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Wednesday, 18 March 2015

A true experience of anger, frustration and despair!

I went to Manchester yesterday. I know! Someone has to..

I was due to attend a meeting at 5.00pm. I left Liverpool at 3.40 which allows for the heavy traffic leaving Liverpool and going into Manchester. It was a very straightforward drive along the M62 and I was heading into the centre of Manchester in good spirits and  with a good 20 minutes to spare.

This was when it all began to go wrong. I had booked a parking space at the office of the law firm that was hosting the meeting. This was right in the heart of the city not far from the Town Hall. Without warning, it seemed that every street was suddenly undergoing major road works or was closed. My navigation system was on the verge of a nervous breakdown. Every road that we took was blocked. It was as if the City of Manchester was taking revenge for all the bad things that I have ever said about it. Finally, by pure luck I found myself heading for the road where the firm’s car park was located. Guess what? It was closed.

I managed to pull over at a parking meter. My 20 minutes to spare was now 5 minutes late. I needed £4.50 for meter. I had a £5 note. We have sent people to the moon but nobody has invented a parking meter that takes £5 notes. A sign on the meter invited me to ‘pay by mobile’. So I followed the instructions. There was the normal intro about how important I was and how we would surely be friends for life. I set up a pin number, I put in my card number. Then it asked for the last 2 digits of my expiry date which I typed in. My new best friend told me that it was an error and to please try again. So I put it in again more carefully and got the same message. So I did it a third time in the style of an imbecile who needed to check both digits 5 times before pushing the button. I waited with growing anxiety – ‘Error. Transaction aborted. Goodbye’. Some friend you are. P*** Off!!

So I abandoned that idea and ran into a nearby bar clutching my fiver. The young barmaid must never have seen anyone so desperate for a pint! She looked a bit crestfallen when I asked her for 5 one pound coins. I ran back to the meter and finally got my ticket. By now, a diligent traffic warden was approaching so it was a good job I persevered.

I now ran to the meeting – 15 minutes late. I was rehearsing my apologies by way of a shortened version of this story. When I got to the boardroom 2 people were there looking sheepish. Due to a number of 'no shows' the meeting was…………CANCELLED!!! My anger and frustration had built to such a level that I said – ‘Oh dear. Never mind hey..’ in true English Lawyer style.

Now, I’m sure that some people love Manchester. Their two famous football teams have many fans although to be honest they mostly live in Surrey. But if you ever hear me suggest driving there again you have permission to chain me to a mast and detain me until the madness passes.

So why am I telling you this tale? Partly to get it off my chest. Partly because some might find it amusing in places and most legal blogs are gloomy these days.
But there is in fact a serious message.

What I went through last night gives a small insight into the frustrations of anybody trying to work for the legal rights of those in need. 

It seems that all roads are being blocked by the MOJ, insurers, the media, regulators etc. 

It doesn’t seem to matter which way you turn, someone is there to try and block the way.

Sometimes it is tempting to give up. But we will be here long after Mr Grayling has gone (hopefully that will not be too long anyway). If we can celebrate 800 years of Magna Carta we will not get rid of the rights of ordinary people this easily!

End of rant.

Monday, 16 March 2015

When is a Disease not a Disease?

When is a disease not a disease? 

When it might cost insurers money – appears to be the answer in view of the arguments put forward in the case of Dalton v British Telecom which was decided in the High Court last week.

This was not simply an academic argument. Claims for damages for Noise Induced Hearing Loss (NIHL) are the most common Occupational Disease claims. Under rules which were in force until April 2013, insurers had to pay a ‘success fee’ where a case was funded by under a Conditional Fee agreement. This involves percentage uplift to the claimant’s lawyers’ fees. In a disease case the uplift was 67.5%. in an injury case it was 25%. So in the Dalton case, and others, insurers sought to argue that hearing loss is an injury and not a ‘disease’, thus reducing the amount they had to pay. Although those rules have now gone, there are still hundreds of claims being pursued under them i.e. which started before April 2013.

Their argument was that Hearing Loss is not a ‘disease’ as such but an injury caused by some external factor i.e. noise.

In all of my 30 odd years as a solicitor this has never been argued by anybody. In fact the consensus in relation to NIHL claims goes back a lot longer than that.

In a very detailed judgment, Mr. Justice Phillips firmly rejected the insurers’ argument. 

The key point is that hearing loss is caused by exposure over a period of time rather than a single incident. The judge noted that – “...the term ‘disease’ has been used in legislation relating to employers’ liability claims and insurance since 1906 ….to cover conditions (including injuries) which have arisen by process rather than by accident.”

