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Tuesday, 19 July 2016

What takes dishonesty into the realms of fundamentalism?

Two words have taken on great significance for lawyers and their clients, over the last few years – ‘fundamental’ and ‘dishonesty’. They are relevant to Personal Injury claims which can be struck out in full under s57 of the Criminal Justice and Courts Act 2015, where there has been fundamental dishonesty. In such a case the court must dismiss the primary claim unless the claimant would suffer substantial injustice as a result. So the default position is that the claim is dismissed. If a claimant is found to have exaggerated symptoms then the whole claim is at risk. The purpose of this provision is to deter fraudulent or exaggerated claims.

The words are also relevant in relation to costs, and this is main focus of this post. In 2013 the government imposed dramatic changes in the way personal injury claims are conducted. These changes reduced the levels of legal costs that can be claimed against insurers in successful cases. At the same time, we had the introduction of QOCS – qualified one way costs shifting. In simple terms this meant that a successful defendant cannot enforce an order for legal costs against a claimant. There are exceptions to this rule, one of which relates to ‘fundamental dishonesty’. A successful defendant can ask the court for permission to enforce an order for costs where a claim is found to be ‘fundamentally dishonest.’ That sounds quite reasonable on the face of it.

But there is a problem. Many of us have been concerned about what happens if a claimant takes their case to trial and loses. There is nothing unusual about that. It happens every day in one court or another. So you have two drivers whose cars collide. One driver gives one version the other a different version. The judge has to decide which one is preferred. This is the whole point of litigation. If it is clear cut either way you don’t end up at trial.

But does this mean that the loser is fundamentally dishonest and therefore at risk of shelling out thousands of pounds in costs? When does poor memory become dishonesty? What takes dishonesty into the realms of fundamentalism? Is there a liberal dishonesty?

One of my colleagues was recently faced with exactly this issue. The argument was about whether the defendant’s car had stopped short of our client’s vehicle. The other side were arguing that if their evidence prevailed then our client must be fundamentally dishonest and thus liable for the costs. In fact, our client won, but it was a genuine concern.

This has recently been considered by the County Court in the case of Nesham v Sunrich Clothing; reported in Legal Futures. There had been a car accident and the judge preferred the Defendant’s evidence.  The Defendant's lawyers asked for costs saying that the claimant must have been fundamentally dishonest because his version of events was rejected –

HHJ Freeman summarised the dilemma –

The claimant - “gave me his version of events. I have preferred not to accept that version, but it does not necessarily follow that he was fundamentally dishonest”

He went on - “And it is the experience of everybody who litigates in this field that drivers involved in an accident will give different and contrary versions of accidents to the extent of not just which lane they were in, but where they came from, the route they had taken and so forth… which may not constitute dishonesty, far less fundamental dishonesty.”

The judge criticised the defendants for using the threat of fundamental dishonesty as a tool to pressurise claimants to abandon claims. The judges analysis must be right. Otherwise any unsuccessful claimant is at risk of bankruptcy just because the court prefers the others side’s evidence. This would defeat the whole point of QOCS which is to enable ordinary people to pursue claims without worrying about costs. This is only a county court decision so is not binding on any other courts.

I hope the higher courts give us some clarification on this as soon as possible. The introduction of QOCS has seen a few problems but if we get this issue wrong, wipe out any benefits altogether.

Thursday, 14 July 2016

Clinical Negligence, Soap Operas and Fixed Fees

I recently settled a Clinical Negligence case that had more twists and turns than an episode of Eastenders.

Carol (not her real name) went to her GP, on a Friday morning, complaining on a lump on her shoulder. In fact it was an abscess. Her doctor took a blood test which was sent to the local hospital. There was a major issue about whether the test was sent before or after lunch. This was significant as it impacted on whether the sample was tested on the Friday or the Monday. The sample was in fact tested on the Monday and confirmed MRSA. The result was emailed to the surgery on the Monday afternoon an apparently seen by a different GP. There was a delay in acting on the result and Carol developed a serious epidural abscess which caused long term problems.

The facts seem straightforward but the litigation turned out to be anything but straightforward. It soon became clear that the two GPs, who had different insurers, were blaming each other. The criticism of the first one was that he should have ensured that the sample reached the hospital on the Friday. The criticism of the second one was that he had delayed acting on the result. Then the two doctors blamed the hospital for delay in communicating the result to the surgery. So we soon had three defendants who were all robustly defending the claim.

Then came another twist. As the claim was heading for trial, there was joint meeting of microbiology experts. They threw a spanner in the works by raising a completely new issue. They agreed that Carol had been hugely overdosed on powerful antibiotics by a second hospital. She had been prescribed them for more than twice the recommended number of days. They also agreed that this overdose had contributed to her symptoms. So the whole claim had to repleaded at this stage adding to the costs. Further expert evidence was needed to unravel which of the symptoms were caused by the delay and which were caused by the overdose.

