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Thursday, 19 October 2017

Concerning a train ride, real people and yooman rights

I was on the train home last week when three fairly ‘hard’ looking scouse workers sat in the three seats surrounding me. They were already in the middle of animated conversation about a Muslim work colleague. The conversation went on a bit like this –

‘Eee goes off to pray all the time’
‘Yeah then ‘ee doesn’t ‘ave breaks with the rest of uz during that Ramadan thingy’
I braced myself for a racist rant. They went on –
‘Fair dooz like. It’s ‘iz religion. Respect ‘im like.’
‘Izz right. That’s iz yooman right’
‘Izz that lad. Dee shud give him a break out place where ‘ee can go..’

And so they carried on, affirming and supporting him. I wanted to hug them. But then thought – I had been expecting them to come out with stereotypical comments. In fact I was the one who was guilty of stereotyping, because they looked a bit scary and spoke in very broad scouse accents with the odd ‘F’ word thrown in.

I am the one who goes on and on about justice and, albeit briefly, had unfairly passed judgment on someone else!

That’s the thing about injustice. It affects real people. Behind every person who is threatened with homelessness or is a victim of catastrophic injuries, or who is having to face the humiliation of a food bank, is a real story. Injustice happens when they are depersonalised. When they become a ‘problem’ on the one hand or a ‘cause’ on the other. We can all be guilty of being too concerned about being ‘right’ than about being fair.

When Rosa Parks refused to give up her seat on a segregated bus, she wasn’t intending to change the world –

‘All I was doing was trying to get home from work.’

So here is belated thanks to those guys on the train.
A timely lesson in the real world.

Wednesday, 18 October 2017

Head of NHS Resolution says claimant's refuse to mediate!!

It was really no great surprise when the head of NHS Resolution yesterday blamed Claimant lawyers for the small number of claims which have been successfully mediated since the NHS Litigation Authority changed its name in April 2017. 

This change followed an announcement from Health Secretary Jeremy Hunt earlier this year –

“I can inform the House that the NHS Litigation Authority will radically change its focus from simply defending NHS litigation claims to the early settlement of cases, learning from what goes wrong and the prevention of errors. As part of those changes, it will change its name to NHS Resolution.”

And to give credit where it is due the name has in fact changed. I recently discussed the announcement with a group of claimant lawyers who were unanimously of the view the nothing much else had changed.

Yesterday’s assertion was made to the House of Commons Public Accounts Committee by Helen Vernon. She told the committee that few cases had been referred to mediation and shamelessly attributed this to the reluctance of Claimant lawyers to engage in the process. 

I have litigated hundreds of medical negligence cases and have never refused mediation. Neither do I know any other lawyers who have refused. What Ms Vernon overlooked is that the courts have introduced a huge incentive on parties to resolve claims in this way. There is a power to impose costs sanctions on any party who unreasonably refuses an offer to mediate. Most experienced lawyers include a paragraph in their initial letter of claim offering to refer the case to mediation. This is routinely refused or even ignored. The reason that the NHS give for such refusal is that the matter is disputed – even though the vast majority end up being settled.

The last Clinical Negligence case that I dealt with at my last firm was listed for trial in February 2017. We had made an early offer to settle and in 2016 proposed a Joint Settlement Meeting which is designed to resolve disputes without trial. There was no response until less than 2 weeks before trial when the case settled on terms that would have been accepted 2 years earlier. The costs were through the roof by then.

Interestingly the meeting was to discuss legal costs in clinical negligence cases. As Law Society Gazette’s John Hyde tweeted –

If claimant representatives had been there they would certainly have pointed out what a ludicrous statement Ms Vernon made. Claimant lawyers are under a professional duty to achieve the best result for their client. This would never included a refusal to discuss resolution.

I wrote about this in January 2016 and quoted retired judge Sir Henry Brooke in a case where the NHS were penalised for refusing to mediate –

“If, by way of illustration, the taxpayer had to pay £50,000 in each case more than he would have had to pay if those representing the NHSLA had behaved prudently and reasonably, that would mean that £100,000 of public money went down the drain for no real purpose. Oh dear.”

Costs in clinical negligence cases are a burden on the tax payer. Resolution of claims should be a priority. 

It takes two to mediate! It is unhelpful for a manager of NHS Resolution to blame one set of lawyers for this. Especially or possibly because those lawyers were not there to set the record straight.

Tuesday, 10 October 2017

Walking for Justice 2017

On Tuesday last week, I was proud to be part of the 6th Liverpool Legal Walk. About 150 of us from Law Firms, big and small, walked 5k around the centre of Liverpool. I have to say, it was a very pleasant walk around the city. It really has been transformed beyond recognition over the last few years. And the rain kept off!

The highlight of the event was however to see the efforts of the walkers to raise much needed funds for legal charities.

The walk was organised by North West Legal Support (Trust) which exists to provide funding for agencies which provide free legal advice for those who cannot afford it. This is a sector which has been under pressure for the last 5 or 6 years. Many of them were dependent on funds raised via legal aid contracts. Most of these were ended by the government in 2013. This left what can only be described as a waste land –

The effect of this is that thousands of ordinary people have been left with legal rights that they cannot enforce.

