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Wednesday, 10 December 2014

A very bad week for Christopher Stephen Grayling

We all have bad weeks. 

But it has been a particularly bad one for the first non lawyer Lord Chancellor for over 400 years. 

Was it only two months ago that he was proclaiming that it was a good thing that he was not a lawyer 

Last night, I actually missed part of Liverpool FC’s exit from the Champions League to witness the mauling which the House of Lords gave to Mr Grayling's proposals to restrict the right to bring Judicial Review proceedings. A key proposal would remove the power of judges to decide whether to hear such applications. In effect the right to bring proceedings against the Government will be controlled by the Government. This was roundly rejected by the Lords. Those opposing the move included a number of Tory and Lib Dem peers –

Grayling's advocate in the House, Lord Faulks QC, was increasingly ineffective in the face of relentless attacks, particularly from the masterful crossbencher, Lord Pannick. It doesn't matter how eminent a barrister you are, defending the indefensible is always a thankless task.

Further misery was heaped on Mr Grayling as he was forced to admit that he misled Parliament over the proposals. He had suggested that there was to be an exception to the rules barring applications whereby the court would retain discretion in certain circumstances. He wrote to Conservative MP, Geoffrey Cox, to confirm that he had ‘inadvertently’ said that this was the case when it fact it was not. So he was either misleading the House deliberately or had no idea what was in his Bill –

While we are on the subject of Judicial Review! Mr Grayling was told by the High Court this week that his appalling plans to ban books for prisoners was unlawful –

It is no wonder that he remains so anxious to abolish the right to subject the Government to review by the courts. Could he be trying to avoid the honour (ahem) of being the most judicially reviewed Minister in history?

All of this makes you wonder whether Cameron’s experiment in placing a career politician at the head of the legal system was such a good idea after all.

Friday, 5 December 2014

Access to Justice - its all about the money, money, money

It's not about the money, money, money
We don't need your money, money, money
We just wanna make the world dance,
Forget about the price tag

This is the first time that Jessie J has made an appearance on this blog. Or any other legal blog for that matter! When it comes to putting a value of Access to Justice her words are sadly wide of the mark. It seems that it is in fact all about the money, money, money.

That was certainly the impression given by top MOJ Civil Servant Ursula Brennan, when she gave evidence before the Public Accounts committee this week.

She confirmed that her department was given a mandate to cut the Legal aid Budget at all costs and that they were given no time to carry out any research into the possible impact of the cuts, which virtually wiped legal aid for the most vulnerable.

It was clear from her responses that no thought was given to the likely consequences. The overwhelming brief was to save the money from the legal aid budget regardless of whether this might be a false economy. This is something that most campaigners have been saying for the last couple of years.

What about the cost to the Court system of a deluge of litigants in person?

What about the cost to other public bodies who have to pick up the pieces?

What about the issues of quality as legal aid lawyers are forced into a race to the bottom on fees?

As one MP asked - ‘How do you know there is not £100m of mental health costs flowing from these reforms?’

This emphasises again the contempt that the current government has for our once proud justice system. I have talked before about where their true values lie –

Barrister Harriet Johnson tweeted this week –
‘Grayling: This isn't ideological; I HAVE to cut £220m from #LegalAid. We've no money. Govt: Sod it; have £15bn for some new roads.’  
That says it all! Money is found for some things. It is all about priorities. Access to Justice is a very low priority for our politicians.

This is something that we must force onto the agenda over the next 5 months.





Friday, 28 November 2014

The Continuing Insanity of the Mitchell Litigation

If there is one word that still strikes fear into the hearts of even the most robust litigators it is the word Mitchell. Just say it in their company and your will see a total personality change. They will stare blankly ahead like rabbit in headlights. Their bottom lip will quiver and they will quickly head for the door. It is a word that they associate with missed deadlines, strike outs and sheepish letters to their indemnity insurers.

It was a name that dominated this blog for several months last year –

The worst excesses of that decision were eventually mitigated by the Court of Appeal in the later case of Denton but that overriding fear of missing the bus by a few days has never gone away –

So with all the excitement of the Mitchell case it has been easy to forget that there was real dispute taking place between Mr Mitchell, a former government Whip, and the Sun Newspaper. This, of course, was all about Plebgate – the infamous exchange between Mitchell and a Police Officer in Downing Street during which the MP allegedly called the officer a ‘fucking pleb’. The exchange made the front page of the Sun. Mr Mitchell sued them for libel. Yesterday the High Court found against him. Mitting J ruled that he probably did use the offending language. Not only has he lost a case that was brought in order to salvage his reputation, he also faces a huge legal bill. Various figures are going around of between £1.5m and £3m. He has to pay £300k on account by January.

