Modern Law Magazine - Issue 9 Supplement - PI by Charlton Grant

â&#x20AC;&#x153;I can see what the government are trying to achieve but I also predict these extensions to reform will create a level of unfairness and will move us even further away from the main benefit of legal costs in the UK marketâ&#x20AC;? Jeff Winn, Winn Solicitors

Personal Injury: A world of change Modern Law speaks to a range of Personal Injury experts; from claimant to defendant lawyers, medical experts and associations, about their perspective on change, hopes for the future the impact of change on the consumer.

E C L I P S E

PI Supplement 2013

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Contents

The Editor’s Overview... T

he last 12 months have seen the Personal Injury Sector face some of the biggest challenges and changes in the history of legal services in the UK. For better or worse, these changes are here to stay and with further reform anticipated into 2014 and beyond – a notion compounded by our exclusive headline interview in Modern Law Magazine with Shailesh Vara MP who said ‘I must make clear that we have not ruled out further reform’, we have put together this supplement to act as your ‘one stop, update shop’. Modern Law has gathered together a selection of industry leaders, from associations (our interviews with MASS and APIL on pages 8-10 and 15-17 respectively) to those excelling in spite of the difficult times, as Karen Jackson explains on

P26-27 and much more. This supplement is designed to act as a whole encompassing industry update, so that you can read about shared experiences, tips from peers and gain a greater understanding of the whole industry perspective post-reform. I would like to thank all our contributors to this third supplement produced alongside Modern Law Magazine, in particular those who have taken time out of an increasingly busy schedule to share their experiences for the benefit of our readers. Charlotte Parkinson, Group Editor, Modern Law If you have a story you would like to share with us, whether you are a Personal Injury firm, a regulator or simply want to keep up to date with further change, get in contact! Please do get in touch with the Group Editor via e-mail: charlotte.parkinson@charltongrant.co.uk or through our website www.modernlawmagazine.com

Contents Interviews

The FEATURES

05 Interview with... Jeff Winn

21 Medical Evidence under the Microscope

Charlotte Parkinson speaks to the legal entrepreneur and founder of Winn Solicitors, which recently took on external investment, about his plans for further expansion, his views on the changing face of the consumer and how proposed further governmental reform could be potentially damaging to the central ethos of legal services.

08 Interview with... Craig Budsworth

The 2013 Motor Accident Solicitors Society (MASS) conference was held recently in London, Charlotte Parkinson, Modern Law, caught up with the Chair, Craig Budsworth, on the changing role of the society, anticipated further reform and his reaction to the Ministry of Justice’s (MoJ) decision to defer raising the small claims limit.

11 Interview with... Simon Baskind

Charlotte Parkinson, Modern Law, spoke to Simon Baskind, Managing Partner at Cohen Cramer about his perspective on reform for niche practices, whether the ABS era has really shaken the market as much as people think and the burning question on everybody’s lips, fraud, as he asks who is really at fault.

15 Interview with... Matthew Stockwell

Matthew Stockwell, the current President of the Association of Personal Injury Lawyers (APIL), talks to Charlotte Parkinson, about

government transparency and his perspective on Insurers.

Over the last 20 years medical evidence for musculoskeletal injuries has seen wholesale changes and with anticipated further reform to medical reporting expected next year, this change is only set to increase, as Bippon Vinayak explains.

22 A proven track record

Eclipse Legal Systems outline four different scenarios in which using Proclaim Case Management Software has produced excellent returns for its users.

24 The Defendant’s View

Don Clarke shares his views on the changes to Defendant law firms since the civil justice reforms have been implemented and asks if the new face of Personal Injury really is as ugly as it seems.

25 The Market from a CMC Perspective

Unprecedented Change! Blood on the streets! End of an Industry! Alan Nesbit, ARC, explores whether there is any truth in recent headlines.

26 Profit through hard times

Karen Jackson outlines the reasons for Roberts Jackson’s success despite the difficult times many have faced in recent months.

28 The Devil is in the Detail

A Costs Budgeting Warning: Incorrect preparation and presentation of budgets can prove costly to Claimant Solicitors in the post-April era, as Darren Naisbitt explains.

29 Have wig, will tremble?

The effect of legislative change has impacted on every aspect of the legal sector, in particular, the Personal Injury Sector. Theo Huckle QC explores the Barristers perspective post-reform and the perception of the Bar in the wider legal arena.

Modern Law Magazine Project Director Kate McKittrick | Editor Charlotte Parkinson Contact t: 01765 600909 e: kate@charltongrant.co.uk

ML // Personal Injury Supplement 2013

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Jeff Winn Interview

Interview with... Jeff Winn Charlotte Parkinson speaks to the legal entrepreneur and founder of Winn Solicitors, which recently took on external investment, about his plans for further expansion, his views on the changing face of the consumer and how proposed further governmental reform could be potentially damaging to the central ethos of legal services.

Q A

How do you intend to disrupt the market following accepting external investment from JZ International (JZI) and Souter Investments? Why did you choose to take investment from two sources and give up a 60% shareholding? We wanted the external investment to give us additional funding, so that we have got the ability to grow more quickly than we have been able to in the past and to take what we already have, an effective and efficient model and build that out further into the market. We are also considering acquisitions and this is something that now fits well with our model. In terms of why we decided to give up the 60% stake in the business, the idea was that, if we needed to secure additional external funding in due course, then having two investors on board would be beneficial. The bigger our company, the bigger our potential for growth and with two investors, not only do we have more potential for funding but we have more potential for taking opportunities that will arise from further market consolidation. I would rather have kept 51% of the business but we realised that in order to secure such substantial investment, we would need to sacrifice a majority share.

â&#x20AC;&#x153;One of the biggest things we decided to do was to fund the repairs, hire and all the other services and then recover them back from the other driverâ&#x20AC;&#x2122;s insurer, which widened the market to us and created huge growthâ&#x20AC;?

Q A

Why did you decide that it was the right time to take on external investment and were you actively seeking external investment prior to taking it on? We had always planned to take on external investment and since 2006 we have had a strategy in place to do this. We became a limited company and we had always built the business in a way so that when de-regulation came, we would be able to take on external funding. We were approached by external investors a short time before we went out to the market to seek it out because we were well known within our area of expertise. We were approached by JZI first and we then had a wider look at the market and eventually decided that their offering, together with Souter was the best available but in total we had about 30 investors approach us over a twelve month period.

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Jeff Winn Interview

Q A

How important is the notion of ‘brand’ to the Winn Group and will you be looking to pump more money into marketing spend across the group going forward? The brand is extremely important to us, we are the best known legal brand in the northeast and we do want to build this up around the UK. We are also well known in the Broker and body shop dealer markets and widening the appeal of the brand in those areas is also high on the agenda. We already spend a large amount of money on marketing and we will certainly be ramping this up as the business continues to grow. We have started investing more in social media and our online presence, as well as building up the T.V spend as we realise it is important to focus on the different routes to market.

Why have you chosen to market yourselves with the backing of celebrities (such as your current campaign with the X-Factor’s Amelia Lilly for example), what do you anticipate this approach will offer you in terms of reaching out to your ‘target market’? We have done a mix, a lot of our television campaigns used to be done with celebrities but we have also done some advertising with satisfied clients who have used our services. The campaign with Amelia Lilly was for us a great fit in terms of targeting the youth market directly as a soft sell. Something we have discovered is that the older demographic trust insurers and don’t necessarily look for options that will offer them a better service. From experience, younger people are much more likely to ask questions and identify where they are going to get a better service and a better deal. One of the biggest reasons for this was highlighted by a recent comment made by a Senior Insurer who told me my business would be successful at the start because in the way the market is changing, service is no longer the all important factor. What we realised at the start is that we have got to be a pound cheaper than the competition, particularly with aggregator websites nowadays. In this initial contact with the potential clients, the cost is key and the best way to attract new clients

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is to be cheaper and then offer the customer service. Younger clients understand the benefits of the service we are offering, whereas a lot of the older clientele opt to use the Insurer and tradition prevails.

Q A

Where do you think the value lies in offering a ‘one stop-shop for the consumer’ and why did you decide to take this route to market? I decided to offer a ‘one stop shop’ because somebody crashed into my car and I reported the accident and processed the claim through my insurer. The accident wasn’t my fault but the claim was settled on a ‘knock for knock’ basis, which meant my premiums increased, I lost my no claims bonus and had to pay an excess. In English Law the claimant is supposed to be put back into the position they would have been in, but for the accident and that didn’t happen because I claimed through my insurer and ended up a lot worse off than if I had pursued the claim through the other driver. Initially, we acted for wealthier people who paid for the repairs and hire for example but didn’t put these costs through their insurer; instead, we claimed their costs back through the other driver’s insurer. One of the biggest things we decided to do was to fund the repairs, hire and all the other services and then recover them back from the other driver’s insurer, which widened the market to us and created huge growth.

Winn Solicitors offer an automated service for clients and you have previously said this is to cut administration costs and save fee earners time. While this is a cost effective strategy, won’t the personal face to face aspect of client service be lost?

It is not a wholly automated service so what we offer is certain touch points with the client. The first part of this allows our claims handlers to attain all the information they need to deal with the claim from the start. Whereas some firms might have 8 or 10 conversations with clients trying to gather information, what we have is less points of contact but a longer initial period of discussion with the client, for example at Stage 1 we now collect a lot of the information that might usually be collected at a later stage. We decided to front load so that we can get on with cases and have them dealt with more quickly in order to save time for us and the client. We then provide automated updates so that all the information regarding a particular case (an engineer’s report for example) will be copied on to the system and, without human intervention, an update is sent off to the clients. The way we look at it is ‘automated admin’ and we have invested in technology heavily to achieve this. The end result from our side is that we have more time to speak to the clients because the fee earners haven’t spent 70% of their time on admin. This has resulted in our excellent company reviews, which is a road many firms will not venture down because it can be viewed as risky to give the client direct access to let others know what they think of the service. For us it has worked extremely well because our clients are satisfied.

