Hardwicke’s Jasmine Murphy tells Katie King about behind-the-scenes attempts to keep the cases flowing — and how they are being thwarted
The personal injury (PI) sector is changing, for the worse at the moment — but young lawyers wanting to get involved in this dynamic practice area shouldn’t be put off.
Last spring saw court fees leap up by as much as 660%, making it harder and harder for members of the public to take their cases to the courtroom.
This is a huge access to justice issue, so to circumvent these staggeringly high fees, lawyers could do something a little bit sneaky. Underestimate the value of the claim, pay a lower issue fee, then up the claim to its true value once it has been issued.
And then came the decision of Lewis v Ward Hadaway. Mr John Male QC, Deputy High Court Judge, slammed this risqué technique as an “abuse of process”.
The Lewis case doesn’t stamp out the possibility of undervaluing a claim — it’s only a High Court decision and therefore not binding in the same way as a higher court decision — but it does send a powerful message of disapproval to lawyers and claimants thinking of trying their luck.
So what does this all mean for the sector, and for wannabe PI lawyers?
Legal Cheek caught up with Jasmine Murphy — a Hardwicke barrister specialising in PI and professional negligence — who has taken a keen interest in the recent Lewis case development.
Murphy was quick to point out that this is a “pretty dramatic decision”, one that will worry a lot of claims and claimants. It is, however, very difficult to make the decision sit right in a PI context.
Underestimating the value of a claim may not be a sneaky tactic at all: it could be the result of genuine uncertainty about the injury and its extent. In a lot of cases, it’s hard to know for sure if the injuries sustained will be permanent, so it’s difficult to put a value on it at the issue stage.
Murphy gave the example of a claim that she worked on that was valued at £50,000-£100,000 when issued — but it was served with a Schedule of Special Damages totalling a staggering £600,000. It’s certainly “not uncommon” for this to happen, Murphy told us. The fear is that, post-Lewis, underestimating the value of a claim on issue could have draconian consequences.
The shake-up of the civil justice sector is a hot topic for lawyers — and sympathy for the government is thin on the ground. Just this week, three of the country’s most senior judges took to the stage to slam the government’s encroachment on the civil justice fees system, in a scathing rant unparalleled in recent history. Last month, the Lord Chief Justice, in his annual report, said that he was “deeply concerned” about the effect rising court fees is having and could continue to have on access to justice.
And rightly so, says Murphy. She told us:
The comments made by the judges show that they care about access to justice so there’s definitely a level of judicial sympathy there for claimants facing such high issue fees.
And while the current level of courts fees is already impeding access to justice, things could be getting a whole lot worse for wannabe litigants. Chancellor of the Exchequer, George Osborne, recently announced a series of government proposals aimed at alleviating Britain’s ‘compensation culture’ even further — which has sent some major PI firms into turmoil.
It’s clear, says Murphy, that the government is trying to “stamp out” whiplash claims, passing them off as unimportant. This is the totally wrong attitude to have. These ‘minor’ injuries can have relatively long-term, serious consequences for wannabe litigants. Comparing PI to flight delays — where claimants are automatically entitled to €250-€600 for having to wait around in an airport for a few hours — it’s obvious that the prospective system is illogical.
With government reform coming thick and fast, who knows where the sector will be in ten years time — but Murphy urges wannabe PI lawyers to stick at it. Though the proposals, if enacted, will no doubt reduce the amount of PI work out there, the industry is remarkably resilient, and it will survive.
Murphy’s top tip for budding PI specialists is to not put all of your eggs in one basket. A squeamish Murphy never thought she’d enjoy PI, and actually started out in criminal defence. Now she loves what she does: the work is entertaining, fast-paced, and perfect for people wanting to build up strong client relationships. Experience as many different practice areas as you can. This will give you the chance to learn what you like and what you don’t like, and allow you to make good, solid career choices.