That estimate of the legal costs beggars belief when you think about the ‘scary’ Mitchell case – the one about missing deadlines. What happened there was that his lawyers were supposed to file a costs budget with the court by a particular date. They failed to do it and were effectively deprived of all of their costs as against the other side. But lets stand back from that for a minute.

The idea of the budgeting exercise was to control costs. The whole point of the Jackson reforms was to rein in the cost of civil litigation. A much quoted statement from the Master of the Rolls was –

‘Doing justice in each set of proceedings is to ensure that proceedings are dealt with justly and at proportionate cost.’
So we have a case which is about a heated conversation between a politician and a police officer that lasted a few seconds. We have seen a satellite argument go to the Court of Appeal, costing thousands of pounds, because lawyers missed a deadline to serve a budget that is supposed to part of a procedure to control costs. Now we have seen the conclusion of the main action with costs possible running into millions. 

As John Hyde of the Law Society's Gazette tweeted yesterday - 

'I wonder how often Andrew Mitchell wishes he'd just taken the Tube home that night'

Is it just me? How have we gone from ‘justly and at proportionate cost’ to this?

The famous words of DH Lawrence come to mind –

‘The world of men is dreaming, it has gone mad in its sleep, and a snake is strangling it, but it can't wake up.’

Wednesday, 26 November 2014

Rolls Royce Justice for the Rich

The Lord Chancellor, Chris Grayling believes that London should take its place at the heart of the International Legal community.

These were his encouraging words ahead of next year’s Global Law Summit –

For those who are interested this is a major event with high level speakers including Cherie Booth QC , Aung San Suu Kyi and erm Boris Johnson. It is two day event – tickets on the door - £1750.00.

Grayling spoke of our long and proud legal tradition. And in one small sense, he is right. As a country we do seem to have plenty of money to spend encouraging the rich and powerful to litigate here. We have the Rolls Building which is certainly a top of the range facility for the highest level commercial disputes –

The cost of building that beautiful court would have funded access to legal aid for thousands of people.

We cannot claim to be at the heart of any Legal Community whilst substantial numbers of our citizens have no access to our justice system. Just this week we have seen a shocking report from the National Audit Office that there has been a doubling of cases involving children where neither party has legal representation. This is causing injustice, delay and increased public expense as cases take far longer.

This report made the very reasonable comment that – ‘… the MoJ had failed to think through the impact the changes would have on the wider system…’ We have been trying to tell them that for the last 4 years.

We have also seen attacks on the rights of accident victims to recover their full legal costs alongside a full blown media campaign to demonise those victims.

When it comes to providing a Rolls Royce service for those who have endless funds to spend, we are right there at the top. When it comes to providing ordinary people with a means of protecting their rights, most people find the door well and truly shut in their faces. Until that door is opened we cannot claim to be at the heart of any justice system worth the name.

Monday, 17 November 2014

Is a surgeon negligent because he's having a bad day at the office?

How about a nice tricky legal question to start the week?

I have to confess that I am not at my best on Mondays. I wouldn’t say that I am in the Boomtown Rats league but it is not normally my favourite day! So let’s say I bump my car on the way home. And let’s say it isn’t clear whether or not it was my fault. Could the other driver say it must be my fault? Could he say that everyone knows I’m not at my best on Mondays, so that that must be taken into account?

In other words; to what extent can external factors influence a decision as to whether I have or haven’t been negligent? The answer might appear obvious but that very problem has exercised the Court of Appeal in a recent Medical Negligence case.

Mrs Laughton underwent a left hip replacement operation on 30th July 2007. The surgeon was Mr Shalaby. The operation was not a success. She needed a further operation about 18 months later. It was necessary for the second surgeon to re-attach the gluteus medius muscle to the trochanter bone. Mrs Laughton’s case was that Mr Shalaby had negligently failed to do this at the time of the original surgery.

The case went to trial and experts for each side had differing opinions. The expert for Mrs Laughton said that it was self evident that Mr Shalaby had not re-attached the muscle and therefore he was negligent. The expert for Mr Shalaby said that the muscle could have come away after the surgery, that this was a known complication and did not in itself indicate negligence. The judge preferred the evidence of the latter. He decided that there no negligence and Mrs Laughton lost. She appealed to the Court of Appeal.
At the appeal hearing an attempt was made to rely on extraneous factors. The surgeon had been made subject to conditions by the GMC. This was due to complaints about the standard of his surgery in other cases. He had also, allegedly assaulted a bus driver and been suspended from practice. It was suggested that all of those factors would have put him under stress and more likely to make a mistake.

