Since Spring, there’s been a change to the way fees are calculated in civil court cases. Any claims brought in excess of £10,000 are subject to issue fees of 5% of the claim amount. This amount can in itself rise to £10,000, at which point it’s capped regardless of the size of claim thereafter.
The Law Society sees the increase in fees, imposed by the government on March 15th, as a barrier to justice for many. Not just for law firms. Many civilians with bona fide claims could see their case rejected because of how much capital a law firm already has tied up in its ongoing cases.
Legal Aid Truncation + Increased Fees = Less Access for All
Two years ago, changes to Legal Aid meant that access to representation for those who’d suffered at the hands of medicine became limited. The new changes may add further barriers to justice, as the increased issue fees put more duress on law firms’ finances.
Large clinical cases may now mean law firms having to lay out up to £10,000 to bring them to court. As medical claims can stretch back years and take an age to get through court, many fall into this high-value bracket.
If negligence is in doubt, or the defendant denies blame in order to test a claimant’s mettle (or pockets), law firms may be put off from taking cases on.
Even if they did take all cases on without question, there’s still a problem. Because of the new rules, lawyers could see swathes of capital tied up in existing court cases for indefinite periods. This will affect their cash flow and willingness to take on certain cases.
For smaller firms, the new legislation could take them beyond their business model. Possessing only the capacity to fund smaller claims, they may decide the claim business is simply not worth the hassle.
Funding your own claim just got harder, too
It’s not all about the injustice to solicitors. Under the previous rules, a percentage of claimants were able to fund their own fees.
As an example, a fee of 5% for a £200,000 claim is the maximum £10,000 cap. Before March of this year, associated fees for that size claim would have been a little over £1,500.
If a firm was unwilling to pay the fees for whatever reason, but the claimant could fund their case, £1,500 was not such a stretch. But to expect a member of the public to find £10,000 against this economy?
Perhaps only 5% of the populace could lay their hands on that type of cash to fight for justice without suffering financially if the result didn’t go their way. If ATE insurance was unattainable, that’s 95% of the UK left unable to fund a large medical negligence case if their criteria didn’t overcome the stringent Legal Aid hurdles.
If you fire enough shots, you’re bound to hit your target
Perhaps the move by the government, which applies to the whole legal section, is intended to make law firms think twice about the cases take on. Maybe it is intended to clamp down on the spurious soft tissue and whiplash accident claims.
But is strafing the field and destroying the crop just because there’s a weevil in there somewhere the right way to go? The government must acknowledge that the higher fees rule is barring access to justice for those who deserve it and must seek to correct it.
Is it worth jeopardising the lives of people who’ve already suffered at the hands of people who were supposed to make them well just to catch out charlatans who’d otherwise think twice about making a claim?
The concept of insurers defending injury claims using social media evidence is not new. After all, the online public domain is like any other recorded medium for
stalking monitoring, well, the public. It’s getting social ‘evidence’ to stick that’s always been the sticking point.
The lines blur between what’s considered private and public, thus what’s admissible as evidence. Also, questions arise about what we share via our public profile(s).
Do our facebook status updates reflect what’s going on in our offline life? Or is what we share a sham, keeping up a misguided pretence for those we would impress?
Vanity is becoming a nuisance, I can see why women give it up…
It could well be that our vanity is our own undoing. Not only in court, but IRL, too.
For instance, when we share that shot from the racecourse when we were supposedly ‘ill’. To our friends and family, even some tolerant bosses, these instances are mere faux pas. Yes, you looked so ill as you collected on that 33/1 outsider that came in for you at Cheltenham. Mm, or not.
But what about when a judge or jury has to preside over such evidence? Should they take what they see literally? If someone’s smiling in a recent shot, then all must be good in their world, right?
The Camera Never Lies – or does it?
In the past, social media evidence hasn’t held much sway with judges. First, council has to prove potential relevance to a judge before they’ll order its use if it’s not in the public domain. Then the court has to prove that the content extracted is a true reflection of the plaintiff/defendant’s lifestyle for the qualifying period.
In countless cases, judges have dismissed the use of social media. Yes, individual shots may be posted to ‘[keep] up appearances’. But like the age old swan, the grace on the surface may not reflect any submerged turmoil.
In Canada, there has been a development, though. And it will serve as a warning for anyone making a claim who continues to use social, in this case facebook, whilst they’re ‘suffering’.
The case of Sarah Tombasso: consistently inconsistent
Sarah Tambosso purported herself as a once happy-go-lucky individual. In 2008, she was involved in the first of two car accidents that she used to build up her case for damages. The undisclosed amount was said to be in the region of ‘hundreds of thousands of dollars’.
Her second car accident, in 2010, only served to aggravate the conditions from her previous collision. The conditions cited were PTSD and depression.
The result, according to her council, was that she’d turned into a ‘homebody’. Gone was the social butterfly she once was, the internet now the only engagement she had with friends. Moreover, she related to her psychiatrist that,
“I’m not a happy person. My life sucks.”
Not what the doctor ordered
The evidence gathered, however, portrayed a different lifestyle. As well as almost 200 pages from Tambosso’s facebook account, video surveillance was also submitted to the court to disprove her claim.
The defence gathered all manner of social activity as evidence. Partying, days out with friends, having a pop at karaoke; her facebook page was a trail of contradiction.
And that’s how the judge eventually ruled. There was so little consistency with the conditions she claimed the car accidents had instigated that the judge only awarded $36,000.
The case has gone to appeal. But as social becomes an ever greater part of our lives, we must consider the image our public self portrays. The cost of not doing so, as Tombasso discovered, could be very high.
