Total Pageviews

Monday, 15 July 2019

The discount rate, fair compensation and a predictable ABI response

I have written before about the discount rate. It is an extremely important part of our system of compensation for injured people, despite its rather understated name. In short it is a principle that tries to ensure that victims are not over or under compensated. The rate is what an award of damages is assumed to earn over a long period of time.

The idea of compensation is to put the victim in the position they would have been in, but for the incident.

For example; Alan, who is 45, has an accident at work. He is so badly injured that he will never work again. He earns £20k a year and would have worked to 65. He has lost 20 years earnings at £20k. But if he wins his case, he does not simply get 20 x £20k - £400k. Because that would not be fair on the insurers who pay the damages. Alan would be receiving money now that he would not otherwise have earned for many years. If he was to put that money on deposit, it would earn interest and he could end up with a lot more that £400k in 20 years’ time. So, the number of years that he actually receives is calculated by reference to what his money might be worth at that time. This can be even more important for victims who require high levels of care for life.

For many years, the assumption was that the money would earn 2.5% per annum. A victim is assumed to place the money in sensible, safe investments. This significantly reduced the amount of any lump sum that the insurers pay out. The £400k would be discounted to less than £350k. So it is important, for all concerned that we get this right. Whilst the rate was 2.5% there was a huge risk that money would run out, at a time when real interest rates were nothing like that amount.

In 2017 the government dropped the rate to -0.75%. This was a huge relief for victims and led to far more realistic awards of damages. It also led to a predictable outcry from the insurance industry who were having to pay out more money. Their powerful lobby led the government to promise a review of the rate. We have all waited with eager anticipation for today’s news of what the new rate is. Any significant increase, in the current economic climate, would have taken us back to the bad old days. I have pessimistically been predicting an increase to 1%, particularly in the light of the present government’s affection for their insurer friends. It was a pleasant surprise therefore to see that the new rate is -0.25%. It could have been better, but we expected far worse! I am never slow to criticise this government, but they have got this one, at the lower end, of just right.

The reaction from the ABI was swift and predictable. Their director General, Huw Evans says –

“This is a bad outcome for insurance customers and taxpayers that will add costs rather than save customers money. A negative rate maintains the fiction that a claimant and their representatives will knowingly choose to invest their damages in a way that would guarantee losing them money. This will remain the lowest Discount Rate in the Western world, leaving England and Wales an international outlier at a time when we need to boost our attraction to international capital.”

Note that he claims to complain on behalf of insurance customers and taxpayers and not his members’ shareholders. Most citizens would agree that a modern system of justice must ensure that people who need care for life do not need to worry that their money might run out. He then, rather bizarrely, seeks to compare the rate with that of other countries. Why would the assumed rate of interest earned on damages in this country have anything to do with other countries? I don’t expect the volume to be turned down any time soon. Equally I doubt if we are going to see another review unless a new PM has a rush of blood to the head. Mind you....

I do hope that this rate now stays at the same level for a very long time so that victims and their representatives can plan for the future with some level of certainty.

Friday, 5 July 2019

Everton, Lawyers and knowing your history!!

Outside the Evertton Boardroom at the Liver Building

It is truth, universally acknowledged, that I am an Everton FC fan and proudly bitter.
This was of course the background to my recent ‘walk of shame’ for charity where I raised £1000 for wearing a shirt of a certain other local team. No, I am not posting a photograph. There is no shortage of them around! –

I recently visited Everton’s new HQ in the iconic Liver Building. I was discussing the development of links between the club and the local legal profession. In fact, those links go back almost to the birth of the Football League.

William Cuff was a Solicitor who was a Director at Everton from 1894 and was closely involved in the club’s development for almost 50 years. One of his claims to fame was introduction of shirt numbers. It was in the 1933 FA Cup Final that numbers were first used although they did not become obligatory until some years later. He was also President of the Football League in the 30s and 40s. His obituary from 1949 was posted recently by the Everton Heritage Society –

His firm Cuff Roberts continued a long association with Everton. In later years Keith Tamlin of what became Cuff Roberts North Kirk served as a Director until 2004. As a former President of Liverpool Law Society, I am very proud that my name appears alongside both legends who also served in that role.

The links between Everton and local lawyers is not all about history. Former player Gareth Farrell is now a qualified Solicitor and works for Liverpool firm, Bermans as a commercial litigator. I met Gareth a few years ago when we were both taking part in a sleepover at Goodison Park to raise money for Homelessness charities. As we unrolled out sleeping bags in the Park End, I was able to tell him that we were sleeping at the exact place where I was siting when he score his famous goal in 2008 that kept us in the Premier League.

On a different level, it is unusual not to bump into a fellow a lawyer on any given match day at Goodison. I have many ‘red’ friends who would disagree, but the Peoples’ club is in many respects also the Lawyers Club!

