Thursday, 18 May 2017

Late charge

Charging orders have long been an important tool in the enforcement and asset recovery kit. Procedure has “evolved” over the years.

I can remember a time when these applications were governed by the provisions of the County Court Practice (aka “The Green Book”).  The remarkable feature then was that a hearing would always be listed, as a matter of routine, to decide whether the initial order nisi should be made absolute.

In the nineties (whoops!) I led a team of people dealing with enforcement work including charging orders.  Every week we would organise attendances at hearings where the debtor did not turn up and the charging order was confirmed along with fixed costs that never covered the actual expense of being prepared to deal with whatever happened.

I wrote to the chief clerk (sic) of our favourite and most-used local court suggesting that a better system would be to require the debtor to give notice if he or she intended to oppose the making of a charging order absolute.  If they did so, we would have a hearing in the usual way.

If they didn’t give the requisite notice at least seven days before the hearing, we could simply rely on a request for the charging order to be made absolute in absence.  If the debtor then turned up, having failed to give notice, the application would be either granted or adjourned.

The suggestion was quickly accepted and implementation followed in a number of other courts and was later adopted within the CPR.  It’s basically what then happened for a number of years until last April.

Now we have a new system whereby all charging order applications have to be made to the CCMCC in Salford, following the lead of the requirement that all “money claims” be issued out of that court rather than local county courts.

Now the procedure is that after an interim order is made and served within 21 days, we wait another 28 days to see if the debtor has any objections.  If by the end of “Day 49” no objection has been filed, the court will make a final order without the need for a hearing.

So, it gets better and better… or does it?

Here’s the message that we received from the CCMCC in response to the latest enquiry last week about an overdue order:-

We are aware that there is a delay in the receipt of final charging orders after “Day 49” pursuant to the centralisation of charging orders protocol.  Currently it is taking around 33 days for you to receive a final charging order from day 49.  We apologise for this delay and are doing our upmost (sic) to address the situation to bring it back in line with the protocol.  We are working closely with the judiciary bringing extra DDJs into the business to work through the increased amount of work which has built up.”

We are not aware that there is any objection in this case.  So what is it taking nearly five weeks to do?

The answer would appear to be to “rubber stamp in the absence of any objection from the debtor the interim charging order that was made perhaps as long as three months ago or longer”.

How can such a seemingly simplified system have become so wretchedly ineffective? Why does it need to go “on the shelf” (Lord Briggs, are you there?) and wait for a judge to look at it?

Charging orders couldn’t be simpler in most cases. If the judgment is unpaid and the debtor owns the property – bingo.

Like all the other changes, including the 660% rise in court fees, this is an innovation aimed at achieving greater efficiency. Actually it’s all part of a system which is costing the user more and delivering shrinking benefits.

Meanwhile I cheer, ironically, as a notice of issue of a claim form arrives. The notice itself confesses that our proceedings were received at the CCMCC on 21 April – 4 weeks ago.

As Gladstone said, justice delayed is justice denied. 


Wednesday, 1 March 2017

Imperfect storm


Insurance costs rocket as weather turns nasty...


By our underhandwriting correspondent Polly C Hikes

The motor insurance world was rocked to its foundations today by the prospect of having to pay up on claims. Insurers have announced a steep rise in the price of ‘cover’ after an unexpected breeze threatened to bring chaos to Britain’s roads.

Seconds after a 'menacing' cloud (pictured) neared the south-west coast of Cornwall underwriters warned of the need to raise prices immediately. A spokesman for the Avaricious B******s Institute wept uncontrollably as he explained to sleeping politicians that the risk of some stronger drizzle than had been anticipated this week would force a 100% increase in the cost of the average policy.

Taking a freshly peeled onion from his pocket, Mr Bruce Fibbs blamed fraudulent weather forecasting for the crisis but reassured everyone that the industry would be able to crack down on the villains.

“Fortunately, we have a direct lying (Is this right? Ed) to Whitehall and should be able to rush through legislation – sorry, I mean lobby for early action,” he consoled, bravely. “My wife, Sheila, wails every time an injured claimant is compensated in accordance with the law.”

