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Wednesday, 15 October 2014

Mr Downton's unfortunate joke and modern freedom of speech

Back in the 1890s Mr Downton decided to play a joke on Mrs Wilkinson. He told her that her husband had been seriously injured in an accident and that she needed to go to him urgently. She suffered psychological damage – no surprise there! Mr Downton’s conduct was found to be outrageous and to be the cause of her harm or distress. Mrs Wilkinson succeeded in her claim for damages because –

  • He had willfully done the act causing injury,
  • There was no doubt that the act would cause distress and
  • He must therefore have intended this outcome.

This all sounds like the interesting basis of a University exam question. But the case of Wilkinson v Downton has been at the heart of a major decision of the Court of Appeal this week. It concerns the publication of a book.

Mr. A has written about his experience of childhood sexual abuse. That is nothing new. Many similar books have appeared in recent years and they have become a important encouragement for victims to come forward. They have also enabled the authors to articulate the horrors of their experience and have contributed greatly to the public understanding of what used to be hidden pain. Surely books like this should be encouraged.

But the spanner in the works is that Mr A’s own son suffers from Aspergers Syndrome, ADHD and other medical conditions. There is expert evidence that if the son was to read the book, it could have a massive effect on his mental health. It seems that Mr A and his ex-wife had agreed that they would try to prevent the son becoming aware of events in their lives which could have a detrimental effect. It was the ex-wife who brought these proceedings for an injunction, to prevent publication.

The issue before the Court of Appeal was whether there was any legal basis to even ask for publication to be blocked. There was no claim in negligence as a parent does not owe a child any duty of care in these circumstances. There was no law to prevent Mr A from publishing private information about himself. The Court of Appeal clearly had major concerns and felt that there should be a full hearing. So Mr Downton’s unfortunate joke came to the rescue.

Arden LJ said that the case of Wilkinson v Downton applied. 

Publication of the book is a deliberate act. It is highly likely to harm Mr A’s son. She described this as an obscure tort, but a tort none the less. So publication has been blocked for now, pending a full hearing.

This case raises an issue of great interest to us all. Where is the line between freedom of speech and the protection from harm? Any restriction on freedom of expression must be a concern. The facts of this case of unusual. But could the principle be used in relation to anybody who is likely to be traumatised by somebody else’s work. All that has been decided so far is that there is a right to ask for an injunction. Publication has been stopped for the time being. The final hearing will be watched across the world.

This case also demonstrates the power of our common law system. We do not have all of our laws written down in one place. Courts can look back at decisions made in the past – however distant – and use the legal thinking in a creative way to seek remedies to modern issues.

For those who are interested the full decision is here –

Tuesday, 23 September 2014

I dreamed last night that Miliband stood up and promised to reverse the devastating Legal Aid cuts!

Now I have to confess that I am a bit of a political anorak and follow every detail of the party conferences. 

But the Labour Party gathering this week has been of particular interest. They could well form the next government and so those of us who care about justice have hung on to every word. Although to be honest there haven’t been too many.

Last year I described Access to Justice for those in need, as a waste land –

It has got far worse since then. Agencies across the country are closing or turning away desperate clients because they simply do not have the resources to do anything. So what will the future hold if Ed and Co win a majority in 2015? Not much I’m afraid.

At a fringe event today, Andy Slaughter, a shadow justice minister was giving away very little. The Gazette’s John Hyde tweeted that said that  Labour was not like the Tardis and would not reverse every cut –

Just a few reversals would be like an oasis in the desert.

I watched the whole of Ed Miliband’s speech this afternoon. At one point he used a phrase to sum up how people have been treated by the present government – ‘They’ve been told – you’re on your own’. He repeated the phrase 5 times, applying it to hard working people, young people, small businesses, the vulnerable, those with access to politics. I started to get excited that he might extend the list further but that was as far as it went.

So if you are a victim of domestic violence, if you have been wrongly told that you are fit for work, if your benefits have been wrongly sanctioned, if you are weighed down with debt – then you are still being told – ‘you’re on your own.’

The same thing applies in relation to tribunal fees. The introduction of these charges was intended to reduce the number of cases for unfair dismissal etc being brought. In fact it has decimated employment rights across the board. It is estimated that the drop off in claims is as high as 80%. Don’t try and tell me that they were all bogus. This has been a shameful attack on workers’ rights. Shadow Business Secretary, Chuka Umunna spoke generally about reforming the system. But he has said nothing about abolishing fees. We heard the same rhetoric in a speech to the TUC earlier this month –

He talked about openness, rights and justice but very little about how you might gain access to that justice if you don’t have the resources to pay for it. 