This was dismissed by the Court of Appeal. Mr Shalaby should been open about these matters. But they made no difference to any assessment of the standard of surgery offered to this particular patient on this particular day. There was no evidence of any similar problems in other hip replacement operations carried out by Mr Shalaby.

Lord Justice Longmore said -

‘The fact that a doctor is under stress does not of itself mean that he is more likely than not to have been negligent on a particular occasion.

Those who are interested can see the full decision here –

This is a significant decision. It means that in a Medical Negligence case the court has to focus on the incident itself and cannot take into account unrelated factors in the absence of evidence of negligence. That doesn’t mean that the court will never consider other factors. If Mr Shalaby had a habit of failing to attach the gluteus muscle then that might be used against him. But a claimant cannot rely on unrelated factors to try and swing the pendulum their way.

All of which means that if I bump into your car tonight, you can’t say it’s my fault just because it’s Monday!

Thursday, 13 November 2014

The Courts v The State The next round!

I said last week that it was unthinkable that the state should be able to bring an action against its citizens and then deprive them of representation. That argument should be even stronger in cases where the state wrongly interferes with their liberty. But this has not stopped the current government from trying.

In 2013 legal aid was virtually wiped out in this country. In that small number of cases where it is still available it is very tightly restricted. Getting blood out of a stone comes to mind.

This was the problem faced by Sunita Sisangia who was wrongly detained by the police for over 13 hours. She was denied legal aid to bring an action against the police for false imprisonment. A Claimant can only get public funding for this type of case if they can show that the police have been guilty of a deliberate or dishonest abuse of power. The Legal Aid Agency ruled that this meant that there had to have been an element of malice. Simply to deprive somebody, wrongly, of their liberty was not enough.

This shocking decision has been overturned by the High Court which has ruled that she is entitled to legal aid. The Court held that protection from imprisonment is an important right. It was enough to show that the arrest was deliberate. No further 'abuse' was needed. 

This is further evidence of the increasing tension between the Judiciary and a Government which walks rough shod over the rule of law. What sort of state are we in? Is it a state where the police can wrongly arrest and detain somebody who then has no right to bring a claim for damages? That is the world of Kafka. It is not the world of a modern democracy.  This seems far removed from simply the saving of money. It seems to be an ideological attack on our civil liberties.

What is alarming is that the Minister of Justice wants to restrict the rights of citizens to Judicial Review.

Last week we saw the anger of the President of the Family Division where a person with learning difficulties was refused legal aid. I can see more and more of these occurring where judges – often accused of being out of touch – are left to protect our liberties.

I do not hold out much hope that the legal aid cuts will be reversed by whoever wins the next election. But we must at the very least protect the remnant from further attacks.

Tuesday, 4 November 2014

Concerning a heroic lawyer, an angry judge and washed hands!

In yesterday’s blog I mentioned the massive amounts of free work carried out by lawyers, and which barely gets a mention in the mainstream media.

There can be no greater example than the heroic efforts of Rebecca Stevens of Withy King, Solicitors. She has represented the parents of a child in adoption proceedings. It is a case where there are plans to place the child for adoption. Both parents have learning difficulties.  This is a case which is crying out for independent representation. Rebecca Stevens has been acting free of charge and it is estimated that she has done at least 100 hours of unpaid work. I cannot see the tabloid press queuing up to tell the world!

The case came before Mr. Justice Munby last week. He is the President of the Family Division of the High Court. He paid tribute to the remarkable efforts of Ms Stevens referring to her  

‘devotion to the client far above and far beyond the call of duty’

He then went on to deliver a judgment which should send shock waves through the Ministry of Justice. He said that the government has ‘washed its hands’ of the problem of ensuring that these parents are properly represented. 

“Thus far the state has simply washed its hands of the problem, leaving the solution to the problem which the state itself has created – for the state has brought the proceedings but declined all responsibility for ensuring that the parents are able to participate effectively in the proceedings it has brought – to the goodwill, the charity, of the legal profession.
This is, it might be thought, both unprincipled and unconscionable.’”

He said that it is unfair that representation is only available if a lawyer is willing to work for nothing. He has ordered that there be a hearing to decide who should fund the representation. He has invited the Justice Secretary, the Legal aid Agency, The Courts’ Service and the Local Authority all to attend to make representations.

In National Pro Bono week there cannot be a stronger example of the shocking state of Access to Justice in this country.  

The High Court’s most senior Family Judge has now said it – enough is enough. This cannot continue. It should be unthinkable that the state can bring a court action against citizens and then deprive them of representation.