His colleague, Mr High Heavens, quickly agreed. “This is hugely damaging to executive salaries and shareholder dividends and it’s clear that government must act. Policyholders have enjoyed the promise of a possible reduction in costs – one fine day - for long enough now and it’s time we reneged on that again as we always do”.

A spokesman for the Hatchet Insurance Co added his voice to the protests. “The problem is all these wretched accident victims trying to take our money away from us. If they think we’re going to pay compensation for their injuries and losses, they must be deluded.”

“We’ve been running a charity for years”, he sobbed. “People don’t seem to understand that these painfully low interest rates have meant that we can no longer sit on our arses watching other peoples’ money earn us a fortune. We’ve got to the point where we don’t just need to hold on to the cash for as long as possible – we need to keep it!”

“It wouldn’t be quite so bad,” he spluttered, “if we could just be left alone to deal with these misguided people direct and settle their claims fairly - with a bunch of flowers and maybe a massage for the catastrophic cases. The problem is that some of them hire lawyers who know what the claims are truly worth and then make us pay for trying to rip-off their clients. These people are deluded if they think….” (to be continued… and continued… and continued…)

But the Minister of Injustice reacted quickly and supportively to insurers’ concerns. “It’s a no-brainer”, said Miss Trust, “and I, more than anybody, recognize that”.

Unveiling a new criminal offence of being injured or killed by somebody else’s negligence, she warned that this would not become law until next week. Furthermore, there would be a consultation on the new measures later in the year.

“It’s desperately important that the rights and misfortunes of ordinary individuals are not seen to be more important than corporate profits and political favour”, she cautioned wisely. 


Tuesday, 25 October 2016

Fundamental dishonesty

It is said increasingly that we are living in a post-truth age, particularly with reference to modern politics.  Fairness and fact are usurped by false rumour and appeals to emotions.

Many solicitors dealing with personal injury claims will tell you that the insurance industry is a far from shining example of this murky culture.  We say you can’t trust them.

They have convinced recent past governments, and much of the population, that injured people pursuing claims for compensation are largely if not entirely fraudsters and that these claims, and the costs associated with them, are responsible for relentless rises in motor insurance costs.

The headline claims are untrue.  This has more to do with the impact on profits and capital reserves of depressed interest rates over a long period of time.  See Smokescreen for more on this.

Recently we’ve had yet further headlines about the rising cost of policy premia, the average expected to hit £700, despite all the so called curbs on costs that the industry duped a supine government to implement.  Still insurers insist that whiplash isn’t real and inflate their statistics for “fraud” by the inclusion of routinely abandoned claims. 

The more audacious the yarn, the bigger the impact – see Make the lie big.  It all seems to be one way traffic.  No wonder.  The Association of British Insurers (“ABI”) is a well organised and vocal body representing huge and powerful corporations.  It goes without saying they are well funded – with our money.  We pay them to mislead us - and then pay them more.

We are hearing now about the reported successes of insurers in defeating claims for what is known as fundamental dishonesty.  This was another deterrent introduced a little over three years ago whereby the penalties for false claims and exaggeration were increased substantially.

It’s quite right of course that people who pursue fraudulent claims should face the consequences but the latest rules have created a climate where ordinary decent people pursuing genuine claims for compensation to which they are entitled as a matter of law are terrified of the risks.

Leading defendant law firms now boast about the number of cases they have seen off by alleging fundamental dishonesty and we know that a large section of the population would not now be inclined to pursue a claim following an accident because of the stigma and fears of this so called “compensation culture”.

Insurers portray themselves as the white knights on the battlefield, protecting the premium-paying public from these abuses.  They tell the world that it would be fine to change the rules so that all these expensive claimant lawyers will drop out of the equation.  Genuine victims, they say, have nothing to fear and can trust insurers to deal fairly with them and seek that they receive that to which they are entitled by law.

Believe that?

If so, you may want to do something about those long, furry ears.

For an example of how fair and virtuous liability insurers can be, see the report that we posted on our website earlier this month in the case of McLachlan v South Somerset District Council.  It’s a heart-warming tale of justice being done, despite the skulduggery of the Dark Side. 

