The defendant costs specialists

CFA (Cherry Fee Agrement)

By on Jan 27, 2011 | 3 comments

We are now into the final frantic lobbying in relation to implementation of the Jackson Report (much good it will do claimant lawyers post-MGN Ltd v United Kingdom).

Here are some entirely random quotes from some claimant solicitors:

“Despite what is suggested in the [Ministry of Justice’s] consultation paper, solicitors do not cherry pick and only run winning cases.” – Malcolm Underhill, partner at IBB Solicitors, writing in Solicitors Journal – 14 December 2010

“We succeed in 98% of our accident claims.” – Claims For You solicitors’ website

“Mr firm only takes on cases on a CFA if they have a very good chance of winning. Some would call this ‘cherry picking’.” – Amanda Stevens, partner with Charles Russell, past president of APIL, speaking at CLT’s Annual Solicitors Costs Conference – 26 January 2010

    3 Comments

  1. With due respect, one of the purposes of the CPR reforms and the move away from Public Funding to place the onus and risk on Solicitors, was to cut down the number of frivilous cases brought at the public expense.

    Solicitors were encouraged to “weed out” the hopeless ones and only bring cases with genuine merit.

    Having successfully done so, Claimant Solicitors are now accused of “cherry picking” only cases that will win!

    Stop the rhetoric and convenient memory loss, please, before the Legal profession is irreprably damaged – oh no, thats been done already, hasnt it

    Anonymous

    28th January 2011

  2. All firms ‘cherry pick’ to some degree. Not many firms will take on hopeless cases and give them a whirl.

    But the impression given is that firms only pick near certain winners. It appears (from your quotes) that some firms do, but generally, in my experience, this is not the case.

    Realistically the Jackson reforms will reduce income on winners and hopefully reduce the pre-action protocol some. This will act as an incentive to, as I say, give claims a whirl rather than ‘cherry picking’ the cases with better merits.

    I suspect with one-way fee shifting insurers will be paying out similar fees as they do now but over a larger number of cases and will be incurring further costs in defending claims for no return.

    And obviously with the apparent shift towards BTE insurance becoming the primary method of funding the claim I am struggling to see how the proposed legal reforms are going to reduce costs for the ‘public’, because BTE cover will sky rocket.

    I think the proposed reforms are intentionally being kept from the general public audience, because seriously I think once people realise it’s not ‘evil solicitor’s fees getting reduced mwahaha’, but ‘Mr x you lose 10% of your damages for losing a leg, but you save £5 on your motor insurance’ there will be uproar.

    The only real saving to the public as a whole is the savings made in respect of clinical negligence claims (being the more risky and costly PI claims) brought against the NHS. Even then a huge amount of the solicitors costs ends up back in the government hands as tax.

    I know this is going off course now, but the real problem with the high value complex cases is that the courts have been way to lenient on rates for clinical negligence firms. I have seen numerous judgments (and i admit they involve complex/catastrophic clinical negligence at and NHS trust) where the claimant’s solicitor has been awarded enchanced rates (eg double guideline). There is a cut off point where rate claimed by a specialist firm is such that the saving in costs due to specialism is grossly consumed by the rate uplift and equally the higher overheads argument must hit a point where the higher overheads enter luxury territory. The combination of high rate claimed coupled with the allowance of such rates by the court is one of the causes of the perception of ‘greedy solicitors’. Double rate + 100% uplift that is hardly touched by the court on assessment = Insanity (and that is from a claimant costs draftsman). I personally agree that specialist firms deserve higher rates, but not like what are claimed in some case and what the court allows.

    Robert Pettitt

    28th January 2011

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