Chris Galley

For reasons which will become obvious I have not been able to blog about this before, but on Wednesday I was in court. For the last three years I have been under threat of being sued for an accident that happened at Border Park Rugby Club. A spectator was injured watching the game, sustained some pretty nasty injuries, and then sued the club – or rather me since I am the club’s secretary. On Wednesday the case finally got to Newcastle Court Building on the Quayside, and thankfully, thankfully, the claim failed. The judge held that I had not been  neglectful in my duties and that in any case the accident would not have been avoided. The spectator got nothing.

This goes right to the heart of “Compensation Culture” and the dangers of Conditional Fee Arrangements (CFA) - better known as “no win no fee”.  Frankly I now believe that CFAs represent a nice little earner for the legal profession which now has developed all manner of self serving restrictive practices off the back of it. The spectator may have got nothing but his solicitor, his barrister, the judge, our barrister will all have ensured they were paid for their contributions.

The underlying legislation is not recent - namely the Occupiers’ Liability Act 1957, which in turn is built upon a Common Law principle. The relevant clause is in 2.2 :

This is the legislation that allows people to sue for slips and falls. In this particular case a visiting spectator at one of our games was injured when a legal tackle involving several players slid off the pitch. This led to a very severe knee injury, the visitor was left in hospital over Christmas, has had extensive medical treatment and risks non trivial degeneration of his knee as he gets older. The spectator used one of those solicitors that advertises endlessly on daytime television, which resulted in me getting a writ.

I suspect that the spectator was mystified why I defended the case so strongly. After all he had a bad accident, he was out of pocket, there was an insurance company that could be made to pay up. But the point is that insurance is not free, the money directly and indirectly comes out of an amateur sport, and at some point the insurers would want to limit their risk by changing the sport in ways which come back to adversely affect unpaid volunteers like me.

Now luckily I was backed by the RFU’s insurers. Our barrister was Claire Lindsay and she was excellent. My direct out of pocket expenses will be covered, but the time I have spent on this case over three years will not be, in a sense it is literally priceless. I guess I have spent about 80 to 100 hours of my life handling this claim over 3 years – equivalent to a short holiday. I suspect that I will have to give that time up without compensation. I am not easily stressed, but I have lost sleep on this one.

My rugby club is one of the smallest (but definitely the proudest) rugby clubs in England. It’s the furthest flung club from Twickenham. We normally have twice as many players as spectators at our grounds, we do all we can reasonably do to prevent unnecessary accidents. Yet I and a number of other people have had to slog through this case for years, pointlessly, in order to keep the legal industry happy.

The judge, in his verdict, was completely clear that this case was bound to fail. I had done a risk assessment before the incident, we take particular measures on the rare days that there is a big crowd, we followed the various best practices that exist. In other words I had taken reasonable care.  The judge also pointed out that if the claim had been allowed the implications would affect every rugby club in the country and indeed other sports (he specifically mention football and hockey).

I did speak to a friend about this case – he is a barrister working in another sphere. He defended the CFA arrangements since in practice everyone caught up with this is insured. Indeed the very first inkling I had about this case was when I got a phone call enquiring whether we were covered by insurance. I suspect that if we had not been insured then the case would not have gone ahead since without that the risk equation (to the solicitors) would slide in the wrong direction. But that “well it’s all down to the insurers” is just plain wrong. Yes they pick up the tab, but they need help to deal with the mountain of evidence (114 pages in this case) and that comes from those of us at the coal face.

In my opinion CFA should be scrapped completely. Claims under £50,000 should be handled by county courts, which means that 95% of claims will lose 95% of legal fees, since broadly speaking county courts won’t award costs. That would result in an element of rough justice due to the complexities of medical claims in particular but in justified cases access to justice would actually be improved on both sides.

Some alternative arrangement would be needed for the more serious cases, which indeed could be modelled on CFA, but there is one other restrictive practice that needs to end: if a judge holds that a claimant is (for example) 30% responsible for an accident, his or her compensation will be adjusted downwards accordingly. This happens a lot, and recognises the complexities of life. But in that situation the legal industry will still get 100% of their fee. In fact may end up with more than 100%. That is both unfair and self serving.