For some time we have been concerned at the lack of financial protection for claimants looking to enforce the rights provided to them under the Equality Act. We have been campaigning for the same protection against adverse costs at the highest level, including by visits to Downing Street and the Ministry of Justice, but to date it remains the case that if a personal injury claim fails there are typically no costs liabilities to the Claimant whilst in claims for disability discrimination there are.
This is patently unfair, and is at its most acutely unfair in the case of Adam George v Flambards in which we were instructed. Adam needed a Changing Places toilet facility at the Flambards theme park but was initially refused. After issuing Court proceedings they subsequently installed facilities. Despite at face value succeeding with the action, our opponents identified that the Court did not have a key document on file and that as a consequence the Court had struck the case out. The Court did not make any Order and Flambards’ Solicitors proceeded to obtain an Order requiring Adam to pay their costs.
This was sharp practice. Flambards’ Solicitors knew that the document existed because it had received a copy from us. We filed a statement with evidence that the document had been sent to the Court and we attempted to overturn the Order. We were unsuccessful in that application, and although we considered the decision to be appeal-able the costs risk against the reward, given that the case had substantially succeeded in any event meant that we had to advise Adam’s Mum to accept the strike out.
Litigation is inherently risky, and although we have a very high success rate, have achieved many positive precedents including a Supreme Court precedent, sometimes cases that should win, lose. It is these cases, like Adam’s which stay with us forever because they feel unjust.
In 10 years of bringing disability discrimination cases we have only known 2 failed cases where the service provider has enforced a Costs Order. This one seems particularly unfair, morally. Applying for a Charging Order against Adam’s home seems a particularly ugly and aggressive strategy.
We stand with Adam and have been working hard to resolve this behind the scenes. Whilst large service providers are typically insured for legal costs, disabled people rarely are.
So, this is what we’ve decided to do about it. Firstly, we are going to settle this debt to Flambards on Adam’s behalf. Secondly, we are establishing a fund to provide all Fry Law clients with costs protection in discrimination cases to give disabled people greater confidence in access to justice and in particular to do our part to level the playing field when enforcing their rights to a more inclusive and accessible society.
We will also redouble our #equaljustice campaign for a change to the rules which create such a disadvantage to disabled people in particular.