In a letter to The Herald newspaper, dated 02 February 2015, the Association of Personal Injury Lawyers’ Scotland Co-ordinator, Ronnie Conway, has questioned the Law Society of Scotland’s proposal that Personal Injury claims should be removed from the ambit of civil legal aid.
The Association (“APIL”) is a not-for-profit organisation which campaigns to uphold and improve the rights of accident victims in relation to access to justice and fair compensation.
The Law Society’s Discussion Paper is available to view online (the download at the link begins immediately as a pdf document).
Personal injury is one of several areas of law which could cease to have legal aid support if the proposals are implemented.
Why the proposals go too far
It is reasonable to examine the present civil legal aid system with a view to improving efficiency, but there is no evidence of any worthwhile financial saving which would be generated by withdrawing legal aid from personal injury cases.
Most people who qualify for legal aid to seek compensation for personal injury, at present, have valid claims, which succeed in recovering damages.
In those cases, while the Scottish Legal Aid Board (SLAB) incurs administration costs in relation to each matter, they don’t end up paying the solicitor’s costs. Instead, the fees are paid by the opponent’s insurers and there is no claim on the legal aid fund.
This means that such cases are, in fact, very good value for the public purse.
Like APIL, we are sceptical that removing personal injury cases from legal aid coverage will produce much in the way of savings.
On the other hand, it will hinder many people with perfectly good claims – folk among the most vulnerable in society – in getting access to justice.
Scottish Government figures covering the period 2002 – 2008 indicate that “relative poverty” levels in Moray are slightly above the national average, which means that the proportion of Moravians who qualify financially for civil legal aid is probably above average too.
But what about “no win – no fee” for personal injury?
Solicitors and claims handlers willing to handle personal injury cases on a speculative or no win-no fee basis are not in short supply.
Many of the big names in the field have abandoned legal aid already and only offer the no win-no fee option.
Most no win-no fee arrangements are on the basis that, if your claim is successful, you will lose some of your compensation (typically, up to 20%) to contribute towards your legal costs.
This is in contrast to legal aid.
Under legal aid, your solicitor is not allowed to charge “extra”. The solicitor’s only choice, in personal injury cases, is between charging a legal aid account, at legal aid rates, or accepting the fees recoverable from the opponent’s insurer.
In practice, in successful cases, the solicitor invariably accepts the fees from the insurer as payment.
These fees are under the Scottish Voluntary Pre-Action Protocol (in cases settled before court action) or judicial expenses (on the appropriate court scale, where the claim comes to a successful conclusion following the raising of court action).
Summary of legal aid –v- no win-no fee
If you can run your personal injury claim under legal aid and you win, your solicitor will be paid by the insurers and you will receive all of your compensation, without deduction.
If your solicitor handles the claim no win-no fee and it succeeds, your solicitor will be paid by the insurers, plus a bit extra from you out of your compensation. So, you do not receive all of your compensation.
In our view, from the injured person’s perspective, this is a powerful reason why removing personal injury claims from Scottish legal aid is a bad idea.
How we can help
We try to run all our personal injury claim cases in a way which means you don’t have to pay anything for our services.
That is always how it works, if you lose. If you win, it’s usually the case.
As described above, if it’s legal aid and you win, you will get all your compensation, without deduction, because those are the legal aid rules.
Even under no win-no fee, however, we manage in most successful cases to avoid charging our clients for our services and any charge is well below the 20% “standard rate”.
All initial enquiries are handled by us without charge – and that’s usually how things continue throughout the life of any personal injury claim we take on, anyway.
Peter Brash and Marie Morrison of Grigor & Young / Moray Claims are members of APIL, accredited by APIL as Senior Litigators, and the Elgin branch of Grigor & Young has corporate accreditation from APIL.