Costs are and have always been a big issue in the law. Lawyers are expensive. Whether it's defending a criminal charge, suing a hospital, contesting a car insurance claim, or getting divorced, lawyers cost a lot of money. Despite the very high figures involved, it is apparently quite challenging to run a profitable practice doing claimant personal injury and clinical negligence work (lawyers having Marks and Spencer meal deals for tea, and Sauvignon Blanc from Chile instead of New Zealand...)
In many areas of law there are various provisions to try and end claims as soon as possible, such as financial penalties for not accepting appropriate settlement offers, similar incentives to try mediation, and procedures to examine and settle claims before they get into the court system.
Clinical negligence costs as an example
In a relatively straightforward clinical negligence claim where both sides think they can win, like a case involving an undiagnosed appendicitis that went on to rupture for example, you might get junior lawyers running the case under the supervision of a senior lawyer, which would reduce costs. You would probably have two experts on each side, an expert surgeon and either an expert GP or expert in emergency medicine depending on which speciality originally assessed the claimant. The experts could give their opinions on the records alone if the claimant had made a full recovery, which would be cheaper than examining the claimant in person. If it went to trial, there would be court fees, and you would need to instruct a barrister to present the case to the judge, and cross examine the witnesses and the experts.
Costs for the whole case would include fees for the solicitor and barrister meeting with the experts, the meetings between experts, preparation of witness statements, and various other procedural elements designed to lead either to settlement or to narrowing the issues for the trial. With all this, and everyone's expenses where appropriate, a broad estimate of legal costs would be about £20,000 - £30,000 for the defendant and about £60,000 - £80,000 for the claimant. The amount of damages in such a case, depending on the extent of scarring from open appendix surgery, whether there were post-op complications including infection, and how long the claimant was in hospital, would probably be between £3,000 and £10,000.
The losing party in civil cases by and large pays the other side's costs. That's fine if it's two rich companies arguing over a copyright infringement or industrial espionage, but if it's little old Gwladys from The Valleys who's gone in for cataract surgery and the surgeon puts in the wrong lens, she's not going to be able to bring a claim with her state pension, or indeed even if Robert Maxwell hadn't stolen her Mirror Group pension that she earned in her earlier career.
The reason I'm going on about this is that the agreements you'll see for paying lawyers to bring your AFCS claim use many of the same terms and principles as in a clinical negligence case. Explaining the terms and process here will hopefully make it easier to understand the costs and risks involved in using a lawyer to claim under the AFCS. It also highlights how Veterans UK have claimants over a barrel by making really weak and vacuous pronouncements on claims at the first stage; marking their own homework by doing their own reconsiderations at the second stage; then having no costs penalty for royally cocking up those early decisions that they have told everyone you don't need a lawyer for, and putting everyone who goes to appeal through years of harrowing strain.
Contingency Fee Agreements / No win, no fee
I remember watching Jeremy Kyle over a cheese and onion pasty while waiting to fly on a simulated CASEVAC at Otterburn. I also remember watching Homes under the Hammer over a slow roasted pheasant in the Officers' Mess while waiting for a pre-dinner sherry. What binds these two disparate events? Ambulance chaser ads.
No win, no fee agreements, also known as contingency fee agreements (CFAs) or damages based agreements, came about when legal aid ended for personal injury claims, including claims about clinical negligence. Because Gwladys wouldn't be able to afford up front fees to sue a hospital trust for mucking up her eye surgery, CFAs were introduced. The fee was contingent upon the solicitor's success in the case; if they didn't win, then you didn't pay them a fee. This gave people like Gwladys, you and I access to justice as we could still instruct a solicitor without spare thousands or tens of thousands of pounds.
Risk of losing and success fees
There is a risk taken on by claimant solicitors in a no win, no fee case. If they don't win then they don't get paid. If you have more than a few of those, especially if they are big, complicated cases taking a lot of time, then your firm isn't going to last very long. To offset this, solicitors are allowed to charge a 'success fee' when they win a case, as this hedges some of the risk they take of not getting paid if they lose. The success fee is taken from the claimant's damages.
It does get bloody complicated. I've read around this a fair amount (I've not done claimant work so I haven't set up a CFA before) and I would still not take what I've summarised here as definitely accurate, especially in relation to success fees, even though I've done my best. ("Losersh do their besht; winnersh go home and..." You know the one.)
As I understand it a claimant solicitor who wins their clinical negligence case will get their fees paid by the defendant (the NHS or a medical indemnity insurer.) The defendant will also pay the claimant's disbursements; these are fees and costs outside the solicitor's hourly charges for working on a case, and include barrister's fees, experts' fees and any expenses, which can be substantial if you're having multiple meetings and a long trial. The success fee mentioned above, paid out of the claimant's damages, can be up to 100% of the solicitor's fees depending on the risk of success (higher percentage for higher risk) up to a maximum of 25% of the damages (not including future payments.) Because of the fact the success fee comes out of the damages, there is now a 10% uplift on damages awarded.
As that's confusing, even to me, and I've had seven years of legal training and two years of practice, here's an example.
Ah-hah! No she doesn't! "Ba-da-ba-da-ba-be bop bop bodda bope, Bop ba bodda bope, I'm the taxman!" Let's add VAT and put Gwladys's fees up by 20% shall we.
In a clinical negligence case the claimant will almost certainly have arranged an after the event (ATE) insurance policy. Car or house insurance is before the event insurance (check your house insurance in case you have legal protection stuff, it might cover your AFCS claim). The ATE policy, which has been taken out after the injury, is insurance in case the claimant loses. It pays for disbursements like the experts' and barristers' fees that aren't part of the no win, no fee agreement with the solicitor.