The success or failure of public liability claims often depends on whether or not there have been similar accidents in the past which alerted the defendant to a need for action.  You will see in the website report one of the highlights of the trial which was the judge’s question “How many people have to injure themselves before you realise there is a design issue?”

So, you don’t have to be any sort of expert in this field to understand that if the knowledge and existence of previous and similar claims can be suppressed and concealed, it’s going to be far more difficult for the claimant to succeed.

In this case, the District Council’s insurers lied to us repeatedly about the history of this car park.  They did so in correspondence, in answer to pointed questions and despite at one stage information from us that we already knew of at least one claim.

We were told in a letter of 28 June 2014 from insurers that:

        “All other users of the car park negotiated the area without incident”.

We asked them:-
“Are you referring to a particular space in time and group of users or the world at large at any time during which the kerbs have been in place?”.
Claims handler Charlotte wrote to tell us on 18 July 2014:-
“We can confirm that we are saying there were no other incidents prior to your client’s accident”.
We were at that stage already on to the fact that the “walking wounded” often limped to the nearest source of assistance, the Octagon Theatre – see the headline to the report. 

Ironically, the defendant council as owner and control of the Theatre where – according to the manager who gave evidence at the trial – so many victims reported, produced no records of any such matters during the course of the proceedings. False disclosure statements, anyone?

We made that point to them in a letter dated 6 February 2015.  We were subsequently told, again, on 1 July 2015:-
“We note your comments, we can confirm that our insured are not aware of any other similar incidents or complaints in relation to this matter”.
In fact there had been at least eight prior incidents. The complaint by one victim, who was injured approximately five years before our client fell, was presented by then Somerset County Councillor Cathy Bakewell MBE.  In answer to correspondence from the Head of Engineering and Property at the District Council, she wrote:-
“Might the council consider highlighting the edges of the kerbs in order to make them stand out more, especially in the evening? Whilst there is lighting in the car park, it does not illuminate the kerbs. Might it be possible for the council to consider some additional lighting to assist pedestrians to avoid tripping over the kerbs?”
The trial judge said, “It is difficult to think of a starker picture and I find it mind-boggling that the defendant did nothing”.

But the key point of this piece is to highlight the seemingly fearless – yet at times inept – attempt to conceal the truth, with deliberate false statements about the history of the matter that was crucial to success or failure of a meritorious claim.

Injury claimants who tell lies in support of their fraudulent claims face the real prospect of going to prison.

Solicitors who connive at such claims face the risk of being struck-off, losing their livelihood and perhaps joining their clients behind bars.

What happens to insurance companies and their employees who tell lies in support of their case?

Nothing.  They can pick up the next file and do it all over again.


Friday, 21 October 2016

In ruins

I could weep as I read the latest direct evidence of how the Ministry of Injustice has smashed up our civil justice system. I fear we’re close to the end of that Road to ruin I wrote about 18 months ago.

Latest example comes in a case where we are acting for a creditor whose debt was to be paid, by agreement and consequent approval of the court, through a scheme of monthly instalments backed up with a series of adjournments.

It worked well for a couple of months but then fell victim to the state of affairs at our local court where it seems that the minimum period of time now to process routine paperwork, including formal orders, is 5 to 6 weeks.  In the last few months the scheme of adjournments has fallen off the rails, with the most recent being more than two months.  It’s no surprise the payments have dried up and we are now trying to get it back on course.

No answer to correspondence so one of my team telephones the court yesterday morning.  She speaks to somebody who is new to her role and doesn’t yet have access to the email system – so she can’t even tell us if our communication has been received never mind dealt with.

Asked if there was somebody else that we could speak to who might be able to help us, the answer is that they are “incredibly short staffed” – so, no.

We could send another email marked “urgent” to bring this up through the backlog in correspondence but there is no guarantee because of course our call handler has no idea what’s on the system. Would we have more luck calling tomorrow when somebody with access might be available?  Well, we are welcome to try but there is no guarantee… 

The last telephone case management conference I dealt with in the same court, a few weeks ago, was a farce because British Telecom couldn’t get anybody to answer the phone for half an hour.  I made small talk to the litigant in person on the other side whilst the judge sat at his desk doing box work and wondering why the telephone didn’t ring.

