Insult Added to Injury in No-Win Situation

It's a no-win situation for accident victims who lose much of their payouts to middlemen.

Seven years ago twins Ben and Sam Boreham from Ruislip, Middlesex set off for Old Trafford, home of Manchester United. It was just a couple of days before their eighth birthday, and they were travelling with big brother Dean, their mum Jane, and her best friend Debbie.

What should have been one of the most exciting trips of their lives - a birthday treat for the David Beckham-obsessed boys - ended in tragedy when their car smashed into an unlit vehicle abandoned in the middle lane of the M1 outside Watford Gap. The driver of the other car was sitting stunned on the grass verge having crashed into the central reservation moments earlier after he had fallen asleep at the wheel.

The shattered family were told they were lucky to be alive. Sam suffered brain injuries and his left femur was shattered, Ben was effectively scalped and Dean broke his collarbone. They were all deeply traumatised.

Jane Boreham, 38-years old, admits that there have been many times since that night when she has wished that she hadn't survived (Jane broke her nose and had to have cartilages in both knees removed). 'This time last year I nearly drove my car into a brick wall because I got to the point where I just couldn't go on anymore,' she says.

Jane describes Sam as 'a 14-year-old body with a nine-year old brain'. 'He doesn't really have the common sense to do what his peers do and so he struggles at school, doesn't make friends easily and he's seeing a psychologist for post-traumatic stress. It's a lot to deal with.'

Sam's problems have had a knock-on effect on his twin. 'Ben doesn't really cope and resents Sam for holding him back,' she says. 'They argue from the moment they wake up to the moment they go to bed.'

The consequences of that night in 1998 would be bad enough but their tragedy has been compounded because some of the compensation that should have lightened their load has been siphoned off. The compensation claims of Ben, Dean and their mother were eventually settled and Sam has received a series of interim payments; but a claims assessor, Steve (not his real name) has taken a staggering 20 per cent plus VAT cut out of the payments. This means that the family has received about £45,000. Meanwhile Steve - who Jane says described himself as 'one step away from being a solicitor' - has been paid some £15,000.

'That has been the difference between us struggling to make do and us being able to cope,' Jane says. She is officially Sam's carer but this month she had to go back to work as a receptionist at a local cleaning company. Her husband, Paul, works on London Underground. Every penny the family has received in compensation from the courts has gone to try to clear credit cards used to cover the costs of the kids' care.

Jane signed the original contract with Steve on the recommendation of another parent she met at hospital shortly after Sam came out of a four-day coma. 'I was distraught and didn't know what I was doing,' she recounts. 'I had Sam badly damaged in a hospital at Watford Royal Infirmary and my grandmother, his best buddy, was dying of brain cancer in National Hospital for Neurology in London. Steve told me not to worry and I did what I thought was right.'

Jane says she quickly noticed that Steve was never around when she wanted to talk about the progress of her sons' claims. But it wasn't until Ian, a concerned barrister friend from her church, gave their contract a once-over last February that she realised that she could have found someone to handle her claim without losing a penny from the compensation. Ian referred Jane to Irwin Mitchell, a specialist firm of personal injury lawyers, who she instructed last May.

Steve is presently trying to prevent an extremely lucrative client from giving him the slip. The potential value of the claim could be in the region of £1,000,000 when it comes to trial later in the year. He has contacted Jane's solicitor Alison Eddy, a partner at Irwin Mitchell, to say he wants his 20 per cent cut regardless of who is advising her. Over the last year his tone has become increasingly menacing and last May he was ringing Jane up to nine times a day.

Alison says: 'In July I had to write to him telling him to stop it as she was finding his continual phone calls extremely distressing and I told him that if he didn't then Jane would bring a claim under prevention of harassment legislation.'

Now Steve is threatening to make the Boreham family homeless. 'The last time we spoke was the Monday before Christmas and he was saying that he was going to put a charge on the house to protect his cut of any future compensation,' Jane recalls. 'The nightmare won't go away.'

In the last four years 130,000 people have contacted Citizen's Advice Bureaux with problems they have had as a result of rogue claims management companies. Back in 2000, the government removed legal aid from personal injury claims and extended the 'no win, no fee' regime to fill the gap. As a result of this, non-lawyer claims handlers moved en masse into a new market, often with disastrous consequences.

The two biggest companies - Claims Direct and the Accident Group - have since gone bust, leaving thousands of accident victims in the lurch. 'There is nothing to stop another fiasco happening again because the market is totally open and almost completely unreg ulated,' reckons James Sandbach, policy director of Citizen's Advice.

Alison Eddy believes that her client's case illustrates 'the worst excesses of non-lawyers' running complex legal actions for their own benefit. 'I have been appalled by his conduct and the way in which he has exploited a vulnerable family,' she says. 'He went to a lot of effort to befriend the family so that Jane felt he was someone she could have complete trust and confidence in.'

Steve denies any inadequacies in his handling of the claims and questions why Jane stayed with him so long if she was so unhappy. He defends his contractual right to take 20 per cent of any sum eventually awarded to Sam and denies behaving in a harassing manner after Jane chose to go to a solicitor.

Steve isn't a qualified lawyer and so he falls into a regulatory limbo. The Law Society prohibits solicitors from charging a percentage of the damages where there are court proceedings. Whether solicitors are involved or not, there should always be court approval where children's accident claims are settled - and that has not happened with the settlements for Sam's brothers.

Carol Ellis, a 51-year-old mother of three from Tamworth, contacted her local Citizen's Advice Bureau when she received a cheque in settlement of a four-year-old compensation claim. Her case is typical of thousands that the legal advice service has received. The judge awarded her £2,187 in damages after she broke her toe when she tripped over on the pavement outside her boyfriend's daughter's house.

It might be easy to dismiss such a fall as relatively trivial but Carol was devastated. She suffers from arthritis to the extent that she can't drive a car and has also been treated for depression. She takes medication to manage panic attacks. Not only was Carol in great pain, but she felt she couldn't leave her flat. 'I had been waiting so long for the whole thing to be over,' Carol says. 'I couldn't believe it when I found out I was only getting £30.'

How can an accident victim be left with a fraction of their damages? The answer is that 'no win, no fee' does not mean 'win, no cost'. If you are successful you still have to pay costs.

Carol wasn't aware that she had effectively signed up for insurance to cover her against paying the other side's costs plus a loan to cover the premiums. She was responsible for the insurance, £621.13, plus four years' interest and other expenses, leaving her with next to nothing.

So far, claims companies have been allowed to exist free from any effective government control. But a new industry group, the Claims Standards Council, met recently in a last ditch attempt to stave off critics and put together a system of self-regulation.

John Peysner, a professor of civil justice at Nottingham Law School, chairs a sub-committee on legal costs for the Civil Justice Council, a watchdog body. He is convinced that the burgeoning claims industry cannot police itself. 'Self-regulation can't work in an industry where you don't need any capital to set up and you just need an office, a table and chairs,' he argues.

'People like the Borehams should be able to choose their representative freely but anybody with cases as tragic as theirs should be able to rely on their representative being properly regulated.

'To have problems with your representative as well as the problem of bringing your case really does add insult to injury.'

source: The Observer (Last Updated: Sunday, 27 February, 2005)

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