Q A

The Winn business model is specifically designed to focus heavily on high volume, low value claims, what is lost or gained by doing this, for you and the client? We operate on this basis quite simply because it is easier to operate the automated admin service on high volume, low value claims. We can still make money

“We decided to front load so that we can get on with cases and have them dealt with more quickly in order to save time for us and the client”

Jeff Winn Interview

Jeff Winn – MD of Winn Solicitors Limited Jeff qualified as a solicitor in 1990 and became a partner in a legal aid practice primarily undertaking criminal and matrimonial legal aid work. The firm grew rapidly but when the legal aid rates came under pressure Jeff looked for an alternative avenue. A road accident, in which he was not at fault, was a catalyst for his new service offered from 2002 via his new business and this led directly to him starting up Winn solicitors as a dedicated one stop shop service for innocent victims of road traffic accidents. Jeff opened complimentary businesses including a rehabilitation clinic and vehicle rental company so that the client could receive a seamless service organised by one provider. The service proved very popular and Winns receive considerable business from personal recommendations from previous satisfied clients. Client acquisition is bolstered by direct advertising (radio/TV) and a well developed internet marketing strategy. Winns operate on a national basis and are particularly strong in the insurance broker market where they provide a full accident management service and back office operation for many insurance brokers. Winns growth of turnover and profit has been rapid. Jeff’s approach is to combine a low cost location with rapid development of processes and IT to ensure customers receive a good service in what is an increasingly tight financial market. Jeff believes innovation and new solutions/ processes are essential if solicitors are to provide clients with what they need at a cost effective rate. Jeff is acknowledged within the road traffic accident world as having a highly successful award winning business model.

“I can see what the government are trying to achieve but I also predict these extensions to reform will create a level of unfairness and will move us even further away from the main benefit of legal costs in the UK market” from these claims with not too many staff because of our business model and because the low value claims tend to have a faster turnover, we don’t have the cash outlay for so long. We do have quite a few high value claims as well and the more straight forward cases help to even out the cash flow for these cases. The high value claims process is similar to the low value cases at the start but they are referred on to an experienced solicitor more quickly and the service is much more personalised.

Q A

How do you anticipate the proposed further reforms to come in 2014 will affect the PI Market, specifically in terms of the proposed extension to costs budgeting and Part 36? The cost budgeting issues are always difficult because the government seem to think it is as easy as saying they can fix the budget and then immediately understand the costs spent. The extension isn’t a good idea because all that happens is the large amounts of additional costs that are spent in preparing the budget then has to be sent to the court. The problem solicitors are facing is that any budget will be based largely on assumptions but it can make a huge difference if the other side come back with variants on what we have planned for. If they come back with reams of witness statements we can spend ten times as much time on a case that, on the face of it, looks identical to another case. The stage we are being asked to produce budgets needs to be looked into because it is largely a guessing game at the moment, all we can do is assume the cases will be hugely expensive but this all includes extra time and cost. I can see what the government are trying to achieve but I also predict these extensions to reform will create a level of unfairness and will move us even further away from the main benefit of legal costs in the UK market, which is that the costs are recovered from the party at fault.

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Craig Budsworth Interview

Interview with... Craig Budsworth The 2013 Motor Accident Solicitors Society (MASS) conference was held recently in London, Charlotte Parkinson, Modern Law, caught up with the Chair, Craig Budsworth, on the changing role of the society, anticipated further reform and his reaction to the Ministry of Justice’s (MoJ) decision to defer raising the small claims limit.

Q A

How have the recent reforms to litigation funding affected your time as Chair and MASS as an organisation so far? The reforms over the last six months have really opened people’s eyes to the fact that we need to be developing our businesses and making sure we are looking after our clients and that has been particularly hard because the information came in to us [MASS] so late. As an organisation, it was hard to disseminate that information to our members in a meaningful way because we didn’t have the information ourselves and pulling the information we did have together for our members was a real challenge.

Q A

Aside from changes brought about by the reforms, what challenges have you faced so far in your term as Chair of MASS? Getting to grips with the media has been one of the more surprising challenges! Turning up at Granada Studios at 6 o’clock in the morning for my appearance on Daybreak was something new; sitting in a studio with a blank screen behind me and a seven second delay was interesting! This has been a real challenge for me, I like to have open conversations and talk things through and understanding how that changes in line with the role has been a challenge. Public speaking is also something I have had to get to grips with; trying to deliver a scripted speech for example, in a way that is engaging and entertaining has been a learning curve.

Q A

How do you feel the role of MASS has and will continue to change moving forward in the new legal climate? MASS has been fantastic as an organisation in understanding that a voice of reason needs to be there and we work extremely hard to ensure we engage with all areas of the industry and still protect access to justice. This has been epitomised in the government response to the whiplash consultation, as we have been saying that premedical offers are wrong and need to stop for years. As an organisation, we campaign on certain issues for so long that it becomes embedded and so now our campaigns have been recognised, we need to change and develop a collaborative approach with the government and insurers.

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“We need to make sure all stakeholders understand that the ultimate goal is to deliver change in the correct manner and ensure we still protect the rights of the innocent accident victim”

Craig Budsworth Interview

Craig Budsworth – Chair, MASS Craig qualified as a Chartered Legal Executive in the UK in 2007 and has been involved in insurance and finance since leaving school at 16. He started his career with NatWest and moved to Direct Line in 1993 learning the insurance side of road accidents and insurance claims before moving to the claimant side by joining Glaisyers Solicitors in 1998. He became one of the first Legal Executive partners in 2009 and moved to Garvins Solicitors in 2013. Craig has been a member of the MASS Management Committee since 2009. Contributing to developments in the law is at Craig’s heart and he joined the Civil Justice Council in 2012. That same year Craig took over as Chairman of MASS. In recognition of his contributions, he was recognised as an individual who has given outstanding service to CILEx or the Legal Community and who represents CILEx’s values and ethos by being awarded the CILEx President’s Medal. Like all MASS members, Craig is a keen supporter of the victims of accidents and campaigns for their rights. He has represented MASS on the Transport Select Committee arguing against the perception of the compensation culture and the need to raise the small claims limit. Training other lawyers to understand the needs of accident victims and the law surrounding this field is Craig’s passion and he has been a trainer for MASS Training since 2005. He has written and delivered numerous courses through training days, conferences and webinars. Craig is married with 2 children and stays fit cycling, playing golf and charity fundraising (doing crazy things like a 24 hour bicycle ride round the Nurburgring and, in 2013, undertaking Tough Mudder*). *Tough Mudder® events are hardcore 10-12 mile obstacle courses designed by Special Forces to test your all around strength, stamina, determination, and camaraderie.

“We have got to work together to stop engaging in this very public row, because there are unforeseen consequences which are drilled down in to media messages about the reforms as a result and this has to stop to deliver change”

Q A

Has the sector as a whole collaborated in light of change or have the reforms driven or extended the divide between claimants/defendants/insurers? For me, the answer to this is epitomised in Paragraph 14 of the response; the fact that we engaged with the Forum of Insurance Lawyers (FOIL), the Association of Medical Reporting Organisations (AMRO) and the Association of British Insurers (ABI), in trying to come up with a joint solution towards medical panels, speaks volumes. The fact that the MoJ have specifically listed that in their consultation response and want to go forward with the proposals that we have come together to present, shows we are trying to carve a collaborative approach. We need to make sure all stakeholders understand that the ultimate goal is to deliver change in the correct manner and ensure we still protect the rights of the innocent accident victim. Ian Hughes from Consumer Intelligence highlighted this point at today’s conference very well; the Law Society’s ‘Don’t get mugged by an Insurer’ campaign actually might have done more damage than good in the consumers’ eye, even though it was launched with the right intentions. We have got to work together to stop engaging in this very public row, because there are unforeseen consequences which are drilled down in to media messages about the reforms as a result and this has to stop to deliver change.

What is your reaction to the MoJ’s decision to defer raising the small claims limit, especially given Justice Secretary, Chris Grayling MP’s comments stating that a rise in the limit in future cannot be ruled out?

We are dealing with this very much as a deferred decision and we would be backwards thinking as an organisation if we thought that this decision was the end of it. There is so much more that has been delivered as part of this Whiplash Consultation Response that now needs even more work. The fact that they have not raised the small claims limit now is great news for access to justice and shows that they have considered the Transport Select Committees’ (TSC) findings. Access to justice needs to be protected and this is not going to change in future; it will still be paramount to ensure that the medical reporting process is correct to ensure proper compensation is delivered.

The government consultation (set to be published next year) will include plans for an independent medical panel to assess whiplash claims. How beneficial (or not) could the introduction of these independent panels be? Do you think it will have any impact on the number of fraudulent claims? I am not convinced that the number of fraudulent claims is solely related to independent medical reporting; there are so many other factors which must be considered. I am currently getting to grips with the fraudulent groups who are presenting ‘crash for cash’ and that is more important. Part of the way to change the perception of medical reporting could be to introduce an independent panel for every case, premedical offers should not happen but, having a client medically examined through the medical panel process and understanding what that medical panel process is, in comparison to where it was when the consultation

ML // Personal Injury Supplement 2013

Craig Budsworth Interview

“It is a real concern at the moment that there is too much reform going through too quickly and that it is not being thought out properly” was first released, is key. The MoJ are understanding of the fact that it is about accreditation and making sure that the Doctor who is undertaking the report is properly qualified to do so.

