Adversarial System
Our civil justice system in England and Wales operates under the Adversarial System. This means that in each and every case there are two contestants, a Claimant and a Defendant or perhaps in footballing parlance an Attacker and a Defender.
The Claimant brings the case before the Court and bears the burden of proving it on a “balance of probabilities”. He or she merely has to persuade the Court that the claim as presented to the Court is on a “balance of probabilities” the correct one. The civil standard of proof is not high. The standard of proof in a criminal case is of course much higher being “beyond a reasonable doubt”.
The Judge who decides the case merely makes a decision on the day on the evidence presented in court. A Judge does not carry out his own enquiries or ask for the parties to make up any deficiencies in the evidence they present to the Court, he or she simply makes a decision on the basis of the case presented. Accordingly the impression the parties make in Court on the day is vitally important to success or failure. Whilst a Judge may ask questions of the parties he doesn’t attempt to carry out an enquiry of his own as is done in other countries in Europe and which is known as the inquisitorial system.
To summarise, in every case there is going to be a winner and a loser. This has serious consequences because “costs follow the event”, that is to say, whoever wins the case i.e. successfully claims or successfully defends, will be entitled to their “costs” this will include the costs of the trial and all the costs of preparation so long as they were reasonably incurred. The implications for the unsuccessful party can be ruinous.
Funding a Claim
20 years ago funding a civil claim for compensation meant one of two things. A party contemplating a claim would either have to fund the claim with his or her own money and that included making a payment “up-front” to his or her Solicitor to get the case going, alternatively an application for a Legal Aid Certificate which meant effectively that the claim would be funded by the tax payer. Legal Aid was only granted in limited cases where people had limited income and capital of their own and where their case enjoyed a reasonably prospect of success. In my experience most middle income families did not qualify for a Legal Aid Certificate. Faced effectively with giving their Solicitor an open cheque to bring a case most people did not bother to bring a claim. It was considered to be too risky in financial terms.
Access to Justice
Nowadays everybody has heard of the expression “No Win-No Fee”. By this method Solicitors would take on cases for Clients which had a reasonable prospect of success and on successful conclusion of the case would be entitled to be paid their fees, vat and anything paid out on behalf of their clients (disbursements). In addition to a basic fee charged a Solicitor would be entitled to a Success Fee being a percentage of the basic costs of the case. Initially this success fee was paid by the Client to his or her Solicitor. We have moved on from that position to a position where Clients do not pay the Success Fee themselves. It is recoverable from the other party involved in the litigation. We have moved to a position where the arrangement really is “no fee in any event” provided Clients can persuade the Solicitor that their case enjoys a reasonable prospect of success they can litigate without fear of any expense provided they do not act in a fraudulent manner.
At the moment, access to justice for an injured person seeking to bring a claim for compensation is guaranteed which is a considerable improvement on the position previously.
Compensation Culture
We hear this expression frequently in the media. What does it mean? I suspect it means different things to different people. However, it seems to me that it is used by people who allege that injured people are now more inclined to make claims for compensation that hitherto injury and financial loss. It is also used to imply that some claims are trivial and/or dishonest! The phrase is used by the Insurance industry and Politicians to discourage those who bring claims. They do not seem to differentiate between legitimate and illegitimate claims. It is used as an emotive phrase for those interested parties, such an Insurance Companies, who wish to avoid claims being made wherever possible.
Compensation culture is also alleged against Solicitors operative user friendly funding systems for clients. Insurers and Politicians claim that Solicitors are encouraging claims. If informing people with legitimate claims that they have the right to compensation is reprehensible then I am happy to plead guilty to that charge!
The bottom line is that Insurance Companies do not like paying up! Our day to day experience of pursuing claims on behalf of Clients makes this perfectly clear. For reasons best known to themselves the Government is very protective of the Insurance industry and is about to enact legislation to reduce Lawyers’ fees. This is scheduled to occur in April 2013.
Undoubtedly Insurers would like to turn the clock back when Claimants had to fund their own claims through their own means or through Legal Aid. Back to a time when the access to Justice was certainly very limited indeed.
The point is that those with legitimate claims must continue to have access to the Courts to pursue claims for compensation for personal injury and financial loss.
