers to make available the products these options describe? If you are an insurance provider please outline whether you would be interested in providing a product and a brief description of how you would see it working. Q5. Irrespective of funding option should a successful plaintiff have to contribute from their damages to the costs of the case? Q6. Irrespective of funding option should a successful defendant be able to recover their own costs? Q7. Should there be a success fee paid to the winning solicitor? Who should be responsible for paying it? How could the cost of the success fee be controlled? Q8. In your preferred option are there any other safeguards which you would want to see built into the system? Q9. Irrespective of the option do you agree that discretion should be limited to prevent unnecessary satellite litigation? Q8. Do you believe any of the options would have an adverse impact on any of the Section 75 groups? 18

19 Q9. Do you think any of the options would have a greater impact on nonlegally aided cases? 10.3 Confidentiality of Response The Department will publish a summary of responses following the completion of the consultation process. Unless individuals specifically indicate that they wish their response to be treated in confidence, their name and the nature of their response may be included in any published summary of responses. Respondents should also be aware that the Department s obligations under the Freedom of Information Act 2000 may require that any responses, not subject to specific exemptions in the Act, may be disclosed to other parties on request in accordance with the legislation. 19

20 Annex A Extract from the Access to Justice Review that deals with Money Damages Money Damages 5.93 Legally aided money damages cases for the most part involve claims for negligence, often in the context of road traffic accidents, tripping, medical negligence and accidents at work. There is usually a cost to the legal aid fund only where a case is lost, as in successful claims costs are invariably awarded against the other party and, even in cases lost, cost protection for legally aided work usually means that the other side is required to bear its own costs Over the past decade (until 2009/10) there was an overall reduction in the number of legal aid certificates granted for cases in the main money damages categories; but it is noteworthy that since 2009/10 that downward trend has been reversed, particularly in respect of road traffic accidents and medical negligence cases. Spend out of the Legal Aid Fund on money damages has fluctuated between 1.5 million and 2 million, although it is not clear whether the increase in the number of certificates granted in the past two years has yet fully fed through to the expenditure figures. The table below gives an indication of these trends based on the figures available to us. Table 6 Trends in main categories of legally aided money damages cases 05/06 06/07 07/08 08/09 09/10 10/11 k k k k k k Employers liability ok General negligence ok Medical negligence ok Traffic accidents ok Tripping ok Contract Total ( k) 1,488 1,693 1,817 1,519 2,049 1,813 Total certificates Notes: 1. We do not have disaggregated expenditure figures going back beyond 2005/06. However, the numbers of certificates granted in these categories for 2003/04 and 2004/05 were 1,770 and 2,396 respectively. 2. The figures given above do not enable average costs to be calculated. There may be more than one certificate per case and bills often do not fall for payment in the year when the certificate was granted. 20

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