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Tuesday, 5 June 2018

A dishonest claim - and the damage it causes

A recent case has reminded us again of the dangers of exaggerated compensation claims. This time it is a clinical negligence case, but the same issues could arise in any claim involving the alleged consequences of an injury. The facts are summarised in a report in yesterdays’ Litigation Futures –

Mr Atwal alleged that he was significantly disabled and claimed damages just over £800k. It was not disputed that his treatment had fallen below an acceptable standard and that he had suffered some injury as a result. The Trust had offered £30k. He could have had a reasonable claim and secured a fair settlement. As it was he grossly exaggerated the effects of the negligence. He has ended up with a 3 month prison sentence, a £75k adverse costs liability and no damages.

NHS Resolution have published the video footage which led to his downfall –

Cases like this are so frustrating for those who seek justice for victims of medical negligence and accidents. Over the last few years there have been relentless attacks by the media and politicians against the so called ‘compensation culture’. The vast majority of claimants are genuine victims who are simply seeking some acknowledgment that they have been wronged. For many, the compensation is not their main concern. They want to know what happened and who will be held to account. Compensation plays a huge role in providing support for those who often suffer life changing injuries –

Then a case like this comes along and sends us back to the start like a sinister game of snakes and ladders. It is difficult to disagree with the CEO of NHS Resolution that there must be a clear message that ‘you cannot submit fraudulent claims’ with impunity.  They damage everybody.
There is also a real message here for lawyers who represent victims. Any claim for damages must be vigorously scrutinised.

Mr Atwal’s solicitors were, presumably, acting on a Conditional Fee Agreement. They will have suffered massive commercial damage which would bring many firms to their knees. Some might be tempted to submit a six-figure claim on the basis that liability is admitted so ‘we are bound to get more than is offered’. 

A case like this highlights that the consequences can be catastrophic. It also does untold damage to the real vicitms.

Monday, 21 May 2018

Criminal Justice in meltdown? Let's form an ABS!

Most observers agree that the Criminal Justice system in England and Wales is on the verge of collapse. There has been no clearer analysis of this than the Secret Barrister’s recent bestseller. A former MOJ Minister has now weighed in with his own contribution to the debate which is so wide of the mark we should all be pleased that he hasn’t taken up a career in knife throwing!

Jonathan Djanogly’s answer is straightforward. We need more efficiency from Criminal defence lawyers. This will be via a network of ABSs, fewer and bigger firms, and more competition. Why didn’t we think of this before??

It is hard to know where to start. How about the shocking treatment of victims? How will bigger and fewer firms result in less trials being cancelled at the last minute or moved to an unreachable court in another area? How will it stop the collapse of trials because the CPS are so underesourced that they fail to provide their own lawyers with the necessary documents? How will it resolve the iniquitous innocence tax which means that a person can be acquitted of a serious offence but still lose everything in successfully defending themselves?

I am not a criminal lawyer. But I know a bit about ABSs and am involved in two such business. The obvious commercial question is – who in their right mind would be interested in investing in an ABS which is dependent on legally aided criminal work? Work in which the rates are so low that a young barrister, paid £80 for a day’s trial finds herself having to borrow the fare home –

According to a report from Young Legal Aid Lawyers, more than half of legal aid lawyers earn less than £25k a year –

According to some reports, earnings have dropped by 40% in real terms since 2007.

Which ambitious entrepreneurs are going to join the queue to set up an ABS in this climate? It is pure fantasy. It also shows a complete disregard for the thoughtful arguments that have come from across the profession in the last few months. The criminal justice system needs a complete overhaul and return of the funds that have been stripped from it. Empty management speak is meaningless.

As an MP, MR Djanogly has presumably received his free copy of the Secret Barrister’s book. He might like to read it…

Thursday, 17 May 2018

Concerning the Select Committee on small claims and who is an honest driver

We have today seen the publication of the Justice Select Committee Report on the Small Claims Limit for Personal Injury Claims. The report can be viewed here –

The plan is to increase the small claims limit for personal injury claims to £2000 and for RTA related PI Claims to £5000. Parties who succeed in the small claims court do not normally recover legal costs if they win. So in effect there is no right to legal representation.

