Wednesday, 22 February 2012

Driving down legal costs also means driving down standards of service


This week I’m going to talk about costs. Or rather, the preoccupation with reducing legal costs that seems to be so high on the government’s agenda – and which certain newspapers trot out without thought.

Ever since the Jackson Review of costs in civil litigation, lawyers’ bills have been under the microscope. Nothing wrong with that: it’s important to maintain checks and balances, and there is no doubt that some lawyers milk the system to the exclusive benefit of themselves, with their clients’ needs a distant second. But lately, the laudable aims of the Lord Justice Jackson seem to have been hijacked.

The present government’s crusade to attack what it pillories as the ‘compensation culture’ – a crusade which its spin doctors say is in keeping with the spirit of the Jackson Review – amounts to a dumbing down of legal services. The preoccupation with reducing cost is evident at every turn, as if by driving down costs all the ills of the personal injury market will be cured. This, though, is not the case. The situation, as with so much of life, is fluid and complex rather than black and white.

By squeezing the market ever more and pushing costs down to the lowest possible denominator, the government simply increases the prospect of unprofessional representation.  It cannot be in the consumer’s interest to suffer an injury – one for which compensation is properly payable – and yet discover that a barely qualified, inexperienced practitioner is the only person available to take the claim forward.

Moreover, this, the commodification of legal services, flies in the face of what is second nature to the true professional. It would serve the government – and us, the taxpayers – well if it were to bear in mind what it takes to act professionally, as stated in 1992 by Lord Benson. There were nine key principles, and I’ve set them out in full below. 

1. The profession [in this case, the Law Society] must be controlled by a governing body, which in professional matters directs the behaviour of its members.

2. The Governing Body must set adequate standards of education as a condition of entry and thereafter ensure that students obtain an acceptable standard of professional competence. Training and education do not stop at qualification. They must continue throughout the member's professional life.

3. The Governing Body must set the ethical rules and professional standards that are to be observed by the members. They should be higher than those established by the general law.

4. The rules and standards enforced by the Governing Body should be designed for the benefit of the public and not for the private advantage of the members.

5. The Governing Body must take disciplinary action, if necessary expulsion from membership, should the rules and standards it lays down not be observed, or should a member be guilty of bad professional work.

6. Work is often reserved to a profession by statute – not because it was for the advantage of the member, but because of the protection of the public. Persons with the requisite training, standards and disciplines should carry it out.

7. The Governing Body must satisfy itself that there is fair and open competition in the practice of the profession.

8. The members of the profession, whether in practice or in employment, must be independent in thought and outlook. They must not allow themselves to be put under the control or dominance of any persons or organisation that could impair that independence.

9. In its specific field of learning, a profession must give leadership to the public it serves.


What underpins all of Lord Benson’s astute and sensible points is the notion that to be professional is to act in the public interest. The key factor, for Lord Benson, was the degree to which individuals in a profession and their governing body acted ethically.

It is this, allied with a holistic view of the PI market rather than a piecemeal approach, that will help lawyers provide the best value to clients. The government should take note.