GAZETTE
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J A N / F EB 1993
V
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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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