Getting away with murder

Last week I had the pleasure of having lunch with barrister Henrietta Hill. We were at university together more years ago than would be polite to disclose. I’ll admit to being slightly jealous that she has managed to achieve far more than I have in fighting injustice, but then I didn’t have the aptitude or dedication to become a top lawyer and have been muddling along ever since.

All the same, a few of you do read this blog, so I thought I might use it to highlight a particular concern of Hill's, and other lawyers in the Police Action Lawyers Group, with the legal aid, sentencing and punishment of offenders bill (LASPO):  qualified one-way costs-shifting (QOCS).

You can see why I haven’t mentioned this particular aspect on here before…but before your eyes glaze over, let me explain.  The reforms to no win-no fee agreements in LASPO would mean that in future a losing claimant in a personal injury case would have to pay the other side’s cost.  QOCS protects them from this eventuality, providing the claimant has not acted unreasonably (whatever this means) or is particularly wealthy (whatever that means).

The problem is that the government only proposes to include personal injury cases in the QOCS scheme.  If it doesn’t extend this to cover all civil liberties cases, whether or not they include a personal injury claim, there will be a serious impact on access to justice.

Without QOCS, anyone wanting to bring such a claim would have to take out insurance to cover themselves against the cost of losing.  Before LASPO, they would have been able to recover any premium they paid out for this insurance from the other side.  But, and you’ve guessed it, after LASPO they won’t be able to.

In case you’re thinking ‘big deal’, we are not talking home and contents insurance here, or even the ridiculous £500 plus I have to pay out for my car insurance.  Many ATE premiums start in the region of £3,000 to £5,000 and increase as litigation continues until they reach the region of £30,000 to £40,000 for a case that succeeds at trial.  I don’t know about you, but that isn’t the sort of amount I have sitting around in a bank account, offshore or otherwise.

Even if a claimant wins their case, they’d have to pay this premium out of the damages awarded to them.  This hardly seems fair, but becomes impossible if the damages you are awarded are dwarfed by the premium.  In this scenario, even if you win your case, you end up out of pocket; in fact, significantly worse off than you were to start with.

For example, claims for false imprisonment and malicious prosecution typically attract damages of £10,000 to £20,000 for a detention of up to 12 hours and a prosecution lasting six months (so if this happens to you, it might be worth trying to persuade the police to keep you in a bit longer).  And if you die in custody, are unmarried and unemployed, a claim for a breach of the right to life is valued at between £10,000 and £15,000.

Not extending QOCS to include these sorts of cases will lead to other perverse results:  someone who suffers a personal injury during the course of an unlawful arrest may benefit from QOCS, but someone who doesn’t will be excluded from the civil justice system.  It would be irresponsible of me to suggest you should carry a very sharp pencil in case you need to stab yourself in the eye accidentally during any such arrest, but you may want to bear it in mind.

Whatever you think of them, claimant lawyers have a right to make a living just as much as the next person and can’t be expected to do stuff for free all the time just because it’s the right thing to do.  There are only so many times they are going to be able to take on a case at the risk of recovering no fees, so naturally they are going to spend most of their time on the cases most likely to win.  It goes without saying that these aren’t always the most important ones.

While the demise of legal aid hasn’t had a great deal of coverage in the mainstream press, this particular aspect of the LASPO reforms seems to have been totally neglected.  I did find one exception, this excellent piece in the Guardian highlighting two cases in which the Crown Prosecution Service, the Met and the Home Office had to pay compensation to children, cases that could not have been brought if LASPO was passed into law in its current form.

But why the general silence?  Are we so naïve and trusting as to think that organs of the state will always act responsibly and always exert a benign influence?  I doubt it, although many do still seem to hold the view that if you have nothing to hide you have nothing to worry about.

Are we all so taken in by the government’s stated aim of ending the ‘compensation culture’ and clamping down on those we think get something for nothing that we can’t see the wood for the trees?  I doubt that too, although the preponderance of stories about outrageous claims and benefit cheats in the tabloids might make you think otherwise.

No, rather the government is using the economic situation as a convenient backdrop and employing diversion tactics to take our attention away from its persistent attack on the justice system.  Getting us all hot under the collar about the personal injury ‘racket’ means we don’t necessarily notice what else is going on.

But make no mistake, LASPO won’t just make it harder to bring a claim for whiplash (which the government says doesn’t exist) or for unfair dismissal; and it won’t just prevent the most vulnerable from getting the legal advice they need or from challenging a benefit decision; it might, literally in some cases, let the state get away with murder.