There is no shortage of Hospitality opportunities at Goodison where the various lounges are undergoing extensive renovation –

Friday, 28 June 2019

Medical Negligence - let's talk about victims not winners

The first time I secured a settlement in a brain injury case was in the late 1990s.  It was a claim for a child who suffered from cerebral palsy following medical negligence in the first few days of his life. He was left with catastrophic injuries. He has no speech and no independent movement but is otherwise as intelligent as anybody. We secured a settlement of just over £2m. As is often the case, I kept in touch with the family for many years. I was so proud when he got his University degree. He is now an adult who lives independently, with lots of support. This was secured as a result of the compensation that he received. It enabled him to live in suitable accommodation, to have the 24/7 care that he needs and to make use of high-quality communication technology. He was appropriately compensated for the avoidable injury that he suffered. Both he and his family would have traded every penny for a healthy life.

High awards of damages sometimes look like lottery wins. They are often treated as such by the media. Reports of settlements like this regularly use words like ‘win’ and ‘payout’. Earlier this year, The S*n reported that a group of patients had won £46.9m over cancer blunders –

In a very recent report, we were told of a boy who was severely disabled after medical negligence. The headline reads –

‘Boy left severely disabled by medical blunder wins £2.1 million pay-out from NHS’

None of these victims have won anything. They and their families are left with a lifetime of struggle through no fault of their own. If they can establish that the injuries were caused by the negligence of medical practitioners, then they are entitled to damages. A small proportion is for the injury itself. The vast majority is to cover their needs for life.

Hasn’t the time come to stop calling them ‘winners’? This creates a hostility towards claimants who are perceived as draining money from the NHS. There is an even greater hostility towards the lawyers who fight for justice on their behalf. Since the removal of legal aid for most cases, the only way that cases can be brought is where those lawyers agree not to be paid if a case fails. The media still insists on calling them 'no win no fee lawyers'  as a form of insult.

Let’s start referring to claimants as victims of negligence. Then we might see a move away from talk of reducing damages and legal costs, towards talk of avoiding such incidents in the first place.

Monday, 24 June 2019

Why does this keep happening?

Why does this keep happening?

We read today about yet another fee earner whose career in in tatters because they have tried to cover up mistakes –

In this case there were three cases where deadlines had been missed by a few days. Rather than admit the mistake the non-qualified case handler dishonestly back dated documents to mislead the court and the other side. In each of these cases the problem was probably capable of resolution with a bit of experienced help. If he had admitted the first error the others might well have been avoided.

Last year a young solicitor was struck off after backdating 23 letters and misleading a client about the progress of a claim –

And then there was the experienced solicitor wo actually gave a false letter to an SRA investigator –

One common factor is that the attempts to cover up have been discovered without great difficulty. They have usually been followed by an eventual admission of wrongdoing.

I cannot accept that we have suddenly become a profession of the dishonest. The lawyers in these cases are not cynical fraudsters. They are almost always acting at a time of stress and panic. They are almost always acting alone as a situation rolls out of control. This does not justify dishonesty. But it does raise a serious question for all managers of law firms. Why do lawyers think it is better to risk their career than admit a mistake? What is the ethos in firms that creates such a sense of fear? What support are we giving to our staff? Are we reminding staff that it is not usually the end of the world if we miss a deadline? But it might be the end of a career if they try to lie their way out of it?
In March 2018 I set out my 5 point plan to help lawyers to sleep at night –

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.

      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!

Monday, 3 June 2019

Legal Aid, Red Shirts and why I would rather walk alone!!

Back in 1999, I wrote the Letter of the Week in the New Statesman magazine. This was what you did in the days before Twitter! I was responding to the Labour Lord Chancellor, Lord Irvine’s proposed cuts to Legal Aid. The attacks on legal aid lawyers were relentless.

That was the start of the falling dominos that has led us to the legal aid waste land that we have today. Who would have thought back then, that we would end up with some areas having little or no legal aid lawyers in certain key areas of work such as housing?

Lord Falconer, a close friend and ally of Tony Blair was a key player at that time. He has recently expressed regret for creating the belief that legal aid lawyers ‘had their noses in the trough’.

This is a welcome change of heart. But it is a little bit like Henry VIII saying he wished he had tried conciliation with Anne Boleyn!

At first many of us here hostile to the idea of lawyers working for nothing or supporting legal charities. What we really needed was a properly funded legal aid scheme. But we faced a dilemma. How could we leave people who were threated with losing their homes or livelihoods, to fend for themselves? Lawyers had to support agencies providing free advice whilst also campaigning for legal aid.

All of which leads me to the Liverpool Legal Walk on 11th June. This will the 8th walk when a couple of hundred lawyers and others who work in the legal sector will take to the streets of Liverpool. We do this to make a statement about access to justice and to raise funds for providers of free advice.

Desperate times call for desperate measures. This is why I have pledged to do the whole 5k walk in a Liverpool FC shirt just days after their much-publicised Champions League win. As a lifelong Everton fan, this is a big deal and something that I swore that I would never do. But I recklessly said that if my sponsorship went over £500 I would face the ultimate humiliation in the name of access to justice. We crossed that line today and I am now doomed! But it will be worth it if one person gets access to legal help that would otherwise be out of their reach.

