The damages lottery by P Atiyah

By P Atiyah

During this looking critique, Professor Atiyah exhibits that the current procedure of damages is a lottery. His end is that activities for damage damages could be abolished and changed with new policies and a no-fault highway twist of fate scheme.

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But anybody who uses their services is unlikely to obtain a satisfactory settlement because they are not entitled to issue proceedings on behalf of a client, nor even to recommend them to a solicitor. The contingent fee, or the no win, no fee practice, may lead to entrepreneurial lawyers investing large sums of money in bringing on a whole series of similar cases, with all the planning and research that may be involved, even where there is very little justification for the claims at all. It is, for instance, well known in the US that there are 30 SUING FOR DAMAGES several groups of lawyers at present engaged in three massive litigation battles, or campaigns, as it might be more accurate to call them, which have been going on for well over a decade.

Surely, they may think, judges are supposed to be neutral and dispassionate enforcers of the law. Of course that is true, as a matter of theory. But judges are human, and can feel the tug of sympathy, like everybody else. When the facts of a case are quite clear, and when the law to be applied to those facts is also clear, no judge is likely to be false to his oath because of sympathy for one litigant rather than another. And we can also reject the preposterous slur on the judges (propagated by Auberon Waugh in the Sunday Telegraph1) that 1 24 November 1996.

What is more, many plaintiffs can easily obtain legal aid in these personal injury cases (provided only that they qualify under the means test), and in legal aid cases the plaintiff cannot be required to pay the defendant's costs if he loses his action. This means that the insurance company is often on a hiding to nothing in cases of this kind. Suppose their costs are likely to amount to at least -£5,000 even for a fairly 24 SUING FOR DAMAGES trivial case, which they probably will if the case goes to court.

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