Now the Small Claims Track has always been meant to be a nice easy way to bring a claim on your own without lawyers – and without the chance of getting legal costs back.

Now that sounds fine until you realise that the limit on a ‘small claim’ is £10,000. Now I don’t know about you but that’s a fairly large definition of small.

Thinking about this more consider how much work you do to be owed £10,000 or to have a problem that worth nearly £10,000? There’s a lot of complex legal cases worth less than that which you cannot afford to be represented in but cannot afford not to be represented.

Imagine you get an extension built which leaks – it cost £15,000 but fixing it is ‘only’ £5,000 more work. The builder doesn’t respond to your requests to fix it or pay for it to be fixed so you decide to sue him.

You can’t get a lawyer to take the case on a no-win, no-fee basis as there’s no award of costs and if you spend the money then you lose money for the repair work. But he’s got tradesmen’s insurance and gets a lawyer to defend him! A little unfair that you get no legal help, your case gets picked apart by a lawyer and you get overwhelmed when everyone else in the courtroom seems to speak a secret language – yes the judge will conduct things but he can’t explain the whys and wherefores you need to actually fight it.

This is sadly the way forward – the only way to get access to justice today is to pay either insurance or out of your own pocket, and if you don’t have the money nothing. Not 20 years ago if you had such a dispute and didn’t have the funds you could get Legal Aid – not free but you would get a fair fight and your some of the cost paid over a long time, now nothing.

One cathartic rant down, many to go.

It appears the Iron Lady has passed away.

Whatever your politics it is undeniable that she navigated England through some difficult waters, a serious recession, the Falklands and ultimately the transition from a post-war economy to one that worked with the rest of the world, both in Europe and with the US and USSR.

Maggie you will not be forgotten!

An old question with a simple answer, yes it seems the noble profession of the solicitor has forgotten it with the slow progression from the Predictive Costs Regime through the Portal to the new reduced fixed fees.

The level of fees is being reduced to the level that nothing but the most factory like practice will be able to undertake personal injury work and leave the injured woefully underadvised and undercompensated.

Of course it will doubtless be possible to pay for your own effective legal assistance but where does that leave someone without significant personal resources against a well funded insurer? From one of the most effective systems in the world where the wronged can gain recompense and when vindicated their expenses in obtaining that recompense – assessed as always by a court to ensure that the costs are fair – we find ourselves in the situation where it is impossible to recover all but a nominal sum of the costs incurred in obtaining compensation.

This leaves every claimant at a serious disadvantage as an insurer can spread their defence costs risks across thousands of cases per month. By taking a firm denial stance all but the most clear cut cases will not be able to persuade a claimant lawyer only earning a fixed fee to mount the fight needed to secure an admission or even to obtain documents to advise properly on prospects.

One issue that has not yet been mooted is post-issue costs and it seems the matrices in Sir Rupert’s final report will not be implemented quite yet so as to make costs wholly proportional. 

With that outstanding may the old PCR strategem of issue early to transition to hourly costs be used to take difficult EL/PL cases out of the scope of fixed fees by firms advising their clients of the route to the best result?

This week Chancery Lane has announced that (http://www.lawgazette.co.uk/news/chancery-lane-warns-anomalies-referral-fee-ban) there is a chance that lawyers will figure out structures to avoid the teeth of the referral fee ban in LASPO! Also, a firm is already doing so (http://www.lawgazette.co.uk/news/quindell-snaps-claims-networker-sidestep-referral-fee-ban).

Shock! Horror! A profession trained in the interpretation of rules to the benefit of their client (a paraphrasing of the first rule for both barristers and solicitors which neither would dispute) applies those skills to do its best to continue a profitable business model.

In fact, any lawyer reading about the referral fee ban whose income is in any way affected by it that did not consider at least one way around the problem needs to hand in their practising certificate at the door.

The field of personal injury claimant work has been seen as a way for a few lawyers to make a lot of money and I won’t try to deny this. There are workable effective business models to allow lawyers to do so. Perversely these are the lawyers which post referral fee ban will be able to buy in their favourite claims management company and run it as a marketing department and pay the directors on similar terms to their remuneration as a claims management company.

Why is an industry penalised for developing a working free market model for marketing, those referral fees cannot be passed on to anyone else and come directly out of revenue which is assessed on the traditional hourly rate x hours basis and does not take into consideration whether the case is personal injury or not and whether the case arrived by way of the claimant walking in to see his family solicitor or calling an 0800 number.

It is also evident from the first few years of the CFA which led to the referral fee itself that there were somewhat sharp business practices employed but following the TAG litigation amongst others and revisions to rules on professional conduct the system has settled into one which works well for the man in the street. It is only by making the man in the street more aware of his rights that it imposes any burden on insurers and the nation’s greatest single compensator HM Treasury; were there not a valid claim at law then there is no loss to the compensator nor is there income to the lawyer (which is thoroughly taxed!) nor referral fee payment (likewise taxed).

Even better – for those of you unfamiliar with the behemoth of legislation that is LASPO this ban appears nowhere in the short title and is not even hinted at. It amounts to ss 56-60 of a 154 section Act the majority of which relates to important issues of Legal Aid, Sentencing and the Punishment of Offenders (surprisingly). I wonder why.

Sadly I didn’t get to celebrate #worldginday this year, my stash of gin was dry and I was far too busy during the day. Next year will be a different story.

Now I need to discover when bourbon day, whisky day, whiskey day, rye day and scotch day are!