The reforms to CFA’s are “legitimate to try and deal with the problem of no win no fee agreements when it applies to so-called ‘ambulance chaser’ lawyers… those who are trying to get people to sue where they think there is a pot of gold” said Chris Bryant M.P. as he was interviewed on the Today programme on Wednesday. By contrast he said those whose privacy had been infringed (such as the Dowlers and Mr Jeffries - Joanna Yeates' libeled neighbour) would not be able to bring legal action at all as a result of the changes. Accordingly he said he was going to move an amendment to the Legal Aid, Sentencing and Punishment of Offenders Bill which was due to have its third reading in the House of Commons that afternoon.
The bill proposes to abolish the recoverability of success fees and ATE insurance from the losing party. An exception is to be made to allow for recoverability of ATE premiums to cover the cost of expert reports in clinical dispute claims. Success fees will be limited to 25% of the damages awarded (other than those for future care and loss). General damages are to be increased by 10% to provide a fund from which lawyers can take their CFA success fees. In personal injury claims (including clinical disputes) costs will be recoverable by a successful claimant but a successful defendant will not recover his costs (unless there has been bad behaviour). Contingency fees are to be allowed with costs recoverable from the losing party on the normal basis being set off against the claimant’s liability to his lawyers under the contingency agreement. Contingency agreements will also be capped at 25% of the award for non-pecuniary damages.
Mr Bryant could have criticised the fact that this Bill will prevent Defendants from recovering their costs in full from an unsuccessful Claimant (imagine being sued by a visitor to your land for personal injury, finding you do not have insurance, spending vast sums on defending the claim and not being able to recover your costs). He could have criticised the principle of lawyers helping themselves to a client's damages which scarcely seems just (despite the 10% enhancement) and is going to do little to endear the public to personal injury lawyers. Instead of such criticism he seemed to suggest that the reforms will make it difficult for people to sue whose privacy has been infringed. It is difficult to see why. Contrary to what he said on the Today Programme in the morning Chris Bryant said in the House of Commons in the afternoon that lawyers would take on cases like those of the Dowlers and Mr Jeffries because they were ‘open and shut’ but there was a risk to other cases. Presumably the risk in ‘other cases’ is because they are not so ‘open and shut’. This is frequently the case in personal injury cases too; it is the old conundrum that the more complicated and risky litigation is, the higher the stakes, and probably the costs, for everyone concerned. He also mentioned on the Today Programme that he himself had sued the News of the World under a CFA. One wonders whether he would still be making the same pointed remarks about personal injury lawyers if he had previously brought a claim on a CFA for damages for personal injury having, say, lost a leg in a road traffic accident. Perhaps victims of an infringement of privacy are not necessarily more meritorious than victims of significant injuries after all (those suffering from mesothelioma due to exposure to asbestos, those injured through industrial injuries etc.)?
The second reading of the Bill in the House of Lords will be on 21st November 2011. It will be interesting to see whether anyone seeks to run with Mr Bryant’s concerns or whether they will have been replaced by others.