Lawyers disappointed by Young report
Personal injury lawyers have given a mixed response to Lord Young's report on the operation of health and safety laws.
Personal injury lawyers have given a mixed response to Lord Young's report on the operation of health and safety laws.
The report, commissioned by prime minister David Cameron in June, was published last Friday (15 October) and has left lawyers disappointed that much of the recommendations require further research or fail to tackle questionable assumptions about the so-called compensation culture.
'Health and safety has been allowed to become a joke in the media and among the public,' said Lord Young in Common Sense, Common Safety, adding his recommendations would be an important step towards 'restoring civil liberties, shredding red tape and making sure that health and safety rules are properly applied and respected.'
The Conservative peer's recommendations endorse those made in the Jackson report in relation to 'no win, no fee' agreements and before-the-event insurance, but also make specific suggestions for changes to the law.
These include the extension of the simplified procedure for low-value road traffic accident claims to other personal injury work, possibly even low-value medical negligence, raising the upper limit for fast-track RTA claims from £10,000 to £25,000, and restrictions on advertising for claims management companies.
But personal injury lawyers are concerned that Margaret Thatcher's former Cabinet minister also appears to accept that compensation culture is a matter of perception rather than law, but goes on to suggest structural changes to the legal framework instead of addressing the perception issue.
'It is slightly confusing,' said Des Collins, senior partner at Collins Solicitors. 'When Lord Young refers to compensation culture he seems to agree that it is more a question of perception. What worries me on initial review of report is that if the issue is truly one of perception you shouldn't need to destroy the machine that gives access to justice.'
What creates this perception, according to Collins, are the claims management companies whose advertising you can see on television, and that this is where the effort should focus.
The recommendations on claims management and marketing are a step in the right direction, Collins continues, but the overall impression is that Young is nonetheless proposing to interfere with access to justice.
Ian Shovlin, managing partner at Higgs and Sons, also believes that advertising by claims management companies has fuelled the compensation culture myth and he has welcomed the recommendations to curb the practice. 'Advertising by claims management companies detracts from the provision of services by lawyers,' he said.
In an ideal world Shovlin would also ban referral fees but he fears that a total ban would push the practice underground. A cap on referral fees would ensure a level playing field, but, to Shovlin's regret, Lord Young doesn't come to any conclusion on this. 'The review had a wide remit and there is a question whether Lord Young had enough time to consider the issues,' he said.
Of more immediate concern are the proposals to bring more personal injury claims within the RTA fast-track process.
'The extension in many cases would be a sensible development, but there should always be a means of addressing exceptions to the rule, particularly because some claims '“ low-value medical negligence claims, for instance '“ can be complicated to pursue and medical reports costly,' said Des Collins.
Ian Shovlin also accepts that a simplification of RTA procedure is inevitable but he too is concerned for claimants in clinical negligence and employer liability cases. In this regard, he said, Lord Young left 'more questions unanswered than answered'.
Peter Todd, partner at Hodge Jones and Allen, is even more despondent. 'Lord Young proposes the adoption of the RTA portal for all personal injury claims despite the fact there is no analysis of how the portal is working '’ it has real problems '’ as it is very early days yet.
Todd is also unconvinced by the endorsement of the Jackson report. 'Lord Young proposes the full implementation of the Jackson report despite that report having been materially discredited, among other, as to referral fees.'
Then there is the problem of fixed fees for personal injury claims, which Todd said incentivises bad insurer behaviour where the present system prevents it.
Embodying the claimant lawyer community's concerns, Muiris Lyons, partner at Stewart Law and APIL president, said: 'Lord Young has missed a critical opportunity to take action to dispel the compensation culture myth.'