Fieldfisher Personal Injury Solicitors

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1 Fieldfisher Personal Injury Solicitors Response to the Government s Proposals for the Reform of Court fees All the photography in this submission is of individuals and familes that we have assisted with claims Riverbank House, 2 Swan Lane, London, EC4R 3TT Tel:

2 1. Who we are Fieldfisher is one of the UK s leading personal injury and medical negligence law firms. We focus on high value complex personal injury claims on behalf of Claimants. We do not run low value cases. Most of our cases result in settlements ranging from 200,000 to multi million pounds. We regularly act for children and persons under a disability injured whether by medical negligence or in catastrophic accidents and for those dying from the asbestos cancer mesothelioma. In the calendar year 2014 we recovered over 100M damages for the victims of injury. We are recognised as one of the leading practices in the country by both the Legal 500 and Chambers Legal Directories: We have strong links with Mesothelioma UK, the Action against Medical Accidents (AVMA), Headway, a charity which assists brain injury victims, and SCOPE. Our partners are prominent members of the Association of Personal Injury Lawyers (APIL), the Forum of Catastrophic Injury Solicitors (FOCIS) and regularly attend and contribute to forums at the Civil Justice Council, the Royal Courts of Justice and the Ministry of Justice. We are users of the Royal Courts of Justice on behalf of our clients on a daily basis. Our cases are almost exclusively issued in the Queen s Bench Division of the High Court. In a typical calendar year we will issue 70 to 100 Claim Forms on behalf of our clients. Fieldfisher maintains its outstanding reputation in the market. The team provides a first class service at all levels of experience The Legal 500 Leading Firm 2014 Offers formidable strength and depth on the Claimant side handling very complex, high value claims. Notable for its expertise in catastrophic RTAs and workplace accidents and for its emphasis on rehabilitation 2015 Top Ranked Chambers UK Leading Firm 2 Response to the Government s Proposals for the Reform of Court fees

3 2. The Court System from the Claimant s Perspective We act for vulnerable victims of catastrophic injuries including children and patients under a disability and those with terminal asbestos cancer. More often than not our clients are not poor enough to apply for remission of Court fees and not rich enough to pay the proposed 10,000 to issue their proceedings at Court. This response is to give Claimants in serious personal injury cases a voice in the consultation process to oppose the increase in Court fees. It is said that such an increase will not deter Claimants from access to justice. This represents a fundamental misunderstanding of how our clients access the Courts to obtain justice and if implemented will result in prejudice to a particularly vulnerable group of litigants. Court proceedings are the Claimant s only weapon to bring those who have caused their injuries negligently to account. Our opponents are generally the Government through the NHS LA, and the claims departments of large multi-national insurance companies such as Zurich, AXA, Aviva and the Lloyds Syndicates (collectively hereinafter The Defendants ). Our clients have a right to speedy justice. The only way to obtain speedy justice is to issue proceedings at Court by way of a Claim Form. The Defendants representatives are chronically underfunded and over worked. The only way to access funds for interim payments for rehabilitation, to clarify liability issues to obtain quick settlements where the claimant is dying of cancer or obtain the release of records from a relevant hospital Response to the Government s Proposals for the Reform of Court fees is to issue at Court. In this way the case reaches the decision makers or solicitors with understanding of complex cases. Even in 2015 most cases do not settle without the issue of proceedings and a trial date having been set. The current fee structure enables Claimant s lawyers in No win no fee cases to fund Court fees themselves, to issue proceedings swiftly and obtain the funds for rehabilitation and the speedy settlements our clients desperately need. If the increase in fees is enacted, it seems highly likely that Defendants will refuse to negotiate pre-issue knowing that the Claimant will be obliged to spend 10,000 to issue, further delaying (or removing entirely) access to the Courts. 3

4 3. Funding the increase in court fees The increase in fees will severely limit access to justice on the part of vulnerable people and limit their ability to obtain funds for rehabilitation or settle their cases quickly. 3.1 Solicitors will be reluctant to fund issue fees for their clients When Legal Aid was abolished for the majority of personal injury claims and conditional fee agreements were introduced in the 1990s, most Claimant solicitors took the decision to fund disbursements, including Court fees because they were aware of the difficulty most of their clients would have in paying these themselves. Solicitors, including this firm, have taken on this financial burden to promote the speedy resolution of their clients claims. That cost will rise to millions of pounds per annum if these reforms are enacted. Vulnerable Claimants cannot afford a one off payment of 10,000 to issue their Court proceedings very few people in this country could. Likewise, most solicitors will be unable to fund their Clients actions. This will lead to an inability to issue simply because of the Court fee. 3.2 If solicitors will not fund the Claimants actions how are they to be funded? Loan companies offer disbursement loans to Claimants to fund their cases. Experience suggests that the interest charged on such loans will be up to 30% pa in an era of 0.5% base rates. The Jackson Reforms require Claimants to pay such interest out of the damages they recover. This further erodes the Claimants ability to recover full damages. Claimants, who already face a hefty bill from their damages, will now face a bill of thousands of pounds greater. The insurance and loan companies, so long considered parasitic to the Court process, will be re-energised. Decisions about the conduct of cases are taken out of the hands of Claimants solicitors and placed in the hands of loan and insurance companies to the detriment of Claimants interests. In clinical negligence and personal injury cases insurance premiums to cover disbursements in losing cases will at least double from an average of 6,000 per case to 12,000+. It should be remembered that these fees are now deducted from Claimants damages at the end of the case. Cases will be conducted to further profit loan and insurance companies out of Claimants damages. 4 Response to the Government s Proposals for the Reform of Court fees