James Dalton, of the ABI recently commented that ‘Additional measures, such as increasing the small track claims threshold from £1,000 to £5,000 as we have argued for is also crucial. It would provide not only a simple, speedy, more cost-effective way of settling genuine whiplash claims, but ensure that lower motor premiums can be sustained.’ How would you respond to this? The very nature of the industry means that organisations such as ours are always going to have polarised views with Insurers, on certain points. Raising the small claims limit is one of those points where, when we are together in the room talking about independent medical panels, our starting point has to be that we are not going to discuss raising the small claims limit, because we are never going to agree! There is however, clearly far more significant action occurring with regards to reducing premiums as ultimately, LASPO has meant that any claim presented to Insurers post April 2013 will save them in excess of £1.3billion. What is difficult to quantify is fixed fee’s post issue and by far this will have a major impact on how much Insurers are paying out in relation to costs, what everybody knows is the insurance premiums have got to come down.

An extension to costs budgeting and a radical reform of Part 36 is expected next year; will these additional changes be more in line with Jackson’s review than in their current form and what impact will these proposed changes have on the sector? I wish I had that crystal ball to look into the future but what I do know now is that complying with the changes post Jackson is hard. Claimants are finding it hard and, like

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we have discussed this morning [at the MASS 2013 conference], costs can all be loaded to the front end in relation to witness statements and disclosure lists but, in reality we won’t get paid for that because of fixed fees. The fixed fee structure is about the work that is done to get it to that stage, the witness statements are not necessarily going to be issued until after allocation so it is just not possible to front end on the majority of cases.

The Legal Services Board recently published a report which confirmed that new business structures – legal disciplinary partnerships (LDPs) and ABSs – were more productive and innovative than traditional law firms. It also found that there is still “significant potential” for big brands to come in and provide large-scale, lower-cost services. How could these big brands shake up the market and are the full effects yet to be felt? The amount of acquisitions and law firms that are struggling at the moment is clearly on the increase and this is something that was barely heard of two years ago, which is really hard. Ultimately it is all

about efficiency of savings and the bigger you are the more efficiency can be put in place. In this regard, I completely agree with the LSB, there are definitely still opportunities for bigger brands.

In a recent paper entitled ‘Restoring a future for law’, Professor Stephen Mayson said “governments and lawyers have lost sight of what the law is for” and along with the regulators, they have “lost sight of what lawyers are for”. Do the government fully understand the impact continued review could/is having on the market and who is really losing out? It is easy to answer the question of who is losing out and that is the claimant. It is a real concern at the moment that there is too much reform going through too quickly and that it is not being thought out properly. At the moment, we don’t know where that is going to end and it seems to be a constant attack on law and lawyers. At the same time, you have got to embrace change and it is important for things to move on, it is just a case of creating the correct balance.

Simon Baskind Interview

Interview with... Simon Baskind Charlotte Parkinson, Modern Law, spoke to Simon Baskind, Managing Partner at Cohen Cramer about his perspective on reform for niche practices, whether the ABS era has really shaken the market as much as people think and the burning question on everybody’s lips, fraud, as he asks who is really at fault.

Q A

What new challenges have arisen since the implementation of the Jackson reforms in April this year and how have Cohen Cramer responded to these changes as a firm? The number one thing that we must never lose sight of is that we are a business and when any reforms come into place we must consider how that will affect our business model. The first thing we did was to look at data and analyse what profitability the department had, pre-April, in terms of the cost of work acquisition, the cost of actually doing the work and the money that was coming in from doing that work and then projecting what the new costs regime, post-April, would look like. The other strategic thing we had to decide was whether or not we were going to take a proportion of clients’ damages. I would say for the average law firm, the notion that there is any future in not taking a cut of clients damages is misconceived. We then had to deal with the referral fee ban and getting to grips with a compliant system and there was a lot of ambiguity surrounding this from the SRA. We also needed to consider whether we were still able to provide a service to clients because client care is such a central part of our firm. With the sorts of fees that we now have to discuss with our clients, it left us wondering what kind of service we can actually provide. It was important to concentrate on IT systems (we have now gone paperless) and ensuring staffing levels in relation to work flows were correct. We have completely restructured our staffing levels and got rid of secretarial support because we cannot afford to have people in our practice who don’t actually generate fees. It has been a challenge and it was supposed to have been; the idea was that this was supposed to consolidate the market and try and combat the compensation culture and this is proving to have happened so far.

Q A

Many people are saying that it is too early to say what the full effect of the referral fee ban has/will be; when do you think the effects will be felt with full force? It is important to allow at least 12 months for the reforms to bed in. I don’t see any real change in the market in terms of referrals; anybody turning on a television, listening to the radio or looking at any form of press, will still see the same amount of advertising.

“I would say for the average law firm, the notion that there is any future in not taking a cut of clients damages is misconceived” ML // Personal Injury Supplement 2013

Simon Baskind Interview

“Getting round the referral fee ban doesn’t look to be that difficult but the question is the viability; if firms’ acquisition costs are still going to be what they were pre-April, then many firms will struggle to turn the same margins post-April” Presumably this costs the same amount of money and whether this is by virtue of advertising consortia or another way, people still seem to be thinking they have got round the ban. The only people who have been ‘got rid of’, is the ‘neighbourhood claims centres’ as they didn’t have the volume of claims needed to be sustainable, post-reform. Some ABSs are challenging us for our work, but they have simply replaced the insurance companies capturing work through legal expenses insurance and selling it to select panels. We also do not have enough experience of the SRA policing the ban yet so it is unclear which models are compliant and which are not. Getting round the referral fee ban doesn’t look to be that difficult but the question is the viability; if firms’ acquisition costs are still going to be what they were pre-April, then many firms will struggle to turn the same margins post-April. Something has to give in the market, in my mind, the acquisition cost should come down but whether or not market forces are driving that down is difficult to say. Currently, firms who are saying to their clients ‘we won’t take any of your damages’ are using this as a marketing tool, the real test for a lot of firms will be when the pre-April run-off work runs out.

Q A

How detrimental do you believe Sir Rupert’s decision to shift some of the cost of litigation onto the claimant has been? It will obviously be detrimental to the claimant but our current experience is that it has made very little difference, we haven’t yet got to the point of telling a client ‘we will take your claim on but we will do it on the basis that you will receive all of your compensation’. It is not a case of ‘how low can you go’ and we are finding that if we are upfront and honest with our clients they are understanding.

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In the past there had always been questions over whether the offers of 100% compensation were too good to be true and the notion that clients can hire good solicitors to do years and years of work costing thousands of pounds, essentially for free, sounds too good to be true. It is easier to be honest and tell clients there is a cost from the beginning so they know what to expect and there has been no problem with this strategy so far. The market will shake out those firms who are offering ‘100% compensation’ in the next few years. When I saw the figures that were being put forward for the fixed fee regime by the government, I was in some ways relieved because, although the figures were an insult, I wasn’t left with a dilemma. Unless we charge 25%, the figures do not stack up and it is impossible to carry out the work.

Q A

How instrumental has the introduction of QOCS been in terms of case strategies and the wider market, on both the claimant and defendant side? As we are dealing with claims that have only come into existence and been signed up to a conditional fee agreement (CFA) since April, we are not doing anything differently. We always felt we made realistic Part 36 offers and it hasn’t altered the way which we are approaching cases. My fast track team have noticed we are receiving more pre-medical offers on non-RTA cases since QOCS was introduced, which is something we haven’t experienced before. If you are working in a portal fixed fee regime, the insurers mindset may be to tempt solicitors in and get clients to settle early because fees are not dependant on the amount of work done. Hence they offer an early form of settlement because they think it is more attractive to us. This is a cynical view but dealing with insurers makes you cynical.

Q A

How is the emergence of corporate ABS players (Direct Line partnering with Parabis Law, Ageas Law and Stobarts for example) affecting the Personal Injury market? In terms of volumes, not a lot because it seems we have swapped an ABS for an insurer arrangement, in terms of legal expenses insurance panels. I am sceptical about it and I am not convinced that ABSs are reshaping the market as was anticipated.

Simon Baskind Interview

Q A

What are the advantages/ disadvantages of being a niche law firm in the new legal landscape? The problem with being niche is the niche may disappear; we are a niche firm in that we have areas of specialism such as legal services to dentists, white collar crime and reputation management. If owing to the reforms some areas disappear then we do have others we can fall back on. My worry at the moment is that with the uncertainty in the market, having all your eggs in one basket may be disastrous. All firms are still experimenting and it is unclear how the market is going to shape up but it will change, whether through insurance pressure, ABS pressure or government pressure.

Q A

In this new market, what would your idea of the perfect law firm be; a firm that has taken on external investment, an established firm or a new entity? We all need investment in one form or another but on a personal level I would not want the added pressure of external investment, with investors telling me how to run my firm with everything ending up a number crunching exercise and nothing more. We do want to retain an element of client care and performance and that can be sacrificed in the brave new world. If you look at the profession 30 years ago and contrast it to where it is today it is clear that legal practice has become politicised. If I was approached by an outside investor I would want to think long and hard about the possible repercussions of accepting them on board. History is imperative to analyse where you have been, to consider where you are going and to get to where you want to be and some of these new entrants are in for a rude awakening.