There were reassuring comments from Shadow Justice Secretary, Sadiq Khan about the Human Rights Act and Judicial Review. So you still have to say that a Labour Government would be less damaging than what we have now.

That is hardly a ringing endorsement for the party that I have supported all my life!

It will be interesting to see if these agenda develop over the next 6 months.

Friday, 5 September 2014

Justice for All - no walk in the park

On 25th September 2014 there will be a strange and scary site in the city of Liverpool as a few hundred lawyers and judges take to the streets!

However we will not be protesting (much), and we certainly will not be looking for ambulances to chase. This is in fact the day of the 2014 Liverpool Legal Walk. Never in all of my 30 odd years in the law has there been a greater need for free legal advice and help for those in need.

I once described Access to Justice in this country as a Waste Land. That, if anything, was an understatement.

Legal Aid was virtually wiped out in 2013. This particularly affected those who could least afford to pay for legal advice. Advice agencies and the courts are struggling to meet the demand.

In the meantime there lawyers and other advisers, across the country who are doing their best to give what help they can. This includes Citizens Advice Bureaux, Law Centres and even Legal Clinics at Universities manned by students. Most of these agencies are having to turn many deserving clients away as they simply do not have the resources.

One of the first blogs that I ever posted concerned the dismantling of justice for ordinary people –

The situation now is far worse.

This is a shocking indictment on our society. There is no point in having a justice system if it is only available to the wealthy. There is no point in ordinary people having rights if they cannot do anything about it. I could rant on all day. It might, one day, make a difference.

In the meantime what I can do is drag myself around the city and try and raise some much needed support for these beleaguered agencies.

So I make no apology for using this blog to ask readers to click the link below and make a donation!

Wednesday, 20 August 2014

The Bitter Sweet Story of a massive damages award

It is almost 15 years to the day since I settled what was at that time, the biggest case that I had ever handled.

John – not his real name – was born in good health. He then developed jaundice, which is not uncommon in young babies. In severe cases treatment is necessary either by phototherapy, using lights, or a full blood transfusion. So long as the condition is treated promptly there are rarely any major problems. John was born over a holiday period. The hospital staff, with the best of intentions, wanted to get the new young family home. He was discharged without being checked by a paediatrician. This was a catastrophic decision.

His condition deteriorated. By the time he was admitted to a local children’s’ hospital it was too late. He had suffered major and permanent brain damage.

This is a very oversimplified account of the medical issues but the outcome was that he had no use of his limbs, no speech and would need care from his family for the rest of his life. However, he was otherwise, as bright as the rest of us – if not more so.

Liability was disputed at first. However it seemed such a blatant case that, for the only time in my life, I applied to the High Court for summary judgment. This is a quick procedure to bring cases to a conclusion where there is no realistic argument. Surprisingly the NHS agreed and the case eventually settled for just under £2.5m which back then was a sizeable award.

There are still those who criticise victims and families for pursuing compensation claims for medical blunders. They are accused of draining the NHS and depriving other patients of the care they need. Others think of awards like this as if they were lottery wins. This could not be further from the truth. Compensation is needed to provide for the care and support necessary to give the victim a reasonable quality of life.

The reason I mention this story is that I am still in touch with the family. I have had a limited role over the years, assisting with occasional matters arising from the various trusts. So I have been able to see how the award has worked for John and his family. I met his mum recently. She told me that he has managed to get a University Degree. She said that he is now planning on working abroad for a year. Despite massive obstacles he is working toward a successful career. Now this is a tribute to John’s own determination and intelligence alongside the support from his family. But it is also a result of what has been achieved by a fair award of compensation for his injury which has provided the framework for him to develop.

We all wish that tragedies like this did not happen.

But those who go on and on about a compensation culture should, now and then, consider the real lives behind the stories.

Wednesday, 13 August 2014

Are we in a Post Legal Aid world?

I remember getting hot under the collar last year when I heard someone in the voluntary sector say that we were now in a ‘post welfare’ state. He was saying that we can no longer assume that the state will provide for those in greatest need and the burden will fall on charitable organisations. I disagreed with him but am beginning to wonder whether he has a point, certainly as far as legal services are concerned.

Should we now talk about a post legal aid world? That is almost certainly the case as far as civil and family work is concerned. It is now almost impossible to get legal aid for any claim involving damages. The last surviving area of work – Clinical Negligence - was removed last year, apart from a very narrow group of those who suffer a brain injury at or very shortly after birth. For most other work it has gone. 