He then noted the 1985 Prescribed Disease Regulations which specifically referred to Occupational Deafness as – “the disease numbered A10 in part one of schedule 1 to the Regulations." 

The judge also noted that the Protocol for Occupational Disease claims that was published in 2003 defined a disease a follows –

‘..any illness physical or psychological, any disorder, ailment, affliction, compliant, malady or derangement other than a physical or psychological injury caused by an accident or other similar single event.’

Then there were negotiations including insurers, which resulted in the fixed ‘success fees’ which were at the heart of this case. Those discussions led to data which formed the basis of a report in 2004 entitled Calculating Reasonable Success Fees in Employers Liability Disease Claims. The report included NIHL as the third largest category of disease.

The judge found that NIHL was, by any sensible reckoning,  a disease – ‘NIHL is not merely an occupational disease, but it is the paradigm case of such a disease.’
The judge went on to criticise the conduct of the insurers who appeared to be going back on what they had agreed in 2005. He described their arguments as ‘an opportunistic attempt to avoid part of the overall bargain..’

It is comforting to lawyers and victims of disease claims that this argument has been so decisively rejected. It shows again the lengths to which insurers will go to avoid or minimise their liability. This is an attitude which has underpinned many attacks on victims over the last few years.

The insurers could still appeal but the hope is that they will see this hopeless argument for what it was and let us all get on with the job of securing proper compensation for victims.

Wednesday, 11 March 2015

The difference Between Access to Justice and Collecting Stamps

The one issue which has dominated the legal press in the last week, has been the shocking increase in court fees from Monday 9th March. I don’t propose to discuss that particular issue again today. But the debate which took place in the House of Lords last week showed very starkly, the attitude of our Ministry of Justice to the rights of ordinary people and small businesses.

In his speech to the House, Lord Faulks QC for the government, dismissed litigation as ‘very much an optional activity’. So there we have it in five brief words. Defending the rights of ordinary people is seen as something alongside bird watching or stamp collecting. You can take it or leave it. And if you take it you can pay through the nose for it!

What is frightening is that I suspect Grayling, Faulks and Co know just how insulting that statement is. I once instructed Lord Faulks as a QC. It was a Clinical Negligence case on behalf of a child who was profoundly brain damaged at birth. She had Legal Aid. I do not recall him ever suggesting that we were embarking on some optional activity, some sort of hobby on the side. He knew very well that we were fighting for rights of this child to be compensated for negligence and to receive the best possible care for life. That wasn’t an optional activity then and it isn’t now.

I have previously mentioned how proud I was to hear that another young victim of negligence had graduated from University and was looking to work abroad –

This is called the securing of justice for a victim. Not pursuing the case was never an ‘option’.

The same goes for small businesses that might need to pursue debtors. Earlier this year, Tescos hit the news with claims that they were unfairly delaying payments to suppliers. This was undermining the viability of some –

A representative of the Federation of Small Businesses said at the time,

“Late payment can have disastrous effects on a small firms’ cashflow and pushes many businesses to the brink. We’ve raised the issue to the highest levels and have called for a full scale independent inquiry into the payment practices of big business."

So a small business is pushed to the brink because a major PLC fails to pay on time. This business then has to sue for the debt. This is not an ‘optional activity’. Jobs are at stake. They do not have the luxury of choosing whether to sue.
This remarkable statement from an experienced lawyer says a lot. This government is no friend of victims of negligence.

But it also appears that it is no friend of business either – which comes as a bit of a shock.

Thursday, 5 March 2015

Dismantling Justice for Ordinary People - Job Done?

I almost choked on my coffee this morning!

I opened the latest Law Society Gazette which devotes a number of pages to the Global Law Summit that took place in London last week. What led to the coffee incident, was the quote from Lord Chancellor, Chris Grayling where he talked of a thriving legal sector and promised to all he could to promote the right environment for it to thrive! I wondered for a minute if I had turned up on the wrong planet. He also talked about unpopular changes being driven by economic reality.

So I thought it might be useful to see what he and his government have achieved since 2010. I wrote in 2012 that there was a dismantling of Access to Justice for ordinary people –

When it comes to such dismantling it has to be said that he has done this rather effectively. 