Q A

What do you see the role of the Bar Council playing going forward? The Personal Injury Bar has problems because the system that has been created doesn’t have the necessary margins. The Bar must recognise the need to assume their own risk and work on realistic fixed fees, without a success fee because we can’t afford to share that with them. The Bar Council needs to

“There is as much turmoil in the regulatory sector as there is in the legal sector and it cannot be a good thing to have more than one regulator” establish their fee structures and work with Claimant organisations to ensure that the PI Bar has a future.

Q A

How do you see the role of regulatory bodies (LSB, SRA etc) changing going forward? A lot will depend on how they are funded in terms of their resources. At the moment there is a lot change for everyone with the introduction of Outcomes-focussed regulation (OFR). The regulators will only be to get to grips with this new form of regulation if they are funded correctly and can actively visit law firms. There is as much turmoil in the regulatory sector as there is in the legal sector and it cannot be a good thing to have more than one regulator.

How would you respond to the proposal made by the Transport Select Committee not to increase the small claims limit, and what effect do you think the decision to delay raising the limit will have particularly in terms of fraud? This notion of fraud being the burning question of the PI Sector is a red herring introduced by the insurance industry. Undoubtedly, there are a few fraudulent cases but when I analyse how many of our cases may involve an element of fraud the number is miniscule. It is essential that the small claims limit remains where it is. We have all worked on our business models. We have had to listen to the government about working with fixed fees but the insurers have come in again and tried to muddy the waters, this time alleging fraud is a problem. I know that the limit being raised in the future cannot be ruled out and if it does go up it will turn out the lights for a lot of firms. We will end up like the PPI sector, with CMC’s working in the same way to the annoyance of the greater public, taking a cut of claimant’s damages. Unless Chris Grayling wants to pin all his colours to the insurer mast he will take notice

and realise that the claims of fraud is a decoy thrown up by insurers.

Q A

Finally, what are your views on the recent campaign, “Don’t get mugged by an insurer, use a solicitor”, launched by the Law Society? I was fine with the campaign, I know that it upset the insurers but good, let them get upset. We must not lose sight of the fact that in essence they have won. They bought the Tory party when it was in opposition and they have been able to obtain power and influence within the government and they have won the war. The campaign was absolutely right, why on earth would claimants want to rely on the very institutions that they are fighting against to quantify their compensation? Insurers are bound to want to minimise their outlay, so why would they be trusted to pay what is fair and reasonable? Saying the consumer will get mugged is absolutely right, they are mugging us (the legal profession), so why wouldn’t they mug claimants? The political aspect of what has gone on here is so important. When the Tory government was elected one of the first things it did was to appoint Lord Young to look into the supposed “compensation culture.” I knew we were in trouble then. Given what was happening with the banks and the near collapse of global capitalism was it really our new government’s first priority to look at the personal injury sector? So what has it achieved? Has it got rid of the “compensation culture” or do we suspect that all that has happened is the swelling of insurance company profits?

ML // Personal Injury Supplement 2013

Matthew Stockwell Interview

Interview with... Matthew Stockwell Matthew Stockwell, the current President of the Association of Personal Injury Lawyers (APIL), talks to Charlotte Parkinson, Modern Law, about whether there is enough transparency from the government on issues raised through reforms, his perspective on Insurers (as he asks who is really losing out) and his thoughts on the continued market sea change.

Q A

How have the recent changes to litigation funding affected your Presidency and APIL as a whole so far?

In the speech I gave when I was being sworn in as President of APIL earlier this year I touched on the fact that many people who had been wishing me well for my upcoming year had been adding that it is a difficult time to take on the role. The people who have been involved in the executive committee over the last few years have been in much the same boat. When I go and speak to people at our events the general consensus is that everybody is more wary because of the changes and the constant threats of additional change. The difficulty is that if everybody is trying to run businesses profitably and efficiently while trying to provide a good service to people, they need a degree of continuity and certainty and that is currently lacking. Everybody has got their own ideas of what model might work and people are trying certain things but this hasn’t stopped consolidation on the claimant side and the new models emerging on the insurance side. It will be interesting to see how things look in 2 or 3 years, as things won’t start to settle down until then at the earliest as people and firms will begin to understand what has and hasn’t worked. It won’t just be on my watch that people are looking for answers you can’t really give them.

Q A

How damaging do you believe Sir Rupert’s decision to shift a proportion of the cost of litigation onto the claimant has been? It will be hugely damaging in the more deserving cases but I don’t think it will make too much difference to the low value cases because there is an increasing level of availability with insurance tie-ins with motor liability policies in Road Traffic cases and it is these that make up the overwhelming majority of the litigation. We will either see people who are happy to take those cases on and therefore more competition for that work going forward, as consumers will be given the opportunity to get a ‘good deal’, through their existing insurer. There will be other people who are able to service that type of work relatively quickly and it won’t matter to these people whether the case is taken on and how much they recover in relation to it. What it will mean is, in the higher value cases with complex elements (such as clinical negligence), it will

“It won’t just be on my watch that people are looking for answers you can’t really give them” ML // Personal Injury Supplement 2013

Matthew Stockwell Interview

“These [more complex] cases will now take a considerable amount of time because there is no way of readily funding them; I suspect this will make people risk averse and cause increased levels of settlement pressure in the long run” be much more difficult to attain quality representation because the cases will represent higher value risk. In the long run the costs shift will present a significant impediment to access to justice and people trying to approach compensation in the more complex areas. These cases will now take a considerable amount of time because there is no way of readily funding them; I suspect this will make people risk averse and cause increased levels of settlement pressure in the long run.

Q A

Aside from changes brought about by the reforms, what challenges have you faced so far in your term as President of APIL? Managing the expectation of the membership against the background of the uncertainty as everyone is looking for guidance, has been one of the biggest challenges. There have been some areas where we have been able to help, such as the advice we have been able to give on how the new practice and procedures are going to operate; although we were significantly hampered in our ability to do that because the changes were finalised so late. We were trying to hold conferences in January and February but ended up still scrambling around for answers in March, with an incomplete set of rules. We are now in a position where we are catching up but there are areas where we would like to give guidance where we simply can’t. It is still pea soup in relation to the referral fee arrangements from the SRA, what they are or are not going to do. Historically, there are areas where we would have given quite clear and strategic advice to members but we have been hamstrung to some degree. The continuing threat over the small claims limit rise is the other significant area of concern for members, so we had an active participation in the Transport Select Committee (TSC) and have also been briefing other government departments in relation to that report. We are trying to get the message

ML // Personal Injury Supplement 2013

out there that any more significant changes are going to severely disrupt the legal services market; if existing personal injury practices are destroyed, an environment where less reputable companies (particularly some CMC’s) who adopt unscrupulous practices will be created.

Q A

How do you feel the role of APIL will/has changed moving forward in the new legal climate? The emphasis in ‘setting yourself apart has got to be on quality, as an organisation, we put a lot of time and energy into our training and accreditation activities because we want to see good quality legal services clearly signposted for the consumer. Consumers search the internet and are bombarded with different websites but we want to make it clear that a firms’ marketing spend is not necessarily a measure of quality. We are trying to get as many of our members to take up our accreditation schemes, which direct consumers in an independent and objective way to providers. We have made it clearer for the consumer by introducing individual sub-specialism’s and are also looking to introduce

“We are trying to get the message out there that any more significant changes are going to severely disrupt the legal services market; if existing personal injury practices are destroyed, an environment where less reputable companies (particularly some CMC’s) who adopt unscrupulous practices will be created”

varying standards of accreditation for the more complex areas of practice. Our campaign work is also carrying on, although the government haven’t been that responsive to our campaigning so far. We are now looking at different areas in which they might be more receptive to our work, such as NHS provision and bereavement damages and the experience of these families through the court system as well as elderly clients and vulnerable groups. We are also currently awaiting response to the governments’ consultation on the discount rate which will have a significant impact on larger value claims.

Q A

In your inaugural speech at the APIL 2013 conference you outlined some of your hopes for the coming year; do you feel you have achieved these so far? We are certainly making progress towards them and are doing as much as we can – it is very much a continual process from Presidency to Presidency in terms of lobbying activities and equipping our membership to deal with the difficulties presented to them. It is a case of keeping the ball rolling and acting as a spokesperson for the twelve months; we have a great back room team, both on the press and parliamentary affairs side but we also have a fantastic training team and the objectives of the organisation remain the same.

In the most recent report published by APIL in response to the Review of the Legal Services Regulatory Framework, APIL highlighted its concerns over the need for one Regulator for all legal services (ABSs, CMC’s and traditional firms), how could a change in regulatory practice affect the market? You need consistency and one of the things that we have spoken to the cabinet office about and raised as a concern (in our evidence to the TSC), is the inducements that are given to people to pursue PI Claims, whether it is cash or offering free gifts. If

Matthew Stockwell Interview

“Consumers search the internet and are bombarded with different websites but we want to make it clear that a firms’ marketing spend is not necessarily a measure of quality” there is a client with a horrible debilitating injury which will mean they are off work requiring care and assistance, then these inducements are not going to encourage or discourage a claim, all they want is direction to a reputable lawyer. We do however see these inducements causing people to make frivolous claims and we have said that we are not in favour of that, as have other membership groups. It has been banned by the MoJ as an activity that CMC’s can undertake, yet the SRA are saying it is perfectly legitimate for law firms to offer cash inducements to clinets.

