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 who, it was alleged, were 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 which have been witnessed in the United States.
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.
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, meaning that the content of a solicitor’s website must comply with the regulations.
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 that a solicitor is willing to provide legal services in personal injuries cases at no cost or at a reduced cost are not permitted, with specific 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’ being banned outright.
In a report prepared after a comprehensive review of the legal profession in Ireland, which was published in December 2006, the Competition Authority found that the legal profession was in need of substantial reform because it had many unnecessary and disproportionate restrictions on competition.
On the subject of advertising, the Competition Authority found that while the desired outcome of the advertising restrictions presently imposed on solicitors (which is to prevent unnecessary and costly litigation in personal injuries and to protect the public from being misled) were valid, the current restrictions are disproportionate. However, despite this finding almost eight years ago, there has been no relaxation of the regulations in the meantime.
Apart from being anti-competitive, there is an argument that the prohibition on solicitors advertising the fact that they provided their legal services on a no-win-no-fee basis is also unconstitutional, as Article 40.6.1.i of the Irish Constitution provides that the State shall guarantee liberty for the rights of its citizens to express freely their convictions and opinions, subject only to considerations of public order and morality.
Similarly, Article 10 of the European Convention on Human Rights (which was ratified by Ireland in 1953) provides that everyone has the right to freedom of expression, with this right including freedom to hold opinions and to receive and impart information and ideas without interference by public authority.
It’s arguable that preventing solicitors from making it known publicly that they are willing to provide their legal services on a contingency basis is effectively leading to injustice by preventing less well-off accident victims, who would have absolutely no hope of funding a legal case from their own resources, from finding out about potential means for them to secure justice by being paid compensation for the injuries which they’ve suffered due to the wrongdoing of others.
However, no matter how strongly one disagrees with these advertising restrictions, any right minded and conscientious solicitor will of course adhere to the rules contained in the regulations in order to comply with the law of the land.
But, of course, as the regulations apply only to solicitors, this means that anyone who isn’t a solicitor is perfectly free to advertise using expressions such as ‘no win, no fee’, ‘no foal, no fee’ or other prohibited expressions with impunity and this has given rise to the emergence of what have come to be known as ‘claims harvesting’ or ‘claims farming’ websites.
These sites, which have no official connection with any firm of solicitors, and many of which may not even be based in Ireland, can make whatever fantastic and sensational claims they wish with a view to attracting unwitting consumers who have suffered personal injuries to contact them.
For this reason, if you come across any website which is brashly advertising legal services on a no-win-no-fee basis or which makes any claims about the level of compensation that it can secure for clients, you should be aware that you are dealing with either:
- a solicitor who is intentionally flouting the law; or
- a completely anonymous, unregulated and unaccountable internet company which could be located anywhere in the world.
Dealing with either of these types of individuals is highly risky and could result in unprotected injuries victims receiving shoddy treatment.
Many firms of solicitors are willing to represent accident victims in securing compensation on a no-win-no-fee basis. They’re just not allowed to advertise that fact, so they don’t.
So, if you’ve suffered an injury and want to explore bringing a claim for compensation, the first step you should take is to do some research to identify a solicitors’ practice that you can trust to represent you. Getting recommendations from friends or family who have used a firm in the past and who were happy with the service they received is one of the safest and most reliable ways of doing this.
Once you’ve identified the firm that you’d like to act for you, you should then contact them and explain fully to them the circumstances in which you were injured and discuss with them whether or not they would be willing to represent you a no-win-no-fee basis.
If they believe that you’ve got a good prospect of succeeding in your claim, they may be willing to represent you on this basis or, if not, they may be happy to recommend another reputable firm that provides litigation services to clients on a no-win-no-fee basis.