So let’s consider just a few of his ‘reforms’ –

First we have had the effective elimination of Legal Aid in civil and family proceedings. I have written about this many times but the injustice beggars belief. Who would ever have thought that the day would come when the Senior Family Judge in England and Wales would have to summons public officials to explain to him who was going to fund the representation of a party to care proceedings in order to avoid a manifest injustice –

These particular cuts have seen the closure of many voluntary agencies that existed to provide legal help to those in greatest need. Even the Housing Charity, Shelter, was forced to close its legal advice service –

I recently attended a meeting at Liverpool County Court. Volunteer workers from CAB and PSU all said that they are stretched to the limit and have nobody that they can send people to for help. It is indeed a Waste Land

Then there have been the relentless attacks on Criminal Lawyers and those who accused of criminal offences ie innocent until proven guilty. Fees have been cut to such a level that none but the most committed would ever be interested in life of crime – so to speak.

Turning to personal injury victims there was the infamous LASPO which saw fees recoverable from insurers and public bodies slashed to unrealistic levels. In almost all cases, victims now stand to lose up to 25% of their compensation to go towards fees. This led to a highly publicised Judicial Review application that ultimately failed –

But the most recent attack is surely the most damaging of all. On Monday 9th March the fees charged by the Court to start proceedings will rise to eye watering levels. As my friend Mike Williamson has pointed out, this represents a hike of 660% in cases involving damages of £200k –

This exceeds, by a country mile, the cost of the administration involved. Can you imagine what Ministers would say if lawyers charged £10,000 for about an hours work? The Law Society has taken Judicial Review proceedings but no one expects a positive outcome.

So is this the environment within which a legal sector is expected to thrive? Who would ever advise their children to take up a career in the law? Running away with a circus seems a far more secure option. Life for unfortunate victims is far worse.

The economic argument is seriously flawed. Most of the so called ‘economies’ are false. The removal of legal aid has seen a massive increase in unrepresented parties, causing trials to take, at least, twice as long.

The most obvious false economy is in relation to the shambolic increase in fees. Statistically, most Personal Injury and Clinical Negligence Claims succeed following commencement of court proceedings. The Claimant has to find the cash up front. But the burden will finally fall on insurers on the NHS. So in the latter case we have the bizarre situation where a £10,000 fee is payable to one Government Department and the burden finally rests with another one! I cannot think of a clearer example of moving deckchairs on the Titanic.

So there we have it. This has been a brief and sketchy journey through the most painful few years that most lawyers can remember.

Far be it from me to make any party political points.

But you wish to bear this sorry tale in mine when deciding where to put your cross on 7th May 2015 or should that be where not to put your cross??

Wednesday, 25 February 2015

The scandalous increase in court fees (2)

I have already mentioned the proposed increases in court fees which are due to be introduced from April 2015. This will have such a devastating impact on Access to Justice that it merits some further comment.

Firstly it is important that we all understand the eye watering sums involved. A person who is severely disabled and dependent on carers for life will require the highest level of damages. At the moment the fee payable to the court to start a claim is £1920. Under the new rules it will £10,000. Forget any talk about percentages. That is simply scandalous.

The government is intent on pressing on with the move in the absence of any support at all. Indeed the response has been universally hostile.

The Civil Justice Council (CJC), a body which exists to advise the Lord Chancellor on Civil Justice and Procedure has talked about the risk that the increase will –

‘…act as an effective barrier to entry to the justice system through pricing many court users out of the courts and thereby reducing access to justice for those litigants for whom court fees form a significant cost element of the overall process…’

The most senior judges in the land wrote to the Ministry of Justice in December 2014. They adopted the concerns of the Civil Justice Council and went on to say –

‘In addition, the draft impact assessment for these proposals makes some very sweeping and, in our view, unduly complacent assumptions about the likely effect on the volume of court claims issued and access to justice of the proposed fee increases….’

The President of the Law Society has called the increases a flat tax on justice. Who would disagree with Andrew Caplan’s statement? –

“State provision for people to redress wrongs through the courts is the hallmark of a civilised society.”

The Law Society is leading the judicial review action against the rises.

One sector which has benefited hugely from this government attacks on justice has been the insurance industry. They have found a real friend in ministers who have given them virtually everything they have asked for in terms of restricting the ability of victims to bring damages claims. But those lawyers who represent insurers have joined in the chorus of opposition. The Forum of Insurance Lawyers (FOIL) have joined in the Law Society’s action. Their President, Nick Parsons signed a letter to the Times which talked about ‘disaster for access to justice’.

Nobody is telling ministers that this is a good idea. According to the CJC the consultation process comprised 17 telephone conversations.

They are simply not listening. They cannot possibly say that they do not understand. So the conclusion must be that they do not care. This is straight from the Homer Simpson school of politics..