The Committee has expressed concerns which are shared by lawyers, judges and most commentators outside of the government and the insurance industry. They make the very important observation – 

‘We conclude that increasing the small claims limit for PI creates significant access to justice concerns.’ 

The effect of the increase will be to deny thousands of victims of accidents the right to be legally represented. However this is explained away, it cannot avoid the obvious conclusion that insurers will continue to have huge resources to fight claims. Most victims will not.

The committee goes on to summarise its additional concerns including these –

They are troubled by the absence of reliable data on the level of insurance fraud,

They recommend a detailed analysis of the extent to which any reductions in insurance premiums are likely to be attributed to the ‘reforms’ and that there be a report after 12 months,  

They recommend an inflation only increase in the Small Claims limit to £1500, noting that Employers liability and Public liability claims are complex and note the contribution towards maintenance of safe places of work,

They advise against the £5000 limit in RTA cases,

They recommend that vulnerable road users be excluded from any increase,

They remain to be convinced that the inequality of arms issue will be addressed by the proposed on-line platforms,

They question the basis on which the MOJ has concluded that the PI Legal Sector will replace any lost work with other work of equivalent value.

This is very carefully considered report which, in many ways, reflects the obvious. It remains to be seen what effect this will have.

Of course, the response from the ABI has been less than enthusiastic –

James Dalton, in three very dismissive paragraphs simply repeats the familiar rhetoric that this is all about lawyers ‘lining their pockets.’ He makes the disgraceful comment that ‘honest motorists’ will continue to have to pay higher premiums. In other words, any victim who pursues a claim for damages is not an ‘honest motorist’, despite the committee’s finding that there is no reliable data in relation to insurance fraud.

Experience shows that the MOJ will probably listen to its friends in the ABI. But it is encouraging to hear that the voices of victims are beginning to be heard.

Thursday, 12 April 2018

The Secret Barrister - Get it, read it, share it...NOW

It is certainly not unheard of for a book written by a lawyer to make headlines. John Grisham comes to mind and Rumpole of the Bailey gave me many a happy hour as a student.  But is a rare thing for a book about the practice of law to rise up to Number 3 in The Times charts – especially one written by an anonymous barrister. Stories of the Law – and How It’s Broken by The Secret Barrister has managed to do just that.

For the purpose of this review I will call the author SB whom, I will also assume is a she for no particular reason!

What she has written is a devastating critique of our criminal justice system. It is based on her experience as a working criminal barrister over many years. This is certainly the voice of someone who deserves to be heard. It is also very readable. The book is interesting, funny and terrifying at the same time.

Time and space don’t permit an analysis of every detail. I intend to focus on three key issues that caused me particular alarm as I read it.

The first of these took me back many years to my early days as a young and terrified criminal advocate who was destined to be a civil litigator! This is the wonderful and fascinating world of the Magistrates Court, where the majority of criminal cases start and end. It is clear from SB that little has changed over those years. Bail applications are routinely refused. Defendants are routinely convicted. All of this is done by willing volunteers recruited via a system which ‘prizes whether you ran a tombola over your capacity for legal analysis.’ There are many examples of the eccentricity of the courts including one enthusiastic magistrate criticising cross examining counsel for asking a leading question – which is of course the whole point of cross examination. SB finds no justification for this – ‘sausage factory paradigm of justice’, other than that it is ‘cheap,  is the way we’ve always done it and no one who votes knows or cares.’ There are those who support the idea of local lay justices. But no one reading this section of the book can avoid a sense of alarm that the liberty of citizens is left in the hands of these courts. That sense of alarm is unrelenting.

The next issue that shocked me was the appalling treatment of victims. Politicians like to talk about victims of crime. The tabloids love it. There is a Victims’ code, a Victims’ minister, a Victims’ Commissioner, a Victims’ Task Force. But ultimately, no one really gives a shit. They are routinely excluded from the entire process. Cases are listed for floating trials with no hope of actually starting. But the victim is led to believe that this will be their day in court. Many months can go by before a case is relisted. Two thirds of Crown Court Trials do not go ahead. Who knew? The victims certainly didn’t. In one shocking case a victim of serious domestic abuse sees the prosecution of her former partner collapse because a seriously under-resourced CPS failed to get its act together. According to one survey, only 55% of victims would be willing to go through the process again. All of this is done under the tagline – Putting the Victims First.