He did his best with only 15 minutes of a 45 minute case conference left.  Hopefully next time (if the court is still there) we shall be given a direct dial number for the usher instead of waiting for somebody to man the switchboard that also handles all business for the criminal and family courts.

In two other recent instances final hearings have been postponed because there was no judge available.

This used to be such a reliable and effective court.  We had very capable and helpful district judges - still do - supported by an administrative team who always had too much to do but got it done.  We used to complain when they told us that they were three weeks behind but they would find some more resource and bring it up to date.

Things happened then.

I talked at the end of last year to one of the people responsible for that culture – somebody whom you could always depend on when it was necessary – a real “leave it to me” (and it will get sorted) type.
 
I listened then to how the 5-week-old pile of post would come out of the cupboard each day and, after all the more immediate and urgent stuff had been dealt with, go back in the cupboard at the end of the day – the only change being that the pile was a little higher. 

I saw the look of desolation in the once-bright eyes and understood the anxiety to retire and escape at the first opportunity. 

The good people have gone, or are going.  To the extent (partial) of their being replaced then it’s with young recruits who lack experience, knowledge and training. Not their fault but they don’t have it.

In response to the last provisional assessment request we filed came a notice that the “detailed assessment hearing” had been listed on a date when we should attend and “2 minutes 30 minutes (sic) has been allowed for the hearing”. 

We pointed out the error and in response received “notice that the provisional assessment hearing will take place…” and in this instance 1 hour and 15 minutes had been allowed. Another letter to the court drew the assurance that no attendance at the hearing was necessary.  The next order enclosed the bill provisionally assessed by the district judge in the absence of the parties.

Since then and approximately a month later, we have had another ‘order’.

“IT IS ORDERED THAT this case is on the list today.  However the bill has already been provisionally assessed…”

Magnificent.  

I am waiting for an “order” one day “that I will be on holiday four weeks from today so list that for when I get back – and I am just going out to get a sandwich now”.

This is “justice” at work nowadays.  This is what people pay us to grapple with to obtain orders that are a civilised society’s alternative to self-help and anarchy.

Meanwhile we have people in Salford who can’t process anything in less than a fortnight hunting for minor arithmetical miscalculations or errors of procedure (that aren’t) and then having to refer files to district judges whilst we wait weeks for news of something happening. 

In one case where “proper officer” and district judge were both doing different conflicting things on the file on the same day we ended up with a proper procedural mess which cost The Court Service more than £3,000 in wasted costs (and that was just our side).

I can’t wait for Lord Briggs’ wonderful online courts, monitored by people who don’t have access to the system and available to people who know nothing of law and procedure. 

That should cure all..


Sunday, 9 October 2016

Sick

Stephen Adams’ ugly polemic in the Mail on Sunday seems to be branding all lawyers – certainly those involved in the business of suing the NHS for compensation for victims of clinical negligence - vultures. What a sweet guy.

He rants about the amounts paid in costs during the last year in relation to damages claims (excluding costs) that have trebled from £323 million to around £950 million over the last decade.

All the rhetoric aside this is fairly simple. Compensation is only paid in cases where a court decides that the NHS has been negligent and so the claimant is entitled, according to the law, to compensation or the NHS accepts that is the likely outcome and settles before trial.

So – the first fact to get on board is that all of these expenses arise because of proven or admitted blunders for which the law says the innocent victim should be compensated.

In other words – and this is the real point of concern – cock-ups are increasing at a frightening rate. No wonder where the service is so under-funded and demoralised. No consolation there for the victims of that growing number of mistakes who, our law says, should be compensated in the only way possible – by the provision of funds to alleviate their suffering.

And as for costs – guess what? Yes, they are only payable in successful cases so all the outrage is about the expense of suing the NHS to pay damages they are liable to pay for getting it wrong.

Forget the hardworking individuals in this scenario. I admire them too. This is not about caning well-meaning folk who are doing their best. It’s about recognising that because these lovely, caring people are overworked and under-resourced, other innocent citizens are being failed and in some cases very badly injured or worse.

Let’s be grown up and accept that if you mess up, you need to make amends. By the way, an apology is a cracking good start.

I expect that many sane people see that but may ask, “Yes, but what about the amount of the costs?” 