They have failed to consider the damage which this could cause the NHS. Most Medical Negligence cases come into the highest bracket and so many cases will attract the £10,000 fee. Victims will struggle to pay it. But in many cases the bill will ultimately fall to be met by the NHS following a successful claim. So the government is imposing a 600% surcharge on itself for negligence. The same goes for insurers, which presumably explains their concern.

The one message that they will hear loud and clear is via the ballot box in May.

Counting the days …….

PS Since I posted this the MOJ have rushed through the Statutory Instrument enabling the increases to take effect. This means that they could be with us as soon as 9th March 2015. This is no time at all for lawyers, on both sides, to consider how they can best advise clients. Hopefully the Law Society's Judicial Review will be heard soon.

Monday, 23 February 2015

Pricing Justice beyond the reach of all but the rich

For anyone who is not a lawyer, the idea of going to court can be daunting. It has the feel of a different world where lawyers and judges wear a form of fancy dress that can be intimidating, buildings are often like something from Dickens and the language is completely alien. One of my earliest blogs concerned the time when I lost a client –

But with the help of lawyers many ordinary people have gritted their teeth, got on with it and achieved a just result. One thing which they did not need to worry about was cost. Legal Aid helped many but this has all but disappeared. For the last 15 years or so access to civil courts has been maintained by no win no fee arrangements. This is in the face of severe hostility from the media and politicians who created a new public enemy – The No Win No Fee Lawyer –

Despite these attacks, the rights of ordinary citizens have been secured.

The latest development could; however be the most damaging of all. This is the plan to increase court fees to a level beyond the means of all but the wealthiest. The government have announced that fees will increase by as much as 600%. In a case where damages are claimed in excess of £10,000 the fee will be 5% of the amount claimed with a cap of £10,000. So let’s be clear about this. That is £10k just to commence a claim. That is the amount that will have to be paid, up front, to start a case for those who are most seriously injured or disabled. Many victims like the one I mentioned the other day, could find themselves priced out of the market - 

In most cases legal aid is no longer available. Solicitors’ firms have assisted clients by meeting the cost of the court fees until the case concludes. But firms will not be able to support many cases with fees in that league. It is a scandalous attack on the rights of ordinary people. There is no doubt that this will lead to a huge reduction in the number of cases that are pursued through the courts. A recent move to impose fees in Employment Tribunals has seen an 80% fall off.

The move has been severely criticised by the judiciary who have pointed out that fees will between 25 – 100 times more than those payable in New York!

So it is not surprising that the Law Society has begun moves to seek a Judicial Review of the decision. Interestingly the proposed action is supported by those who represent victims and those who represent insurers. Law Society President, Andrew Caplan says –

‘The government’s policy on "enhanced court fees" amounts to a flat tax on those seeking justice. The government’s hikes - due to come in from April - will price the public out of the courts and leave small businesses saddled with debts they are due but unable to afford to recover.’

The government has done much to undermine access to justice in this country. But this promises to be the worst of all and should be opposed by anybody with a concern for justice – especially as we celebrate 800 years of the Magna Carta.

Thursday, 19 February 2015

A Tribute to a victim - An inspiration to us all!

I seem to most of my time on this blog complaining about something or other. That is understandable in the light of the relentless attacks on Access to Justice for ordinary people.

But today, for a change I want to pay tribute to a young man who has faced adversity beyond anything that I could imagine and who is an inspiration to us all.

Richard Hopley has been disabled from birth. My colleague Helen Barry in EAD’s Clinical Negligence Dept acted for him many years ago in a successful case against the NHS. He has no speech and no independent mobility. But he is as bright as the rest of us – well brighter than most to be honest!

I have met him on a few occasions. I have never come across anybody more determined to make the best of his life despite his massive limitations. His communication back then, was by way of a keyboard which he operated with his nose. He has now moved on to an iPad, which he still controls with his nose but which is presumably a bit more comfortable.

The Liverpool Echo has reported this week that Richard has just published his first book of poetry –

He describes one of his poems in the article – 

“Living by the River Mersey at the Albert Dock, has influenced by life and my poetry tremendously.

“I can look out if my window onto the river and, to me, water tells stories in its movement. My favourite poem I have ever written is River Book, where the waves are like pages of a book that you can actually read, placing new thoughts in your mind.

“I wonder as I look on the surface, my mind dives in, revealing untold stories.”

The last few years have been a challenge for those of us who seek to secure justice for victims of negligence, of whatever sort. As Governments, insurers and the media make the work harder and harder, it is tempting to wonder if it is all worth while.

Then a Richard Hopley comes along and says it all for us. And says it in a way that no blog could ever do. He is an inspiration, not only to other victims but to all of us.

Thank you Richard!