The situation is worse for those in private family disputes. This problem has been highlighted by the President of the Family Division, Sir James Munby. In a recent decision he has said that there are cases where it is simply essential for there to be legal or representation or expert evidence. In a case involving the need for an interpreter and legal assistance he has said that the Court Service could be required to pick up the bill in the absence of legal aid –

"HMCTS will also have to pay the cost of providing the father with an interpreter in court. If the father is still unable to obtain representation, I will have to consider whether the cost of that should also be borne by HMCTS. That, however, is a matter for a future day."

This could leave us in the bizarre situation where the government refuses assistance via legal aid but ends up paying the cost anyway through the courts. This certainly makes it clear, beyond doubt that the need had not gone away. When the most senior Family Judge is making comments like this, no further comment is needed. But this would surely only ever happen in a small number of extreme cases.

The devastating cuts to legal aid funding are indefensible. But nobody expects it to be re-instated. I have not heard anything from the opposition to suggest any change at all.

So should we now be looking towards a new world?

Will we see a new generation of free legal advice centres, funded by charities, philanthropists, churches etc? I will argue to the death that it is the job of the state to ensure that everyone has access to justice regardless of means. This is sound politics. But in the meantime I suspect that the world has changed for good. So do we now need to look at other alternatives to ensure that people get the help that they need?


Wednesday, 6 August 2014

Blaming injury victims is becoming an industry

It seems that if you repeat a statement often enough, people will eventually grow to accept it as fact. This is certainly the case with the so called compensation culture. 

It has even been used today in relation to scandalous delays dealing with claims from injured armed forces veterans. One explanation for the delays on behalf of the government has been an alleged - "rising claiming culture" –

I’m not sure whether this statement is meant to suggest that war veterans are submitting claims that are not genuine!

The phrase is now in such common usage that any victim who seeks compensation is marked as being a part of this culture and therefore to be frowned upon. It is apparently of no relevance whether the injury is genuine or serious.

I have said many times that the ‘compensation culture’ is a myth which has been created by politicians and insurers and which has, for some reason, been promoted by the media.

This has been highlighted by a recent YouGov Poll reported in the Law Gazette last week. This revealed that only 25% of people who suffer from personal injuries actually go on to claim compensation. Various reasons are given for this reluctance ranging from those who believe that a condition or injury is not serious enough to those who object in principle to making claims. That is hardly the basis of a ‘culture’ and the report suggests that there has in fact been a reduction in claims.

The reality is that the majority of victims do not claim compensation. This is not a statement that you will ever hear from the government or the media. You will hear the opposite. You will hear that there is a culture that has to be eliminated. You will hear that this ‘culture’ is the fault of lawyers who spend their days chasing ambulances. In fact most lawyers are simply trying to do the best for victims in an increasingly hostile environment –

Yesterday I had a meeting with the mother and financial adviser of a lad that I acted for 15 years ago. He suffered a severe brain injury shortly after he was born, due to the negligence of a local hospital. We recovered several million pounds for him. He will shortly complete his degree and is considering working abroad. This has been achieved by his own intelligence and determination alongside the funds that were recovered for him all those years ago.Would somebody like to tell him or his family that he is part of a compensation culture?

Monday, 7 July 2014

Mitchell - heading back to planet earth?

I have gone on and on here about the insanity that followed the Court of Appeal decision in Mitchell v News Group Newspapers towards the end of last year. The madness was summed up by one insurance spokesman who commented that we no longer had a clue what we were doing!

Cases worth thousands of pounds were being struck out because of documents being filed a few days late. This all led to the bizarre and chaotic situation where solicitors were becoming so afraid of missing deadlines, however minor, that they had no choice but to issue application after application to extend time limits.

So there were sighs of relief on Friday as the Court of Appeal including Dyson LJ, who gave the Mitchell judgment, and Jackson LJ, he of the eponymous ‘reforms’, told us that enough was enough. The chaos was not caused by the Mitchell judgment itself. It was all a misunderstanding by judges who had been over enthusiastic in their draconian interpretation.

The Appeal judges heavily criticised the opportunism of parties who had used the judgment to their advantage. In future they can expect o be heavily penalised in costs if they refuse reasonable requests for extensions of time.

The judges laid out some guidelines for courts dealing with failure to comply with directions.

They have set out a 3 stage approach to such applications. Rather than summarise them I have set them out below for future reference. This is not quite returing us to planet earth but is certainly a very positive development. I do wonder what happens now to the claims being pursued against lawyers in relation to claims struck out due to the judicial 'misunderstanding'. I see some litigation ahead on that one!

