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Wednesday, 29 October 2014

The tragic case of Mrs K and the real cause of medical disasters

In about October last year Mrs K had a heart attack at home. She was 40 years old and the mother of a young child. Paramedics arrived at her house and noted that she was not breathing. They attempted to ventilate her. There then followed a catalogue of errors. When she arrived at hospital it was discovered that the endotracheal tube was in the oesophagus. This meant that any oxygen was going into her abdomen and not into her lungs.

The shortage of oxygen caused her to suffer massive brain damage and she died a few days later. But for this mistake, she would probably have survived. An independent report found that wrong equipment had been used, no proper tests had been done to check that the oxygen was going to the lungs and that all but one of the paramedics, had not had clinical training for cardiac arrest management.

This was a tragic and avoidable death. I am currently dealing with the clinical negligence claim on behalf of the family. This is just one of many similar cases. It is almost two years since I posted my angriest blog of all, and the one which has had the most visits - by a mile.

A recent report from the Public and Health Service Ombudsman makes for disturbing reading. This document reported in today’s Guardian reviews 161 incidents between April and June 2014.

In one case a male patient died of a heart attack whilst on holiday. Doctors were aware that he was at high risk if he was to fly, but failed to warn him. In another case a mother gave birth at home after a junior midwife wrongly advised her that she was not in labour and sent her home from hospital. Perhaps the most tragic case concerns a new born baby who suffered brain damage after a nurse and two doctors failed to properly carry out a blood transfusion.

The Ombudsman, Dame Julia Mellor talks of the ‘devastating impact’ that these failures have on peoples’ lives – people like Mr K and his young family.

In its annual report, earlier this year the NHS Litigation Authority reported an 18% increase in Clinical Negligence Claims between 2013 and 2014. In time honoured fashion they laid the blame at the door of lawyers acting for victims and their families –

The NHSLA might wish to read the Ombudsman’s report, or speak to the families of victims. If the government wishes to see a reduction in claims, they should focus their
efforts on reducing the numbers of avoidable catastrophes. Ensuring resources are available for essential training seems to be a good staring point.

What is not acceptable is to blame the victims. Mr K has done nothing wrong. Why should he, and others, be made to think that the NHS is short of money because of him or his legal advisers? 

I hope that the Ombudsman's comments will see the start of a shift from passing the blame to victims to addressing the true causes of a serious problem.

Saturday, 25 October 2014

My Top 5 Legal Blogs

This blog is just over two and a half years old.

One great benefit has been the discovery of other legal blogs which have become an important resourse both for my writing and for the day job!

So here are my top 5 blawgs, in the style of Strictly Come Dancing, they are in ‘no particular order’!

I have included a link to their websites and also the twitter ID which is a great way to receive updates to their regular blogs.

Civil Litigation Brief


Gordon Exall is a busy barrister from Leeds. How he finds the time to produce this remarkable blog beggars belief. It is probably the most comprehensive collection of articles and links in relation to Civil Practice and procedure. If I need to check a tricky procedural point I will look here before anything else – including the White Book. In particular it has been a good friend through the traumas of Mitchell, Dental and Relief from Sanctions.

A quick visit now will take you to articles about Indemnity Costs against Funders, Solicitors’ Retainers and of course, relief from sanctions.

For any Civil Litigator it is a worth the visit at the start of each day.

Kerry Underwood


Kerry has been around for a few years, writing and speaking on law and procedure. The first time I came across him followed the introduction of Conditional Fees with his book – No Win No Fee No Worries. This was in the days before ‘No Win No Fee’ lawyer became a favourite tabloid insult!

This very detailed blog deals with most areas of civil litigation but with a particularly emphasis on funding issues. He writes as he speaks – direct, provocative and pulling no punches. Kerry is happy to respond to comments and questions. He is currently touring the country speaking on Jackson. So how he manages to keep this up to date is a mystery. But then he does support QPR which explains many things!

Go there now and the top post discusses the impact of The Criminal Judtice and Courts Bill and the impact of ‘fundamental dishonesty.’

Legal Cheek


Legal Work can be stressful, laborious and often unrewarding. There is no better antidote than a visit to this great, irreverent site.

