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Friday, 2 February 2018

Medical Negligence - the latest attack on victims' rights

It seems that, every few months, the NHS and other medical bodies launch an attack on the rights of victims of medical negligence. Today, we hear that the NHS Federation has written to the latest Justice Secretary, David Gauke in order to try and reduce the levels of compensation to which victims are entitled.

The letter contains the remarkable statement –

"We fully accept that there must be reasonable compensation for patients harmed through clinical negligence, but this needs to be balanced against society's ability to pay.

So on the one hand, there is an acknowledgment that compensation must be reasonable and on the other hand a call for such payments to be reduced in line with government spending priorities. Once again we see the fingers pointed at victims, as if it is somehow their fault that payments for negligence continue to rise. This has been a developing pattern over the last few months.

In June 2017 the Medical Protection Society which represents many GPs called for a limit on the amount of loss of earnings that a victim can recover. They argued that such awards should not be calculated on the basis of real losses but a national average. This, of course, completely undermines the purpose of compensation., which is to put the victim back in the position they would have been in, but for the negligence. The victim’s liabilities will not be reduced in the same way. So a teacher with a mortgage who never works again recovers less than they were earning. Their mortgage payments will not be dropped. So they are at risk of losing their house through no fault of their own.

The same goes for damages for care. These can lead to an awards that looks like a lottery win. I make no excuse for re-posting a blog that I did in 2015 which demonstrated how one victim, on the basis of the support that he had received following a successful claim, had published his first book of poetry –

That is the heart of the matter. Victims who are injured through medical blunders are entitled, in any rational and caring society, to be compensated in full. I am not the first to say that the best way to reduce claims is to have an NHS free from the pressures that go with massive under-funding.

Focussing on reducing incidents will not only save public money, it will also mean that victims will not have to resort to stressful litigation to secure justice. It is still the case that many cases are fought by the medical profession to the very last minute before liability is admitted. Such a war of attrition damages everybody. I would certainly support any moves to reduce the cost of pursuing claims, but this must never be at the cost of undermining justice.

Wednesday, 10 January 2018

More Legal Careers on the line - who is really to blame?

We are less than two weeks into a new year, and we have already had reports of young lawyers getting into major difficulties. Both are reported in Legal Futures  . The first follows a familiar pattern. The solicitor in question had failed to obtain adequate After the Event Insurance. This meant that, when a matter was discontinued, the client or the firm would have been responsible for the other side’s costs. She tried to cover up the error by created forged insurance schedules in the hope that the insurers would not ask any questions. She then fabricated attendance notes to try and support the cover up.

It is no great surprise then that she has been struck off the roll for dishonesty.

This is becoming alarmingly repetitive. Yet again, a career is brought to a tragic end because concealment seems preferable to honesty. I am beginning to sound like a broken record but the message for solicitors is clear – not only is honesty the better option, it is the only option. The discomfort of a confession is far less painful than the end of your career.

But the sheer number of such cases does raise an equally disturbing issue. Why are these lawyers so afraid to admit a mistake? Is there such a culture of fear across the legal profession?

This is partly demonstrated in the second report.

Another young lawyer was found to have lied to a client and her employer about the progress of a matter. The Solicitors Disciplinary Tribunal found that one cause of her conduct was her firm’s attitude towards billing targets. She was a clinical negligence lawyer who acted for victims.  Those cases can be complex, drawn out and heavily dependent on expert evidence. The solicitor was under heavy pressure from the firm to meet a billing target. She had received a letter from the firm requiring her to record 137 hours in 19 days to make a supposed deficit. The letter went on –

“Please therefore by return of email let me know your plans on how you are going to resolve that deficit before the deadline. I am assuming that you will be working each and every weekend and long hours during the week to ensure that the required target is reached.’

The lawyer in question was suffering from mental health issues. She later misled her employers, a client and backdated letters. The tribunal criticised the firm for placing her undue pressure. Her health issues made her more vulnerable to a negative reaction to the letter. The firm should have been alerted to the warning signs of her illness. The firm carried a significant portion of the blame and had not supported its employee. She was suspended for two years – but such suspension was itself suspended for three years.

Anyone who has managed a law firm is aware of the need to ensure that cases are turned over quickly and efficiently. Managers are likely to be under similar pressures – from partners, banks, creditors… There are many ways in which this can be addressed. Supervision and support are crucial. If a solicitor is falling behind a target there might be any number of reasons – too many cases, an unrealistic target, illness (as in this case), lack of support. There can never be any excuse for managers to bully their lawyers in order to improve performance. Members of a team need to know that there is someone that they can speak to if they are struggling. That someone is not there to judge but to guide and support.

