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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.

Monday, 30 October 2017

There is a time for everything - especially serving Claim Forms

It never ceases to surprise me that there are many lawyers – on both sides of litigation who do not fully understand the rules about when a Claim Form must be served. We all know that it has to be served within 4 months or the world will end.  There seems to be a mental block which affects those who act for both claimants and defendants about when such end will happen.

On the face of it the rule is straightforward. CPR 7.5 says that, if you are posting the Claim Form by First Class, it must be posted ‘before 12.00 midnight on the calendar day four months after the date of issue of the claim form’. So if I issue a claim Form 1st November 2017 it has to be posted by midnight on 1st March 2018. It doesn’t matter when it actually arrives. There is no ‘deemed date’ as far as this deadline is concerned. If the Claim Form is posted before midnight on the 1st March 2018 it is properly served…end of!

So why does this fairly obvious rule cause such confusion? This is because there is another date in CPR 6.4. This says that if a Claim form is posted First Class it is ‘deemed served’ 2 days later. There is nothing like an apparent contradiction in the rules to throw lawyers into a blind panic – we are all quite obsessive after all. This particular rule is completely different. It is nothing to do with deadlines for service. It is in fact the date from which the time runs against the Defendant to file an acknowledgment of service or a defence.

The issue has actually found its way before Master McCloud (she of Mitchell fame) in the recent case of  Jones v Chichester Harbour Conservancy and Others [2017] EWHC 2270. She spelt out the purpose of 6.4 in clear terms –

‘as to the purpose of the ‘deemed date’ provisions in rule 6.14 those have to be given an interpretation which gives them a meaningful function and in my judgment the deeming provisions operate as a means to ensure that it is clear to the parties what date is to be used for the purpose of calculating such things as the date for service of acknowledgement of service or defence.’

So hopefully we have cleared that one up and we can all sleep soundly in our beds again.

But what about extensions? CPR 7.6 allows us to apply for an extension of time provided we are still within the primary 4 months (in fact such extension can also be agreed in writing). But when does the Claim Form have to be served following such an order? This was the core issue in the Jones v Chichester case. The claimant obtained an order extending the time for service of the Claim Form to 17th January 2017. A dispute arose over what the Claimant was supposed to do by that date. The claimant said that they had to post it by midnight on 17th January under 7.5. The Defendant said this was different from the normal rule and that they should have posted it on 15th January as it was deemed served 2 days later. So they had missed the bus.

Master McCloud decided in favour of the Claimant –

‘in this case the application itself was seeking the exercise of the court’s powers to extend time for compliance with rule 7.5 and .. it is plain that the court’s intention in extending time for service was to extend time for compliance with rule 7.5.’

I think the lesson learned from this case is to adopt a belt and braces approach and ensure that the order extending time specifically refers to the requirements of 7.5 to avoid any unnecessary insomnia.

It might also be helpful if those who draft the rules could spell all of this out in big letters preferably with pictures.

Thursday, 19 October 2017

Concerning a train ride, real people and yooman rights

I was on the train home last week when three fairly ‘hard’ looking scouse workers sat in the three seats surrounding me. They were already in the middle of animated conversation about a Muslim work colleague. The conversation went on a bit like this –

‘Eee goes off to pray all the time’
‘Yeah then ‘ee doesn’t ‘ave breaks with the rest of uz during that Ramadan thingy’
I braced myself for a racist rant. They went on –
‘Fair dooz like. It’s ‘iz religion. Respect ‘im like.’
‘Izz right. That’s iz yooman right’
‘Izz that lad. Dee shud give him a break out place where ‘ee can go..’

And so they carried on, affirming and supporting him. I wanted to hug them. But then thought – I had been expecting them to come out with stereotypical comments. In fact I was the one who was guilty of stereotyping, because they looked a bit scary and spoke in very broad scouse accents with the odd ‘F’ word thrown in.

I am the one who goes on and on about justice and, albeit briefly, had unfairly passed judgment on someone else!

That’s the thing about injustice. It affects real people. Behind every person who is threatened with homelessness or is a victim of catastrophic injuries, or who is having to face the humiliation of a food bank, is a real story. Injustice happens when they are depersonalised. When they become a ‘problem’ on the one hand or a ‘cause’ on the other. We can all be guilty of being too concerned about being ‘right’ than about being fair.

When Rosa Parks refused to give up her seat on a segregated bus, she wasn’t intending to change the world –

‘All I was doing was trying to get home from work.’

So here is belated thanks to those guys on the train.
A timely lesson in the real world.

Wednesday, 18 October 2017

Head of NHS Resolution says claimant's refuse to mediate!!

It was really no great surprise when the head of NHS Resolution yesterday blamed Claimant lawyers for the small number of claims which have been successfully mediated since the NHS Litigation Authority changed its name in April 2017. 

