Lawyers acting for 18 claimants who won a landmark negligence claim against Corby Borough Council have slammed Lord Justice Jackson’s proposals to move away from the conditional fee agreement (CFA) regime.
Collins Solicitors partner Des Collins represented the 18 young people who were born with deformities after their pregnant mothers lived near a contaminated council site. Collins claims the case would never have been launched if they could not have relied on CFA funding.
Old Square Chambers’ barrister David Wilby QC, who was instructed by Collins, agrees: “If you took away the CFA regime nobody would do these cases,” he says.
Earlier this year Jackson LJ proposed the overhaul of the CFA structure as part of his review into civil litigation costs (25 January 2010). He recommended abolishing the recoverability of success fees in CFA cases.
Collins argues that without the promise of a success fee on the condition that they won the case, his firm would not have been able to back the Corby group action for the 11 years it took to get the ruling.
The Corby group claimants were aged between 11 and 23 years-old. Their families launched a claim against the council in the late 1990s alleging that toxic dust from a former steelworks in Corby had caused birth disabilities to the young claimants.
The High Court found the council negligent in its management of waste at the site during the 1980s and 1990s. The council had denied it was negligent or that there was a link between the waste removal and deformities affecting the children’s hands and feet (3 August 2009).
There were fears the local authority would appeal the ruling and drag the battle out for several more years, but after a week in mediation earlier this month a compensation settlement was agreed behind closed doors.
Initially the group had attempted to gain funding for their claim through the Legal Services Commission (LSC). Not all the claimants were successful in getting legal aid, but for those who were the LSC put the case out to tender. Raleys Solicitors won the instruction.
Collins says he was concerned about the prospects of the case. “We felt very passionately about it,” he says. “We thought the children’s interests would be lost unless someone bounded the cases together.”
This left the claimants with a choice: proceed with half receiving legal aid or choose Collins and go back to the LSC. They chose Collins.
They made another application for legal aid for the remaining 10 claimants who had initially been unsuccesful, but were told by the LSC that first they had to attempt getting an after-the-event (ATE) policy in the open market.
“The system worked entirely against them,” Collins says. “On every level it was a David and Goliath battle, they had no machine to back them up.”
Against the odds, they were successful in getting an ATE policy – unlike the council, which is understood to have no legal expenses insurance in place.
The legal expenses market has matured, says Collins, and insurers are sophisticated enough to be able to underwrite complex long-running class actions. The prospect of recovering a healthy success fee underpins this market.
Collins suggests that by removing the uplift Jackson is effectively “closing down opportunities for people who work on CFAs”. He adds: “The only way we survived was by saying that we had a cashflow in fees.”
Wilby underlines the point: “CFAs were sold as a substitute for legal aid. Jackson’s contemplating a situation where claimants will have to put their hands in their own pockets. That’s morally wrong.”
Jackson’s report highlighted inefficiencies within the litigation system, but many are concerned that attempts to rectify that have tipped the balance too far in the defendant’s favour. This is one case that demonstrates how CFAs can be used to facilitate access to justice.
Claimant: Collins Solicitors partner Des Collins instructed Old Square Chambers’ David Wilby QC for Corby group litigation
Defendant: Berryman Lace Mawer partner Paula Whittell instructed Stephen Grime QC of Deans Court Chambers and Charles Utley of 42 Bedford Row for Corby Borough Council