On Friday 10 October the Metropolitan Police told Paul Gambaccini they will not be proceeding in their investigations over historical sex allegations.
The police arrested Mr. Gambaccini on Tuesday 29th October 2013 and released him under police bail. They did not charge him with any offences.
The broadcaster described his “12 months of horror and trauma” and has supported Home Office plans to limit the time suspects can be bailed without charge.
Speaking to the BBC, Human Rights barrister Geoffrey Robertson QC criticised the Police for the “unnecessary and unlawful” arrests that have been made during the Metropolitan Police’s “Operation Yewtree”.
If Mr. Robertson is right, Paul Gambaccini might consider taking a civil action against the police for:
- false imprisonment;
- psychological trauma;
- damage to reputation and; if provable
- lost income.
But will he sue the police?
Paying to Sue the Police
On 1 April 2013 the Legal Aid, Sentencing, and Punishment of Offenders Act (2012) (“LASPO”) came into force.
The coalition government pushed the Act through apparently to save money and please their insurance company donors.
In the 18 months since it has been in force it has had a profound effect on funding all compensation claims, including cases where people sue the police.
This is why.
Every working day I receive many enquiries from people asking me to help them sue the police.
As a solicitor and Officer of the Court I take my duties seriously. My priority is to act in the best interests of my clients. So I think about how they are going to pay for their cases before going any further.
Contrary to popular perception, claiming compensation isn’t free. The claimant is responsible for their own legal costs. Only if they win can they claim some, or all, of these back from their opponent.
Because of this costs risk, dealing with funding is as important as considering the merits of the claim.
If Mr. Gambaccini came to me I would tell him that there are four potential methods of funding:
- Legal Aid
- “Before the event” insurance or union backing
- Conditional Fee Agreement (also known as a “no win no fee” agreement) with/without “after the event” Insurance
- Private Client.
I’m guessing that Mr. Gambaccini won’t be eligible for legal aid. (He probably does not receive qualifying state benefits, or is on a low-income with little or no assets.)
He may have before the event insurance (so-called because it is insurance in place before the claimable incident occurs) or union-backing. In my experience these rarely cover actions against the police. This is because police claims are complicated, high-risk, and often of relatively low value (many are worth less than £5000).
He might ask if I would take the case under a conditional fee agreement. If so, I would only get paid if he won his claim. For taking the risk of not being paid, and delaying payment even if successful, my firm would receive a “success fee” uplift on top of our base costs.
Before LASPO no win no fee agreements allowed me to represent clients with a guarantee that they would recover 100% of their compensation if they won; and walk away scot-free if they lost.
This was because, if my clients won, their losing opponent paid the success fee and, if obtained, the cost of an after the event insurance policy. With no fees to pay, my clients received every penny of their hard-fought damages.
(After the event (claimable incident) insurance provided valuable protection as it would pay for all of my clients’ expenses (called “disbursements”) and the other side’s legal costs if they lost their claims.)
By using pre- LASPO no win no fee agreements my clients did not have to pay legal fees out of their own pockets as private clients. This was a better deal than option 4, which would be the last resort for most.
The conditional fee agreement system worked well before LASPO, but the government was determined to stamp out the perceived “compensation culture”, even though study after study showed that it does not exist. In 2010 the government commissioned Lord Young, the Conservative Party former cabinet member, to prepare a report which you can read here. He said:
“The problem of the compensation culture prevalent in society today is, however, one of perception rather than reality.”
He wasn’t the only one who thought that the compensation culture was bogus. Lord Dyson MR, the Master of the Rolls and second most senior judge in England and Wales, said in a 2013 lecture:
‘I doubt very much whether we are likely to see – in the medium term at least – any reduction in news stories expressing concern about our compensation culture. It is something of a mystery to me why the media find the compensation culture such a fascinating subject.’
Despite knowing that the compensation culture was a myth, the government’s determination to force through changes led to LASPO.
LASPO removed the innocent victim’s right to recover success fees and after the event insurance when using a no win no fee agreement. Now winning claimants must pay for those things themselves.
The new rule affects people who bring no win no fee claims of any kind, including civil actions against the police.
If they lose they can avoid paying their own solicitor’s fees with a no win no fee agreement, but must still pay their disbursements and the other side’s costs, as LASPO has forced after the event insurers away from actions against the police.
And it doesn’t just affect people who have no win no fee agreements with their solicitors. Private clients also have to worry about paying for their own disbursements, and more importantly the police’s legal fees, if they lose.
Often cases that go to trial can rack up legal fees of over £50,000.
That’s enough to make even apparently well-off people like Paul Gambaccini think again before deciding to sue the police.
Qualified One Way Costs Shifting Uncertainty
A possible solution to this problem is for the government to extend Qualified One Way Costs Shifting (“QOCS”) to include cases where people sue the police.
QOCS came in at the same time as LASPO and applies to personal injury cases only.
It allows the accident victim to claim compensation knowing that, unless certain exceptions apply, they will not have to pay their opponent’s costs if they lose. They will only have to pay their own legal fees (unless they have a no win no fee agreement) and their disbursements (unless covered by after the event insurance).
(In accident claims after the event insurance is still available because claims are generally easier to predict and the market is much bigger than actions against the police.)
Actions against the police are different to accident claims as, in many cases where people sue the police, they do not suffer injuries, so QOCS would not apply.
But, in theory, it does apply to people who sue the police where they are also claiming personal injury, such as handcuffing injuries to the wrists, police assault injuries, and diagnosed psychological trauma.
Conveniently for the police, over a year and a half on from when LASPO came into force, we still don’t know if QOCS covers the personal injury element alone, or the entire claim.
This uncertainty means that there is a costs risk for the claimant if they suffered an injury, but more so if there is no injury claim.
Rights Under Attack
If Paul Gambaccini is a victim of police abuse and wants to sue the police his decision to go ahead may come down to funding. If he finds a solicitor willing to take his case on a no win no fee basis he may have protection for his own costs, but will still be exposed to significant costs risk if he loses.
He will then have to decide if suing the police is worth the risk.
Don’t misunderstand me. I take on new claims against the police every month. In the right cases, I am comfortable acting under a no win no fee agreement, knowing that there is a risk I will not get paid. My practice is thriving because police abuse is routine and, provided my clients are comfortable with sharing the risks, worth fighting against.
I am dedicated to helping people sue the police because these cases impact us all. When brave victims of police abuse stand up to the State and seek justice, we are protected. By holding the police to account they improve their conduct, training, and policies. We all benefit, including the police themselves.
But without cases being brought by these determined people and their lawyers, the police are free to abuse the law.
If you want help to sue the police contact me on 0151 933 1474 or through my firm’s website.