Ad description
A TV ad and video on the advertiser's own YouTube channel for Hampson Hughes Solicitors personal injury firm. The ad featured a male character singing about an accident he had. During a break in the song, the ad showed the male character holding a cheque for £2,000 and he said "£2,000 up front? Cool!" On-screen text at the bottom right of the screen stated "On eligible cases, Ts & Cs apply".
Issue
The Association of Personal Injury Lawyers (APIL) challenged whether the claim "up front" was misleading because they believed the claim implied that the payment would be received upon instructing the advertiser, whereas the APIL understood that the payment would not be received until later in the claim process.
Response
Hampson Hughes Solicitors stated that the offer of cash inducements, though opposed by the APIL, was not prohibited by the Solicitors Regulatory Authority if the offer was subject to clear terms and conditions. They said that cash advancement of damages to clients was the subject of debate within the personal injury industry. They believed that the ads clearly stated that terms and conditions applied to the cash advance and that these terms could be found on their website.
They stated that the general assumption by APIL that all cases were alike with similar timeframes in the settlement process was incorrect. Hampson Hughes Solicitors said that each personal injury case and client was different and they prided themselves on delivering tailored services to their individual clients. They said that all new clients affected by non-fault accidents received medical assessment by a medical expert within two weeks of initial instructions being taken on their cases. The majority of the full advance payment of £2,000 would be released within four weeks of initial instructions.
Hampson Hughes Solicitors said that once new clients had given instructions for representation, often over the telephone, they would then submit the client's claim through an online portal where insurers were legally bound to make a decision on liability within 15 working days from submission. They estimated that this would take place in 99% of their new cases.
Hampson Hughes Solicitors said that client's eligibility for the advance payment would be assessed as soon as they received the insurer's response within 15 working days of submission, although in practice they found that an insurer's response was usually received within five days of submission. They also said that they would endeavour to establish admission of liability with insurers by telephone to ensure time efficient outcomes for their clients.
They further stated that the process would normally take between 6 and 18 months to resolve fully. Hampson Hughes Solicitors said that 605 advance payments were released in the period from 1 June 2013 to 31 May 2014. They estimated that approximately 24% of clients received their advance payment within 30 days of initial instructions, 27% between days 31 and 60 and 26% between days 61 to 90.
Clearcast understood that the conditions of eligibility required an admission of liability by the third-party's insurer and the receipt of a medical report assessing the effect of the accident on the client and any resulting injuries.
Clearcast said that the advertiser provided them with assurances that the process was faster than that asserted by the APIL. They acknowledged that every case would be different and that it was difficult to place an exact timeframe on the process. They considered that the most important factor was that the payment in question was an advance provided to the client before a full case decision had been reached. They believed that the payment offered by the advertiser was therefore "upfront" as they were satisfied this was released before the full case had been completely assessed and concluded.
They also considered that the legal text appeared at the bottom of the TV ad made clear to viewers that eligibility criteria applied and that these would have to be considered before the payment was released. On this basis, Clearcast believed that the ad would not materially mislead consumers.
Assessment
Upheld
The ASA considered that consumers were unlikely to interpret "upfront" to mean that they would receive the payment on giving initial instructions to Hampson Hughes Solicitors to act on their behalf, as the ads indicated that this offer was only available to eligible cases and that terms and conditions applied.
However, we considered that many consumers would be familiar with the term "upfront", particularly in situations where they were required to make "upfront" payments before the supply of goods or services were carried out under the contract. Although in this instance the "upfront" payment would be made by the advertiser to eligible consumers, we considered that consumers' interpretation of the clam "upfront" was likely to be that it referred to a point in time that was soon after they agreed to being represented by Hampson Hughes Solicitors.
On this basis and in light of the fact that the ads did not specify the conditions of eligibility, which would otherwise allow consumers to determine the likely timeframe, we considered that consumers, upon viewing the ads, while expecting some degree of work to be carried out by Hampson Hughes Solicitors in order to assess their eligibility, would reasonably expect to receive advance payments for which they were eligible soon after the commencement of the process.
We acknowledged that each case and client would be different and therefore the timeframe of the process would differ depending on individual cases and the parties involved. However, we considered that the offer of an advance payment by the advertiser would be a material factor that consumers would take into account in their decision to enter into a transaction with Hampson Hughes Solicitors over other firms.
We noted from their comments that the process from initial instructions to the case being fully resolved would normally take between 6 and 18 months and that 76% of eligible clients received the payment more than four weeks after initial instructions during the period between 1 June 2013 and 31 May 2014.
We noted Clearcast's comments that they did not consider the claim would materially mislead consumers because they were content that the "upfront" payment was made in advance of the case being fully resolved. Although we acknowledged that the payment was an advance in nature, we considered that in the majority of cases, the stage at which the payment was given to clients would not correspond with consumers' reasonable expectation of "upfront". As such, we considered the claim, within the context of the ad, was likely to create an impression that consumers would receive the payment sooner than would be the case for most clients. On this basis, we concluded the ads were misleading.
The ads breached BCAP Code (Edition 1) rules 3.1 3.1 Advertisements must not materially mislead or be likely to do so. (Misleading Advertising) and 3.9 3.9 Broadcasters must hold documentary evidence to prove claims that the audience is likely to regard as objective and that are capable of objective substantiation. The ASA may regard claims as misleading in the absence of adequate substantiation. (Substantiation) and CAP Code (Edition 12) rules 3.1 3.1 Advertisements must not materially mislead or be likely to do so. (Misleading Advertising) and 3.7 3.7 Before distributing or submitting a marketing communication for publication, marketers must hold documentary evidence to prove claims that consumers are likely to regard as objective and that are capable of objective substantiation. The ASA may regard claims as misleading in the absence of adequate substantiation. (Substantiation).
Action
The ads must not appear in their current forms. We told Hampson Hughes Solicitors to ensure that they did not use the claim "upfront" to describe the £2,000 advance payment in future ads.
