The Ban on Personal Injury Referral Fees: Implementation and Enforcement. A Briefing Paper from NewLaw Solicitors

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1 The Ban on Personal Injury Referral Fees: Implementation and Enforcement A Briefing Paper from NewLaw Solicitors October 2012

2 Introduction The Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) received royal assent in May Part 2 of LASPO contains provisions that will ban the payment and receipt of referral fees for claims involving personal injury or death. These provisions are yet to be implemented and there has been considerable speculation as to when and how the ban will be introduced. One of the regulators appointed to police and enforce the ban, the Solicitors Regulation Authority (SRA), has now published a further consultation paper addressing these issues. One of the most frequently asked questions about LASPO has always been, is it really likely that the ban will take effect as from April 2013? The recent SRA paper answers this question with a resounding yes. The paper also provides some further guidance as to the sort of schemes that might fall foul of the ban together with an indication of enforcement processes and sanctions. Timing of the Ban on Personal Injury Referral Fees The SRA consultation paper states quite categorically that in so far as the Solicitors Code of Conduct is concerned, any changes will come into effect in April Furthermore, the paper sets out a clear timetable for the next stages of consultation and implementation as follows: - Formal consultation process on our Proposals 23 October December 2012 SRA referrals symposium 19 November 2012 Code changes to be approved by SRA Board 23 January 2013 Changes to Regulatory Framework approved by LSB Mid February 2013 Final version published Early March 2013 Implementation of ban April 2013

3 Whilst the SRA paper reaffirms the date of implementation as April 2013, much speculation still remains as to which cases the ban will apply to. There are a number of options that could include: - Only accidents that occur after the 1 st April 2013 This would bring with it the greatest level of clarity, however, seems unlikely to be adopted as it would allow a significant number of referral fees to continue to be paid and received post implementation for a period of up to three years. Accidents occurring before or after April 2013 where the referral is made post April 2013 and a payment is or has been made at any time. Implementation on these terms would catch arrangements whereby blocks of cases are pre-purchased prior to April 2013 and could be a possibility. However, this could also render contracts that were perfectly legitimate when they were entered into subsequently unlawful. This might encourage referrers not to meet their obligations pursuant to such contracts and leave the paying parties substantially out of pocket. Such consequences of retrospective legislation are not desirable and for this reason this might be an option. Cases in which the referral was made before April 2013 but payment is not made until post April There is again an element of retrospective legislation in this approach that could be detrimental to some existing arrangements that are currently perfectly legitimate. For example, this would catch industrial deafness clinics from which cases were referred prior to April 2013 but where commonly payment is not made until several months afterwards, as it can take this length of time to determine whether or not the claimant has a valid claim. Accidents occurring before or after April 2013 where the referral and payment are both made post April This option combines clarity, follows the spirit of the ban and would not interfere retrospectively with certain arrangements. Whilst this would seem to be the most likely definition for implementation, this still remains to be determined. What Arrangements will be Caught by the Ban? As expected there is a lack of granular detail in relation to this issue. In essence, the SRA has suggested that everybody should recognise a banned referral fee when they see one: Regulated persons should be able to determine from LASPO itself the arrangements which will be prohibited and the risks associated with entering into referral arrangements

4 The consultation paper also makes it quite clear that in circumstances in which there is any doubt, the burden is upon the regulated person to prove that the arrangement in question is not a banned referral fee guilty until proven innocent. If it appears to us that a payment may have been made for a referral or for making an arrangement, we will treat that as a prohibited referral fee for the purposes of LASPO, unless the regulated person can show that the payment was made for services or for another reason and not as a referral fee. In the light of this shift of the burden of proof it would be prudent for all regulated bodies contemplating any scheme for referring personal injury claims post April 2013 to carry out a thorough documented risk assessment in order to satisfy themselves and the regulator that the scheme does not contravene LASPO. The SRA is reluctant to be prescriptive and it is clear that the regulator does not wish to narrow its options for regulation by defining a referral fee too tightly. Notwithstanding this, some guidance has been given as to the areas that may or may not attract regulatory scrutiny. The two key areas for consideration are Alternative Business Structures (ABS) and marketing schemes: - ABS The SRA continues to adopt its previous stance in relation to ABS. It will not have a blanket policy that ABS will be viewed as a mechanism to avoid the ban. This is sensible and refreshing and reflects the original intentions of the Legal Services Act (LSA). One of the stated aims of the LSA was to improve consumer access to justice and a stated government example of this was to enable insurers to offer a one stop shop for motor insurance and injury claims. Insurer owned ABS brings an opportunity to improve access to justice, encourage greater efficiencies in the compensation system, increase consumer confidence in legal services and drive fraudulent and spurious claims from the process. The SRA would seem to recognise this: - An ABS is a legitimate form of business, supported by a strong statutory and regulatory framework. It is not an easy option. The guidance that has been provided by the SRA clearly supports the contention that profit derived from the beneficial ownership of an ABS does not contravene the ban as this does not constitute payment : - Our view is that where there is a referral of a matter to or by a regulated person, or an arrangement for another person to provide services, a payment will be prohibited to the extent that it is being paid for the referral or arrangement. The SRA is clear, however, that an ABS must be a true consolidated business enterprise. An ABS that is owned by a CMC and a solicitor must operate as a consolidated entity and the SRA will look closely at the continuation of separate businesses whereby payment is made by that ABS to a separate CMC for referral of claims.