This point was made by the Supreme court in the recent case concerning the introduction of tribunal fees. Lord Reed said –

‘Courts exist in order to ensure that the laws made by Parliament, and the common law created by the courts themselves, are applied and enforced. That role includes ensuring that the executive branch of government carries out its functions in accordance with the law.

In order for the courts to perform that role, people must in principle have unimpeded access to them..’

It is also a point I have made on this blog over and over again!

I have been involved in this walk since the start. It is fair to say that there was some hesitation at first. Why should the legal profession be raising funds for legal advice which should be properly funded by the government? That was, and still is, a fair question. But in the meantime, peoples’ fundamental rights are at risk. There is now no alternative to doing all we can, whilst at the same time campaigning for change. Liverpool Law Society have supported the event from the start and John Ballam is the latest President to walk for justice. We were also well supported by the Women Lawyers Division.

We were very pleased to welcome the Lord Mayor of Liverpool, Cllr Malcolm Kennedy. At the end of the walk, as we enjoyed a well-deserved drink, he commented that lawyers do not always get a good press! He went on to thank all of those who had given up their time to help secure justice for those in greatest need in Liverpool and across the North West. It is often overlooked that the drive to fight for justice is what led many to become lawyers in the first place. Another well known face was actor, Michael Starke - known to us all as Sinbad from Brookside!

So thank you to all of our walkers. We will be back again next year – and we will continue until we are no longer needed. 

I fear I may be on my zimmer by then!

Monday, 2 October 2017

Suing your solicitor to get more damages

I presented a training course last week, for Liverpool Law Society on Professional Negligence in Personal Injury Claims. These claims have become more common over the last few years. This is partly because of the pressure on firms to delegate work to junior case workers because of limited recoverable costs. It is also because some firms have actively advertised for work. We discussed the things that can go wrong including missing limitation and court deadlines which are often the cause of sleepless nights for PI Lawyers.

The most interesting discussion concerned ‘under settlements’, those cases where the client is unhappy with the outcome of the case and wants more compensation. Some of these are fairly straightforward. I acted for a client last year, whose case had settled for £2.5k. We were now 4 yeurs post accident and he still had problems with his knee. His original solicitors had obtained a report from a GP expert who had given him an optimistic prognosis for a soft tissue injury. But he had also said that he would need to be seen by an orthopaedic surgeon if he had ongoing symptoms. This had not been done and the case had settled. The client had not recovered. Further evidence revealed a significant ligament injury and the claim against the solicitors settled for about £24k. That was a clear error by the junior case worker who had processed the claim. The advice from the expert had simply been missed.

Under settlement claims are not always that straightforward. The idea of claimants effectively bringing a secondary claim for an uplift is controversial. There are concerns about the growth of a secondary market for these cases, especially when backed up by adverts promising more money.

All of this was considered by the Court of Appeal, including Jackson LJ, in the recent case of Thomas v Hugh James Ford Simey Solicitors [2017] EWCA Civ 1303. The original case concerned a claim under the old Coal Miners VWF Scheme. This was a procedure for processing high volumes of cases on the basis of processed work and relatively low fixed fees. So it has many of the features of those cases brought under the PI protocol or fixed fees. In 2001, his solicitors secured an offer of £10,373 for pain and suffering. They wrote to him to say that he might be able to claim further damages if he was no longer able to do – ‘things such as gardening, DIY, home decoration, window cleaning, car maintenance, and car washing.’ The letter went on to say – ‘The amount of compensation payable in such cases can be significant.’ No figure was mentioned.

Mr Thomas met the solicitor. There was a detailed discussion and he said that he did not wish to a pursue a services claim. So he got £10,373. Years later he saw an advertisement from other solicitors offering the chance to obtain top up damages in these cases. They brought an action against the first firm and the case went to trial in 2016 – 15 years after the settlement. The Trial Judge and the Court of Appeal firmly rejected the claim. Mr Thomas had told the solicitor that he did not wish to pursue a claim. They were under no duty to go further. There was no duty on them to try and persuade him to change his mind. Jackson LJ commented on the need for realism in relation to what is expected of solicitors –

‘It is significant that this was a modest claim which the defendant solicitors were running under a fixed costs regime. I have read through their substantial file with admiration, bearing in mind the small amount of costs which they received at the end. Neither advocates nor judges should lose touch with reality. The CHA is a scheme for dealing with high volume, low value personal injury cases for fixed costs. There must be a sensible limit upon what we can expect solicitors to do in such cases.’

So what will be expected of solicitors as we move into a world where most straightforward PI claims will be – ‘high volume, low value personal injury cases for fixed costs’?

Will the bar be lowered? Where will the line be drawn?

