Monday 19 August 2019

Eilis O'Hanlon: ''Greedy' claimants hoping for a payout aren't the only ones to blame for our compo culture'

Lawyers and insurance firms have long been suspected of profiting from inflated or crooked insurance claims. More should be done to stop it, writes Eilis O'Hanlon

'In the case of Judge Jacqueline Linnane at the Circuit Civil Court last week, praise is entirely justified' (stock photo)
'In the case of Judge Jacqueline Linnane at the Circuit Civil Court last week, praise is entirely justified' (stock photo)

Opportunities to praise judges are few and far between. Most make the headlines for the wrong reason, having usually let off some ne'er-do-well with a piffling sentence that in no way reflects the gravity of his crime.

On such occasions, they are rightly criticised, though always very carefully, because judges can get awfully prickly when their behaviour is subjected to the sort of harsh judgments which they like to hand down on everybody else.

In the case of Judge Jacqueline Linnane at the Circuit Civil Court last week, praise is entirely justified. Dismissing the claim for compensation by five members of the Travelling community from London who'd alleged certain injuries after being involved in a minor bump during a sightseeing tour in Howth in 2015, and who were each seeking €60,000 in compensation, she threw out the case as clear evidence of an organised attempt at insurance fraud, and forwarded it to the Director of Public Prosecutions for further consideration - though not before pointing out that claims could not reach court without the involvement of solicitors, suggesting that "maybe fuller enquiries should be made by solicitors before they take on these cases".

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The legal firm which was originally acting for the five defendants insisted that they do "not act in cases involving claims of a fraudulent nature", and pointed out that they had written to their former clients in October 2018 to inform them that they would no longer be representing them, and advising them to discontinue the action.

They clearly had no part in this business beyond that point, and shouldn't be dragged into it any further; but as a general rule, the judge's wise advice stands up.

Some solicitors are indeed acting on behalf of clients in cases where they must know that something shifty is going on, but they continue to do so, because it's a well paid racket. It's only right that their role in compensation claims should be subjected to the same scrutiny as that of the dodgy plaintiffs. For years now, the discussion around "compo culture" has been focused on claimants, who are variously portrayed as greedy and mendacious, often with good reason.

Judge Linnane's comments offer an overdue chance to subject the actions of lawyers to the same critical scrutiny.

Naturally, lawyers hate being skewered. They'd rather do the skewering, and regularly deny that compensation claims are out of control, dismissing such allegations as a fallacy perpetuated by the insurance industry, and one that is lapped up by the media and egged on by opportunistic politicians. Some go so far as to say that it's an "urban myth".

The Law Society, which represents solicitors, said last year that there has been no "significant increase in the number of claims being made". The Bar Council, which represents barristers, agrees. In fact, statistics show they're both wrong. Even adjusting for increased population and a greater number of cars on the road, the number of cases increased sharply in recent times.

Fixed fees for compensation would eliminate some of the more heinous examples of people taking frivolous claims in the hope of hitting the jackpot in the courts, but that's in the hands of the government, not solicitors.

The stereotype of the ambulance-chasing lawyer does not exist in isolation, however; it has a long history. In Aristophanes's play The Clouds, aspiring lawyers could take a course in "the technique of winning lawsuits", which the translator says comes from the Greek phrase for "overcoming truth by telling lies". It was, the play goes on, "an extremely lucrative source of income". That was first staged in 423 BC.

More than 2,000 years later, Henry Fielding wrote a 19th Century farce in which the devil refuses to admit any more lawyers to Hell "because the kingdom is already too full of them". Clearly, nothing much had changed in the public perception of the legal profession. Nor has it since.

Lawyers routinely feel victimised by these caricatures, and maybe they have a point. It was lawyers who helped end the old feudal system, and the panoply of rights which underpins modern society is still generally considered to be a good thing. We just don't seem to like the people who implement the system, in the same way that we value democracy but don't have huge fondness for politicians. Or journalists, for that matter. A free press, yes. The people who work for it, not so much.

We can all whine about unfair representation. Professions would be better off acknowledging that the criticisms are frequently justified, solicitors and barristers included. Reform is the only way out of the mess. President Bill Clinton was once asked why the public hates lawyers so much. He replied: "Because we need more alternative dispute resolutions." There's little there to contradict.

Having done that, it's equally important to put the practices of insurance companies under the same microscope. Insurers are not averse to dodgy claims either. In their case, it's the assertion that rising premiums are a result solely of an increase in fraudulent or mischievous payouts after minor incidents. There's plenty of evidence that this is simply being used an excuse to increase premiums on small businesses in order to increase corporate profits.

Compo claimants are routinely portrayed in a harsh light. Now lawyers are getting some of the same treatment. Insurers should be warned that they're next.

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