You can still donate to the cause at –

Thursday, 30 May 2019

Concerning Boris and more media hysteria

There has been a lot of poorly informed comment from politicians and the media in relation to the decision to issue a summons against Boris Johnson following his famous £350m statements during the EU Referendum Campaign. The most popular criticism is that the court is not the right place for discussion of political issues. Some of the comments have bordered on the hysterical.

Bob Seely MP tweeted

‘This stupid, muddle-headed judge has made a fool of herself and the law.

Journalist Andrew Pierce tweeting as @toryboypierce weighed in with –

‘Dopey judge has referred @BorisJohnson to court has clearly never heard of free speech. Judges yetagain overstepping the mark

And Tory leadership hopeful James Cleverley said –

‘The place to argue political points is not in a court room. Politicians must be able to put their points across without the threat of legal action.

I think most people would agree with that comment if it was relevant in this case.

So I think we need to look at the issue in a bit more detail and with a bit of common sense. For those who are interested the full judgment of District Judge Colman is available at –

This was a preliminary hearing in a case where a member of the public wishes to bring a private prosecution against Boris Johnson. The judge was required to decide if this was a proper case to allow a summons to be issued. She was not there to make any decision on guilt or innocence. She was not there to make any findings either against him or for him. She was deciding whether the case was one that should be allowed to proceed. She had to be satisfied that the essential ingredients of an offence are prima facie present. There are 6 questions to be addressed which go back to the 1970s -

1.       Is the alleged offence one that is known to the law? The answer is clearly yes. She also had to decide if the essential ingredients of the offence were arguably present. At different times he was Mayor of London and an MP, both clearly public offices. She was not there to decide whether he had done anything wrong, only that there was an issue to be decided,

2.       Is the allegation out of time? No.

3.       Does the court have jurisdiction? Yes.

4.       Does the complainant have authority to proceed?  Yes.

5.     Is the application vexatious? This is important. If the prosecution was simply a stunt to try and avoid Brexit then the application could have been blocked at this point. The judge heard long and detailed representations from experienced QCs on both sides. Her finding was that there was no ‘political purpose’ behind the proceedings. The case relates entirely to Boris Johnson’s conduct in relation to the £350m claims. It does not seek to overturn the referendum. The judge specifically found that the suggestion that there was a political purpose was ‘no longer pertinent.’

6.      The judge also must consider any other relevant circumstances. They were all considered.

The judge therefore was only addressing these limited issues. She had to decide whether they were satisfied and whether Mr Ball’s private prosecution should be allowed to go to the next step, which is the issuing of a summons requiring Boris to attend court. She did this in a detailed written judgment.

This does not make her ‘stupid’ ‘muddle headed’ or ‘dopey’.

It is nothing to do with free speech. There is nothing to stop his lawyers arguing this at the trial.

She is simply doing her job that she must be able to do without interference from politicians or journalists some of whom have vested interest.

The trail itself will be intgeresting...

Monday, 15 April 2019

Shamina Begum, legal aid and the meaning of justice

Let’s get one thing clear. People who have the benefit of legal aid are not given a hand-out. They are not ‘given’ anything. The purpose of legal aid is, or was, to ensure that each party to a dispute have equal access to legal representation. Legal Aid, as we know it, was introduced in 1949 by the post war Labour government. Its stated purpose at the time was –

“to provide legal advice for those of slender means and resources, so that no one would be financially unable to prosecute a just and reasonable claim or defend a legal right; and to allow counsel and solicitors to be remunerated for their services”.

It is fair to say that this principle has been eroded over the years. Eligibility for Legal aid has been virtually wiped out for many citizens since 2013 under the Conservative and Liberal Democrat Coalition. But the principle remains. For example, it was recently reported that in 2017 the Government had spent £4.2m on legal representation at inquests. At the same time just £92k was paid to families of victims by way of legal aid. Most people would agree that this is iniquitous.

The state provides legal aid so that all sides can have equal access to justice regardless of their wealth. What is the point of having legal rights if only the rich can access them?

And so to 19 year old Shamina Begum. It has been national news today,that she has been granted legal aid to contest the removal of her citizenship. It is very predictable that the Daily Mail has reported this as if it is some sort of hand-out. The rest of the media seems to have followed suit. Foreign Secretary, Jeremy Hunt, is reported to be 'uncomfortable' with the decision to give her legal aid. That is the thing about justice. It isn't always comfortable. Comfort is not what it is about. 

This is not about her popularity. Access to Justice is not limited to those of whom we approve. It is possible to despise her and all that she stands for, and at the same time, acknowledge that there are important issues here that should be addressed by a court. This is an issue which should be a concern for us all. When, and under what circumstances, can out government remove person's citizenship? This is a matter for judges, not the media, to decide.  

Her citizenship has been removed by the state. The state is required to show that it has acted lawfully. That can only be achieved if Ms Begum and the state are equally represented. This is why we have scales of justice.

The test is this –

Does she require legal assistance? She does.
Can she afford it? Probably not but that is a statutory test, and a strict one at that.
Is the necessary work in scope? It is.

There is no requirement that a person be popular or to be considered deserving of help by the tabloid press. Justice is not a bag of money, it is a right.