The Legal Cheek team take neither themselves not the law too seriously. A visit to the site today includes a review of the movie The Judge – ‘pissing all over legal accuracy’, a look at this week’s episode of The Apprentice, with a focus on lawyer Felipe and the problems faced by a US Lawyer who took her baby to court. Some of it is hilarious and some of it is very serious, particularly in relation to the hurdles faced by anyone starting off in the law. I was drawn to one headline – ‘Become a Lawyer because you are passionate about it, not to please your parents.’ Hmm if I had read that 40 years ago!

Law and Lawyers – Obiter J


This blog looks at serious issues of legal and constitutional importance, with a strong emphasis on Human Rights. There has been a lot of talk about the Human Rights Act in the last few weeks. It seems to have become the target of a Conservative Party which needs to more euro sceptic than UKIP. Obiter J provides a detailed explanation of the importance of the Act.

I was particularly touched by the link to a reflection on the 1966 Aber Fan disaster. I was 11 years old at the time and still remember the tragedy as being the first time the time that I shocked and upset by official incompetence. These were children of about my age.

The Justice Gap


Any regular reader of my blog will know about my worries about Access to Justice for all. For anyone with a similar concern, or who just wants to find out more, this is the place to go.

A strong team of experienced and committed writers keep producing provocative and challenging material. This week, there was an article from Michael Mansfield QC on the case of Tony Stock – A Massive Blot on the Judicial Landscape. Hands up if you nothing about this case. Well you should go to The Justice Gap now. Not only will you learn something, you will want to add your voice to those who want to see this terrible miscarriage of justice overturned.

So there we have it. They are the 5 blogs that I visit almost on a daily basis. There are many others including - and

Reading blogs has certainly overtaken the reading of law books for keeping up to date about what is happening in the world of law and lawyers. They will not replace the classic publications. But they are accessible, readable and up to date – often to the minute!

Wednesday, 15 October 2014

Mr Downton's unfortunate joke and modern freedom of speech

Back in the 1890s Mr Downton decided to play a joke on Mrs Wilkinson. He told her that her husband had been seriously injured in an accident and that she needed to go to him urgently. She suffered psychological damage – no surprise there! Mr Downton’s conduct was found to be outrageous and to be the cause of her harm or distress. Mrs Wilkinson succeeded in her claim for damages because –

  • He had willfully done the act causing injury,
  • There was no doubt that the act would cause distress and
  • He must therefore have intended this outcome.

This all sounds like the interesting basis of a University exam question. But the case of Wilkinson v Downton has been at the heart of a major decision of the Court of Appeal this week. It concerns the publication of a book.

Mr. A has written about his experience of childhood sexual abuse. That is nothing new. Many similar books have appeared in recent years and they have become a important encouragement for victims to come forward. They have also enabled the authors to articulate the horrors of their experience and have contributed greatly to the public understanding of what used to be hidden pain. Surely books like this should be encouraged.

But the spanner in the works is that Mr A’s own son suffers from Aspergers Syndrome, ADHD and other medical conditions. There is expert evidence that if the son was to read the book, it could have a massive effect on his mental health. It seems that Mr A and his ex-wife had agreed that they would try to prevent the son becoming aware of events in their lives which could have a detrimental effect. It was the ex-wife who brought these proceedings for an injunction, to prevent publication.

The issue before the Court of Appeal was whether there was any legal basis to even ask for publication to be blocked. There was no claim in negligence as a parent does not owe a child any duty of care in these circumstances. There was no law to prevent Mr A from publishing private information about himself. The Court of Appeal clearly had major concerns and felt that there should be a full hearing. So Mr Downton’s unfortunate joke came to the rescue.

Arden LJ said that the case of Wilkinson v Downton applied. 

Publication of the book is a deliberate act. It is highly likely to harm Mr A’s son. She described this as an obscure tort, but a tort none the less. So publication has been blocked for now, pending a full hearing.