Many of these cases that we are seeing involve a young lawyers desperately trying, and failing, to sort out a crisis on their own. Why are they working in such isolation in the first place?

I think that the agenda is shifting here. I used to emphasise the importance of lawyers not being afraid to speak up if there is an issue. The message is now well and truly one for managers. Can my lawyers speak to me without being ‘terrified’ of the reaction? What support do I offer?

Aggressive treatment of staff is always counterproductive.

We are likely to see more cases where firms find themselves under scrutiny. Most firms do care for their staff. Clearly others do not. And this has to change.


Steve Cornforth is a solicitor who owns the Steve Cornforth Consultancy providing Management Support, Compliance Advice and Training for Lawyers and Law Firms.


Tuesday, 9 January 2018

Welcome to Hogwarts - our new Justice Secretary

One thing which can always be predicted in any Cabinet Reshuffle is that we will have a new Justice Secretary/Lord Chancellor. It is like the first day of every year at Hogwarts when Dumbledore introduces the new Defence Against Dark Arts Teacher. The belief is that the job was jinxed by Lord Voldemort. Could there be a link??

But, for better for worse, we now have details of the latest bearer of the chalice. It is David Gauke, MP for South West Hertfordshire. The most sensational feature of his appointment is that he is a Lawyer, the first since Ken Clarke in 2012. This should at least mean that he will have an understanding of the role of the Lord Chancellor in defending the independence of the judiciary – particularly in the face of attacks from the Daily Mail –

He might even have some insight into the practice of law, albeit from a limited perspective.

Mr Gauke trained at City firm, Richards Butler and qualified in 1997. He then moved the Macfarlanes and was there from 1999 until he entered Parliament in 2005.  He first stood for election in 2001. So working in the law has never been a major part of his career path. But at least he has some knowledge of the legal world.

His voting record is not encouraging when we come to Access to Justice. According to They Work for You - 'David Gauke generally voted for restricting the scope of legal aid' -

He has generally voted against laws to promote equality and human rights, supported the bedroom tax, reductions in welfare spending and mass surveillance. In 2014 he defended the growth in the number of food banks, saying that they did a valuable job and that he was proud that the government signposted people to them –

So, we cannot expect a champion of the rights or ordinary people.

Will he last until a new Hogwarts year? Will the government last that long?

As things stand we should probably assume both. I foresee many battles ahead and do not hold out any great hope for huge changes in broadening access to justice this side of a General Election. 

But let us at least hope that he will take his constitutional role more seriously than some of his predecessors. 

Friday, 29 December 2017

Personal Injury 2018 - some thoughts and predictions!

As the sun goes down on another year, we all look forward to what lies ahead. I will make some resolutions that will last a day or so. I also like to predict what lies in store. I normally predict, with great confidence, that Everton will win a major trophy. Read into that what you want. With that in mind, here are some thoughts for 2018!

1.     By the end of 2018 we will know with some certainty, the date in 2019 when fixed fees will be introduced for Personal injury and Disease Claims. This will largely follow the recommendations in Jackson’s July 2017 report including the Intermediate Track and the four bands – with disease cases becoming subject to FRC but at the highest band. NIHL Claims will be subject to the costs and procedure agreed between Claimants’ and Defendants’ representatives and approved by Jackson. Clinical Negligence cases up to £25k will become subject to some limited form of FRC following further discussions between representatives of each side. My hunch is that April 2019 will be the date but it could even fall to October 2019. I wouldn’t rule out 2018 but neither would I put money on it.

2.     I expect there to be a regrouping of the Claimant PI sector with a growth in the number of smaller niche firms. Ever since the 2004 Clementi report there has been a consensus that big is best. But big is also expensive with many hungry mouths to feed. This will happen alongside a revival of the old style high street practice with less dependence on CMCs and a greater emphasis on local marketing and passing trade. Firms who downsize and control expenses will actually be better equipped to manage the inevitable changes, with some consolidation and then organic growth. This flies in the face of most commentators who predict that many firms will fall by the way and that we will be left with a small number of mega providers. I think some smaller firms who fail to adapt will struggle. Bigger firms will also struggle. Growth from grassroots will in my view be an exciting an unexpected outcome. All of this will happen alongside the relentless march of Social Medial and Robots (see below)

Alongside the above there will be a continued growth in the number of ABSs, particularly in the RTA sector. It will certainly make commercial sense for hire companies and repairers to develop their legal work from within. This is more likely to be based on a smaller grouping of providers working together rather than the huge monoliths which have failed so badly.

