The Gazette 1993

GAZETTE

1 N

J A N / F EB 1993

P 0

Defending The Right to Pursue

Valid Claims for Personal Injuries

Concern has been expressed in recent

times by a number of public bodies

- Dublin Corporation and Coras

Iompair Eireann in particular -

about the high level of claims for

personal injuries being brought

against them and about the role

being played by solicitors in the

bringing of such claims.

Dublin Corporation, in particular,

has been most vociferous in this

regard and statements attributed to

the Corporation's Public Relations

Officer have béen critical of

solicitors for allegedly inciting the

bringing of spurious claims. The

Corporation has also been critical of

particular forms of advertising

engaged in by some solicitors. The

Law Society has been forced to

respond publicly to the

Corporation's unfortunate style of

megaphone diplomacy in order to

defend the good name of the

profession. The Society has made it

clear that it is willing to investigate

thoroughly any complaints made

about identifiable solicitors in this

regard, where evidence is available.

We are happy to say that a meeting

took place recently between

Corporation and Law Society

representatives to discuss this matter.

First of all, the Law Society, and the

solicitors' profession as a whole,

believe that those against whom

claims are brought are perfectly

entitled to express concern - and to

do so publicly if they so wish —

about the level of claims for personal

injuries. Moreover, they are also

perfectly entitled to do everything in

their power to defend such claims,

especially where they believe that the

claims are not justifiable. The

bringing of unnecessary and,

especially, spurious claims or the

exaggeration of injuries in genuine

cases, is legally and morally

indefensible and amounts to nothing

short of fraud. The Law Society will

not condone any action on the part

of solicitors which incites or

encourages people to engage in such

activity. It is in nobody's interest

that personal injury actions should

be brought where they are not

justified. This simply adds to the

burden the community as a whole

has to bear in the form of increased

insurance costs.

That said, however, it is completely

unacceptable that the finger should

be pointed at solicitors in a manner

which implies in a sweeping way that

they are parties to the bringing of

fraudulent claims. While the Law

Society has never contended that no

solicitor has ever acted improperly in

this respect, it is wrong that the

profession as a whole should be

indicted and the impression created

that there is wholesale collusion by

solicitors, unless there is evidence to

substantiate this.

Concern has also been expressed

about the type of advertising

engaged in by some solicitors which,

it is alleged, encourages a

compensation mentality and triggers

the bringing of claims that might

not otherwise be brought. Some

examples of this type of advertising

have been brought to the attention

of the Law Society. This is a

difficult issue for the profession to

come to grips with because of the

different views that exist. During the

80s, as many people will recall, it

became apparent that the Law

Society's restrictions on advertising

would be removed by Government if

the Society itself did not liberalise its

own rules. When the issue of

permitting solicitors to advertise was

debated in general meeting in 1988,

the profession was divided on the

issue. The position now is that

advertising is allowed within the

limits of the Society's advertising

regulations. These regulations are,

however, difficult to enforce mainly

because the question of what is or is

I not 'in bad taste' or 'brings the

profession into disrepute' is highly

subjective. Advertising which

amounts to touting and that of the

'ambulance-chasing' variety is

perhaps, easier to identify. Such

advertising is, of course, clearly

unacceptable. However, advertising

by a solicitor which does no more

than draw the attention of the public

to the fact that they might have a

claim in particular circumstances and

where the solicitor offers to take

cases on a 'no foal no fee' basis is

not uncommon. Is this to be stopped

by the Society? And if so, upon

what basis? The public have a right

to bring claims where injuries have

been caused by the alleged

negligence of others and they have a

right to be fairly and adequately

compensated if negligence is proved.

If advertising enhances people's

awareness of their rights in this

respect, can it be said, on any

reasonable interpretation, to be

encouraging the bringing of claims?

In any event, even if it does so

encourage, there is nothing

inherently wrong with that if the

claims are proved to be valid and

justifiable on their merits. As the

Fair Trade Commission's Report

(1990) recognised, advertising can

have an important role to play in

disseminating information to the

public about their rights and

enhancing public awareness about

the availability of legal services and

it is, presumably, for this reason -

as well as for others - that the

Solicitors Bill proposes to prevent the

Law Society in the future from

outlawing advertising ever again.

In summary, the Law Society's

position on the current controversy is

that (1) it does not and will not

condone the bringing of spurious

claims and will deal severely with

any solicitor who can be shown to

have knowingly lent himself to such

activity, and (2) it will continue to

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