Trade Unions have a long tradition of supporting personal injury claims
I started my legal career with Thompsons and also worked for Russell Jones & Walker. They are just two firms which receive many cases through referral from Trade Unions. Claimants are represented under Collective Conditional Fee Agreements (CCFA). If the claim is successful the claimant can recover from the defendant a sum which is payable to the Union – in lieu of a premium in a CFA case. If unsuccessful the Union will pay the defendant’s costs on behalf of their member. As union solicitors win/settle the vast majority of their cases this is in fact a source of revenue for the Union.
I wonder then what they make of the proposals in the recent report by Lord Jackson on qualified one-way costs shifting? The idea is that the traditional rule of paying the defendant’s costs if you lose be abolished and replaced with this proposal quoted from page 189 of the report:
4.7 Proposed rule. I therefore propose that all claimants in personal injury cases, whether or not legally aided, be given a broadly similar degree of protection against adverse costs. In order to achieve this result I propose that a provision along the following lines be added to the CPR:
“Costs ordered against the claimant in any claim for personal injuries or clinical negligence shall not exceed the amount (if any) which is a reasonable one for him to pay having regard to all the circumstances including:
(a) the financial resources of all the parties to the proceedings, and
(b) their conduct in connection with the dispute to which the proceedings
relate.”
If this proposal is adopted, there will have to be consequential provisions of the kind that currently exist to enable section 11(1) of the 1999 Act to be operated. The details of these consequential provisions will be a matter for the Civil Procedure Rule Committee.
4.8 I do not think it should be necessary in most cases to require a detailed enforcement procedure to determine liability under this provision. In the great majority of cases it should be determined at the conclusion of the case whether an order should be made and, if so, the amount should be determined summarily. Furthermore the making of a costs order will be the exception, rather than the rule. Nevertheless, the formula suggested above will enable the court to make a costs order in three specific situations where such an order would be appropriate: (a) where the claimant has behaved unreasonably (e.g. bringing a frivolous or fraudulent claim); (b) where the defendant is neither insured nor a large organisation which is self- insured; or (c) where the claimant is conspicuously wealthy.
It is too early to say what this will all mean in practice. Does it mean that a Trade Union backed claimant may be interpreted by the courts as being “conspicuously wealthy”. The consequence would be the Union would be ordered to pay defendant’s costs in unsuccessful cases. On the other hand the proposal to abolish the recoverability of premiums would mean there is no financial benefit to the Union in successful claims.
Why would a Union face this risk for no reward when the client acting as an individual would not be ordered to pay the defendant’s costs if they lost?
I would be very interested to hear your views on this – please post a comment.
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