We now had four defendants in a matter as hotly contested as the Labour Leadership!

Eventually we all trekked down to London for a settlement meeting which finally resulted in a six figure settlement.

This was an interesting if difficult case. But it also demonstrates how unpredictable clinical negligence cases can be. At first blush it was a simple case of a delayed MRSA diagnosis causing a nasty injury. It was only as it developed, that the issues became more and more complicated.

All of which raises a question mark over the merits of fixed fees in these cases. The Government proposes the introduction of fixed fees in Clinical Negligence claims with damages up to £250k. The reasoning is that they are lower value claims and the costs are disproportionate.  Carol’s case would come within that figure and is a classic example of how costs can quickly build up due to unpredictable hazards. 

The Bar council made this very point in its response the consultation paper of fixed fees –

‘The value of damages recovered is a very poor predictor of the extent of the legal and expert input required to establish liability and ensure that such patients receive proper compensation for injuries. The introduction of a FRC scheme, which does not allow for the factors individual to each case, risks making this highly complex and specialised area of litigation financially unviable for solicitors, counsel and medical experts.’

Concerns were also voiced by senior costs Judge Master Cook earlier this year –

He talked about conduct by the NHS which can cause costs to rise –

According to the Law society’s Gazette – ‘The judge pointed to a raft of behaviours by hospital trusts and the NHS’s litigation arm that drive up costs, including failure to disclose documents or respond properly to claimants, failure to admit liability early on, and ‘needless opposition’ to making payments on account of costs, or to embracing split trials.

I am not against fixed fees in principle. They certainly reward speed and efficiency and have a place in straightforward cases. But a broad brush application to all cases depending on the value will have a significant impact on access to justice. A case like Carol’s which presents new issues by the day could lead to recoverable costs which will ultimately raise questions over the viability of taking on such cases.

It is expected that the recent political turmoil will delay any proposed ‘reforms’ until next year. I think that some form of fixed costs is inevitable but would hope that the limit will be a more manageable £25k or possible £50k and with some flexibility in those cases which turn into a soap opera through nobody’s fault.

Tuesday, 12 July 2016

Now you have justice Now you don't

"I genuinely believe access to justice is the hallmark of a civilised society."

So said former Justice Minister, Ken Clarke, in the run up to the devastating cuts to the Legal Aid Scheme in 2013.

Nobody would disagree with that statement. What is the point of having a civil justice system if ordinary citizens are deprived of a means of accessing it?

I have mentioned legal aid many times, and will continue to do so. But one thing that has added insult to injury has been the huge hike in court fees and the introduction of fees for Tribunals –

Following the imposition of fees in Employment Tribunals there were reports of reductions of up to 80% in the number of cases being brought –

If ever there was a case of access to justice being limited to the wealthy then this is surely it.

The most recent development is the plan to impose a massive increase in the fees payable to immigration and asylum tribunals. Is there a more vulnerable group than those who lives are at risk? Is there any other group less likely to be in a position to afford them? This has led to 24 prominent lawyers writing an open letter to the government expressing ‘serious concerns’ that this will put justice beyond the reach of many. The increase in some cases is almost 600%

The lawyers explain that the cost will make justice prohibitive to the vast majority of claimants –

‘It would cost £4,000 for a family of five to appeal, clearly preventing the vast majority of immigrants from challenging unlawful decisions. The proposals exempt those in receipt of legal aid from paying; however, most immigration cases are out of scope for legal aid, therefore only a small minority will benefit from this.

They urge the government to hold back from imposing the fees.

All of our attention in the last few weeks has been on the euro referendum and its aftermath. We will soon have a new Prime Minister.

I would add my voice to the signatories to the letter and urge the new government to respect its duties to protect rather than block access to justice for those most at risk.

Monday, 4 July 2016

Brexit and Parliament - will it ever happen?

My last blog post looked at the impact of Brexit on proposed changes to personal injury claims. 

Things have, as we know, moved on again as Justice Minister Michael Gove has controversially thrown his hat into the ring in the conservative Leadership election. It has often been said that a week is a long time in politics. At the moment, half an hour and the world has changed again.

As we have all begun to recover from the shock of the exit vote, one thing has started to be discussed among lawyers - how will exit from the EU actually be achieved?

At first, it all seemed quite straightforward.  As and when the Prime Minister, whoever that might be, is ready then he or she will simply write an Article 50 letter to say we now want to leave and then two years later it is done. Easy. Or possibly not.

I first came across the likely battleground from an article by Geoffrey Robertson QC a leading constitutional lawyer. He advised that the referendum had no legal status and was merely ‘advisory’. He said that we would need a new Act of Parliament to repeal the European Communities Act 1972 which took us into the EU in the first place. That would require a vote in parliament. If MPs do not pass such an Act then Brexit cannot happen. He made the point that an MP in Scotland or London could say that they had a huge mandate to oppose such a move.