Thirdly SB explains the iniquitous ‘Innocence Tax’.  ‘You can be refused legal aid and forced to pay privately. You can be found not guilty of any criminal offence. And the life savings you have exhausted in the process of defending yourself will not be refunded.’ In what civilised society is this acceptable?

There is far more in the book as she takes us through a nightmarish procession of wrongful convictions, wrongly abandoned prosecutions, disillusioned victims, a desperately underfunded CPS and woefully underpaid legal aid lawyers.

I would encourage all lawyers to read the book. Unless you are doing this work day in day out you do not really have any idea. I knew there was a big problem but did not fully appreciate just how bad it was. All MPs have been sent a copy. They should read it. They will not be the same again if they do. Anyone with a concern about how our country treats those accused of and the victims of crime (in other words all of us!) should read this book now! Not everyone will agree with it all. But no one can disagree that the law is broken and urgent action is needed.

Thursday, 22 March 2018

Another career lost - seeing the wood for the trees

I have lost count of the number of posts that I have written which concern solicitors who have seen their careers brought to an end through misguided efforts to cover up a mistake. Today’s case is unusual because it involves an experienced solicitor who might have been expected to know better. Michael Maoileoin had simply recorded the wrong date for a court hearing. He had diarised the 14th and not the 4th August. Who hasn’t done that? Rather than admit what had happened he filed a statement with the court asserting that a document had been filed in error. The truth eventually came out – it always does. The unfortunate Mr Maoileoin has been struck off at just 50.

His explanation to the Solicitors’ Disciplinary Tribunal was that he had been under stress at the time. The SRA told the Tribunal that stress and pressure were occupational hazards.

Harsh as it sounds, that must be right. Lying to the court is only ever going to end badly. I have said this over and over again – an early acknowledgment of a mistake can save a lot of worry and in some cases can save a career. It is so sad that a professional person can get into such a state that rational thinking goes out of the window.

So how do we manage the pressure?

Here are five tips from a blog that I posted a long time ago on how to practice law and sleep at night. 
It is not a comprehensive list but might be helpful –

1.     In the famous words of Michael Jackson - You are not alone. Find someone that you can talk to – it is so easy to be isolated in your little cell. Surrounded by files, emails, deadlines, telephone messages, meetings. To get into that mindset that says ‘I have no time to speak to anyone’. You have. And if you haven’t then make it. 20 mins speaking to someone will get you hours of payback in avoiding sleepless nights. It is a truth universally acknowledged that a problem is never anywhere near as bad when you talk to someone about it. Especially someone who has been there, which if we are honest is all of us! Speak to someone. Right away. Turn your computer off and go and do it now.
2.     Be generous in giving files away. That file that you are scared to look at. The one that has been festering by the side of your desk so long that even the spiders won’t go near it. Give it to someone. It won’t go away on its own. If you can’t look at it, find someone who can. Many solicitors have a file swapping arrangement. I’ll give you mine; you give me yours. Don’t hog matters to protect your bills. You can be far more productive by liberating yourself. Don’t be scared of being criticised. You won’t be. You are more likely to be told – ‘Leave it with me and while you’re there can you look at this one of mine.’  
3.     See the wood for the trees. It is never as bad as you think it is at 3.00am. The world will not end. I’ve been a lawyer since 1st April 1980. I have had more 3.00am moments than I like to admit – especially in the early days. Guess what? I’m still here. I’m still alive. I have got to an age where I can say. ‘Phew oblivion never happened.’ It was never going to and never will.
4.     If you need to – confess. If you think the worst has happened – you've missed a deadline and can’t think of a way out. Then tell someone. Today’s is just the next in line of those nightmare cases where lawyers have tried to cover up and been struck off because they were scared to own up. No one was ever struck off for admitting a mistake. Partners, supervisors, insurers will never bite your head off for coming clean. And if they do they shouldn’t be in the job. It also means that it is no longer just your problem. Get it out there and do it as soon as possible. The consequences are less scary than you think and much less stressful than waking up at night or even jeopardising your hard earned career.
5.     Get a life. Don’t get sucked into that bubble where your legal world becomes all consuming. Being a lawyer is what you do. It is not who you are. See your work as part of your life but not everything. Develop interests and friends outside the pressure cooker. I support Everton. That can very stressful and cause sleepless nights. But it is something different. I love music and photography. I also waste far too much time on social media!

