High Court limitation ruling underlines value of "no win, no fee" CFAs

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High Court limitation ruling underlines value of "no win, no fee" CFAs

20th December 2012

The essential value of “no win, no fee” Conditional Fee Agreements (CFA) in ensuring personal injury claimants have access to justice has been reiterated in a High Court ruling handed down on Monday (17 December 2012).

In the case of Mira Bateman v W H Brakspear & Sons, relating to a personal injury sustained by the landlady of a public house following what she claims was negligence on the part of the pub company, Deputy Judge Mr Andrew Edis QC allowed the claim to proceed despite the fact that the injured woman had not issued proceedings within the statutory time limit.

Moreover in his ruling, the Judge surmised that the case served to highlight the benefits of the victim being able to bring her claim under a CFA in its current form.

“In the current state of the legal system, it is difficult for a litigant to obtain representation for litigation unless the merits of the claim are sufficiently obvious to encourage a solicitor to take the case under a Conditional Fee Agreement,” he said.

“At the stage when the solicitor must either accept or decline instructions the prospects are uncertain.  Although the success fees on the successful cases (usually 100% of the base costs) were intended to compensate solicitors and counsel for cases which they accept but which fail, it is obvious that the business will prosper more abundantly if it only accepts cases which succeed and collects its success fees and costs on all its cases.

“There is nothing wrong with a solicitor running the business in this way,” he said. “It is obvious that this is how it will be done. This case shows that a litigant whose case has a question mark over it, but which has prospects of success nonetheless, may be unable to retain solicitors to bring it for her.”

Vijay Mehan, a partner with Fentons Solicitors LLP who is representing the client in this case, welcomed the Judge’s comments.

“This particular ruling was an excellent result for claimants,” said Mr Mehan. “Stoicism such as that shown by my client should be applauded, not maligned, and this is something echoed by the Judge.

“Furthermore, in his judgment he went on to address the issue of restitution and access to justice,” said Mr Mehan. “His comments seem to underline that because solicitors - like any other professional service – are operating a business, then it is possible that cases that are worthy of fighting might not ever see the inside of a court because there may be too much of a risk under the new CFA rules as part of the Legal Aid, Sentencing and Punishment of Offenders Act, which comes into force in April 2013.”

In ruling that the injured woman’s claim could proceed, the Judge commented that the delay in her issuing proceedings was in part caused by her inability to secure legal representation, even with the current CFA rules. He said that: “…given her inability to find a solicitor willing to act for her on a CFA, despite her considerable efforts to do so, and given the fact that her condition did worsen considerably in the summer of 2010, I consider that her behaviour during this period was ‘reasonable’.

“Many of the older cases under section 33 (of the Limitation Act 1980) relate to a period when Legal Aid was readily available for cases which passed a merits test which was, in reality, less strict than that which the evidence in this case shows is being applied by Claimant solicitors in circumstances such as this,” said the judge.

“In the modern era it appears to me that courts should be aware of the difficulties faced by Claimants who cannot fund their actions themselves. If they issue proceedings themselves without After The Event insurance they render themselves liable if the claim fails to a substantial bill of costs. Without access to legal advice, costs protection, and the litigation management which are provided by solicitors, it is unsurprising that a self-representing party may take longer to act once they know that the act or omission of the defendant to which the injury was attributable might be capable at that time of giving rise to an action for damages.”

After the judgment was handed down on Monday, Mr Mehan welcomed the Judge’s comments.

“I think this is a wonderful judgment,” said Mr Mehan. “It highlights just how difficult my client found securing representation, even with the current CFA rules still applying.

“Before she came to see me, my client had been told by a number of solicitors that her case was simply not worth pursuing,” said Mr Mehan. “They had all taken one look at the incident date and concluded that there was nothing they could do to help her. They decided that as they didn’t think they could win, they would not be prepared to take the risk of helping her make a claim.

“But we – and now the Judge – disagreed, once again raising the prospect of this victim finally being able to pursue her personal injury claim.”

How can Fentons Solicitors help?
Fentons Solicitors is experienced in handling claims relating to all types of personal injury. If you think that you have a case or require further information contact Fentons on 0800 0191 297 or fill in the online claims questionnaire.