This appeared to be acknowledged by Cabinet member Theresa Villiers who was a leading supporter of Leave. In rejecting a suggestion from the SNP that they might veto any exit moves she said –

"But ultimately it is parliament's decision whether we repeal the 1972 European Communities Act or whether we don't."

Others argue that legislation would not be necessary; saying that the 1972 Act gives ministers the right exercise the Article 50 mechanism and so nothing more is needed.

The country is so divided on the issue that is seems inevitable that the Supreme Court will be called upon to decide the point. In fact the battle seems to have begun. Today we hear that top London firm Mishcon de Reya has already started legal action –

A spokesman has said –

“We must make sure this is done properly for the benefit of all UK citizens. Article 50 simply cannot be invoked without a full debate and vote in Parliament. Everyone in Britain needs the government to apply the correct constitutional process and allow Parliament to fulfil its democratic duty which is to take into account the results of the Referendum along with other factors and make the ultimate decision.”

The political impact of Brexit has seen led to one of the most dramatic political weeks that some of us can remember. It is clear that we are also going to see some landmark legal decisions as the dispute runs and runs. I would hesitate to predict the outcome but if Robertson and others are right then Brexit might never happen.

It is certainly going to be a busy time for public lawyers.

Monday, 27 June 2016

BREXIT and Whiplash - short reprieve?

Earlier today I was asked what impact the Brexit vote would have on my business. The obvious commercial issues came to mind such as a further downturn, another banking crisis, a hike in interest rates etc. But these are issues for all businesses as we get to grips with the earth shattering events of last week.

But what about the beleaguered Personal Injury sector?  What is the future for those us who pursue damages claims for victims of accidents, work related disease and medical negligence? We have seen enough ‘reforms’ in the last few years to last a lifetime.

In fact the Leave vote could provide a short period of respite.

It was in November last year that the Chancellor George Osborne announced plans to raise the small claims limit to £5k and to abolish the right to claim damages for Whiplash injuries –

This led to alarm across the sector. Hundreds of victims would be denied the right to recover legal costs in successful cases. Hundreds more would be deprived of any right to pursue a claim at all. Many law firms began to make plans for closure or to diversify. That was nearly 7 months ago and neither event has happened.

Mr Osborne himself is likely to have other things on his mind between now and the autumn. He has today delivered his first speech since the referendum. This was all about reassuring the markets. He talked about the need for a period of stability before  Article 50 is invoked. It is clear that no decision will be made before the Autumn of this year.  It is likely that David Cameron’s successor will call an early General Election early in 2017.

The general view seems to be that Osborne will not be Chancellor in any new government. Michael Gove is expected to have a major role in a future Tory line up. So we will then be looking for a new Justice Secretary. There is always the chance of a Labour win but that seems to a forlorn hope as they move into a period of civil war!

Now I’m not the most reliable predictor in the world. But all of this would seem to put any earth moving changes to PI work some way down the list of priorities. By the time we have had a leadership election, a  new cabinet and  Article 50 negotiations, I suspect that we will be well into 2017 before Osborne’s November 2015 pledges raise their heads – if at all.  

But we must not assume that any of this means that the threat will go away. We may have up to 12 months but the political pressure to appease the insurance industry will still be there. We must still plan and continue to campaign.

However it will give firms the opportunity to regroup and plan for what is still an uncertain future.

Saturday, 25 June 2016

The EU, BREXIT and Human Rights

I have not posted anything about the recent referendum. But there is one matter that has raised its head since last week’s vote. This is the mistaken belief that it has something to do with the European Court of Human Rights and the Human Rights Act 1998. I have even heard someone say that one result of the referendum is that we can now deport pesky foreigners without having to worry about the European Court.

So let’s have a brief history lesson. 

After the end of WW2 in 1945 there was a determination that this should never happen again. One initiative, driven by Winston Churchill and Eleanor Roosevelt, was the Universal Declaration of Human Rights. This identified certain rights that were common to all people. It is worth listing them as they are now taken for granted by all of us –

