No-win no-fee cases widen access to justice

Claire Campbell is a Partner at Thompsons Solicitors (Picture: Paul Hampton)

Home should be the place where we feel safe but for far too many people in Scotland, their homes are making them sick. The cause of this is exposure to damp and mould.

Black mould and damp are not only unpleasant to look at, or smell, they can also be seriously dangerous to health, particularly for children or elderly people. We know that prolonged exposure to mould can cause serious breathing problems, skin conditions, as well as mental distress. This is demonstrated by the huge number of clients I represent as a personal injury lawyer specialising in this area.

The law in Scotland says landlords must keep their properties in a reasonable state of repair with homes fit for human habitation. If they fail in these duties, tenants can go to the Housing Tribunal to try to force repairs. That’s important, but it doesn’t help people who have already suffered ill health because of living in mould-infested conditions.

To claim compensation for illness, tenants need to bring a personal injury claim in court. And here’s the problem: taking legal action is expensive. Leaving aside court fees themselves, expert medical reports are needed to prove that the mould caused the illness, and landlords often fight claims tooth and nail.

Despite recent developments in the law stressing that landlords should not blame tenants for mouldy living conditions without investigating possible structural issues, this position is all too often taken. This results in the need for further, expensive, expert reports to prove the cause of the mould and whether the landlord has been negligent.

For most tenants, especially those already struggling to pay rent and bills, the cost of going to court is simply out of reach.

This is where no-win, no-fee agreements come in. They allow solicitors to take on cases without charging clients upfront. If the case is successful, the lawyer recovers their fees with a capped payment for the risk they took on. If the case fails, the client pays nothing and the lawyer will meet their own cost plus potentially those of the defender. For ordinary people, this can be the difference between being able to seek justice and having to walk away.

Some critics like to talk about a so-called “compensation culture,” but that is a myth. No solicitor working on a no-win, no-fee basis would want to take on a hopeless case as they would be responsible for picking up the tab on a lost case. These agreements don’t encourage frivolous claims. They allow strong claims to be heard, where landlords have failed in their duties and people who may not have access to justice otherwise have genuinely suffered.

Right now in Scotland, too many tenants are left powerless. Without access to no-win, no-fee agreements, the reality is that many landlords would face no real consequences for endangering tenants.

If we are serious about protecting public health, we need to make sure ordinary people can stand up to negligent landlords, and that means giving them a way to do so without fear of financial ruin.

Everyone in Scotland deserves a safe and healthy home. No-win, no-fee agreements won’t fix the housing crisis overnight, but they can give tenants a fighting chance to hold landlords accountable and make sure tragedies linked to mould never happen again.

Claire Campbell is a Partner at Thompsons Solicitors