Filmmakers have a wide variety of camera techniques at their disposal to help them tell their story to best effect.
One of the most powerful tools directors can employ is the split diopter lens, which makes it possible to have two subjects at different distances in the frame simultaneously – and both in focus.
In his 1951 film, Strangers on a Train, Alfred Hitchcock wanted a telephone to be in a foreground close-up while actors in the background remained in focus. This was to emphasise the importance of the incoming phone call.
The limitations of camera lenses at the time meant he could not make it work.
He fixed the problem by having a giant phone in the foreground and putting a regular-sized phone in Ruth Roman’s hand as she came to answer it. The camera view tilted up as she approached (moving the monster phone out of shot).
The 1984 film comedy, Top Secret, spoofed that set-up, with the foreground telephone remaining in shot throughout and the army officer approaching from the distant background to lift a gigantic handset to his ear.
These examples exploit optical illusions as to size and perspective. In the context of personal injury compensation claims, there are also risks that things may not be as they may appear. This is something we’ll examine in this article in relation to how easy it is to switch personal injury solicitor during the course of making a claim.
In this article, we’ll look at three angles on changing who is dealing with your claim for you “mid production”. We’ll see how it’s likely to be “less difficult” if your claim is through legal aid. Secondly, we will consider why it tends to be “more difficult” to switch solicitors if your claim is “no win-no fee”. And thirdly, we will talk about the implications of these factors for personal injury claims in general.
1. Switching solicitor in legal aid cases?
In a legally-aided personal injury claim, you will always recover 100% of your compensation if the claim succeeds.
There are no Success Fees. They are not permitted under legal aid.
With no Success fees, there are no complex written agreements in the background, concerning the circumstances in which Success Fees can be claimed and how much they will be.
The Scottish Legal Aid Board (SLAB) recognise a reasonably strong right in legally-aided people to change solicitor if they wish. At its most basic, this can be framed as the client losing confidence in their current solicitor or there having been a breakdown in the solicitor-client relationship of some sort.
If you want to change solicitor and your claim is legally-aided, you can probably go to a new solicitor, sign a mandate and have your new solicitor send that to your existing solicitor in order to recover the file and take on the work from there.
Your new solicitor will have to ask permission from SLAB before they can take the case forward with the benefit of legal aid. The existing grant of legal aid will either have to be transferred to your new solicitor (Civil Legal Aid) or a new grant of legal aid commenced (Legal Advice and Assistance), with permission of SLAB.
2. A change of solicitor in a no win-no fee case?
As part of a no win-no fee arrangement with a solicitor for a personal injury claim, you will sign documents – a contract – which includes secions about your rights and obligations and those of your solicitor.
This is also a standard type of clause in a Success Fee Agreement (or Funding Agreement):
If the Funding Agreement is terminated or if you de-instruct us or instruct another firm of solicitors to conduct the claim, you may become liable to pay for our services at our standard hourly rate, currently (£x – probably at least £200 per hour).
Standard Success Fee Agreement / Funding Agreement Clause.
Clearly, that’s not good news in terms of the ease with which you can instruct a new solicitor. You’ll have rights and obligations with your new solicitor but your old one may well keep a grip on you for payment of some fees.
The standard style of Success Fee Agreement – which has been drafted to take account of the changes brought about by Qualified One-Way Costs Shifting (QOCS) – has a section on terminating the agreement which includes the following
- Either party can terminate the agreement by giving written notice to the other party.
- If the agreement is terminated by the Claimant, you may be required to pay the solicitors’ fees and outlays to date at that time and/or, if you continue with the claim by other means and are successful, you’ll have to pay the original solicitors’ fees aand outlays on conclusion plus the Success Fee.
So, transferring your no win-no fee personal injury claim to another solicitor is probably going to leave you stuck with having to pay your original solicitor not only fees and disbursements but also the Success Fee (assuming the claim reaches a successful conclusion).
3. How easy is it to switch solicitors overall?
You have to conclude that it’s not easy. It’s not simple to predict how easy it would be in a particular case but on average it will be relatively complicated, to the extent that it may not be in your best interests, financially.
At one extreme, if your original solicitor has made some sort of mistake and, for example, that has prejudiced your position or caused a significant delay, they may accept there is possibly now a conflict of interest or a breakdown in the solicitor-client relationship and they will let you transfer to another solicitor “without penalty”.
Bot, on the whole, a transfer is likely to cost you money at the end of your claim, if it is successful.
Legal aid cases
In a legal aid case, the original solicitor may well seek to claim payment of their fees and outlays at legal aid rates. This may be payable out of your compensation.
As legal rates are modest compared to private client rates, the level of deduction from your compensation may be small, but it’s not easily predictable and it’s still a deduction you want to avoid completely if you can.
It’s worse for you than the “single-solicitor-throughout” scenario because in a successful case that solicitor accepts payment under either the Compulsory Pre-action Protocol scale or the appropriate judicial expenses scale. In other words, in the “single solicitor” situation, you keep 100% of your compensation.
No win-no fee cases
As we’ve seen from the sections from the Success Fee agreement above, this is very problematic. It’s hard to see how a change of solicitors can be made to work out financially from your point of view, as the injured claimant.
On the one hand, your original solicitor is still able to claim payment of fees, outlays and Success fee.
Presumably, your new solicitor will be looking for payment of fees and outlays (and a Success Fee – though not all solicitors seek a Success Fee).
If your claim is successful, as well as your compensation, there will be a payment by the third party or their insurers of some level of “legal costs”. But it doesn’t take a genius to realise that it’s probably going to require more funds to pay two solicitors than one solicitor – and you’ll be having to make up that shortfall.
In the past, we’ve sometimes discovered that a client who we thought we were solely representing has in fact had a second solicitor acting for them simultaneously (which is understandably perceived as possible a means of hedging their bets but is not professionally permitted and cannot continue! – You can only engage one solicitor at a time…).
In this article, we’ve considered the situation where an injured claimant wants to move from one solicitor to another, consecutively. However, attractive and easy you might expect that to be, that’s not how it turns out to be in practice. It’s not straightforward and it’s most likely to hit you where least want it in a personal injury claim scenario: in your pocket.
The imaginary ‘shot’ of your phone call to a possible new solicitor will probably pan upwards – as they answer – to reveal an adviser who explains sadly that, though they would very much like to help you and take over the business of handling your claim for you, it’s not going to make practical or economic sense for you to switch solicitors.
In these circumstances, the main points to note are:
- Get the choice of personal injury claim solicitor ‘right’ first time.
- If you feel things are going wrong with your solicitor, do your best to patch up the situation, either by sorting it out with them, or perhaps transferring to another solicitor within the same firm. Throughout this process, the Client Relations Manager at the firm can provide assistance, if necessary. This is probably better for you than changing to another solicitors’ firm.
- If you feel you absolutely have to change solicitors’ firm, find a new solicitor who is willing to take the case on and who will help you navigate the transfer (rather than leaving it all up to you). But this should be seen as a last resort.
How we can help
Please get in touch with us if you have any questions or comments arising from this article.
If you have any questions arising from this article, please do not hesitate to contact us. Read THIS article, if you want to understand more about what will actually happen if you get in touch with us about making a personal injury compensation claim.
If it transpires that we are not the best people to help you directly, we’ll do our best to suggest a suitable alternative specialist legal adviser (or explain the best way to find one).
Our main aim is to help people in Moray to claim fair and full compensation for personal injury in such a way that it costs you nothing, whether your claim succeeds or not. We are specialist, accredited solicitors – at Grigor & Young LLP, Elgin.