Q A

How is the emergence of corporate ABS players (Direct Line partnering with Parabis Law, Ageas Law, AA Law and Stobarts for example) affecting the market? There was no transparency in relation to referral arrangements before the ban and there will be no transparency following the ban because these new organisations will just dress them up and package them differently. In the Financial Services sector across the board (as the TSC have identified), there needs to be transparency about who is partnering with who where money is flying around within the system, to ensure that people aren’t pursuing their own economic interests over and above the interests of consumers. At the moment it seems that people are looking to set their businesses up, in a legally compliant way, under the auspice of an ABS and are continuing to do exactly what they did before the ban came in place. This has an unsettling effect in relation to the smaller entities, the people who were reliant on the smaller basket of referrers are in a more difficult

situation and some of the Insurers seem to be carrying on as normal as part of these ABSs as it is still profitable for them to be involved. The ABS reforms are not going to increase consumer choice but they are going to increase claims capture and the number of cases that are pursued after an RTA. Insurance companies were found out by the TSC report and it was their activities in a referral sense that were driving up the number of claims.

Q A

How would you respond to the insurer lobby assertion that “a reduction in the [discount] rate could add over £1 billion in costs to insurers.”? It might do, but they have been getting away with not paying that money and people have been undercompensated. There is a horrendous thing going on at the moment where some people are being forced to invest in a more risky way. Most people would have sat down at some stage and looked at their longer term finances in order that they can take measured decisions about when or not to make use of those. But, if, for example somebody has been paralysed (so they can’t work) and has a sudden need to change their care regime, they may have to access funds that they may not wish to cash in at that point in time. There is an absence of flexibility for these people and if they are driven to make speculative investments then there is a real risk that their funds will be significantly diminished. Currently the system operates in an extremely unfair way to people who have been catastrophically injured by other people and the insurance companies have been doing very nicely out of it, so I have

“We do however see these inducements causing people to make frivolous claims and we have said that we are not in favour of that, as have other membership groups”

absolutely no sympathy for them.

In the APIL response to the MoJ’s consultation paper on the discount rate review, APIL stated “There is a fundamental flaw in this consultation document, in that it claims to focus on the principle of ‘full compensation for the claimant’, yet the claimant will not receive full compensation if the legal parameters of the discount rate are changed.” Do you think the government will listen to your concerns? We hope they will do and this goes back to the point of what assumption is made, the House of Lords in Wells v Wells stated that the discount rate should be based on a low risk investment model but because the discount rate has been too low, some claimants financial advisors have suggested that they should adopt a mixed portfolio of investments, to achieve an increased return. They are only doing that because the money wasn’t enough in the first place and the government seem to want to make people adopt this risk. For some people Periodical Payment Order’s (PPO’s) are the right thing but these do not work for every claimant as they do limit flexibility. The issues surrounding the discount rate are so important because they affect the people who are the most disabled. The younger they are and the more their lives are going to be afflicted by their disabilities, then the more significantly they will be affected by making the right or the wrong decision. The government spend a lot of their time trying to reduce costs in the lower end PI cases but there is no moral case for reducing compensation in the catastrophic cases. We are all very cynical following the second consultation because it suggested that Insurers thought it perfectly acceptable to turn catastrophically injured people in to private investors. The government seem to want claimants to be thrown to the mercy of people in the Financial Services sector and this is certainly not a good idea.

ML // Personal Injury Supplement 2013

The Features

19-30

The Features

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“

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Steven Eldred, Partner Thomas Eggar A Legal 500 firm

The management at Atrium Legal Services demonstrate how to operate efficiently in a complex market, not just from a compliant perspective but ensuring the best interests of their clients are prioritised at all times.

Karen Jackson, Director Roberts Jackson Solicitors.

www.AtriumLegal.com

enquiries@AtriumLegal.com

The Features

Medical Evidence under the Microscope – reinstating quality Over the last 20 years medical evidence for musculoskeletal injuries has seen wholesale changes and with anticipated further reform to medical reporting expected next year, this change is only set to increase, as Bippon Vinayak explains.

n the pre-Woolf era it was not unusual for both sides to obtain a report from an Orthopaedic Consultant which invariably involved a review of the relevant medical records. The medical experts produced well-researched and supported medical reports that they would be prepared to defend under cross-examination. The credibility of the medical expert and the quality of their evidence was the key objective for both sides as the outcome of the case often hinged on the relative merits of the respective medical evidence. Quality was the primary focus and the market was prepared to pay the price and wait for it. The recently published response to the MoJ whiplash consultation (Oct 2013), puts forward suggestions to address the shortcomings of the current system. The vast majority of the Industry support the sentiments of the paper and if implemented correctly should make an important step change in putting quality and reliability of the medical evidence at the top of the agenda. The consultation suggests the establishment of independent medical panels through a system of accreditation and peer review.

Accreditation The MoJ states that at the basis of the independent medical panel should be an accreditation system, “The system should be open to all practitioners and draw on accreditation systems already in operation.” Currently doctors undergo accreditation via the General Medical Council (GMC) and this organisation would be the natural choice for the new accreditation system.

Who needs to be accredited? In my opinion this is not necessary for doctors who are already on the “Specialist Register” of the GMC. These doctors have already been accredited within their specialty through a long established and thorough system of training, examination and evaluation by peers. These Specialists are reporting on injuries within their area

they should be referred to as “Soft Tissue Assessment Reports”? It would be reasonable for these reports to be conducted by a suitably accredited practitioner who can provide an initial holistic assessment of the injuries, recommendations for treatment and (in the case of self limiting conditions) a prognosis for recovery. If the injuries are discovered to be more serious than first anticipated, this doctor should be able to suggest which other expert should be involved in assessing the case.

Peer Review

“The MoJ should also consider a system of allowing the Defendant Insurer (at their cost) to obtain a peer review on any case where they have concerns about the medical evidence” of expertise and the injuries are usually “demonstrable” on examination or through radiology or other objective tests. In addition, the reports are usually supported by the relevant medical records. The Specialists belong to a Royal College specific for their specialty and any complaints can be directed to that College, which will have sufficient resource and clinical knowledge to address them. The GMC also has a “GP register” and these doctors also go through a process of accreditation for their clinical work as a GP. However, the world of “GP reports” should be the area that is tackled by the new changes. I believe the reference to “GP reports” is a misnomer and we should perhaps use a different term to reflect that these reports are for non-demonstrable soft tissue injuries where a diagnosis of whiplash or other similar disorder is made after excluding any serious injury. Perhaps

Over the last 10 plus years there has been a move to use GPs to produce the first medical report for uncomplicated musculoskeletal injuries. This is usually without access to medical records or indeed any objective information about the incident circumstances. The vast majority of these GPs have probably never been to Court and experienced the stress of having their professional integrity questioned. The doctor’s report is largely unchallenged and we have therefore lost our ability to promote best clinical practice. Peer review is a positive step to bringing back control and quality to the medical report. The MoJ paper refers to “an element of random peer review with scrutiny built into this system”. There is no wellestablished peer review system at the present time. Although a system of random peer review on a percentage of cases will be useful, I believe the MoJ should also consider a system of allowing the Defendant Insurer (at their cost) to obtain a peer review on any case where they have concerns about the medical evidence. A well-implemented accreditation and peer review process should succeed in achieving the goal of balanced medical evidence and improve the perception of quality and value of the medical report. Bippon Vinayak, Doctors Chambers

ML // Personal Injury Supplement 2013

Advertorial

A proven track record Implementing the correct software solutions can yield fantastic results; Eclipse Legal Systems outlines four different scenarios in which using its Proclaim Case & Practice Management solution, and its TouchPoint self-service system, have produced excellent returns for users.

Asons Solicitors reveals 8,000% growth Personal Injury heavyweight enjoys postProclaim growth explosion One of the north-west’s largest law firms - Asons Solicitors - has revealed record growth figures, in a challenging environment for legal services providers. Founded just 5 years ago, Asons recently employed its 250th staff member; all based at its central Bolton premises. The firm implemented Eclipse’s Proclaim Practice Management software solution at its inception in 2008, when headcount numbered 3 employees (equating to a staff growth to date of over 8,200%). Proclaim is utilised by all Asons staff, the system providing a core centralised solution for the full range of injury claim types - from complex highvalue cases through to minor RTA (Road Traffic Accident) claims. Proclaim has enabled the firm to structure its business so that 88% of staff are revenue generating (fee earning), with only 12% dedicated to ‘support’ functions. Future strategic aims include the expansion of its Industrial Disease team to be the UK’s largest (it currently numbers 110 staff), and the implementation of a dedicated Clinical Negligence department. Imran Akram, CEO at Asons, comments: “Our aim right from day one was to build a sustainable and solid business. The personal injury sector is fluid and challenging - the right software solution, one that is flexible and adaptable, is utterly vital. Proclaim has provided us with the power to continually enhance our processes, drive out waste and increase margins. Proclaim is our ‘blank canvas’ and has enabled us to create a van Gogh.”

“One of the main advantages of TouchPoint is the fact that it is not dependent on any one operating system, enabling users - our business partners or clients - to benefit” ML // Personal Injury Supplement 2013

“What the claimant needs throughout the life of their claim is simplicity, transparency, and a feeling of control. With TouchPoint, you can provide exactly this” Explosive growth at Personal Injury specialist Michael Lewin Solicitors announces 700% growth since implementing Proclaim Leeds-based law firm, Michael Lewin Solicitors, has announced explosive growth at a time of challenging legislation for claimant solicitors. Michael Lewin Solicitors was founded in 2001 and has recently passed the 120 employee mark (across 5 office locations). The firm implemented Eclipse’s Proclaim Practice Management software solution in 2009, when headcount numbered 15 employees, to replace its incumbent Case Management system. Proclaim is utilised by all Michael Lewin staff, providing a core centralised solution for a range of injury claim types - from minor RTA (Road Traffic Accident) claims through to multi-million pound clinical negligence matters. The firm also utilises Proclaim as its practice accounting and reporting toolset, providing full integration with fee earner activity. Michael Lewin’s expansion is not complete - the firm has introduced a range of non-personal injury services in recent times - all using Proclaim - including debt recovery and employment work. Abbie Keech, Director at Michael Lewin, comments: “Back in 2009 we sought out a system - and a supplier - aligned with our aggressive growth plans. Proclaim has delivered over and above expectations, providing an easy to use and incredibly scalable solution. We can process claims with greater speed, greater accuracy, and in greater volumes. Proclaim’s flexibility in, for example, enabling us to add more work streams outside of the core personal injury work, is invaluable.”