This change followed an announcement from Health Secretary Jeremy Hunt earlier this year –

“I can inform the House that the NHS Litigation Authority will radically change its focus from simply defending NHS litigation claims to the early settlement of cases, learning from what goes wrong and the prevention of errors. As part of those changes, it will change its name to NHS Resolution.”

And to give credit where it is due the name has in fact changed. I recently discussed the announcement with a group of claimant lawyers who were unanimously of the view the nothing much else had changed.

Yesterday’s assertion was made to the House of Commons Public Accounts Committee by Helen Vernon. She told the committee that few cases had been referred to mediation and shamelessly attributed this to the reluctance of Claimant lawyers to engage in the process. 

I have litigated hundreds of medical negligence cases and have never refused mediation. Neither do I know any other lawyers who have refused. What Ms Vernon overlooked is that the courts have introduced a huge incentive on parties to resolve claims in this way. There is a power to impose costs sanctions on any party who unreasonably refuses an offer to mediate. Most experienced lawyers include a paragraph in their initial letter of claim offering to refer the case to mediation. This is routinely refused or even ignored. The reason that the NHS give for such refusal is that the matter is disputed – even though the vast majority end up being settled.

The last Clinical Negligence case that I dealt with at my last firm was listed for trial in February 2017. We had made an early offer to settle and in 2016 proposed a Joint Settlement Meeting which is designed to resolve disputes without trial. There was no response until less than 2 weeks before trial when the case settled on terms that would have been accepted 2 years earlier. The costs were through the roof by then.

Interestingly the meeting was to discuss legal costs in clinical negligence cases. As Law Society Gazette’s John Hyde tweeted –

If claimant representatives had been there they would certainly have pointed out what a ludicrous statement Ms Vernon made. Claimant lawyers are under a professional duty to achieve the best result for their client. This would never included a refusal to discuss resolution.

I wrote about this in January 2016 and quoted retired judge Sir Henry Brooke in a case where the NHS were penalised for refusing to mediate –

“If, by way of illustration, the taxpayer had to pay £50,000 in each case more than he would have had to pay if those representing the NHSLA had behaved prudently and reasonably, that would mean that £100,000 of public money went down the drain for no real purpose. Oh dear.”

Costs in clinical negligence cases are a burden on the tax payer. Resolution of claims should be a priority. 

It takes two to mediate! It is unhelpful for a manager of NHS Resolution to blame one set of lawyers for this. Especially or possibly because those lawyers were not there to set the record straight.

Tuesday, 10 October 2017

Walking for Justice 2017

On Tuesday last week, I was proud to be part of the 6th Liverpool Legal Walk. About 150 of us from Law Firms, big and small, walked 5k around the centre of Liverpool. I have to say, it was a very pleasant walk around the city. It really has been transformed beyond recognition over the last few years. And the rain kept off!

The highlight of the event was however to see the efforts of the walkers to raise much needed funds for legal charities.

The walk was organised by North West Legal Support (Trust) which exists to provide funding for agencies which provide free legal advice for those who cannot afford it. This is a sector which has been under pressure for the last 5 or 6 years. Many of them were dependent on funds raised via legal aid contracts. Most of these were ended by the government in 2013. This left what can only be described as a waste land –

The effect of this is that thousands of ordinary people have been left with legal rights that they cannot enforce.

This point was made by the Supreme court in the recent case concerning the introduction of tribunal fees. Lord Reed said –

‘Courts exist in order to ensure that the laws made by Parliament, and the common law created by the courts themselves, are applied and enforced. That role includes ensuring that the executive branch of government carries out its functions in accordance with the law.

In order for the courts to perform that role, people must in principle have unimpeded access to them..’

It is also a point I have made on this blog over and over again!

I have been involved in this walk since the start. It is fair to say that there was some hesitation at first. Why should the legal profession be raising funds for legal advice which should be properly funded by the government? That was, and still is, a fair question. But in the meantime, peoples’ fundamental rights are at risk. There is now no alternative to doing all we can, whilst at the same time campaigning for change. Liverpool Law Society have supported the event from the start and John Ballam is the latest President to walk for justice. We were also well supported by the Women Lawyers Division.

We were very pleased to welcome the Lord Mayor of Liverpool, Cllr Malcolm Kennedy. At the end of the walk, as we enjoyed a well-deserved drink, he commented that lawyers do not always get a good press! He went on to thank all of those who had given up their time to help secure justice for those in greatest need in Liverpool and across the North West. It is often overlooked that the drive to fight for justice is what led many to become lawyers in the first place. Another well known face was actor, Michael Starke - known to us all as Sinbad from Brookside!

So thank you to all of our walkers. We will be back again next year – and we will continue until we are no longer needed. 

I fear I may be on my zimmer by then!