In the period running up to the introduction of the Injuries Board over ten years ago, there was a perception amongst lawmakers (fomented by insurance companies and employers’ groups) that a culture of ambulance-chasing was being driven by so-called ‘cowboy’ solicitors. These solicitors were alleged to be wreaking havoc on the legal system in pursuit of personal profit by encouraging an unsustainable compensation culture, which, if left unchecked, would lead to the undesirable excesses witnessed in the United States.
The Solicitors (Amendment) Act 2002
One of the several responses to these fears was the passing of the Solicitors (Amendment) Act 2002, which in turn gave rise to the Solicitors (Advertising) Regulations 2002. These advertising regulations have remained in force, unchanged, since their introduction on 1 February 2003.
Scope of the advertising regulations
The definition of ‘advertisement’ contained in the regulations is extremely wide-ranging and includes any communication that is intended to publicise or otherwise promote a solicitor in relation to that solicitor’s practice. This means that the content of a solicitor’s website must comply with the regulations.
Prohibited phrases and advertising restrictions
While a solicitor can refer to personal injuries in an advertisement, the regulations prohibit any advertising that refers to claims or possible claims for damages for personal injuries or the outcome of those claims. Any words or phrases that would suggest a solicitor is willing to provide legal services in personal injuries cases at no cost or a reduced cost are not permitted. Expressions such as ‘no win no fee’, ‘no foal no fee’, ‘free first consultation’, ‘most cases settled out of court’, and ‘insurance cover arranged to cover legal costs’ are banned outright.
Criticism from the Competition Authority
In a report prepared after a comprehensive review of the legal profession in Ireland, published in December 2006, the Competition Authority found that the legal profession was in need of substantial reform due to unnecessary and disproportionate restrictions on competition.
On the subject of advertising, the Authority acknowledged the goal of preventing misleading claims and unnecessary litigation but concluded that the restrictions were disproportionate. Despite these findings, the regulations have not been relaxed since.
Constitutional and human rights issues
There is also an argument that the prohibition on solicitors advertising no-win-no-fee services is unconstitutional. Article 40.6.1.i of the Irish Constitution guarantees citizens the liberty to express their convictions and opinions, subject to considerations of public order and morality.
Similarly, Article 10 of the European Convention on Human Rights affirms the right to freedom of expression, including the freedom to receive and impart information and ideas without interference by public authority.
Impact on access to justice
Arguably, these restrictions have led to injustice by preventing less well-off accident victims from discovering viable legal options to pursue compensation for their injuries. These individuals may not be able to afford legal representation otherwise and are effectively barred from seeking redress.
Compliance by solicitors
Despite potential objections, solicitors are expected to adhere to the regulations to remain compliant with the law. However, this compliance does not apply to non-solicitors.
Rise of claims harvesting websites
Because the regulations only apply to solicitors, non-solicitors are free to use prohibited expressions such as ‘no win, no fee’ or ‘no foal, no fee’. This has led to the emergence of unregulated ‘claims harvesting’ or ‘claims farming’ websites.
These sites, often with no formal link to any solicitor and sometimes based outside Ireland, can make unverified and sensational claims to lure unsuspecting injury victims.
Risks of unregulated services
If you encounter a website advertising legal services using these banned phrases, it likely represents either:
- A solicitor breaking the law; or
- An unregulated, anonymous internet company based anywhere in the world.
Engaging with either is risky and could result in poor outcomes for injury victims.
Finding trustworthy legal representation
Many firms of solicitors are willing to represent clients on a no-win-no-fee basis but cannot advertise it. Therefore, if you’ve been injured and are considering a compensation claim, start by researching trustworthy solicitors.
Recommendations from friends or family who have had positive experiences can be one of the safest ways to find legal help.
Making contact and discussing Fees
Once you’ve identified a firm, contact them and fully explain the circumstances of your injury. Discuss whether they would be willing to act on a no-win-no-fee basis.
If they believe you have a strong case, they may agree or may refer you to another reputable firm that operates on such a basis.
As a personal injury solicitor (in Scotland) and contributor to a couple of websites (one of which is exclusively for PI claims) given my second name, I had to smile at your reference to websites which are seen to be “brashly advertising legal services on a no-win-no-fee basis”, John. But you make serious points and emphasise how dark things have become for accident victims in Ireland with the Injuries Board and the advertising restrictions on solicitors. I hope your new book – “Make Your Claim” – is successful in persuading consumers in Ireland to “see the light” that their interests will be best served by having a specialist personal injury solicitor, ideally, local to them, to fight their case for them.
Best wishes.
Peter