Advertorial

TouchPoint: Unique Personal Injury self-service

TouchPoint going live at Fentons Solicitors LLP

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Eclipse’s unique self-service solution to be adopted by leading UK law firm

Legal services provision is changing - your clients, customers and business partners are demanding more for less. They require more information, more quickly wherever they are and at a lower cost. Eclipse’s new TouchPoint system puts them at the centre, providing a truly personal ‘self-service’ experience. With a slick and accessible interface, personalised interactive tiles enable you to deliver bespoke real-time data, information and applications, via any device and any web browser.

The PI Claim Journey - using TouchPoint For anybody who has been involved in an accident and sustained an injury, stress levels are up. What the claimant needs throughout the life of their claim is simplicity, transparency, and a feeling of control. With TouchPoint, you can provide exactly this.

Client capture Meet Ian - he’s been involved in a car accident and is looking for a law firm to take on his injury case. One firm he visits online is a TouchPoint user, so rather than phoning or visiting them, an active tile on the firm’s site takes him to a claim form. As soon as Ian has completed this, his information is pushed automatically into the firm’s Proclaim Case Management system. From here, all sorts of workflows can be triggered, and signup documentation can be made available for him within his own TouchPoint area. Once Ian has confirmed his acceptance of the paperwork (all done onscreen with a digital signature) things can really get moving.

Personalised Because this is Ian’s TouchPoint, and it’s personal to him, he can create a personalised map and snapshot of the accident site. Ian can even upload images of the scene, and/or any injuries, directly to TouchPoint and straight into the law firm’s Proclaim system.

Keeping in touch At any point, Ian can contact and chat with his lawyer, and behind the scenes all queries and questions can be sucked into Proclaim, to trigger workflow or be rerouted to relevant personnel. For Ian this means no more leaving messages, wondering if and when someone will call back. Using TouchPoint’s ‘FileView’ tool, Ian stays informed and in control. He can check on his file and its documentation any time and from anywhere. The data he sees is secure, and in real-time - his law firm decides how much (or how little) is shown whatever is right and appropriate for them.

Marketing Through marketing features in TouchPoint, Ian receives tailored communications, news feeds, blogs and even special offers that are relevant to him. TouchPoint helps to build a closer, more positive relationship between Ian and his law firm. Once the claim is finalised and compensation received, Ian can then take part in a Client Satisfaction survey embedded in TouchPoint. The results are automatically captured in Proclaim, triggering relevant workflow tasks inside the firm.

Leading UK personal injury specialist, Fentons Solicitors LLP, is amongst the first to adopt Eclipse’s new TouchPoint solution. Fentons, which recently gained its Alternative Business Structure licence - employs 300 staff at offices in Manchester and London. The firm specialises in matters ranging from road traffic accidents and industrial disease claims through to complex, multi-million pound medical negligence cases. Fentons utilises Eclipse’s Proclaim Practice Management Software solution for all staff and is now bringing onboard TouchPoint functionality. Recently launched, TouchPoint provides an ‘always on’ self-service solution for firms’ clients and business partners. A personalised, convenient experience, TouchPoint can be delivered via any device (e.g. iPad, Smartphone), operating on any platform (iOS, Android, Windows). TouchPoint provides users with a choice of ‘tiles’ that can be presented to clients to provide a transparent and user-friendly interface with case progress, KPIs, marketing systems, document management, geomapping, and more. Paul Medcalfe, Partner and Head of IT at Fentons Solicitors, comments: “One of the main advantages of TouchPoint is the fact that it is not dependent on any one operating system, enabling users - our business partners or clients - to benefit. As a firm we are proud of our reputation, secured by delivering the best in client service and support, and we always want our clients to have the best possible experience. Initially we will be introducing TouchPoint to our business partners - such as our costs draftsmen but then we plan to roll this out to those clients who want to track progression and communicate with us from the solution.” Steve Ough, Chief Software Architect at Eclipse, comments: “TouchPoint is a genuinely unique solution in the legal services market - we are delighted that our latest innovation is so in tune with forward-thinking law firms.”

Eclipse Legal Systems Kelso House, 11 Burnett Street, Little Germany, Bradford BD1 5BJ T: 01274 704100 F: 01274 733409 info@eclipselegal.co.uk www.eclipselegal.co.uk

E C L I P S E

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????Features The

The Defendant’s View Don Clarke shares his views on the changes to Defendant law firms since the civil justice reforms have been implemented and asks if the new face of Personal Injury really is as ugly as it seems. Dark Predications The civil justice reforms, embodied within the LASPO Act and attendant CPR changes, have been phased in over the past few months. Prior to their introduction there were dark predictions about the demise of the personal injury (PI) sector. Whilst still early days, are those predictions justified? Consolidation in the PI sector is certainly continuing on both the defendant and claimant sides. The recently announced mergers between Plexus Law and Greenwoods and Slater & Gordon and Fentons are examples of this. It is interesting that the consolidation on the claimant side is being driven in the main by new entrants such as Slater & Gordon or external investors such as Quindell. So, clearly, there are some who consider the sector worthy of continued investment. The anticipated spike in claims notifications via the low-value Claims Portal, following the introduction of non-recoverability of success fees and ATE premiums, duly occurred. However, the extent of the spike took many by surprise. The Portal received 32% more Claim Notification Forms (CNFs) in March than in March 2012, whilst April’s figure was 26% higher than last year. At 91,235, the figure for March 2013 represented the highest monthly number of CNFs in the Portal’s three year history. This ‘stock clearance’ was inevitably followed by a lull in May and June - but insurers are already reporting that motor claim notifications are rising again.

NIHL may become as large a problem for liability insurers as whiplash is for motor insurers. Given the inherent causation issues in many NIHL cases, this will certainly be an increasing area of attention for many insurers.

Early days

consider the regulations did not go far enough, and experience to date seems to be proving them right. In terms of litigation there is evidence that the number of Portal cases going through to the ‘litigation’ (Stage 3) has increased, and that some claimant firms are less willing to engage with insurers during the process. In addition, courts are taking a firmer line

”Some predict that NIHL may become as large a problem for liability insurers as whiplash is for motor insurers”

Innovating through the ban In an uncertain, rapidly changing, market any predictions are likely to be wrong, but it would not be surprising if by February 2014 motor CNFs return to their February 2013 levels. Part of the reason for this is that the wider PI claims ‘supply chain’ are finding innovative ways of dealing with the referral fee ban, which was intended to prevent PI claims being exchanged as a commodity. Many on both the claimant and the defendant sides

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in respect of compliance with directions and the implementation of the CPR. Disease claims have been increasing steadily since 2009, but of late there has been a marked rise in noise induced hearing loss (NIHL) claims. Some accident management companies and claimant lawyers have certainly moved their focus from motor to deafness claims, which are effectively excluded from the fixed costs regimes. Some predict that

Turning to whiplash, the Transport Select Committee (TSC) published their third report on the cost of motor insurance on 31st July. This included recommendations around whiplash, fraud and improving medical evidence. Whether or not you agree with its conclusions, the report was well reasoned and balanced. The Ministry of Justice (MoJ) specifically delayed its decision regarding increasing the Small Claims Track limit pending the TSC report. The TSC also recommended a reduction in limitation for road traffic accident cases. Since it is more than three decades since limitation was last properly reviewed, and given the level of public interest and media attention in this area, there is some force in this argument. Finally, following the Summers v Fairclough Homes case it was pleasing to see the TSC encouraging the Government to review the current legal approach to claims involving an element of fraud (i.e. whether in a case badly tainted by fraud, the whole of the claim should be rejected). The decision in Summers v Fairclough is certainly unfair to honest policyholders and merits a review by the MoJ or consideration by the Law Commission in their twelfth programme of law reform. So with such uncertainty in the market and recent reforms still to work their way properly through the system (the increase in the Portal limit to £25,000 and extension to some types of employers and public liability claims; the introduction of Cost Budgeting for higher value claims; etc) I would end by paraphrasing Mark Twain - the reports of the death of the PI sector have been greatly exaggerated. Don Clarke, Keoghs LLP

The Features

The Market from a CMC Perspective Unprecedented Change! Blood on the streets! End of an Industry! Alan Nesbit, ARC, explores whether there is any truth in the headlines from recent months in light of reforms to the legal sector and suggests that, as with many other periods of major change, people and businesses still find a way to be profitable.

irst, let us look at what has changed. Well, under LASPO referral fees have now been banned for more than 6 months. The vertical and horizontal changes to the portal have been made, the costs have been reduced for portal cases and new fixed costs have been in operation since the end of July for out of portal and issued cases. The MoJ has banned CMC’s from inducements of any kind, although the SRA refused to see this as a necessary step. Finally the Small Claims Limit has not been raised….yet!