Good question.

First, there are many cases where there is no justifiable complaint about the costs incurred by the claimant’s solicitors. Remember that those sums – however much they are – form part of the total costs paid alongside damages in claims which are proven or admitted to have merit.

Secondly, there are too many cases where the people tasked with fighting these claims on behalf of the NHS lose all objectivity and pragmatism – fighting for the sake of it, where sensibly they should be conceding the claims and working with victims’ lawyers to make sure the right amount of compensation is paid.

But they don’t. As the MoS article briefly mentions, it’s a “culture of defend, deny and delay”.

So, this pushes the costs up – inevitably. There’s a good claim. Victim’s lawyers know it. What do they do? Say, “Oh, the NHS are digging in – we’ll have to give up”? Of course not.

See Kerry Underwood’s analysis earlier this year which contains links to cases where the NHSLA has been fiercely criticised by judges for its attritional approach.

At this point it’s worth repeating the unarguable message that the answer to this problem comes, to a large extent, in two simple parts:

1.       Don’t screw up (please)
2.       If you do, ‘fess up – promptly

Finally, yes there are cases where the fees claimed – even though the case succeeded – are too high. In some cases there is a genuine disagreement about what is reasonable. In others, disreputable lawyers – a minority - are claiming too much.

The easy answer is always that the court controls, by a formal process of detailed assessment the amount payable. If the NHSLA thinks the bill is too high, then it simply forces the matter before the court and if it makes sensible offer of payment along the way, it can expect to recover its costs of fighting the assessment.

Problem? There isn’t one – except the culture of cock-up, cover up and clam up.

Remember – every single payout is the product of a proven or admitted mistake.

The NHS, NHSLA and parts of the media are all sick in various ways. Lawyers fighting fairly for justice are sick of two of them.

As for Stephen Adams, he’s succumbed to the temptation for personal gain to tar all lawyers with the same brush. All generalisations are dangerous…

It would be like reading the Mail and concluding that all newspapers are full of rubbish.


Saturday, 20 August 2016

Smokescreen

I see The Times has lapped up the latest propaganda about the cost of car insurance.

This time we are back to whiplash, giving fraud a rest for a few days, with the claim that at least £64 has been added to your average car insurance premium during the last year under the heading “Whiplash claims bump up car insurance costs”.

It's another big fib from the Dark Side of the industry that so many of us know well enough.  Government figures confirmed only three weeks ago that whiplash claims were falling, as reported by Scott Rees & Co , for example.

So, how can this be?

Well, fundamentally the explanation is that one story is true and the other isn’t.  Anyone who keeps an eye on this particular area or the financial markets will understand why there is a renewed drive right now to cover up the truth.

Half year results are out.  Let’s have a look at how three of the big names in motor insurance are faring amidst this battlefield of whiplash, fraud and fat cat lawyers…

First - good old Aviva.  One of my former assistants will remember them as the people who recommended that she didn’t obtain independent advice on her claim against their insured (Livin’ Aviva Loca!).

The former Norwich Union began in 2016 “from a position of strength”.  The Telegraph reported in March this year “Aviva shares jump as insurer posts bumper profits”.  Dividends were raised by 15%.

It seems like it has continued to go well for Paul Whitehouse’s chums with the interim results announcement of 4 August 2016 .  Mark Wilson Group Chief Executive Officer tells us:-

“Operating profits are up 13% and the dividend is up 10%.  We are delivering consistent, stable and predictable growth despite challenging market conditions”.

AXA half year results on 3 August 2016 show income and profitability rising across the board although they were cautious enough to mention “rising claims costs in motor classes”.

Perhaps the briefing in the summer was tighter than it was at the beginning of the year when AXA had announced gleefully an earnings increase of 25% in its UK and Ireland operations.  This included, according to Group Chief Executive Paul Evans:-


No mention there of rising claims in the UK or that profits are static, or worse, despite massive increase in revenue.

Direct Lying (remember them and the lovable hound tampering with complaint files before they went to the FSA?) were reported at the beginning of March as seeing “profits rise on strong motor business”. 


Meanwhile, they spin the story that these hikes are all a product of opportunist and dishonest claimants assisted by unscrupulous lawyers.

