What's the point of suing? (Robert Morfee)
Friday, July 21, 2017
“What’s the point of suing“, some ask? “The big insurers and banks have bottomless pockets, and I can’t afford it”. The point of it is that the law must be enforced if it is to mean anything at all. Businesses of all kinds need a level playing field. If the big boys can ignore the law, and small businesses can’t, the fundamental rules of fair competition which underpin our economy are disapplied.
Litigation tends to be seen as self-indulgent whingeing by the disaffected. This is a false image created by the insurance industry, which has an interest in taking premiums and minimising claims.
From the time of the ancient Greeks to the present day, the availability of civil justice has been seen as essential to civilised life. Only recently has it been common for the state to enforce the law. The rule always used to be that the citizen did it for himself.
Now we have a much wider involvement by the state in law enforcement, but still the coverage is far from universal, and largely confined to the criminal law. The basic rule is that you can no more expect the government to enforce the law for you than expect it to do your shopping.
Politics has intervened. Politicians are pulled two ways. They have a duty, when in Government, to provide a system of civil justice that works. They also have powerful friends in the insurance industry, the banks etc., who don’t want profits dented by claims, especially by paying legal costs to other people’s lawyers.
So we have a see-sawing flow of legislation. State funded Legal Aid was once the answer. Then no win no fee agreements. The latest swing of the pendulum, the Legal Aid and Sentencing of Offenders Act 2012, is in favour of big business and against the private citizen and small business.
But the courts are not closed. Claims can still be made. Unless you are very rich, however, you need other people’s support to take on David v Goliath litigation. That support will typically come from your solicitors, who may be willing to offer a no win no fee agreement, a litigation funder, who may be prepared to lend you the necessary cash on he basis that it is only repayable if you win, and an insurer who may offer you insurance against paying the other side’s legal bill. All in all it makes for a lot of complicated paper, but it can and does work.
So if you think you have a claim that matters to you, don’t complain to your MP or the papers. Instead, consult a legal specialist who can offer a solution. See a solicitor or barrister (the latter can see often see you direct now under the direct access scheme). Be sure to choose an adviser who has the skills in the relevant field of law. Find out what terms he or she offers. Negotiate on fees until you have terms that are affordable. Then go for it!
Robert has over 40 years' experience in dispute resolution and has specialised for the last 15 years almost exclusively in financial services, pensions, investments for small businesses and private clients.