 The full judgment is available here –

1. The seriousness of the breach

“It seems that the word “trivial” has given rise to some difficulty. For example, it has given rise to arguments as to whether a substantial delay in complying with the terms of a rule or order which has no effect on the efficient running of the litigation is or is not to be regarded as trivial. Such semantic disputes do not promote the conduct of litigation efficiently and at proportionate cost. In these circumstances, we think it would be preferable if in future the focus of the enquiry at the first stage should not be on whether the breach has been trivial. Rather, it should be on whether the breach has been serious or significant…”

“We therefore prefer simply to say that, in evaluating a breach, judges should assess its seriousness and significance. We recognise that the concepts of seriousness and significance are not hard-edged and that there are degrees of seriousness and significance, but we hope that, assisted by the guidance given in this decision and its application in individual cases over time, courts will deal with these applications in a consistent manner.”

2.The reason for the breach

“The second stage cannot be derived from the express wording of rule 3.9(1), but it is nonetheless important particularly where the breach is serious or significant. The
court should consider why the failure or default occurred: this is what the court said in Mitchell at para 41. It would be inappropriate to produce an encyclopedia of good and bad reasons for a failure to comply with rules, practice directions or court orders. Para 41 of Mitchell gives some examples, but they are no more than examples.”

3. Opportunism

“The important misunderstanding that has occurred is that, if (i) there is a non-trivial
(now serious or significant) breach and (ii) there is no good reason for the breach, the
application for relief from sanctions will automatically fail. That is not so and is not
what the court said in Mitchell: see para 37. Rule 3.9(1) requires that, in every case,the court will consider “all the circumstances of the case, so as to enable it to deal justly with the application”.

“Thus, the court must, in considering all the circumstances of the case so as to enable it
to deal with the application justly, give particular weight to these two important
factors. In doing so, it will take account of the seriousness and significance of the
breach (which has been assessed at the first stage) and any explanation (which has
been considered at the second stage). The more serious or significant the breach the
less likely it is that relief will be granted unless there is a good reason for it. Where
there is a good reason for a serious or significant breach, relief is likely to be granted.
Where the breach is not serious or significant, relief is also likely to be granted.
But it is always necessary to have regard to all the circumstances of the case.”

“We are concerned that some judges are adopting an unreasonable approach to rule

“It seems that some judges are approaching applications for relief on the basis that,
unless a default can be characterised as trivial or there is a good reason for it, they are
bound to refuse relief. This is leading to decisions which are manifestly unjust and

“Litigation cannot be conducted efficiently and at proportionate cost without (a)
fostering a culture of compliance with rules, practice directions and court orders, and
(b) cooperation between the parties and their lawyers. This applies as much to
litigation undertaken by litigants in person as it does to others. This was part of the
foundation of the Jackson report. Nor should it be overlooked that CPR rule 1.3
provides that “the parties are required to help the court to further the overriding
objective”. Parties who opportunistically and unreasonably oppose applications for
relief from sanctions take up court time and act in breach of this obligation.
We think we should make it plain that it is wholly inappropriate for litigants or their
lawyers to take advantage of mistakes made by opposing parties in the hope that relief
from sanctions will be denied and that they will obtain a windfall strike out or other
litigation advantage. In a case where (a) the failure can be seen to be neither serious
nor significant, (b) where a good reason is demonstrated, or (c) where it is otherwise
obvious that relief from sanctions is appropriate, parties should agree that relief from
sanctions be granted without the need for further costs to be expended in satellite
litigation. The parties should in any event be ready to agree limited but reasonable
extensions of time up to 28 days as envisaged by the new rule 3.8(4).”

“It should be very much the exceptional case where a contested application for relief
from sanctions is necessary. This is for two reasons: first because compliance should
become the norm, rather than the exception as it was in the past, and secondly,
because the parties should work together to make sure that, in all but the most serious
cases, satellite litigation is avoided even where a breach has occurred.”

“Heavy costs sanctions should, therefore, be imposed on parties who
behave unreasonably in refusing to agree extensions of time or unreasonably oppose
applications for relief from sanctions. An order to pay the costs of the application
under rule 3.9 may not always be sufficient. The court can, in an appropriate case,
also record in its order that the opposition to the relief application was unreasonable
conduct to be taken into account under CPR rule 44.11 when costs are dealt with at
the end of the case. If the offending party ultimately wins, the court may make a
substantial reduction in its costs recovery on grounds of conduct under rule 44.11. If
the offending party ultimately loses, then its conduct may be a good reason to order it
to pay indemnity costs.”