Director and Child Abuse Law Solicitor, David Greenwood explains the good news for victims’ rights.
First introduced by Lord Justice Jackson, Fixed Recoverable Costs (FRC) aim to reduce the overall legal bill in personal injury cases.
Rupert Jackson’s reforms have led to a large swathe of personal injury cases being pursued for miniscule, fixed costs. Such cases can only be carried out by firms on a very large scale with low time input and little care from very junior paralegals.
In my experience most of this work is done at a loss, in the hope that the odd case escapes the fixed costs regime. It seems even this glimmer of hope of profit will be snuffed out – most recent plans look to extend the fixed costs regime to a majority of cases worth up to £25,000 and even to those, worth under £100,000.Even worse, child abuse cases were in the firing line when the extension of FRCs was suggested.
As child abuse lawyers we face multiple challenges with our sensitive cases. Obtaining records, piecing evidence together from many years ago, carefully taking statements and obtaining medical evidence and handling very vulnerable clients with care creates extra cost.
The original proposals would have left child abuse lawyers seriously out of pocket on almost all cases. For instance, in my firm average case damages are £25,000 and costs are £15,000. Most cases settle prior to issue and Lord Justice Jackson’s proposals would have allowed only £6,000 for 95% of our cases, this would have spelt the end of my firm pursuing child abuse cases.
I’m an executive member of the Association of Child Abuse Lawyers (ACAL). Over the last two years, the executive team have been discussing the proposed draft fixed recoverable costs (FRC) rules and tasked me to lobby for child abuse cases to be excluded from the proposed regime. With input from claimant firms, I was able to persuade the rules committee to exclude child sex abuse cases from the first draft, however neglect and physical abuse cases remained in the proposed FRC rules.
Much child abuse is not sexual but neglect and physical abuse can be just as psychologically damaging. So, I persisted and have been able to secure the exclusion of neglect and physical abuse cases from the second draft of the proposals. This success will have significant implications for the recoverability of reasonable costs in our cases for the foreseeable future.
Here is a copy of the positive response from the MOJ below:
Thank you for your email, and Happy New Year. I apologise for the delay in responding, due to leave over Christmas.
We wanted to share, in advance of the fixed recoverable costs (FRC) rules being signed off later this year, the current draft of the exclusion of abuse cases from FRC that is contained in the new rules at 26.9(10)(c):
“(10) A claim must be allocated to the multi-track where that claim is—
(c) a claim for damages in relation to harm, abuse or neglect of or by children or vulnerable adults;”
This definition comes from paragraph 4.3(8) of the EL/PL Pre-Action Protocol, which provides that “(This Protocol does not apply to a claim—) for damages in relation to harm, abuse or neglect of or by children or vulnerable adults”.
The rules will provide that the types of claim you mention will be excluded from FRC, and allocated to the multi-track.
Senior Policy Advisor, Civil Litigation Funding and Costs
Access to Justice
Child abuse and sensitive work is important for very vulnerable individuals in our society. Likewise, all individuals injured should have simple access to good lawyers.
The fixed costs regime is in my opinion a backwards step for individuals rights and access to justice. Without doubt fewer solicitors will be willing to take on personal injury (PI) cases and more claimants will see their damages eaten into, to plug shortfalls between actual work done and the fixed costs allowed.
The insurer and big business lobby has been effective over the last 20 years in eroding access to justice – not just through legislation but through appeals, the introduction of proportionality rules, fundamental dishonesty rules, costs budgeting and general outgunning of independent claimant solicitors. I fully expect defendants to turn the screw even further by being more obstructive and may even purposely run cases in a disproportionate way to make them uneconomic. For example, by using unfounded allegations of fundamental dishonesty, Part 18 requests, Part 35 questions, extensive disclosure and needless duplication of expert evidence.
“If we are to improve access to justice, we must work together to fight back.”
In the field of child abuse the IICSA final report of 20 October 2022 set out 20 recommendations to improve safeguarding, access to compensation and support. As practitioners in the field many of us are working in co-ordination, lobbying Government to implement and improve on the recommendations. I am full of hope that working together we’ll improve rights of survivors and prevent thousands of future children being affected by child abuse.
Switalskis represents many survivors of abuse. Our team of lawyers have significant experience of working with survivors and have all been trauma-trained to better understand and support our clients. If you would like to have a confidential chat please call our free, confidential child abuse helpline on 0800 138 4700 or contact us via our website.