The bolder and brassier you are, the more you can get away with.  This sort of thing has happened on a terrifying scale in the past and shown just how much selfish desire can be satisfied if you Make the lie big.

Just occasionally, these con tricks are properly exposed.  Unfortunately events such as the grilling of top executives from these companies by a tenacious parliamentary sub-committee chair never seem to get the profile they deserve. See Hey diddle diddle..

At the end of the day all this wailing about whiplash and fraud is utter rubbish. Here’s the truth.

Insurers will whinge as they always have done that motor never makes a profit, never has. I’ve no doubt that the accounts they present will 'prove' that. They were more than happy to be in the business though and collecting huge swathes of cash from the punters whilst double-digit interest rates enabled them to make a big turn on that money.

We all know they would string out the claims for as long as possible to keep earning interest for as long as they could. Now interest rates are almost negative that profitable model is broken.

The hike in the cost of your policy isn’t to counterbalance the effects of whiplash or fraudulent claims. It’s to compensate for the disappearance of the revenue from capital reserves so they can still post huge profits to pay fat salaries and rising dividends.

The truth is ugly and embarrassing so it's dressed up and the activity of a tiny minority of criminals within a culture that insurers have created and cultivated is exaggerated, at increasing prejudice to genuine claims from innocent victims and access to justice.

And whilst we're all distracted by whiplash, fraud - even claims management - they'll be helping themselves to more of our money as usual..




Saturday, 30 July 2016

Under pressure

Brian May’s blog about his bruising experience in the civil courts showcases one of a number of ways in which access to justice is being eroded by recent and continuing changes to the rules that govern our civil court procedure.

Queen’s legendary lead guitarist, and astrophysicist, recently fell victim to what he understandably describes as the “absurd proportionality rule”. In short, he ended up with a recovery of around 20% of his actual costs of a ‘successful’ action against a noisy neighbour. He describes the detail of it at his blog, The scam of 'proportionate' legal costs and makes some heartfelt observations that resonate loudly with me.

At some time in our lives many of us will become involved in a civil court action. We’re not talking here about criminal offences which are dealt with by magistrates and Crown Courts but claims for money, compensation, injunctions, restitution etc handled by our County and High courts.

We’ve probably all done a spot of DIY around the house and garden. Law is no different in that you’re entitled to run your own case – as a litigant in person – and many more people are being forced to do so at present. But as with anything else you’re more likely to get the best results if you hire an expert, somebody who litigates for a living.

If you do engage a lawyer, you’ll need to pay them for their services and litigation can be expensive. What makes for a happy ending is being able to recover your legal costs, or the majority of them, from your opponent. Loser pays is a basic rule that has been a cornerstone of civil justice in this country for hundreds of years.

Of course that has to be subject to controls. It can’t be an open cheque book for those who can afford it to spend lavish amounts on the priciest solicitors and barristers they can find and use that enhanced threat to their advantage in the litigation. Courts use a process of assessment to ensure if necessary that the costs a winning party may recover at the end of the litigation are reasonable.

“Reasonable” isn’t defined on a whim. Costs judges have to exercise discretion and decide what they think is right in all the circumstances of the case but they must do so in accordance with established principles drawn from earlier cases. They’ll hear argument from both sides – those paying and those receiving – before deciding all the items in issue.

So far so good. 

Good enough, many would say. If for example your legal spend is many times the sum you eventually recover or reasonably thought you would recover, then it’ll take some explaining to persuade a costs judge that your bill is reasonable, surely?

Nevertheless, in 1998 along came Lord Harry Woolf with what was to be the first of many shake-ups of the rules and introduced the new concept of proportionality in response to these concerns. The Lord Chief Justice himself presided over a Court of Appeal that delivered a landmark judgment in 2003. It was in the case of Lownds v The Home Office.

The facts of the case are unimportant in this context. The focus of the judgment was on the successful claimant’s costs which ultimately added up to more than five times the value of the compensation that the defendant was ordered to pay. The court set out the approach to be taken in applying the new rules on proportionality.

