Tuff: Unscrupulous tactics being used
Abuse of the fundamental dishonesty rules by some defendants in personal injury cases is likely to escalate if regulators do not address the issue, according to the Association of Personal Injury Lawyers (APIL).
It accused defendant lawyers of sometimes putting their duty to their client ahead of their broader ethical responsibilities and made “scattergun” allegations in the hope that something stuck.
Responding to the Legal Services Board (LSB) consultation on a statutory statement of policy on ethics, APIL said regulators needed to provide “clear guidance and require better training for practitioners to ensure they understand and comply with their ethical duties”.
It continued: “Without such guidance, in some situations it is difficult for practitioners to know the right course of action, especially in complex issues where ethical boundaries are less clear and/or there are conflicting demands and expectations.”
In PI litigation specifically, the “increasing frequency” of fundamental dishonesty allegations was a growing concern, it said, “likely to inappropriately escalate if not addressed by regulators”.
With the law focused only on fundamental dishonesty by claimants, “there are no significant consequences for defendants raising unfounded or unsubstantiated allegations of dishonesty”, APIL said.
“There is insufficient guidance to practitioners about ethical boundaries in such circumstances.”
APIL argued that defendant solicitors prioritised their duty to the client at the expense of their duty to uphold public trust in these situations.
“There is a particular danger, without strict adherence to clear ethical boundaries, of injustice. This is particularly likely when institutional defendants, with almost unlimited resources, are taking action against individuals often of modest means in cases where, recoverability of costs is fixed.
“In these situations, however oppressively the defendant behaves, the claimant may not be able to recover costs for work necessary to protect their reputation and even liberty.”
The view of APIL members was that “often those entering the profession have not had the necessary ethical education and training as part of their professional route to qualification” and the association backed the LSB’s proposals to beef up current ethical framework.
Matthew Tuff, who recently took over as APIL president, said: “Legitimate challenges by defendants are of course completely acceptable. But some unscrupulous insurers are using a scattergun approach in making allegations of fundamental dishonesty in the hope that something sticks and cases are dismissed.
“It’s a tactic to financially and psychologically exhaust vulnerable injured people, who face having their cases dismissed and being held liable for the defendant’s costs as well as their own.”