A new initiative is being launched in South Wales to help to the elderly protect themselves against scam phone calls. The rise in the number of PPI claims has made auto-generated calls commonplace. But with firms exercising similar tactics in the accident claims market, the calls have become more than just a nuisance. So, specialist in care, Home Instead are trying to do something about it.
Many of the calls claims firms make are genuine. Acting upon information received, they are providing a public service. Letting victims know that they may be entitled to compensation can ease their suffering.
But there are firms who take this ‘tactic’ to the extreme. They buy databases that include the contact details of likely candidates, but have no real sense of duty in mind.
Nor do they possess any real sense of any injury or accident that could instigate a claim. They plug all the database info into a software program and let auto-dial do the rest.
Non-personalisation is becoming more than a nuisance
If it was simply a case of putting the phone down on the auto-generated message, we could live with it. But Home Instead, a national chain of homes for the elderly, have seen first hand where claims firms are going beyond ‘inconvenience’.
Some of the calls are placed by fraudsters with only one intention in mind: to get people to part with their debit or credit card numbers.
Many of us who’ve been brought up in the connected age know never to give this information out. Even banks and building societies forward messages saying that they’ll never ask for this info over the phone.
But some elderly victims are proving to be less acute at spotting bogus PPI and accident claims. They’re more trusting than millennials, making them prime prey for unscrupulous crooks.
The message is: never give your card details out unless you are 100% certain of the caller’s origin. If you’re in and around Swansea today, you’ll find the next Home Instead course at Reynoldston Village Hall between 2-3pm this afternoon.
What chance when the elderly are victims in their own home?
It’s not just over the phone that the elderly need to take precautions. In Sunderland last week, a care worker was found guilty of robbing a pensioner of almost £2,000.
Kate Watson was responsible for the ongoing care of a 74-year pensioner. And what she is guilty of just underlines how naive the elderly can be.
Kate would take the pensioner’s debit card and withdraw cash from the victim’s account for her own personal. It wasn’t as if the pensioner had placed her carer in a position of trust and asked Kate to withdraw money on their behalf.
The defendant told the court that the pensioner had left the PIN number ‘just lying around’. Finding the card, then matching the two had represented no barrier to the thief.
All told, Watson stole £1,911 from the elderly victim, and was ordered to repay the money. But at a repayment rate of only £40/month (and interest free), in this instance crime does seem to have paid.
One of the most elaborate ‘crash for cash’ scams uncovered by insurers has been derailed this week. In total, claims could have risen to £1.3M had all been paid out.
But Chester CID apprehended John Christopher Smith, MD of Swift Accident Solutions, before all of the 218 referrals received compensation.
Smith, of North Wales, is now beginning a six-and-a-half year jail sentence as the orchestrator of the scam. In all, Judge Andrew Blake convicted another 13 people for their part.
First Direct suspicious of similarity
First Direct first noticed a pattern when investigating a series of incidents involving First Group buses in and around Chester. The similarity was striking, and it was this similarity that drew suspicion.
In all, there were seven staged ‘crashes’. Drivers of vans or cars would wait for a scheduled bus to pull out then gently bump into it. The incidents happened at low speed and the driver of the van or car would admit liability.
How did that work, then? The ingenious part of the scam was that people on the bus itself were in on it. As soon as the collision took place, they would feign their injuries.
Whiplash and soft-tissue injury cited as the cause of injury
Soft tissue and whiplash injuries were the modus operandi. These were the obvious choice as such injuries are difficult to prove.
These scammers informed their GPs that they’d been in a collision and they’d then issue a sick note. The fakers would then take along their doctor’s note with the claim, Smith would refer them and collect the referral fee.
On average, Smith was pocketing around £900 per no-win, no-fee referral. 177 cases in all are adjudged to have been processed in this manner.
During the period that he was running the scam, a little over a year, it’s estimated he grossed £159,000. He was jailed on fraud and conspiracy charges that could have risen to over £1M if they’d gone unchecked.
Rachel Cooper, the last member of the gang to be tried for the scam, escaped a custodial sentence. The 32-year old from Great Sutton escaped with an 18-month suspended sentence.
She did, however, receive an order to undertake 250 hours unpaid work as a repayment of her debt to society.
£600,000 fraud case brought by Direct Line
Elsewhere, Max Clifford is once again in the media for all the wrong reasons. This time, however, it’s not the publicity guru in the dock.
Clifford was filmed in a coffee shop with Kevin Morgan, a former manager from Weybridge, who was himself under surveillance.
Morgan was in a ‘low impact’ accident in 2005. But the injuries he sustained have deteriorated to the extent that he can no longer live a normal life. Both psychiatrist and the original doctor’s statements seem to support Mr Morgan’s defence.
Direct Line, however, still became suspicious. Between 2009-2012, the insurers placed Morgan under surveillance.
On ten of those occasions, he was seen to leave the house. Any signs of the reported spasms in his neck didn’t materialise. Moreover, the prosecution commented that his demeanour in court was completely different to that on film.
Mr Morgan said that he has both good and bad days. It was on one of the good days that he was filmed in the coffee shop with Mr Clifford.
Whole livelihood on the line
Direct Line have now taken Morgan to court to try to claim £600,000 fraud, suggesting that the injuries the victim sustained have been exaggerated.
His defence is arguing that the evidence supports the ex-manager’s claim. Morgan can now only live a ‘retired lifestyle’, a far cry from the handyman he was before the accident occurred.
The limitations are such that Mr Morgan now exists within a 1,350ft radius from around his once ‘immaculate’ home. The meeting in the coffee shop falls within that territory.
Mr Morgan has also spoken out against Direct Line’s heavy-handed approach. He likened his treatment to being ‘on a murder charge’.
Despite the fact that he could lose his home if he’s found guilty of fraud, Morgan insists that he wants this opportunity to clear his name.