The impact of change Of course the most important change for CMC’s is the referral fee ban. There is no question that there has been blood on the streets as the numbers of currently authorised CMC’s has dropped from approximately 2,500 Personal Injury CMC’s at its peak to around 1,500 now. This is clearly a significant drop and this has of course been reflected in a drop in numbers of claims being presented, which is probably exactly what the Government was hoping for when it began on its journey of significant reform. Nevertheless, there remains a large body of CMC’s continuing with their business models, having adapted into various formats that comply with the provisions of LASPO. The most common appear to be recommendation style arrangements or CMC’s carrying out a variety of services for the law firm including marketing and vetting of cases. There is also an issue that has arisen out of an unintended consequence of the referral fee ban. It seems that many of the CMC’s that surrendered their authorisation did so on the understanding that they no longer required it as they were not being paid referral fees. However any CMC that is advertising or marketing for PI business or advising clients, on whether or not they have a claim, requires authorisation under the Compensation Act 2006.

“Whereas the solicitors breathed a collective sigh of relief, this [the decision not to raise the small claims limit] was seen with dismay by the CMC sector, which was ready to take up the baton and deal with those claims themselves” If such activity is being carried out without a licence, then this is a criminal act punishable by fine or imprisonment! The MoJ is aware of this and is currently looking into those businesses carrying out such unauthorised activity.

A level playing field The other major change was of course reducing the costs in the system. This effectively ensured that the market was hamstrung and any compliant exchanges of money for claims are carried out at a significantly reduced rate. This has cut many of the smallest companies from the marketplace as it is simply no longer profitable as a business model on such small numbers of claims. The market has yet to really see the impact of the changes to fixed costs in EL/PL cases and on issued

cases; however that is far more likely to impact the lawyers than the CMC’s. The banning of inducements is an appropriate attempt by the MoJ to clean up the CMC industry and avoid the unsavoury Daily Mail headlines and has proven effective. However it is more than a shame that the SRA did not follow suit and so now there is a clear lack of a level playing field. It seems that it is now the lawyers who are falling foul of practices that are likely to get the Daily Mail up in arms by offering cash and iPads up front to their clients in order to attract new business. It is most certainly welcomed that the Government in their response to the whiplash consultation suggested that the SRA look at this topic once again. Finally in referring to the response to the consultation, the Government correctly decided not to increase the small claims limit. Whereas the solicitors breathed a collective sigh of relief, this was seen with dismay by the CMC sector, which was ready to take up the baton and deal with those claims themselves. It is certainly arguable that CMC’s, with a better grasp of customer satisfaction and service standards and with a lower costs base would have dealt with such claims in a more streamlined and effective manner. In terms of what is still to come, the MoJ have made it clear that they intend to review the changes they have made and their impact on the numbers of claims presented, costs and insurance premiums. It is possible that they may review the referral fee ban and ensure that it has tighter coverage. Additionally they may yet increase the Small Claims Limit if they feel it is warranted. What remains clear however is that there appears to be little chance of the end of an industry and the CMC sector remains strong, if somewhat contracted from where it was at its peak. Alan Nesbit, Chairman, Association of Regulated Claims Management Companies (ARC)

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The Features

Profit through hard times Roberts Jackson specialise in disease litigation and clinical negligence. The firm acts for clients who suffer from work related diseases including mesothelioma, asbestosis, lung cancer, asthma, dermatitis, musculoskeletal injuries, hand arm vibration syndrome and occupational deafness amongst others. Karen Jackson outlines the reasons for their success despite difficult times many have faced in recent months. as in main stream personal injury. We have created a firm where effectively we grow our own solicitors as a result of training, education and support and it is this training programme and the education of our staff that lies at the core of this practice. We hire many graduates each month who enter our training programme, which involves sitting written examinations and carrying out live negotiations before they are entitled to assist or become involved in the fee earning process. All fee earners at the firm receive over 200 hours of training every year at a cost of circa

Seismic Growth In the 4 years since inception, Roberts Jackson have grown from 2 to 200 staff and quadrupled in size in the last 12 months. This has all been achieved as a result of continuously adapting our business model and revisiting our strategy especially in light of the unprecedented changes that have occurred in the legal sector in the last 12 months. When Oliver and I set up the firm people thought we were mad to leave great jobs at a time when so many changes were afoot but we saw it as an opportunity to look to the future. We set up the business as if the legal landscape had already changed. We prepared for the Jackson Reforms and fixed fees and in doing so, we created a leaner, more efficient business model that focused on quicker solutions for the client without compromising on quality. We embraced the challenge of change and realised that in doing so, we could make a real success of the firm. I also spotted a gap in the market in the area of disease litigation, a growing sector and one which fortunately I have been lucky enough to practice in for my entire career. I realised that very few firms practiced in this emerging market and our competition was not as considerable

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“We have created a firm where effectively we grow our own solicitors as a result of training, education and support and it is this training programme and the education of our staff that lies at the core of this practice” £2million in lost work in progress to the business; this is however essential and the main ingredient to the firm’s success. The graduates are supported by fee earners who have been with the practice since inception along with other senior fee earners all with in excess of 10 years industrial disease experience. Training is provided by barristers, engineers, medical experts and audiologists. The team themselves regularly provide training to each other and I also carry out master classes on certain diseases. I also regularly lecture to the firm as a whole on the changes affecting the legal industry.

Promotions occur monthly and case loads are low, allowing clients to be updated regularly and cases to settle much faster. There are no secretaries within the firm and the fee earners are responsible for running all aspects of their cases from start to finish. The initial evaluation of each case that we take on is extremely intensive and rigorous. It is essential that everyone at the firm knows a good case from a bad case from the beginning as we aim to spend the minimum time on cases that will not succeed. This not only benefits the firm and saves the fee earners valuable time, but it benefits the client as we can manage their expectations from the outset. We have always aimed to outsource where we can and we still do this today with companies such as JMC dealing with all our IT, Eclipse our Case management system, Moneypenny our reception services, Quill/Pinpoint our on-line cashiering, and KWLC dealing with our costs. Many of these functions are backed up by individuals in-house now that we have grown. Many firms have large amounts of people in IT whereas we have two people in-house and the rest is outsourced. This creates fewer overheads and more specialists dealing with our needs. I am very lucky in that Oliver and I have an excellent senior management and management team. Lorna Vanderkamp and Gina Rutter are the Associate Directors and they run the firm day to day. They are young, inspiring, dynamic and hard-working, and apart from being good at their specialisms, they are both very commercially minded and are brilliant businesswomen. Gina is the Chief of Operations and has 100 staff under her and Lorna is an exceptionally gifted solicitor and fee earner and is our Head of Legal and she oversees all the fee earners.

The Features

“Going forward, more niche firms will emerge and these will sit alongside a number of much larger full service firms that will focus more on advertising and branding than expertise” The affect of continued consolidation?

Plans for growth?

Some firms look to the disease or clinical negligence market as a new opportunity given the reduction in personal injury costs and the fact that disease cases which start in the Portal and ultimately fall out do not attract fixed costs. This is a very complex area, liability is rarely admitted and cases are regularly fought on causation and limitation and Insurers will not simply roll over and rightly so. We are specialists and we focus upon what has been traditionally a secondary or bolt-on department at many more generally focused PI firms and this has enabled us to become known as the firm that has the expertise in this area. There are many levels of structure, support and supervisions in place and we have teams that just work on certain diseases, such as a musculoskeletal team, an asthma team, a dermatitis team and so on. This allows each team to understand the epidemiology of that particular disease and to ensure that first class legal advice is provided to the customer. Going forward, more niche firms will emerge and these will sit alongside a number of much larger full service firms that will focus more on advertising and branding than expertise. Firms will either do it all and rely on volume and catchment, or just do one thing and do it to such a high level that their reputation wins them the work above all others. I also think many firms will struggle gaining professional indemnity this year which will also have further impact upon consolidation. There will of course continue to be external investors and private equity houses interested as the law is still an area to make money; it’s just that the route to profit is not quite as straight forward as it once was. I do believe however that some firms will thrive. Those that streamline their models and invest in marketing, technology and people will emerge as the front runners.

This year (financial year 12/13) turnover reached £7m, up from £3m last year and £1.7m two years ago and it is projected at £14m next year. The revenue is targeted at £23m by 2014/2015 and circa 300 employees. The firm has expanded physically on 7 occasions since its inception, starting out in one small room in Wilmslow in June 2009, to today where the firm currently has 22,925 square ft and further growth is essential. We don’t need external finance as we now have several years of building up cases which enable us to finance our own growth. Having said that however, there will be great opportunities to obtain case-loads from other firms as the legal market evolves and consolidates in response to the Jackson reforms. Therefore, an injection of capital from a partner that understood our model and plans for the future could help us undertake larger strategic projects. I also believe that third parties and non-lawyers have a lot to offer. As lawyers we often only see what is directly in front of us and bringing someone else to the table, as long as that person is the right fit, can often bring with it considerable benefits. We have discussed becoming an ABS and this is something which is potentially on the agenda in the near future. We have some exceptional people here whom are not lawyers and so we will want them to join our equity structure at some point. Our non-legal and marketing departments are now very sophisticated and the non-legal staff and management are just as valuable to the firm as the firm’s lawyers themselves. Our firm is a genuine meritocracy and anyone making a contribution to the firm’s carefully set out strategic plan should be rewarded proportionately for that work. It is an exciting time to be at this practice and I believe that the people that work here understand that. Karen Jackson, Roberts Jackson Solicitors

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The Features

The Devil is in the Detail A Costs Budgeting Warning: Incorrect preparation and presentation of budgets can prove costly to Claimant Solicitors in the post-April era, as Darren Naisbitt explains.

provides for a warning, post 1 April he may have reached a different conclusion. All of the above highlights the point that ‘the devil is in the detail’.