Article 1
Right to Equality
Article 2
Freedom from Discrimination
Article 3
Right to Life, Liberty, Personal Security
Article 4
Freedom from Slavery
Article 5
Freedom from Torture and Degrading Treatment
Article 6
Right to Recognition as a Person before the Law
Article 7
Right to Equality before the Law
Article 8
Right to Remedy by Competent Tribunal
Article 9
Freedom from Arbitrary Arrest and Exile
Article 10
Right to Fair Public Hearing
Article 11
Right to be Considered Innocent until Proven Guilty
Article 12
Freedom from Interference with Privacy, Family, Home and Correspondence
Article 13
Right to Free Movement in and out of the Country
Article 14
Right to Asylum in other Countries from Persecution
Article 15
Right to a Nationality and the Freedom to Change It
Article 16
Right to Marriage and Family
Article 17
Right to Own Property
Article 18
Freedom of Belief and Religion
Article 19
Freedom of Opinion and Information
Article 20
Right of Peaceful Assembly and Association
Article 21
Right to Participate in Government and in Free Elections
Article 22
Right to Social Security
Article 23
Right to Desirable Work and to Join Trade Unions
Article 24
Right to Rest and Leisure
Article 25
Right to Adequate Living Standard
Article 26
Right to Education
Article 27
Right to Participate in the Cultural Life of Community
Article 28
Right to a Social Order that Articulates this Document
Article 29
Community Duties Essential to Free and Full Development
Article 30
Freedom from State or Personal Interference in the above Rights      

Eleanor Roosevelt described the Declaration as her greatest achievement.

There was also a determination that co-operation in Europe was an essential pathway to peace. In 1946 Churchill spoke at the University of Zurich and spoke of the need to create a United States of Europe! (Imagine the noise in certain quarters if he said that today!).

In fact the body that came into existence was the Council of Europe which was launched in 1949. One of its first achievements was the European Convention on Human Rights in 1950. The Convention followed the basic rights contained in the Declaration. The UK was probably the main driving force behind the Council and the Convention. The European Court of Human Rights (ECHR) was created in 1959 to adjudicate on matters arising from the Convention. Until 2000 any UK citizen who complained that their rights had been breached had to go to the ECHR in Strasbourg. In 1998 the UK Government passed the Human Rights Act; a short Act which incorporated the Convention into UK Law. This came into force in 2000 and meant that UK courts had jurisdiction to hear cases. The ECHR has retained its place as the final court in Human Rights cases, but only after all local remedies have been exhausted. There is nothing in the Human Rights Act, or the Convention that says prisoners can have a Big Mac in their cell or that suspected terrorists cannot be deported!

But the most important point is this – the ECHR has nothing at all to do with the EU, the referendum or Boris Johnson. 

Some Conservative Ministers want to abolish the Act and replace it with a UK Bill of Rights. Interestingly Michael Gove, whose day job is a Justice Minister opposes this. And David Cameron, who has lost No 10 because of his part in the Remain campaign, wants it to be abolished –

Any Bill of Rights  would certainly have to protect the rights set out in the Convention so is unlikely to change much.

My fear is that some might have voted to leave the EU in the belief that it would somehow remove these rights which have had a bad press, often due to misunderstandings and hostile reporting.

In fact the Leave vote has no effect at all on our Human Rights one way or the other. 

All EU member states have signed up to the Convention,  so exit could pave the way for an extreme government to try and force us out of the Convention at some point in the future. But it is unthinkable that the UK would try to abolish the very rights that were created by our leaders. In removing these basic rights we would be aligning ourselves with some very questionable regimes!

Thursday, 16 June 2016

I'm in the money! Again!!!

I got a text last night.

It wasn’t just any text. It was giving me very exciting news. It said –

‘The best price has been won for your accident, fill out and we can put 3928.12 in your bank Now’.

Well of course I was on it like a flash to claim my windfall! I wasn’t really. It is remarkable how such a short message can be so irritating. Sadly or thankfully, depending on your worldview, I haven’t had an accident since 1982 when I fell off my bike on my way to work. So unless the Limitation Act has been repealed, I knew it was a hoax. Presumably the very specific sum is to make it look more credible, just in case I had suffered an accident which I had forgotten about in all the excitement of the Brexit debates.

I did not explore the site in question but it promises a payment into my bank ‘Now’! On the assumption that this would involve giving my bank details the text could be even more sinister than it first appears.

Whatever way you look at it this is a major concern. It promises money for a non existent accident. It promises a fictitious sum of money and asks me to recklessly hand over my personal information.

I can only assume that there are some poor souls who fall for this. Why else would they do it? This is the sort of activity which should bring together both insurers and claimant lawyers. We all want this type of behaviour eliminated.

This is not the first time that I have ranted about misleading contacts from Claims Management Companies. A couple of years ago I received a cold call promising me the earth because I had worked in a noisy factory –

Those who represent victims of accidents, industrial disease and medical negligence have been on the receiving end of relentless attacks from the insurance sector and their friends in government. As a result many firms have closed or moved into different areas of work. I have said this many times but the fault does not lie with the massive majority of genuine victims and their lawyers.

There is a tiny percentage of motor claims that are shown to be fraudulent –

That is clearly 0.25% too many. But the real problem here lies with companies who deliberately encourage phoney claims. It would be far more effective to concentrate on the elimination of this behaviour than to focus on the easy targets – the lawyers!