Personal injury

Personal Injury Specialist Reference Group

Thank you to the members who have signed up to form part of this specialist reference group, if you have not yet joined, but wish to do so, please email personalinjury@cilex.org.uk 

Below are current issues of interest and about which CILEx would be very pleased to receive your views.

Soft-tissue (Whiplash) Claims Reform

Contingent Legal Aid Fund (CLAF) – is it viable?

Views sought on Jackson review of Fixed Recoverable Costs

Updated: 16 January 2017

Lord Justice Jackson has been commissioned to conduct a review to build on recommendations made in his 2010 report 'Review of Civil Litigation Costs'. You can read more details on the launch of the review and what it will entail here

Please do complete our very short survey by Friday 20 January 2017.   

Soft-tissue (Whiplash) Claims Reform Consultation 

Updated: 11 January 2017

On 17 November 2016, the MoJ launched its consultation ‘Reforming the soft tissue injury (whiplash) claims process’.  CILEx liaised with members of the specialist reference group, enabling us to respond to the consultation with direct feedback from practitioners.

CILEx is very concerned by the proposals, and is working with other organisations to campaign and ameliorate their worst impacts.

CILEx will keep you updated as this work progresses, through the CILEx website, CILEx Journal, and weekly member e-newsletter. You can also follow CILEx on Twitter (@CILExLawyers), on Facebook, or join our official LinkedIn group to get updates as they happen.

As the proposals develop CILEx may seek more feedback from members of the Personal Injury Specialist Reference Group, so please email personalinjury@cilex.org.uk to join.

Related press reports

09 January 2017: 95% of specialists oppose Government plan to deprive injured people of legal advice

07 December 2016: Liz Truss' whiplash scheme hands insurance companies a bumper payment

18 November 2016: Insurers to pocket £200m a year from PI reforms

17 November 2016: Campaigners warn PI reforms will cost 60,000 legal jobs

17 November 2016: Lawyers condemn ‘excessive’ personal injury reform

Contingent Legal Aid Fund (CLAF) – is it viable?

CILEx has been working as part of a joint working group, with the Law Society and the Bar Council, investigating the viability of a possible contingent legal aid fund CLAF) as a means of providing a viable and worthwhile option to complement existing forms of litigation funding with the objective of delivering justice at lower cost and/or in ways not currently provided for by other means of litigation funding.

Over the last few months, the Joint Group has found that, initially, there appeared to be confusion as to what was meant by the term CLAF, so it clarified the definition of a CLAF as: ‘a self-sustaining pooled fund to cover the legal costs of a claimant’s civil money claim, where (i) in cases that win, the claimant’s legal costs are recovered from a losing party and a portion of the money recovered is paid into the fund and (ii) in cases that lose, the claimant’s appropriate legal costs are reimbursed by the fund’.

The Joint Group’s initial conclusions have been as follows:

  • To be self-sustaining, a CLAF either needs substantial initial seed funding (of at least £3–5m, depending on the nature of any administrative set-up) or to start with a relatively small pool of cases, selected on the basis of a rigorous merits test, in relation to claims of sufficient value and prospects of success.
  • Therefore, low-value cases or cases less likely to succeed would not be eligible for the CLAF, at least from the outset.
  • Without either large donations or government funding, the CLAF would need to generate consistent surpluses to build up a long-term fund.
  • In order to succeed, it would need to be seen as seen as a useful and/or attractive form of funding to lawyers as well as to those seeking access to justice, and this may, for example, take the form of providing early payment of a proportion of normal fees with the balance of normal or slightly discounted fees being available on success, perhaps with a small uplift for success.
  • Although a not for profit CLAF will have lower costs because of the absence of a need to provide a return for investors, to compete effectively and deliver access to justice at lower cost, it would benefit substantially from assistance by way of rule changes (such as an extension of QOCS and/or concessionary or conditional court fees) on the assumption that it will continue to compete freely with other forms of litigation funding without there being any restraint on the current availability of litigation funding.

From the Joint Group’s research, it has become clear that although there was much support for some form of CLAF, it was not obvious whether it would attract real support, particularly given some of the related constraints identified. Therefore, the Joint Group has circulated a questionnaire to members of all three representative bodies, inviting individual views on to its nature, funding and constraints. We would like to hear from you to help us make this assessment and consider some of a CLAF’s possible practical features. Please take the time to participate in our short survey.

Related press reports

Profession-wide working group outlines initial doubts about viability of a CLAF - Litigation Futures

CLAF revived to support access to justice

Profession presses ahead with CLAF investigation - Litigation Futures

Joint CLAF working group established

Pooled legal fund to aid access to justice

Legal News | Joint CLAF Working Group Established for Legal Aid - Lawyer Monthly