The muddled thinking coming from the anti-Jackson movement continues, as charmingly shown by Nigel Muers-Raby, Chairman of the Consumer Justice Alliance (Law Society Gazette, letters, 26 May). His letter begins:

“Your recent article reporting on the increased number of medical negligence claims in 2010 is interesting, but the Medical Defence Union reaches a highly speculative conclusion. The MDU offers no firm evidence for its suggestion that ‘no win, no fee’ arrangements are behind the increase in medical negligence claims reported in 2010.”

Fair enough. The point being made here is that there is no evidence that ‘no win, no fee’ arrangements increase the number of medical negligence claims that are brought.

And then, with just one sentence separating this argument, we are presented with:

“There is no doubt in our minds that someone who has suffered an accident will find life much tougher if ‘no win, no fee’ agreements are lost: ultimately it will hinder their ability to seek fair and reasonable access to justice.”

We are now presented with the argument that ‘no win, no fee’ arrangements enable more medical negligence claims to be brought than would otherwise be the case.

Either ‘no win, no fee’ agreements have no effect on the number of claims brought or they increase the number. What they can’t do is both these things at the same time.

I can understand the anti-Jackson lobby trying to mobilise whichever argument suits them on any given occasion but surely they have the sense not to use contradictory arguments in the same letter. And they wonder why Jackson totally ignored them.

The inconsistent arguments being put forward by the anti-Jackson lobby continue unabated.

Access to Justice Group co-ordinator Andrew Dismore was recently reported as saying:

“The government must think again and not give in to the special pleading of the fat cat multinational insurance companies, who are the sole beneficiaries of their plans. They will save millions of pounds at the expense of ordinary people who have been hurt on the roads or at work. The government’s plans are Draconian and will end access to justice for the less well off.”

Colum Smith, the solicitor who acted for the claimant in the recent high-profile £6m damages claim for plastic surgery injuries, was quoted in the New Law Journal as saying his firm would not have been able to act if success fees were no longer recoverable and limited to 25% of damages:

“If we lost the case, we would have lost too much money. I make a living doing high risk cases. I don’t cherry pick.”

The line of reasoning being taken here is that without recoverable success fees solicitors will be unwilling to take on more risky claims.

A crucial part of the Jackson package is the proposal to introduce qualified one-way costs shifting (QOCS). Generally, successful defendants would no longer be able to recover their costs from the unsuccessful claimant.

So what does David Hartley, Director of ATE services at Abbey Legal Protection, predict QOCS will mean? He was quoted in Costs Lawyer magazine as saying QOCS would lead to “a massive market in speculative and fraudulent claims”.

If these twin predictions are correct, post-Jackson we can expect claimant solicitors to be less willing to run genuine cases, because of the risk of losing, but more willing to take on speculative and fraudulent claims, regardless of the risk of losing.

Or perhaps not.

Which is it to be? More or less litigation?

Three cheers for the Access to Justice Action Group (AJAG) and the Association of Personal Injury Lawyers (APIL). Words you probably didn’t expect to hear on the Legal Costs Blog.

They have been loudly trumpeting their “independent research” into the impact of the Government’s proposals for ‘no win, no fee’ agreements. Press releases, tweets, etc.

They have been strangely quiet about one element of the research findings. Of those members of the public interviewed who had brought a claim under a ‘no win, no fee’ agreement, only 2% lost their case after court proceedings had been issued. A further 3% had been dropped on the solicitors’ advice. Of those cases where proceedings were issued, over 90% of claims were successful.

And we are seriously expected to believe that with these kind of success rates solicitors will not be willing to run these claims regardless of any changes to the ‘no win, no fee’ system.

I’ll be waving this research around at the next detailed assessment I attend with a success fee claimed.

More research like this please.