4    One factor driving a move towards smaller entities providing PI work will be the ever-accelerating power of Social Media and Artificial Intelligence. Social Media platforms provide quick and affordable marketing to a huge potential audience. I was a Conference in 2016 at which someone from Google stated that YouTube was the world’s second largest search engine –

Videos are easy to make. Video marketing lends itself to a person-centred approach which is very suitable for smaller units, which emphasise a closer client/lawyer relationship. Client communication will also change dramatically as emails fall in use and messaging apps such as The Link App come to the fore.

I recently used LISA to draft an Non-Disclosure Agreement . It took less than 15 minutes to produce the document which required little amendment. This is one example of a trend which will continue to grow at great pace.

As all of this progresses throughout 2018 I think more individuals and smaller firms will say –‘With all of this happening, I can provide a good service, earn a reasonable living and have a life’. I am already in contact with lawyers who are thinking along these lines.

      Firms who traditionally did Fast Track PI work will continue to diversify into Multi Track PI, Disease and Clinical Negligence where there will be some scope for targeted marketing as the influence of CMCs fades. The firms who focus on excellence and professional service can do well. The current trend for Holiday Sickness and Cavity Wall claims will play a role for a year or so but probably have a limited shelf life.

      Further reforms to litigation costs will find their way on to the agenda. QOCS needs a complete overhaul. Any system under which Defendants can only recover their legal costs by proving fundamental dishonesty on the part of the loser is bound to end in tears. This needs a root and branch re-think. Will this lead to a move away from any recoverable costs to be replaced by Damages Based Agreements and an increase in the level of compensation? I think that this will certainly be discussed by the end of the year - for good or for bad.

So, these are my initial thoughts for 2018. Some may disagree. I would love to discuss! It promises to be a busy time, a time of much upheaval but also a time of some optimism for those who can see change as an opportunity rather than a threat.

Happy new Year.

Monday, 11 December 2017

Missing a deadline - ending a career?

There seems to be no let up in the number of stories concerning lawyers who throw their careers off a cliff to try and cover up mistakes. The most recent, concerns the signing of documents.  

In a case reported in Legal futures last week a solicitor had missed a deadline for exchange of witness statements and then went to drastic measures to try and cover up the mistake. Of course, the insurers have used the incident to suggest that lawyers are involved fraudulent claims. In fact that is not the case here. But it is no less serious for that.

Since the decisions in Mitchell and Denton, the exchanging of statements has become a more serious matter than it used to be. The court rules say that oral evidence cannot be called from a witness whose statement is not disclosed or is disclosed late. This is the sanction for the breach.

But it is still capable of resolution. Although there it can be an uphill struggle, there is still a right to apply for relief from sanctions.  The worst possible outcome is a claim of the firm's indemnity insurance policy. It can be a difficult moment when a solicitor has to confess to a supervisor that a mistake has been made. There might even be some sleepless nights. But ending a career is a far more serious thing.

In this case the solicitor told a colleague to copy the client’s signature from other documents, trace over them in Biro and remove the date of the statement of truth. All of this was soon found out. The solicitor lost her job and was recently struck off by the SDT. Yet again, we have to ask ... why??

Is it more embarrassing to confess a mistake then to face the Disciplinary Tribunal and its consequent publicity? Is the temporary discomfort of sharing the mistake really worse than the months of anxiety that accompanies disciplinary action?

The poet Steve Turner one wrote –

History repeats itself
Has too
No one listens

Here is the lesson for lawyers. If you make a mistake, tell someone. Mistakes can be rectified. There isn’t a lawyer who has never got something wrong. We are human. The sharing of a mistake is the beginning of the resolution. Burying it can mean that your career will be buried with it.

Here is the lesson for law firms. Cultivate a culture of openness and support so that anybody who finds themselves in this situation can be open, honest and assured of support.

Tuesday, 21 November 2017

Lord Sumption openly calls for limits on PI damages to protect insurers' profits

If the insurance industry was in need of a high profile advocate it has found one in the shape of a Supreme Court judge no less.