AFCS and costs
Thanks for the lesson in clinical negligence costs, Fairy Cakes, and for saying it might not even be accurate and you've never done it yourself. Top class.
What the merry hell has this all got to do with AFCS?
As I've suggested throughout these pages, in my humble opinion you will be better served making a claim for mental injury under the Armed Forces Compensation Scheme if you have a lawyer representing you. If you start that relationship with an idea of how much it will cost, you're less likely to be upset if you receive an award but a chunk of it stays with the lawyers.
Yes, the lawyers will explain this when you sign them up, but do you read the Apple user agreement when you update your phone? HumancentiPad anyone? Do you read what all the cookies are going to do, on every, single, f***ing website? Would you understand any of it even if you did read them? I certainly don't, and I used to think I was quite clever like. If you're anything like me, when starting this process with some mental impediment like PTSD, and can barely keep your attention on needing to order some more of your favourite protein powder when the internet also holds news, and sport, and YouTube, and ooh an Instagram notification... what was I doing?
Reading and understanding a dry and verbose Contingency Fee Agreement in tiny lettering is not an easy task in these circumstances. Hopefully by involving Jeremy Kyle, Lords Melchett and Flashheart, Greggs, and clinical negligence, it makes it a little easier to understand and anticipate what happens regarding paying the lawyers. By and large you're likely to pay 15-25% of your award to the solicitors, and it is likely to be a higher percentage for higher awards. This will often include back paid GIP, but not future GIP which should remain yours. See the story of Student Officer Jones on the Awards page for an example.
Using the clinical negligence examples here shows that the common understanding that you don't have to pay anything if you win a clinical negligence case is not entirely true, and the amount charged by solicitors for your AFCS claim is roughly comparable to the success fee in clinical negligence.
There are, however, important differences, and showing the clinical negligence costs workings also helps me show the disadvantage Veterans UK have put us at by saying you do not need a paid representative such as a solicitor or claims management company to apply for compensation via the AFCS.
Rule 10 in the AFCS tribunal rules (catchily named The Tribunal Procedure (First-tier Tribunal) (War Pensions and Armed Forces Compensation Chamber) Rules 2008) states simply:
In a negligence case, although it is accepted the losing party pays the other side's costs, it still needs to be formalised by an order of the court so that it is clear and enforceable, and includes any qualifications the judge may see fit to impose.
By categorically preventing the WPS & AFSC tribunal from making an order awarding costs, it prevents any discussion about it at a tribunal hearing. Those that make it to tribunal and have a Veterans UK decision overturned, not because of a technicality, not due to new evidence, not from a disagreement between specialists over a complicated area of medicine, but because the Veterans UK medical advisers don't understand mental injury, minimise it, overrule specialists, and make up their own overriding criteria for the levels of injury, and the decision makers don't stand up to them, cannot recover the costs caused by Veterans UK's failures.
I mentioned the 10% uplift in damages in a civil claim which try and offset the amount a successful claimant has to pay in a success fee. So although the costs you pay your solicitor in a successful AFCS claim are roughly similar to a civil success fee, that similarity gets rougher by virtue of not getting an extra 10%.
The other big 'un is going to be fees like those for the barrister and expert. These aren't included in the contingency fee agreement, so will be added on top. There is also the risk that if you don't get an award, or an increased award, at tribunal then these fees will still have to be paid. This is an important discussion to have with your solicitor in the early work for tribunal. You may find a solicitor that will do the advocacy at tribunal instead of a barrister. They may also be confident that the contents of your NHS psych reports are sufficient and that there is no need for an expert report. Such a report may, however, be necessary if you can't get a consultant diagnosis on the NHS.
In a civil case, if you win, the losing defendant would pay the disbursements as well as the solicitor's fees. So expert reports, barrister's fees, and the cost of the barrister's Travelodge and Greggs Vegan Sausage Roll. In an AFCS claim that needs a tribunal, these fees are paid from your award.
Yup, in a civil case the VAT on fees is paid by the loser, in our example the defendant. In an AFCS tribunal, it'll come out of your award. If the barrister had his Greggs sausage roll hot, there's VAT with all that salt and fat, and they're claiming it back from you.
Possibly the most galling part of an already stony bladder of a situation, is the additional unrecoverable cost to you in legal fees because of the delay caused by Veterans UK. There's the initial delay caused by faffing about and losing reports. Then there's the broader delay of coming to an ill conceived conclusion about the medicine and the law, leaving you no option but to go to tribunal to get the correct outcome.
[I say all this in the genuine hope I'm successful at tribunal. If I'm not, and Veterans UK's decision is found to be correct, I'm going to look and feel more than a little silly.]
The JSP guarantees a fair deal for all those who are entitled to compensation. If you need to spend 3 years or however long from the date of your claim form going in to getting the correct assessment and tariff for your injury, I reckon that guarantee's been breached. Yes they pay for that breach by backdating a GIP if your award level increases to include a GIP, but if they'd got the decision correct in the first place, which they guarantee to do, then you'd have received the GIP from the date of your claim anyway. It just would have been in time. You might have been able to pay for that counselling, or that holiday for your kids, or that gym membership or fitness class that would have helped your mental health. Because you can't f-ing get this shit retrospectively. You might have had to sell your bloody house because you don't earn enough, but if you'd got your award and GIP on time, you would have been able to pay the mortgage.
Then, after helping you get to tribunal and showing Veterans UK how the law and medicine works, and showing the tribunal panel the gaslighting by Veterans UK medical advisers, the solicitor justifiably charges their fee, which they earned through their hard work and by taking the risk on a no win, no fee. And that fee is to be paid by you.
And that sucks, in my opinion.