Jackson LJ pointedly said in Thomas –

‘What is regrettable, however, is that a second firm of solicitors then recruited the claimant to bring an action against the first solicitors in order to 'top up' his award. The information given to the claimant by the second firm of solicitors "turned his head" so that he was "prepared to advance incorrect assertions’ and

‘The civil justice system exists to enable injured parties to recover compensation for genuine wrongs. It does not exist to service artificial claims stirred up by advertisements.’ (my emphasis).

I think any solicitors looking to bring claims for under settlements need to exercise great caution. There will always be the obvious cases such as the one I dealt with where things were simply missed. And there was the other recent case of Procter v Raleys (another VWF scheme case) where Tomlinson LJ said -

‘The written advice given to him was unclear, and there were clear indications that it may not have been understood. It is not asking much of a solicitor in such circumstances to make sure that his client understands the opportunity apparently being passed up.’

So the solicitor has to ensure that the basis issues are explained and understood. But beyond that it is going to be a challenge. It isn’t enough to show that there was an under settlement if the lawyer did what was expected.

And any solicitors who are considering advertising for, or buying in these cases, can expect a hostile reception from the courts.

Monday, 11 September 2017

15 cold calls in a week

In the last week I have had 14 missed calls from mobile number 07520905031. I have rejected them all because my Truecaller app identified them as coming from an ‘Accident Claims Manager’. This morning I decided to take the 15th call. The caller asked me how I was today. I asked why they kept pestering me. He immediately hung up.

On 2nd September I received a text from 07817906405 which said –

‘FINALISED – you have 2662.85 in your name for the accident you had, for us to put in your bank Now just fill out

Two days later I received another text from 07817906203 which said –

‘Your recent accident has been signed off & funds allocated, fill out for us to put 2766.88 in your Bank Now.’

Out of curiosity I clicked the link and it took me to this –

Sadly, there was no mention of the specific sums that were waiting to go into my bank.

I have had occasional calls and texts over the years but 15 calls and 2 texts in one month smacks a bit of desperation. Just for the record I haven’t been in an accident since I fell off my bike in 1982.

I have now registered my home and mobile numbers with - I should have done a long time ago.

This kind of behaviour puts all genuine victims at risk. Ordinary people are being pushed to pursue claims – even they are for fictitious sums of money following fictitious accidents.

I have written many times that the so called compensation culture is a myth.

Claimants, Insurers and the government should be doing all they can to stop those who are trying to create one.

Tuesday, 5 September 2017

Concerning activists, squatters, an injunction and lots of running

I was reminded last week about a case in which I was involved back in the 1980s – when the world of legal practice was very different. And I was younger and fitter.

Towards the end of 1986 there had been a growing dispute between Liverpool City Council and local residents in Everton. This focussed on council plans to build what is now known as Everton Park. And a very nice park it is. This was part of the regeneration of what had become a very deprived area of the city. The problem was that the plans included the demolition of some good quality four bed roomed houses. Residents, including local church leaders formed the Langrove Street Action Group. Activists began to squat in empty houses to delay demolition. They were supported by a barrister, Mark Hedley who lived in the community – he later became Mr Justice Hedley. I was advising the group who were also supported by the housing charity Shelter.

In February 1987 I received a telephone call from Mark to advise me that demolition workers were due on site the next day. It was likely that so much damage would be done, that further opposition would be pointless. The next morning I was in Liverpool County Court on another matter when I was paged on the tannoy system to ring the office. I had a message to ring Mr Hedley (no mobile phones back then). He advised me that work had started. He said that there were grounds for an injunction based on a failure to consult residents. He had handwritten the papers. I ran to my car, drove at great speed to his house and then to my office where I had every available secretary typing up the application.

I then ran back to the car (running features a lot in this story), drove to Langrove Street to collect the two residents who were to be the Plaintiffs, drove them to a local solicitors office to swear their affidavits and then to county court office where Mark was waiting for us. These were days when you could turn up at the court office and have real people to help. I explained the urgency and told them that slates were being pulled off rooves as we spoke. Their support was remarkable. They issued the application and then went to find a judge. Within half an hour we were before Judge Bernstein who granted the order. Court staff again worked at staggering speed and within an hour of arriving at court I had the piece of paper in my hand. I left the others and ran (more running) back to the car and drove to Langrove Street. I ran across the estate waving the injunction. It was only at this point that I realised that the demolition team were big, strong and not too happy! One of them towered over me like Giant Haystacks (remember him?) and aggressively asked if I was ordering him to stop work. My knees and hands were shaking as I muttered something like – 'It’s not me it’s the judge’. Thankfully he backed off just as the TV cameras arrived. The work stopped. The damage was contained.

The dispute was finally resolved outside the courts. A change in the make up of the council meant that the decision to demolish was reversed. The court action had bought the residents essential time. The estate was eventually renovated and I was there when Glenda Jackson officially opened the new project in 1990.

This was one of those days when you remember why you became a lawyer in the first place. It was remarkable example of teamwork between local activists, lawyers and the courts. The court in particular acted swiftly and efficiently.

The law can be used effectively to secure justice for ordinary people.

It just seems so much more of a challenge these days.

Or is it?