We want the law to offer better protection to consumers, right?
An independent review of the regulation of legal services in Scotland is under way.
The Minister of Community Safety and Legal Affairs, Annabelle Ewing, announced the review on 25 April 2017.
The idea is get recommendations to reform and update the framework which regulates who can provide legal services and, for example, what complaints procedures should be available.
In announcing the independent review, the Minister emphasised the main objective as placing “consumer interests firmly at the heart of any system of regulation, including the competitive provision of legal services.”
While there is competition across the board to win business providing legal services to consumers, personal injury is one of the most competitive areas.
In 2016, for example, a study by the online magazine, Search Engine Watch, worked out the UK’s most expensive Google Adwords. (These are the adverts at the top of any search page for a particular keyword or keywords). At that time, “Injury Lawyers Scotland” was £81.40 per click – and it was not the most expensive injury-related search query.
The following five ideas for better regulation are taken from the response submitted as part of the review by the Association of Personal Injury Lawyers (APIL) in March 2018.
1. Claims management companies should be regulated.
Though the signs are that this will change soon anyway, for the moment, claims management companies are not subject to any regulation in Scotland.
It means that anyone can set up a claims management company. They do not need any qualifications.
Claims management companies do not have any explicit professional standards with which they must comply. Nor do they have to have professional indemnity insurance in place so their clients know they compensated should something go wrong through their adviser’s negligence.
This is all at odds with the position in relation to solicitors. Clients of Scottish solicitors are arguably amongst the best protected when it comes to legal services.
2. Cold calling should be banned.
This is where someone phones you up on the suspicion (or in the hope) that you might have suffered an injury which could form the basis of a claim which they would take on for you.
It’s an intrusive and annoying practice. We’ve probably all been on the receiving end of such a call at some point.
A major concern is that such calls build up a false perception that it is somehow “easy” to obtain compensation for a personal injury – and, worse, perhaps even if that injury did not occur.
Solicitors in England and Wales are already banned from cold calling but not in Scotland. Claims management companies are not covered by any prohibition anywhere. APIL continues to campaign for a blanket ban, something which we wholeheartedly support.
3. Truly informed choice for consumers on their options for pursuing a personal injury claim.
If you have legal expenses insurance through, say, a house contents insurance policy, that will cover you for legal advice on a possible personal injury claim. It will also probably restrict your choice of solicitor to some extent – directing you to the insurers’ chosen solicitor first of all.
It’s not impossible to use the solicitor of your choice – e.g. a local, specialist solicitor – by any means but insurers are poor at making the availability and extent of that choice explicit. It’s hard to avoid the conclusion that insurers are deliberately vague here and that needs to change.
Another practice which insurers give the impression is “normal” is third party assistance. What claimant solicitors call “third party capture” is where the insurers of the at-fault party contact the innocent, injured party and offer to settle their claim directly. The significant risk is that this results in unfairness – indeed, a denial of access to justice – for the injured person. Again, due to a lack of transparency on the part of the insurer, the consumer is denied access to independent legal advice. The insurer glosses over the fact that it has a financial interest in settling the claim as swiftly and cheaply as possible.
Many of these problems of lack of information could be avoided if standardised details had to be provided (say, each time a policy is renewed or whenever a claim is intimated) which explain the different ways that legal claims can be funded, all options available to the consumer (and any restrictions on each option).
4. The term “lawyer” should be clearly defined.
Solicitors have to go through a lot of qualifiying and ongoing education. They must carry professional indemnity insurance. Their clients are financially protected against their solicitor’s negligence and dishonesty.
It is not just that those using the term lawyer not need to have any recognised qualifications; they do not have to meet any professional standards whatsoever.
Someone convicted of serious crime – whether involving violence or dishonesty – can set themselves up and call themselves a “lawyer”, without any criticism. The same applies to former solicitors who have been struck off the roll of solicitors for failures to meet professional standards. They can set up instead as a lawyer and continue offering legal advice.
In 2016, the Law Society of Scotland carried out research, which revealed that 63 per cent of consumers did not recognise the difference between a solicitor and a lawyer.
The term “lawyer” should be protected and only useable by someone who is legally qualified.
5. Greater recognition of official accreditations for personal injury advisers.
Greater acceptance and publicity of official accreditations would be a good way of showing that particular legal advisers are specialised and competent in the field of personal injury law.
The crucial point is for the lay consumer to be able to make an informed choice about their legal services provider. Accreditation gives the consumer confidence that they are instructing an individual who is specialist in that area of Scots law.
It comes down to informed choice.
You cannot make an informed choice:
- if you are confused what a particular word means (e.g. lawyer),
- if you do not understand the difference between solicitors and other legal services providers,
- if you are being pestered or pressured to choose a particular legal services provider (e.g. cold calling or third party capture or legal expenses insurers’ own choice of solicitor), or
- if the accreditation – that your legal services provider claims they have – is not clearly explained or officially recognised.
If these matters were better regulated, you would have a better chance of making the “right decision for you” more quickly and confidently.
How we can help
We hope you found something of interest in this post about ways we can better protect injury victims through improved regulation of legal services in Scotland.
Feel free to contact us, if you have any questions after reading this article or about any aspect of our personal injury claims services.
We (Peter and Marie) are accredited, specialist personal injury solicitors at Grigor & Young LLP, Elgin, Moray. Moray Claims is a trading name of Grigor & Young LLP.
All initial enquiries are at no charge and without obligation.