n 16 April 2013, Coulson J handed down his Judgment in respect of the first Application to amend a budget previously approved by the Court prior to 1 April 2013. Within the Judgement he provided guidance in the circumstances in which a budget can be amended. The Judgment followed a hearing on 25 March 2013. The Claimants’ Solicitors entered into a Conditional Fee Agreement with each of the Claimants, each containing a provision for a success fee, the Claimants also obtained an ATE premium (all signed/obtained pre 1 April 2013). It was not disputed that a Notice of Funding was served upon the Defendant, giving notice of both the CFA and the ATE insurance premium. The Defendant was therefore fully aware of the existence of all additional liabilities at a very early stage. Prior to the first Case Management Conference before Stuart-Smith J on 1 February 2013, the parties exchanged budgets. Unfortunately, the Claimants costs budget was not in the correct format (Costs Precedent H attached to the Costs Practice Direction), as all the required information was contained therein, the Claimants budget was approved in the sum of £85,000. However, on 8 March 2013, the Defendant advised the Claimants that the approved costs budget did not state that it was exclusive of a success fee and an ATE premium. The Claimants’ Solicitors were therefore facing a significant loss due to their failure to complete the budget correctly by using the incorrect Form. This mistake could ultimately have proved very costly for the Claimants Solicitors were it not for the instruction of Just Costs Solicitors who were on hand to identify the error and apply to amend the budget. This case was considered to be a very special case as this was not a situation in which the Defendant could have

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Furthermore, costs experts are here for a reason and that is to make sure that budgets are drawn correctly and in accordance with the Rules and Practice Directions. Solicitors should not attempt to “go it alone” when there are specialists whose sole purpose is to assist in these exercises. After all, if experts get it wrong, there is the ‘safety blanket’ of their professional indemnity insurance!

“The Claimants’ Solicitors were therefore facing a significant loss due to their failure to complete the budget correctly by using the incorrect Form” said to have been misled or confused by the information provided by the Claimants as it was accepted that the Defendant was fully aware of the existence of the additional liabilities. The mistake the Claimant had made in respect of this matter was failing to tick the relevant box, or more accurately, not filing out the correct form and being afforded the opportunity to notice that there was a box there to be ticked in respect to of the exclusion of additional liabilities. It was considered to be in accordance with the overriding objective if the approved costs budget was revised/rectified, or at least clarified to the effect that it expressly excluded the success fee and the ATE insurance premiums. In his Judgment, Coulson J highlighted that budgets had been exchanged as part of the pilot scheme (pre 01.04.13), the rules under the pilot were less draconian than those now included within CPR 3 and therefore he gave permission to the Claimants to amend their budget. However, his Judgment

On another point, Coulson J noted that the new CPR 3.9 was significantly modified when compared to the old CPR 3.9. Only time will tell if the intention behind the new CPR 3.9 is applied by the Courts. In the current, variable and unchartered waters, the world of costs is entering a period of uncertainty where the instruction of a costs professional as part of the litigation team is essential. Darren Naisbitt, Cost Lawyer and Deputy Regional Manager at Just Costs’ London Office, was instructed on behalf of the successful Claimant.

STOP PRESS! The Court of Appeal, on 7 November 2013, heard the appeal against Master McCloud’s decision in Mitchell V News Group Newspapers Ltd [2013] EWHC 2355 9QB) to refuse an application for relief from sanctions. Sanctions were previously imposed for the failure to file a costs budget on time. Judgement has been reserved, with a decision due imminently. The legal community wait with baited breath to see whether or not the Court will be enforcing the need for compliance with costs management requirements, or granting the relief sought. Watch this space.

The Features

Have wig, will tremble? The effect of legislative change has impacted on every aspect of the legal sector, in particular, the Personal Injury Sector. Theo Huckle QC explores the Barristers perspective post-reform and the perception of the Bar in the wider legal arena.

As I write this we on the PIBA Executive are currently formulating a series of pretty tough questions for Ramsey J (“the Jackson enforcer”) as to how we are all supposed to navigate the obvious lacunae in the new rules which can only help to increase satellite costs litigation and frankly be nothing but damaging for clients’ interests. Who knows, proper listening engagement with the professions might have been capable of ironing out these problems with some properly thought through transitional arrangements. Silly me, I’m obviously missing something. PI specialists have great difficulty in knowing whether ABSs and

“Any arrangements which work to undermine the independent advice and representation which the Bar offers to all-comers (from its little ole taxi rank), and which discourages the best talent from becoming PI barristers, should be rejected by all who believe that our systems of compensation for injured people is a civilising feature of the civil and social fabric of the UK”

Direct Access will provide sensible rearrangement of traditional practice structures for barristers. Already chambers which have sought to enter special relationships with very small groups of their main work providers have collapsed in the wake of the obvious irritation caused to others, and my view is that the essential quality of the Bar, which makes it so useful, is its very independence and referral status. The jury, however, is very much still out on these questions and the Bar (mainly) observes with great interest but a measure of trepidation. In the end, most barristers will continue to do the very best job they can for their solicitor and lay clients, try to plan the best road ahead, and otherwise hope for the best. It is, though, surely a given that the Bar needs to adopt a far more commercial approach to the running of PI cases than it ever has before. ‘Commercial’, both from the point of view of its clients, and from the point of view of managing its own risks, service levels and organisation. It is those chambers and individual barristers who do this who will survive and prosper. Accordingly the Bar needs to fully understand its market and the pressures on solicitors’ firms. Conversely, those instructing must understand the business position of a barrister. We are not in any form of partnership with our instructing solicitors, and are not there to ‘share’ firms’ risks. There is often little understanding of the particular risk profile that the Bar ‘enjoys’, usually instructed far later in the process in by far the more difficult cohort of cases, when the ‘easy’ cases have already settled. Overall a barrister can normally not conduct a sufficient number of turnover, lower value cases to be adequately self-insured against the serious exposure to risk involved in

Theo Huckle Theo Huckle QC practises from Civitas Law in Cardiff which he helped to found as Wales’s first specialist civil set serving the whole of England and Wales. He is a member of the PIBA Executive Committee and of APIL, and a “Leading Individual” for both Chambers & Partners and Legal 500 in PI and Clinical Negligence. He is an ADR Group trained mediator and member of QCMediation.com. He is also a member of the Welsh Government as Counsel General for Wales.

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1. Baker v Quantum Clothing [2011] UKSC 17

e await the main impact of the Jackson reforms upon the Bar, mainly perhaps as a result of the flurry of “old style” CFAs entered by midnight on 31st March 2013. Six months on, however, new work is arriving which must be done under the new terms, and there is considerable confusion as to how these work in transitional situations.

00 30

????Features The

more complex and fully fought cases. I know, I fought a CFA case all the way to the Supreme Court, won gloriously 3-0 in the Court of Appeal and then lost 3-2 in the Supreme Court1, nice.

“The Bar remains a highly expert resource in the field of personal injury, hugely concerned about the access to justice issues created by the changes, but fully committed to continuing to work with its clients to bring meritorious claims and establish meritorious defences”

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this seems to me more accurately to reflect the business realities that an effective PI Bar must now face, and of course follows the model available in some publicly funded fields. I think where I get to here is to urge that we all try to work together to enter sensible commercial relationships likely to be viable in the medium and longer terms with no ‘race to the bottom’. Ultimately any arrangements which work to undermine the independent advice and representation which the Bar offers to all-comers (from its little ole taxi rank), and which discourages the best talent from becoming PI barristers, should be rejected by all who believe that our systems of compensation for injured people is a civilising feature of the civil and social fabric of the UK. Being comprised of people with extremely enquiring minds, the Bar is peculiarly well placed to take advantage of technological developments in information services and communications. Personally I am sufficient of a geek to enjoy spreadsheet analysis of the variables in a substantial Schedule and their effects on the final numbers compared with offers made, and enjoyed making my submissions to

the Supreme Court from my iPad. And I love the way my various diaries sync via iCloud. Sad, I know, sorry. In conclusion, the Bar remains a highly expert resource in the field of personal injury, hugely concerned about the access to justice issues created by the changes, but fully committed to continuing to work with its clients to bring meritorious claims and establish meritorious defences. It maintains all of its traditional specialities and advantages of high ethical standards and independence of mind. A barrister will give you a new viewpoint and angles, tell you frankly and courteously when you have got it wrong, and work hard to help you get it right and get the best for the client. It is my clearest view that with challenges come also many opportunities. The Bar must be prepared to change – fast - to take advantage of those opportunities, and is peculiarly placed to make the necessary changes. This is a profession of self employed troubadours, avowedly motivated, nimble and fleet of foot. Bring me my bow of burning gold! Bring me my arrows of desire! Onward! Theo Huckle QC, Civitas Law

1. Baker v Quantum Clothing [2011] UKSC 17

The PI Bar views which concern certain forms of terms being required of the Bar on a ‘take it or leave it’ basis. In some cases this amounts to ‘we will take the 25% capped uplifts but you will never see any of it and we will retain it against our risks and increased costs’; in others, ‘we think it immoral to take any uplift out of client’s damages at all’; but in others, ‘we will have a differential scheme of base fees with or without uplifts in success, but even in lost cases you will get some base fees at lower levels’. The first and second pay little regard to the need for practice to be commercially viable for the Bar, returning reasonable reward, and the consequences for future practice if high quality barristers move to other areas of work over time, perhaps rapidly, as they have done many times before when particular fields of work became less profitable. The morality argument may be rather difficult, since these changes have been foisted upon a reluctant legal profession, and like many colleagues I have no recollection of clients being upset at the limited deduction from damages in the first period of CFAs in the 1990s, even without the new restrictions now on the elements of damages which can be ‘raided’. Those who are applying the uplift as against damages already seem to report a resigned and content client base. As to the ‘lower fees if you lose’ model,

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