5 Marketing Schemes The SRA is keenly aware that certain schemes will continue to exist in which a payment is made post April 2013 between regulated parties. This is perfectly legitimate provided that the payment is not made for the referral of personal injury claims but for some other reason. It is anticipated that the most frequent explanation of such payments will be that they are for marketing. LASPO contains a provision that will enable the SRA to treat such payments as referral fees if it appears that they do not relate to or are not commensurate with the service for which they are said to have been paid. The SRA will adopt this provision in relation to marketing schemes should it appear that the scheme is simply a referral fee arrangement by another name. Some useful guidance has been issued in this regard. In short, the SRA is not looking to close down genuine marketing ventures. If a solicitor agrees to pay a fixed sum of money to a marketing agency to run a campaign on its behalf then this is perfectly legitimate provided that there is no adjustment of the sum agreed depending upon the success or otherwise of the campaign. It is useful to think of the SRA s approach in terms of advertising. If a fixed price of 1,000 is paid to place an advert and the advert generates 500 leads then this represents successful marketing. If, however, the advert only generates 1 lead then the marketing campaign has failed. This is perfectly legitimate provided that no additional fees arise in the first scenario and no rebate applies in the latter. Any marketing scheme that adjusts the price paid dependent upon success or volume is likely to be viewed as a referral fee and be treated as such by the SRA: - if the advertising/marketing was carried out by a commercial entity and the fees paid by the regulated firms depended on the number of clients referred rather than the cost of the advertising/marketing campaign, this would suggest that the payment was for the referral. The SRA has issued its clearest guidance in relation to this type of activity and has set out certain specific factors that will cause them to view fees paid for services as referral fees: - When determining whether referral fees are being paid, we will take into account all of the circumstances but the following factors will generally indicate a prohibited referral fee: payment for services which are in excess of the normal market rate for such services; an arrangement where receipt of referrals is conditional upon payment; payments that are made per referral or which are otherwise linked to the number of referrals; evidence that a genuine service is not being provided.

6 Arrangement for Provision of Other Services LASPO not only bans referral fees paid for claims involving personal injury or death but also makes unlawful the receipt of any fees received for arranging a service on behalf of the client during the conduct of such a claim. The SRA is very much awake to the application of this provision both in relation to fees paid for the arranging of medical reports and also After the Event Legal Expense Insurance. It is clear that the SRA will not allow solicitors to receive payments from agencies or insurers in relation to these activities. It has also suggested that it will not tolerate certain attempts to find a loop hole in this provision and will treat payments made to a subsidiary as a breach of the ban: - Reference to payment to a third party has been included to prevent the situation where, for example, a regulated person sets up a subsidiary another entity to receive referral a fee, or otherwise arranges for someone else to receive the payment. Policing and Sanctions It should be remembered that the SRA is only one regulator for the purposes of LASPO alongside the MOJ, the FSA and the Bar Council. This consultation paper can only address the approach of the SRA, however, it is most likely that the other regulators will adopt a consistent approach. In order to police the ban, the SRA has at its disposal its usual armoury of regulatory measures to include: Use of formal investigatory or regulatory powers, including requests for documentation and attendance of individuals at formal interview; Working alongside other approved regulators with a view to sharing information and concerns and identifying firms which look to contravene LASPO/regulatory provisions; Full range of supervisory approaches. The effectiveness of this approach will almost certainly turn on the ability of the regulators to share information and cooperate in the enforcement process. The consultation paper has also set out some of the available sanctions that might be imposed on those persons in breach of the ban. These include: - Findings but no action; Rebukes; Fines of up to 2000 for law firms or up to 250m for ABS (which would appear to lack parity!); Conditions on a certificate or a license; Revocation of authorisation or license; Referral of the individual or entity to the SDT which has the power to issue an unlimited fine or suspend or strike from the roll; Intervention; A direction to pay the SRA s costs of the investigation.

7 These sanctions are draconian in some instances involving the removal of a licence to perform reserved legal activity (personal injury litigation is such an activity) and substantial fines. The SRA essentially has the power to shut down regulated bodies that are found to be in breach of the ban. Conclusion It is fundamentally important for regulated bodies to have a full and proper grasp of LASPO and its implications and to carry out appropriate risk assessments if they are to be involved in the referral of personal injury claims. It is clear that the ban is something that the SRA and no doubt the other regulators will be taking seriously. The SRA has deliberately avoided laying down strict definitions to enable them to consider all referral arrangements in the widest possible context. ABS solutions will be a viable option, provided that the ABS is constituted properly and does not enter into separate prohibited referral arrangements with other businesses in a group structure. Marketing schemes will not fall foul of the ban per se, however, the devil will lie in the detail and any marketing scheme that links fees to volumes or where the fee payable is not commensurate with the service provided will be in peril. The regulators appear committed to apply the spirit as opposed to the letter of the ban and this will leave a wide discretion to outlaw any loopholes that regulated bodies might seek to exploit. For further information or if you have any queries, please contact: Philip Dicken Strategic Partnerships Director NewLaw Solicitors Helmont House Churchill Way Cardiff CF10 2HE T: M: E:

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