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Thursday, 13 January 2022

Politician accuses lawyers of 'self-interest' - seriously?

I have never met a lawyer whose motivation came anywhere near self-interest.

It hasn’t taken long for the New Year to usher in the familiar attacks on lawyers from politicians. This is the recent assertion from former Health Secretary, Jeremy Hunt, that lawyers who represent victims of medical negligence are obstructing proposed reforms of the system. And that they are doing this out of ‘self-interest.’ I ran clinical negligence cases for 25 years. I have trained firms in the work and provided consultancy support for the last 5 years. I have lost count of the number of cases that I have managed, supervised of helped with. In all this time I have never met a lawyer whose motivation came anywhere near self-interest.

https://www.lawgazette.co.uk/news/self-interest-of-lawyers-is-blocking-clin-neg-reform-mps-hear/5111104.article

Not only do claimant lawyers want to achieve the best possible outcome for innocent victims, but they are also under a professional duty to do so. Mr. Hunt is referring to a possible no-fault scheme that was mooted in 2021. The proposals are set against the background of other proposed changes which would remove the right of victims to private medical care, a right enjoyed by all victims of injury caused by negligence. I discussed this last year and noted –

“In other words, why should an innocent victim of negligence have to rely on treatment from the state, particularly when the need for that treatment is caused by the state itself? That injustice becomes even greater in cases of clinical negligence. This would lead to the unacceptable situation where victims of NHS negligence would be in a worse position than any other injured person.

https://thestevecornforthblog.blogspot.com/2021/07/re-thnking-clinical-negligence-again.html

There are genuine and fundamental flaws in the proposed ‘reforms’. When the basis of change is costs, you can be sure that the end result will be reduced levels of damages, which are already calculated by reference to a victims’ basic needs for care, often for life. APIL’s Guy Foster explains –

‘Either that is going to cause an astronomical cost that would not be sustainable for the system, or we would have to look at tariffs or tokenistic types of damages which would not be responsive to the needs of injured patients,’

One proposal mooted in the past has been to review the way in which loss of earnings are calculated, so a victim who may never work again receives compensation based on the national average earnings rather than their real earnings. This overlooks the real world in which a person’s mortgage and other living expenses are not based on any ‘national average’.

https://thestevecornforthblog.blogspot.com/2017/06/medical-negligence-striking-massive.html

Lawyers fees are earned

Mr. Hunt uses a familiar tactic of suggesting that much of the money spent by the NHS in clinical negligence cases goes to the lawyers. This overlooks the obvious point that the lawyers’ fees must be earned. They are only paid for the work they do. Securing adequate compensation for a person who suffers a catastrophic injury involves a huge amount of work and can take many years. A lawyer acting for a victim might ultimately receive a large payment from the NHS but it can sometimes take 5 years or more to be resolved, especially where cases are defended until late in the day. In the meantime, the lawyers have incurred the time and cost of running the case.

What sits behind the attacks?

But I think we need, as ever to look at what sits behind attacks on lawyers by politicians on lawyers. The main targets are the victims. They are the ones who need realistic as opposed to ‘tokensistic’ damages. They are the ones who will see levels of compensation reduced.  But it is those victims who will treated differently from those injured at work, in a serious motor accident or in a public place. And for no other reason than that their case is more costly to prove.

It is more palatable to blame those who fight for the victims.

Wednesday, 29 September 2021

You'll find us all - doin' the London Walk

 




The walk is important to all of us who are concerned to ensure that nobody is excluded from legal help because they cannot afford it. 

On the 18th October 2021 I am doing the London Legal Walk for the first time! 

In one sense, it has been a long time coming. In 2021, I was a guest at the Westminster and Holborn Law Society Dinner and sat near Bob Nightingale from the London Legal Support Trust. He spent the evening persuading me of the need for a Legal Walk in Liverpool. This year we completed Liverpool Legal Walk number 10. Ever since that time, I have promised myself that I would one day do the London Walk.

This will be the third leg of what I have called my Justice Tour 2021. I have recently done Liverpool and Carlisle. Some may question whether three dates amounts to a tour, but with my aging legs it is plenty. And the London Walk is an event that is not to be missed. As we speak, there are 500 teams that have signed up. That means several thousand walkers who will take one of three different 10k routes around the capital in support of Access to Justice. The walk is important to all of us who are concerned to ensure that nobody is excluded from legal help because they cannot afford it. Lead walkers this year include –

The Lord Chief Justice

The President of the Supreme Court

The Master of the Rolls

The President of the Rolls

Judge Rinder!!