Lord Sumption was elevated to the Supreme Court in 2012, directly from the bar. In 2005 he appeared in The Lawyer’s list of barrister’s earning more than £2m a year.

He famously acted for Roman Abramovic for a fee alleged to have been £10m although his chambers insisted it was mere £3m –

Interestingly in the late 1970s he co-wrote a book called Equality with the late Keith Joseph, member of Margaret Thatcher’s cabinet. I haven’t read it (!) but according to an enthusiastic Amazon reviewer –

‘To a considerable extent the book is an expose --- an expose of the woolly thinking, bad logic and incredible assumptions that have underlain the utterances of those who advocate economic equality. Nor is it merely a critique of extreme egalitarianism. The logic is as bad and the assumptions as untenable whether it is complete or only partial equality that one wishes to enforce.

I cannot comment on the detail but it is probably fair to say that this book was not a call for equality and justice for all. It is probably also fair to say that his practice at the bar did not bring him into contact with many ordinary people seeking compensation for injuries.

All of this brings me to his recent speech to the Personal Injury Bar Association (PIBA). In the speech, entitled -  Abolishing Personal Injury Law – A Project, he launched a full-on broadside against victims. He firstly called for removal of indemnity as the basis for compensation and to replace it with some sort of tariff, in the hope of removing ‘small claims’. Damages for pain and suffering can be abolished save for those suffering long term injuries.  

Most alarmingly he called for a re-think on the basis for calculating loss of earnings. He suggested that such claims might be linked to a reasonable standard of living rather than replacement of actual earnings.

This is something which defendant bodies have been advocating recently.

It is hard to imagine a more damaging proposal. So, a doctor on a reasonably high income becomes unable to work due to a motor accident. She still has a mortgage to pay. She may well have a nice house but why should she lose it because of someone else’s bad driving. This sounds like a call for punishment of victims.

His Lordship did not conceal his sympathy for the beleaguered insurers –

‘Thirdly, although the taxpayer has a bottomless pocket, insurers do not. Beyond a certain point, the cost of rising claims volumes cannot simply be piled onto premiums and begin to erode profits.’

All of this was said against the background of our current ‘fault’ based system which tended to favour claimants.

Some may agree with his views. Many will disagree, particularly among those who fight for justice for those who are injured. He is entitled to his view and to express that view.

But it is still disturbing to hear one of our most senior judges openly flying the flag for insurers.

Sunday, 5 November 2017

Concerning Access to Justice and 1000 Wildlife Photographs

This slightly unusual post has been inspired by two things.

The first was my decision to re-join the trustees of North West Legal Support Trust (NWLST). This trust will be known to many readers. We organise the Legal Walks across the region and other initiatives to raise finds in support of agencies which off free legal advice and assistance to those in greatest need.

This desperate need was recently highlighted by the shocking statistic that there has been in drop of 99.5% in the numbers of people receiving state funded legal assistance in benefits cases. When you think that in the days before legal aid was virtually wiped out, 80% of benefit appeals were successful where there was representation, this quite shocking –

The second thing was a TV programme I saw on the National Geographic Channel last week about the Photo Ark. Photographer Joel Sartore is on a lifelong mission to take and post pictures of every living creature! His gallery is stunning. I am a keen photographer although not in his league! –

So these two things together have led me to set myself a challenge!

Starting on 15th November I plan to take and post 1000 wildlife photographs in 12 months. These will all be new photographs – no raiding my back catalogue. Each photograph will be of a different species – no repetition. The challenge will be helped by a trip to Costa Rica and Panama in 2018! I am doing this with three things in mind –

1.      To hone my photography skills – I certainly aim to be producing higher quality photos by November 2018,

2.     To highlight the magnificent beauty and diversity of nature which has never been under greater threat,

3.     To raise funds for NWLST for Access to Justice. From the start of the project I will be pestering people for sponsorship. A penny a picture will raise a tenner and so on. Some might want to sponsor the entire project. Every penny raised will go to the Trust. I will post details shortly. In November 2018, I am planning to put 12 of the best onto a calendar to sell and raise further funds. I will be posting the photgraphs on Flickr, across Social Media and of course on this blog!
As a taster, here are some of my existing shots. So watch this space! Please also let me have any thoughts, comments or advice!

Sometimes ranting about justice isn’t enough. The government should do the honourable thing and reinstate legal aid. But in the meantime, something has to be done.