Holding on to the key to justice

Rory Khilkoff-Boulding laments the Law Society's tight grip on insurance products

AS a solicitor also qualified to practice as an attorney and counsellor at law in New York and California, I have always been bemused by the

intellectual difficulties that many practitioners have in this country as regards conditional or contingent fees.

In the US, the contingency fee system is generally highly regarded by both profession and public alike as the key to the ordinary man's access to justice in a society where legal aid is almost non-existent, a situation rapidly approaching in this dear country of ours.

Without a contingency fee possibility, the injured party without legal aid must either contemplate the risk of ruin if they lose the action, or take no action and receive no compensation. At last, this position is to be resolved, not only in personal injury, but also in medical negligence cases and certain other rather limited restricted fields of practice.

I thus enthusiastically attended a conference organised by the Association of Personal Injury Lawyers and the Law Society in respect of conditional fees.

I had heard of the Law Society's much vaunted insurance cover to enable litigants to protect themselves against costs arising from failure at trial, to beat payments into court or costs which otherwise exceed the value of the claim.

The news that conditional fees had just been approved by Parliament was greatly tempered for me by the revelation that the insurance product for clients is only available to those personal injury lawyers who belong to the Law Society's Accident Line system.

The scheme will not extend to medical negligence cases, pharmaceutical drug or tobacco related actions, and will not cover barristers' or advocates' fees. Quarterly reports on the progress of all cases to the insurers will be required of the practitioner.

Although I commented to the conference panel about the apparent conflict of interest that arises from this, I wondered whether this insurance would be available on a one-off basis, based on the actual risks pertaining to a given individual client and his or her case. I was told that it would not.

I admit to feeling depressed that I was now excluded from the possibility of cover that no doubt many clients would wish to take out.

A show of hands was taken at the time and it was apparent that well over one third of the attendees at the conference, presumably all personal injury specialists, were not members of Accident Line, although most indicated that they would now consider joining system.

The panel reluctantly conceded that there is another insurer in the market – Litigation Protection Limited – prepared to offer a product enabling the practitioner to recommend this insurance where appropriate to a client, who may then accept or decline knowing the risks.

It is deeply unfortunate that the Law Society has chosen to restrict cover to members of Accident Line as it is currently constituted, (a small number of practitioners) and also unfortunate that the alternatives are not being made known to members of the profession, many of whom may not specialise in personal injury or other litigation to which conditional fees will now apply, but might occasionally take on cases, without in any way being less competent in their dealings than those who have sought to join the Accident Line, and whose clients will want this sort of insurance.

Litigation Protection Limited is on 0171 9293636.

Rory Khilkoff-Boulding is a partner at Khilkoff-Boulding & Co in Gravesend.