This case raises an issue of great interest to us all. Where is the line between freedom of speech and the protection from harm? Any restriction on freedom of expression must be a concern. The facts of this case of unusual. But could the principle be used in relation to anybody who is likely to be traumatised by somebody else’s work. All that has been decided so far is that there is a right to ask for an injunction. Publication has been stopped for the time being. The final hearing will be watched across the world.

This case also demonstrates the power of our common law system. We do not have all of our laws written down in one place. Courts can look back at decisions made in the past – however distant – and use the legal thinking in a creative way to seek remedies to modern issues.

For those who are interested the full decision is here –

Tuesday, 23 September 2014

I dreamed last night that Miliband stood up and promised to reverse the devastating Legal Aid cuts!

Now I have to confess that I am a bit of a political anorak and follow every detail of the party conferences. 

But the Labour Party gathering this week has been of particular interest. They could well form the next government and so those of us who care about justice have hung on to every word. Although to be honest there haven’t been too many.

Last year I described Access to Justice for those in need, as a waste land –

It has got far worse since then. Agencies across the country are closing or turning away desperate clients because they simply do not have the resources to do anything. So what will the future hold if Ed and Co win a majority in 2015? Not much I’m afraid.

At a fringe event today, Andy Slaughter, a shadow justice minister was giving away very little. The Gazette’s John Hyde tweeted that said that  Labour was not like the Tardis and would not reverse every cut –

Just a few reversals would be like an oasis in the desert.

I watched the whole of Ed Miliband’s speech this afternoon. At one point he used a phrase to sum up how people have been treated by the present government – ‘They’ve been told – you’re on your own’. He repeated the phrase 5 times, applying it to hard working people, young people, small businesses, the vulnerable, those with access to politics. I started to get excited that he might extend the list further but that was as far as it went.

So if you are a victim of domestic violence, if you have been wrongly told that you are fit for work, if your benefits have been wrongly sanctioned, if you are weighed down with debt – then you are still being told – ‘you’re on your own.’

The same thing applies in relation to tribunal fees. The introduction of these charges was intended to reduce the number of cases for unfair dismissal etc being brought. In fact it has decimated employment rights across the board. It is estimated that the drop off in claims is as high as 80%. Don’t try and tell me that they were all bogus. This has been a shameful attack on workers’ rights. Shadow Business Secretary, Chuka Umunna spoke generally about reforming the system. But he has said nothing about abolishing fees. We heard the same rhetoric in a speech to the TUC earlier this month –

He talked about openness, rights and justice but very little about how you might gain access to that justice if you don’t have the resources to pay for it. 

There were reassuring comments from Shadow Justice Secretary, Sadiq Khan about the Human Rights Act and Judicial Review. So you still have to say that a Labour Government would be less damaging than what we have now.

That is hardly a ringing endorsement for the party that I have supported all my life!

It will be interesting to see if these agenda develop over the next 6 months.

Friday, 5 September 2014

Justice for All - no walk in the park

On 25th September 2014 there will be a strange and scary site in the city of Liverpool as a few hundred lawyers and judges take to the streets!

However we will not be protesting (much), and we certainly will not be looking for ambulances to chase. This is in fact the day of the 2014 Liverpool Legal Walk. Never in all of my 30 odd years in the law has there been a greater need for free legal advice and help for those in need.

I once described Access to Justice in this country as a Waste Land. That, if anything, was an understatement.

Legal Aid was virtually wiped out in 2013. This particularly affected those who could least afford to pay for legal advice. Advice agencies and the courts are struggling to meet the demand.

In the meantime there lawyers and other advisers, across the country who are doing their best to give what help they can. This includes Citizens Advice Bureaux, Law Centres and even Legal Clinics at Universities manned by students. Most of these agencies are having to turn many deserving clients away as they simply do not have the resources.

One of the first blogs that I ever posted concerned the dismantling of justice for ordinary people –

The situation now is far worse.

This is a shocking indictment on our society. There is no point in having a justice system if it is only available to the wealthy. There is no point in ordinary people having rights if they cannot do anything about it. I could rant on all day. It might, one day, make a difference.

In the meantime what I can do is drag myself around the city and try and raise some much needed support for these beleaguered agencies.

So I make no apology for using this blog to ask readers to click the link below and make a donation!

