Who’s to blame for blaming?

Actuaries are a funny lot.  I have always thought of them as brainy, familiar with the Life Tables, and the quantification of probability and risk – altogether pretty intimidating.  So when the Institute of Actuaries recently reported a crisis in the UK’s growing “compensation culture”, which they said was costing £10 billion a year, I sat up and took notice. 

This is part of the institutional framework for our changing daily lives.  There is indeed much more legal scaffolding than ever before, much more in 1962, when I started law practice.  And it is also true that in each case a “breach” leads essentially to an award of damages.  That is the substance behind the allegations of a growing “compensation culture”.

But this is all, I would argue, a good thing.  And £10 billion is less than 1% of the annual UK Gross Domestic Product.  I recognise, of course, that the process can go seriously wrong.  Some people become obsessed with a particular claim, and it destroys their lives.  Others become vexatious litigants, and claim over everything.  I find the current commercial promotion of claims (particularly on TV) deeply disturbing.  Incompetent lawyers can easily wreck peoples’ lives, as with incompetent doctors and builders. And unforeseen judicial outcomes can destroy an unsuccessful litigant completely. 

But all systems malfunction sometime. And what is wrong with a society in which individuals are free to pursue their own sense of justice, even if it proves illusory?  The gambling “industry” would get nowhere, if nobody pursued illusory objectives?  This is all part of man’s rich imagination, the primary driver of all societies. I accept that it is incumbent upon the managers of the system (lawyers, and judges, particularly) to keep the whole process within sensible bounds and free of professional exploitation, to prevent its getting out of hand.  The judges should continue to bear down on lawyers’ costs, as should the Law Society and Bar Council. Nor has the UK made the American mistake of allowing juries to decide these civil claims (apart from defamation): in the UK, there is a better judicial framework for these purposes.  Further, UK judges have been less ready to extend liability in negligence, in borderline cases.

Crisis?  What crisis?  These broad bodies of legal principle are sound – the requirement to discharge duties of care, to honour human rights, and to root out discrimination, these are all sound principles.  It is true that, given high rates of social change, this process will also generate higher levels of litigation, hopefully accompanied by higher levels of settlement, as the law develops.