5 4. Vulnerable Claimants As personal injury solicitors we are constantly trying to reassure our clients that the use of the Court system does not result in punitive financial consequences for them. Injured clients are often frightened of the legal process and the litigation itself. When they are told that the issue of their claim costs 10,000 and that they need to take out complicated loan agreements to pay for this it will deter many Claimants from taking action. These are also classes of vulnerable Claimants who must be protected. 4.1 Children and patients These are a particularly vulnerable class of Claimants typically with serious brain injury. Often in the very early weeks following an accident there is an urgent need of funds to pay for medical care and rehabilitation. We often have little choice but to issue proceedings quickly and make applications for interim payments. Even if interim payments are agreed between the parties, the issue of a Claim Form is required to obtain Court approval (CPR requires Court approval of all interim payments made by Defendants to Claimants in order to protect vulnerable individuals and to ensure these funds are handled appropriately). With the increase in Court fees solicitors will be hesitant to ask for interim payments, and hesitant to issue proceedings. Defendants will be aware of this and will withhold payments against the principles of the Rehabilitation Code. In clinical negligence cases children can be awarded legal aid. The Legal Aid Agency will be required to fund the issue of proceedings as a disbursement. Will they avoid such decisions and delay payment of the disbursement because of budget restrictions? Will knowledge of such a disbursement affect their decision to award legal aid in the first place? 4.2 Mesothelioma claims Mesothelioma is an aggressive asbestos related cancer which is always terminal. Typically victims have a life expectancy of between six to 12 months upon diagnosis. Claimants want their cases against negligent employers who exposed them to asbestos dust to be conducted by their representatives speedily before they die. We, as a firm were instrumental in instituting the speedy trial process in the Queen s Bench Division of the High Court whereby claims are issued and given a swift date before a Master and an assessment of damages. Typically cases issued in the mesothelioma claims list are disposed with within three months from issue of the Claim Form. The process enables Claimants with this tragic cancer to access speedy justice before they die. It is our experience that Defendants do not take cases seriously, do not proceed to admit liability and do not settle them unless and until a Claim Form is issued. The 600% hike in fees will delay such proceedings either through the reluctance of Claimants or solicitors to fund them or through delayed access to funds through complex loan arrangements. Many victims will die without recourse to the Courts or the damages they are entitled to. Response to the Government s Proposals for the Reform of Court fees 5

6 5. Shifting the balance of power to the Defendants The increase in Court fees will fuel the assumption that the Court system is not designed to help the most vulnerable in our society to obtain access to justice. It tips the balance further in favour of the Government and corporate interests in whose interests it is to delay, frustrate and deter access to justice and access to compensation. It encourages Defendants to make early low offers before proper investigation of the case and to continue to unreasonably deny liability. It encourages Claimant solicitors to advise acceptance of early low offers to avoid the pressure of the Court fee on their disbursement accounts or to avoid taking out a complicated loan agreement which puts the Claimant in direct conflict of interest with his solicitors. 6. The Financial Imperative It is said that increasing Court fees by 400% to 600% will not deter Claimants for litigating and will increase funding for the Court system. In our submission it will not for the following reasons: Claimants and their representatives will be deterred from issuing proceedings at Court depriving the Court of the exorbitant fee. The introduction of issue fees in the Employment tribunals in 2013 led to a 70% fall in claims the following year 1. Clinical Negligence cases often proceed against the NHS and many personal injury actions are against Government departments as employers. These proposals merely shift the payment of high fees from one Government department to the next. The burden for paying Court fees is thereby not borne by the individual but shifted on to the tax payer in any event. Increased use of ADR and mediation will drastically reduce access to the Courts and further shift the already unequal balance of power in favour of the Defendants. 1. Tribunal statistics quarterly Published by the Ministry of Justice September Response to the Government s Proposals for the Reform of Court fees

7 Summary For the victims of personal injury and clinical negligence the increased Court fees will: Limit their access to Justice; Delay deserved payments for urgent medical treatment and rehabilitation; Delay settlement of actions; Encourage under-settlement of damages; Encourage Defendants to delay paying proper compensations; Increase the costs on behalf of the Legal Aid Agency and the NHSLA; Ultimately cost Claimants thousands of pounds to be deducted from their damages; Further encourage insurance and loan companies to be involved in litigation and make a profit from Claimants damages; Fail to fund the Court system adequately. We, on behalf of our clients and Claimants in personal injury actions, strenuously oppose it. Fieldfisher 27 February 2015 Riverbank House, 2 Swan Lane, London, EC4R 3TT Tel: Response to the Government s Proposals for the Reform of Court fees 7

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