Wednesday, 20 August 2014

The Bitter Sweet Story of a massive damages award

It is almost 15 years to the day since I settled what was at that time, the biggest case that I had ever handled.

John – not his real name – was born in good health. He then developed jaundice, which is not uncommon in young babies. In severe cases treatment is necessary either by phototherapy, using lights, or a full blood transfusion. So long as the condition is treated promptly there are rarely any major problems. John was born over a holiday period. The hospital staff, with the best of intentions, wanted to get the new young family home. He was discharged without being checked by a paediatrician. This was a catastrophic decision.

His condition deteriorated. By the time he was admitted to a local children’s’ hospital it was too late. He had suffered major and permanent brain damage.

This is a very oversimplified account of the medical issues but the outcome was that he had no use of his limbs, no speech and would need care from his family for the rest of his life. However, he was otherwise, as bright as the rest of us – if not more so.

Liability was disputed at first. However it seemed such a blatant case that, for the only time in my life, I applied to the High Court for summary judgment. This is a quick procedure to bring cases to a conclusion where there is no realistic argument. Surprisingly the NHS agreed and the case eventually settled for just under £2.5m which back then was a sizeable award.

There are still those who criticise victims and families for pursuing compensation claims for medical blunders. They are accused of draining the NHS and depriving other patients of the care they need. Others think of awards like this as if they were lottery wins. This could not be further from the truth. Compensation is needed to provide for the care and support necessary to give the victim a reasonable quality of life.

The reason I mention this story is that I am still in touch with the family. I have had a limited role over the years, assisting with occasional matters arising from the various trusts. So I have been able to see how the award has worked for John and his family. I met his mum recently. She told me that he has managed to get a University Degree. She said that he is now planning on working abroad for a year. Despite massive obstacles he is working toward a successful career. Now this is a tribute to John’s own determination and intelligence alongside the support from his family. But it is also a result of what has been achieved by a fair award of compensation for his injury which has provided the framework for him to develop.

We all wish that tragedies like this did not happen.

But those who go on and on about a compensation culture should, now and then, consider the real lives behind the stories.

Wednesday, 13 August 2014

Are we in a Post Legal Aid world?

I remember getting hot under the collar last year when I heard someone in the voluntary sector say that we were now in a ‘post welfare’ state. He was saying that we can no longer assume that the state will provide for those in greatest need and the burden will fall on charitable organisations. I disagreed with him but am beginning to wonder whether he has a point, certainly as far as legal services are concerned.

Should we now talk about a post legal aid world? That is almost certainly the case as far as civil and family work is concerned. It is now almost impossible to get legal aid for any claim involving damages. The last surviving area of work – Clinical Negligence - was removed last year, apart from a very narrow group of those who suffer a brain injury at or very shortly after birth. For most other work it has gone. 

The situation is worse for those in private family disputes. This problem has been highlighted by the President of the Family Division, Sir James Munby. In a recent decision he has said that there are cases where it is simply essential for there to be legal or representation or expert evidence. In a case involving the need for an interpreter and legal assistance he has said that the Court Service could be required to pick up the bill in the absence of legal aid –

"HMCTS will also have to pay the cost of providing the father with an interpreter in court. If the father is still unable to obtain representation, I will have to consider whether the cost of that should also be borne by HMCTS. That, however, is a matter for a future day."

This could leave us in the bizarre situation where the government refuses assistance via legal aid but ends up paying the cost anyway through the courts. This certainly makes it clear, beyond doubt that the need had not gone away. When the most senior Family Judge is making comments like this, no further comment is needed. But this would surely only ever happen in a small number of extreme cases.

The devastating cuts to legal aid funding are indefensible. But nobody expects it to be re-instated. I have not heard anything from the opposition to suggest any change at all.

So should we now be looking towards a new world?

Will we see a new generation of free legal advice centres, funded by charities, philanthropists, churches etc? I will argue to the death that it is the job of the state to ensure that everyone has access to justice regardless of means. This is sound politics. But in the meantime I suspect that the world has changed for good. So do we now need to look at other alternatives to ensure that people get the help that they need?