In short there was to be a global assessment first. Did the amount claimed appear disproportionate having regard to various features of the case including notably the amount that the claimant had pursued and/or won? If so, the court must then look at the winner’s bill item by item applying a stricter test than normal.

To be allowed, each element of the costs claimed would have to be shown to be both reasonable and necessary. It was a game-changer.

I was involved in a lot of costs litigation last decade, some of it high profile, and largely in the context of personal injury cases funded by conditional fee agreements. For those of us in that arena the most important passage in the Lownds judgment was at paragraph 39:

“In deciding what is necessary the conduct of the other party is highly relevant. The other party by co−operation can reduce costs, by being uncooperative he can increase costs. If he is uncooperative that may render necessary costs which would otherwise be unnecessary and that he should pay the costs for the expense which he has made necessary is perfectly acceptable.

Access to justice would be impeded if lawyers felt they could not afford to do what is necessary to conduct the litigation.”

This was absolutely crucial, as anyone who has ever been involved in litigation against an opponent with deep pockets understands. Without that safeguard a party to litigation who can afford to lose is able to fight a war of attrition against a party that can’t.

Or as Brian May puts it, “It’s likely to make it almost impossible for the man in the street to fight back for justice against the bullies who trample all over him.”

Liability insurers are particularly prone to what I heard described in the Court of Appeal in 2003 as ‘behavioural issues’. As a matter of policy and business ethos, they make life difficult, not just for the claimant in one particular case but to deter others whose lawyers will know that the same risks face them and their clients if they dig in and fight for a fair result in the face of daft offers and spurious arguments.

All’s well that ends well if the claimant lawyer’s assessment is right and ultimately the loser is made to pay for “that which he has made necessary”.

But in 2013, the man seen by many as the nemesis of our civil justice system, Lord Justice Rupert Jackson, was to turn it upside down. The rule change introduced in April that year reversed the process.

Now the costs judge on a contested assessment is required to assess the reasonableness of the items claimed and then consider proportionality. If it looks too much in the circumstances, then the court has to cut the total allowed to a figure that looks and feels right.

So, everyone may spend days in some cases debating and arguing to reach a figure that is reasonable having regard to all the features of the case, including the losing party’s behaviour, and then slash it because – well – it still looks too much.

It’s a licence to insurers and other faceless corporates to print money to fill a war chest.

In an article I wrote for the Solicitors Journal in 2012 I examined how this would destroy Equality of arms – such an important principle of our – any – justice system. It generally takes around three years for the impact of such changes to be seen in the bigger cases that may then reach the spotlights of the superior courts so we’re starting to see the evidence of how momentous and potentially unfair this rule change will prove to be.

It means that the risk of a Pyrrhic victory in any successful case rises sharply especially against a corporate opponent where individuals are rarely held responsible for the sort of arrogant and lawless behaviour one Lord Justice described as ‘an insouciance to their obligations….that leaves one quite breathless” in the case of Brown-Quinn and others v Equity Syndicate Management

Disturbingly this is just one more ingredient in a poisonous concoction that is killing off our justice system. The growing imposition of fixed costs regimes is severely restricting the amounts that deserving litigants may recover from a wrongdoer against whom they have no other (legitimate) recourse. Mediation simply isn't an answer - you can't Speak softly without carrying a big stick.

Still, the greedy insurance companies bay for an increase in the limit below which virtually no costs are recovered by the innocent victims to Five grand.

In consequence, numbers of claims are falling. We’re not talking about fraudulent or frivolous actions but justifiable claims that people can’t afford to run even if they rightly assume that they’ll win. Lawyers who would effectively fund deserving claims with decent prospects can’t afford to do so, because even if they win, they’ll lose.

As litigation shrinks, so does the system. Courts close, law firms go bust, able people get out. The government speeds the process by hiking the fees, closing provincial courts, starving the ones left of resources. It’s the Road to Ruin.

The trouble is that for most people these are just the cries of self-interested lawyers – ‘fat cats’ starting to feel hungry. Actually, there are many of us who are motivated by pride in something that we made our vocation and the desire to champion weaker members of our society. Soon, though, there will be No more heroes.

Justice is an entitlement of everyone in our society. It’s the state’s duty to provide it and make it accessible when it is needed. Right now, it’s under immense pressure.