When a client tried to sell his house four years after buying it, a survey revealed that there was significant uniform subsidence (a six inch slope!!) in the house and that consequently the property was unfit for mortgage purposes. The client was alarmed that the original survey had not found evidence of movement and promptly filed an insurance claim. The insurers rejected the assertion that the damage had occurred since the purchase and so the matter was referred to the original surveyors. You guessed it. They insisted that the property had been sound when inspected and that the damage had occurred during the insured period.
The client was now in the awkward position of having to prove that both parties were to blame, using contradictory evidence and conflicting bases for the claim. The original plan was to reason with the insurers saying that a protracted claim would ensure that the costs would far outweigh the value of the house. The insurers, as insurers do, procrastinated and prevaricated, insisting on extensive ongoing monitoring. When (fortunately) this monitoring showed significant continual movement, the insurers reacted by (guess what), requesting further evidence. This could still be going on now if it hadn't been decided on the basis of evidence and expert reports, that both parties were to blame and that the case should be set down for trial in order for the responsibilities of both to be apportioned. There were a number of interim hearings, and one occasion they sent the same barrister even though they were allegedly on different sides! In order to delay further, the insurers said that they couldn't get a barrister for over a year. This did not impress the court and the hearing was finally listed for March 1997.
By now the client had become 'rather wary' of the legal process in general. As a direct result of the preceding four years he had lost his marriage, his job, his status and potentially all his assets. He barely managed to keep his sanity! On the plus side, having been made virtually destitute, he had been allowed legal aid to pursue multinational insurance companies. The client's scepticism was further justified when, a week before the (two week) hearing it was discovered that there was no judge available. Due to an administrative overload, he had been allocated elsewhere. Try as they might, the courts could not find a judge for two weeks. The best they could do was a judge for three days only. The defendants were unaware of this situation since the courts were economical in their communications and fortunately for my client, the threat of a hearing ensured that they finally settled on the eve of the trial, never knowing that there was inadequate time to try the case fully.
It worth mentioning that it has taken another whole year for the costs to be resolved. The costs for three sets of lawyers and experts are likely to be in the order of three times the value of the claim! People should be aware that the insurance companies are spending your money. This money is drawn from premiums paid paid by the public. We emphasize that from the outset, we continually pointed out this likely scenario.
Make no mistake. If the governments current proposals to abolish legal aid are instituted, then our client and many like him would have no access to justice and their lives would be ruined forever by huge multinational companies. Conditional fees are simply inadequate. After all, legal practices do not have the resources to fight these companies, which would win by delay and ultimately by default. The government only underwrite a potential liability. In the vast majority of cases, the defendants settle with no cost whatever to the taxpayer. This insurance policy is at the heart of British justice and should not be readily surrendered.
And Our Response to Lord Chancellor's Consultation