Don’t ever be silent or isolated. Speak to me if you have no-one else!

Monday, 12 March 2018

LASPO Review and other lessons in missing the point

In April 2013 the Government introduced the legislation which we all know as LASPO. So dramatic were the changes, that two phrases in common usage are now Pre-LASPO and Post-LASPO. As far as Access to Justice is concerned the world was never the same again.

There was fierce opposition to the ‘reforms’ almost all of which fell on stony ground. The Government promised a review after 5 years. So we have all been on the edge of seats waiting for April 2018 to arrive. Sadly, the review is not happening any time soon. We were told that it could be  done by the summer but this is now described as ambitious –

The Beatles once sang – ‘I’ve got no car and its breaking my heart, but I’ve found a driver and that’s a start’. Similarly, we have no review and its breaking our hearts. But we do have Post Implementation Review Evidence Gathering Exercise Terms of Reference – and that’s a start!

This is the first of a series of posts looking at this document and how those of us who are concerned about justice can most effectively respond.

The Terms of Reference remind us of the objectives for the ‘reforms’ published in 2010, the first of which was –

To discourage unnecessary and adversarial litigation at public expense

Looking at that statement eight years on it is remarkable that it managed to miss the point by such a huge margin. The most effective role played by Legal Aid was not the funding of litigation, but avoiding litigation in the first place. Let’s look at Housing Advice. Most people believe that all Legal Aid has been abolished. It is available for those who are at risk of losing their home, although this is not widely publicised. Even where legal aid is available there has been a relentless pressure on providers leading to legal aid deserts, according to The Law Society –

Many housing problems can be sorted if addressed early. Experienced lawyers, and other advice agencies, can contact landlords and local authorities, provide debt advice and in many cases resolve the problem before it gets out of hand. This is particularly important where cuts to legal aid have been imposed alongside changes to benefit entitlement. The right to legal aid is now so convoluted that you cannot get legal advice for help over rent or mortgage arrears. But you can get legal aid once there are possession proceedings.

Effective early advice is less expensive than representation at court. Is there a more effective way to - To discourage unnecessary and adversarial litigation at public expense?

If the government remains serious about this objective then it needs acknowledge that it is better for all if problems are headed off at the pass before litigation become inevitable.

A former justice minister and QC, Lord Faulks, once observed that litigation was – ‘very much an optional activity’. Sadly, fighting for your home is not the same as collecting stamps or birdwatching. But stressful and expensive litigation can often be avoided if people can get access to prompt professional advice.

This should be a primary objective of the review whenever it happens….

Tuesday, 6 March 2018

Personal injury Work - there is another world out there

A leading player in the world of Personal Injury finance has predicted that within a few years there be only be about a dozen firms specialising in this work.  The rest will, presumably, ride into the sunset or retrain in corporate finance...

This is the prediction of Steve Dinn of Doorway Capital which has recently hit the news with their investment in Simpson Millar. I do see his point. The introduction of the so called ‘reforms' to the PI sector in 2019 will present a major challenge to many. I would certainly agree that the market will look very different in a few years time. There will be a reduction in the number of major providers many of whom have found themselves in difficulties. But there is more to the world of PI then these monoliths. It would easy to believe that these firms are the only providers of PI work.

Back in December I predicted that there was likely to be a re-grouping in the sector driven by a growth in the number of smaller, niche providers –

I have worked with a number of firms – more than 12 (!),  which are realistic about the challenges ahead but have no intention of leaving the marketplace. Big might be beautiful but it also expensive and often cumbersome. I predicted in December that we will see smaller, trimmed down units with lower overheads which will adapt to the changes and grow. This will happen alongside the continuing development of social Media Marketing and remote working. We might even see a return to the old idea  local solicitors.

There will be those who do not adapt and could well fall by the way. But to talk of wholesale failures and exits is unrealistic. There is a whole world of small, tightly managed firms which will continue, albeit with tighter belts and lower expectations!

I have no doubt that companies such as Doorway are very much the experts in the high end world of legal services. But there is another world out there. With a lot of planning and willingness to change, these smaller providers will still be around for years to come.