How can knowledge of types of ‘legal funding’ available for dispute resolution be improved? - Jacqueline Harvey, Underwriter at AmTrust Law discusses with Modern Law Magazine

1. Q. How can knowledge
of types of ‘legal
funding’
available
for dispute
resolution be
improved?
A. Ask questions - ‘delving into the detail’ can pay off.
hings have changed dramatically since the mainstays of
litigation ‘funding’ were standard hourly rate retainers
and legal aid in limited circumstances. There is now a
plethora of routes for ‘access to justice’, including: conditional
fee agreements (CFAs), damages based agreements (DBAs),
before the event legal expenses insurance (BTE) and third party
funding (TPF). New options such as the potential for the use
of ‘crowdfunding’ continue to emerge. Each option has its own
variants, upsides, downsides, limitations and of course financial
consequences/price.
Knowledge of an option increases with its availability and use.
In choosing a route there is a great deal of information to get to
grips with. A good starting point might be to get a ‘full picture’
overview. Instinct may be to concentrate on ‘own costs’ - if it can’t
be funded, it can’t happen. Whilst true, where cost shifting applies,
the actual costs of a claim will be the costs of bringing it and an
opponent’s costs of defending it. As such, own costs constitute
circa 50% of the picture and the second part of the sum also
merits examination.
• Is a claimant content to shoulder the adverse risk?
• Can they afford it?
• Do they want protection from it?
• Is there any existing BTE cover that could help?
• Is it sufficient?
• Might it be possible to obtain after the event legal expenses
insurance (ATE) and what might that cost? Would it be based on
the traditional percentage of cover provided?
• Does a TPF offer an indemnity for adverse? If so, on what terms?
Will its cost be subject to the overall funding returns (whether
by multiple or percentage of returns)?
The cost shifting risk is much reduced by ‘qualified one way‘ costs
shifting in personal injury claims. There can be situations where it
might appear an individual is being offered ‘something for nothing’
for the accident that ‘wasn’t your fault’. Even there, take a look at
what is actually offered and see what deductions there could be.
The type of arrangement which will best suit a client/the claim
commercials will depend on a multiplicity of factors, including
price. Don’t hold back from asking questions about options,
charges, and who will get what from any recovery. Clarity is key
and there are no ‘silly questions’ in this complex and evolving
area.
Jacqueline Harvey, Underwriter, AmTrust Law. Check out AmTrust Law
via their LinkedIn page: https://www.linkedin.com/company/2747378/
Stopping
complaints
before they
happen
hile the Legal Ombudsman deals with service complaints
about all different areas of law, residential conveyancing is
consistently our most complained about area. It makes up
24% of all cases that we accept for investigation, and in over half
of those that went to ombudsman decision in 2016-17, we found
evidence of poor service.
There could be a number of reasons for this bringing the most
complaints, one being that most people at some point in their life
will have some involvement in a conveyancing transaction.
The most common complaint we receive about conveyancing is
delay. This isn’t a surprise when you consider that conveyancing
transactions are often time pressured or form part of a larger chain
of transactions. The next most common complaints are about
failure to progress and poor communication.
Consumers place an immense expectation on their representatives
to look after their best interests and make them aware of anything
of concern. Quite often, a complaint can arise from an issue which,
to the conveyancer, is fairly standard and nothing to worry about,
but which the client places great significance on. My best advice
for avoiding complaints is to be clear with your customers, and
never assume what may or may not be important to someone.
Similarly, don’t make assumptions as to their level of experience
and expertise in relation to the conveyancing process. Whilst there
is an onus on the client to raise any queries, many people will not
even know what they should be querying, or what issues they
should be concerned about, unless that information comes from
you.
You should always be clear with your customers, including about
how long the process should take, any delays and anything that
happens during the transaction to change any timescales, and
how much it might cost and anything that affects that, such as
additional searches.
Also communicate well on anything which could affect a
consumer’s use and enjoyment of a property. You may feel you
have done enough by making them aware of restrictive covenants
affecting a property but they may not know what that means.
We don’t expect you to tell people whether or not they should buy
a property, but you need to make sure they have been given the
right information to make a fully informed decision.
Rebecca Marsh, Chief Legal Ombudsman. Our guide for first time buyers
can be found here: http://www.legalombudsman.org.uk/?portfolio=on-the-
move-a-guide-for-first-time-buyers
Our updated Guide to good complaint handling is at http://www.
legalombudsman.org.uk/helping-legal-service-providers/
W
T
EDITORIAL BOARD
Issue 34 Modern Law 25