Claimant solicitors are struggling to admit conflicts of interest which require them to stop acting for car passengers when they are also acting for the driver, a specialist barrister has claimed.
Mark Henley, a personal injury barrister at Zenith Chambers in Leeds, said a number of his recent cases have highlighted the problem, which has continued despite the ban on referral fees due to the “strong economic motives” that still encourage solicitors to try and act for both.
Writing recently on Zenith’s PI blog, Mr Henley said that as soon as primary liability is disputed in a claim, the solicitor needs to ask whether there is a conflict of interest in continuing to represent both the driver and passengers in the same vehicle.
“The key question which the solicitor has to ask at this early stage is whether there is any conceivable chance (however slight) that a passenger could fail to establish any liability against the driver of the other vehicle, and, at the same time, that the court could find that some element of blame rests with the driver of the passenger’s own vehicle.
“If there is any such chance, then the passenger cannot rely solely on a claim against the other driver [and] needs to bring claims, in the alternative, not only against the driver of the other vehicle, as first defendant, but also against the driver of their own vehicle, as second defendant.”
This would mean the driver’s solicitors could not also act for the passenger.
Mr Henley said: “By way of example from my own recent cases, I have had to reassure one solicitor that there was no conflict of interest involved in continuing to act for both driver and passengers where primary liability is admitted and the only allegation made is that the alleged passengers were not present in the vehicle, and to point out to another solicitor that there is a conflict of interest involved in continuing to act for both driver and passengers where it is alleged that the driver had deliberately caused the accident by braking sharply and without any reason.”
The barrister said there were “still strong economic motives encouraging claimant road traffic solicitors to remain reluctant to admit conflicts of interest which require them to ‘let go’ claimant passengers, in vehicles where they also represent the driver”.
He explained: “Even if referral fees have no longer changed hands, the structure of fixed costs, for road traffic cases which exit the portal, make claims with multiple claimants unusually lucrative as every claimant is entitled to the sum of fixed costs.”
Mr Henley concluded by warning: “A reluctance to grasp the nettle where there is a conflict of interest can leave solicitors being sued by their own clients, as innocent passengers who have failed to bring a claim against the only driver found at trial to be to blame for an accident.”