I recently posted a blog about why we are all doing this –

https://thestevecornforthblog.blogspot.com/2021/09/the-justice-tour-2021-and-access-to.html

Lawyers will be turning out in huge numbers to support Law Centres and other agencies who advise and represent those in need. That need has never been greater.

In this short video the Lord Chief Justice, Lord Burnett tells us why he supports the walks  

https://youtu.be/4al2AHyCy0k

The desperate need for legal help was brought home this week in in a report from the Law Society, that millions are deprived of lawyers as ‘vast legal aid deserts’ were revealed –

https://www.lawgazette.co.uk/news/millions-deprived-of-lawyer-as-vast-legal-aid-deserts-revealed/5109924.article#.YVJID7u23js

We can all do our bit. You can sign up for this or another of the many walks around the country. You can even join my London Walk Team if you like. I am currently a team of one!!

Or you can support one the other 499 teams (!) by visiting their giving page. Here’s mine…

https://uk.virginmoneygiving.com/JusticeTour2021







 

Thursday, 16 September 2021

Another year another new Lord Chancellor

 


We have yet another new Secretary of State for Justice/Lord Chancellor. I think this is the fifth in five years. That puts this position on a par with Teachers of Defence Against the Dark Arts in Harry Potter who had a similar turnover. Any similarity is entirely down to your imagination…

In the past the question has been … who are they?

Dominic Raab poses no such problem. As the reluctant, outgoing foreign secretary he needs no introduction to most. One thing in his favour is that he does have legal experience unlike some of his predecessors. Although, the BBC’s Laura Kuenssberg was possibly a little over enthusiastic when she tweeted that he was a “senior lawyer” –


In fact, he was a trainee solicitor at City firm Linklaters where he qualified in 2000, leaving shortly afterwards. He then worked as a lawyer in the Foreign Office until he began working for David Davis in 2006. ‘Worked briefly as a lawyer’ is probably a more accurate statement.

This has not stopped him from expressing alarmingly negative views about the Human Rights Act 1998 –

https://fb.watch/82Z7z9vxQ8/

As Justice Secretary, he will have a big role to play in the Review of the Act. The purpose of the review is as follows -  

“The Government’s Independent Human Rights Act Review Panel was appointed in January 2021 following the Government’s manifesto commitment to “update the Human Rights Act and administrative law to ensure that there is a proper balance between the rights of individuals, our vital national security and effective government.”

I think we can all see where this will end up. 

He won’t find this an easy task. I have written about this before. He will certainly need to read up on his history and the role of the European Convention on Human Rights, that was largely drafted by UK lawyers – presumably senior ones!

https://thestevecornforthblog.blogspot.com/2019/01/european-court-of-human-rights-and.html

I think that there is no doubt that he will give it a go and us pesky, do-gooder, lefty, activist, lawyers should prepare ourselves for a bumpy ride.

He may have had a short-lived career as a solicitor but should still be aware of the oath that he must swear as Lord Chancellor –

I, [NAME], do swear that in the office of Lord High Chancellor of Great Britain I will respect the rule of law, defend the independence of the judiciary and discharge my duty to ensure the provision of resources for the efficient and effective support of the courts for which I am responsible.

Shortly after his appointment he tweeted –

Not a mention of the serious responsibilities of being Lord Chancellor.

I may be wrong but this could herald a challenging time ahead…





Sunday, 5 September 2021

The Justice Tour 2021 and Access to Justice...again!


We are, once again coming into the Legal Walks season! 

Across the country solicitors, barristers, judges and anyone with a concern for Access to Justice will be seen in cities and towns across the country to raise funds and to highlight the work done by those agencies that provide free legal help to those in need.

Liverpool will be marking its 10th walk. Why do we do it? It is over 40 years since I started work at the Vauxhall Law Centre in Liverpool. The centre is still going strong. Back in day we were able to bring many cases with the benefit of legal aid. This included the notable case of Liverpool City  Council v Irwin which helped to establish the liability of landlords for common areas in rented premises such as lifts and stairways. In the late 1970s this was known as the Piggeries case!


Cases like this would be more challenging today following the cuts in legal aid from 2013.

But the need has not gone away.

Vauxhall, and other centres across the country still work alongside the most vulnerable members of society – with or without legal aid. This is demonstrated by the recent comment on Twitter about a client who was grateful for the centre’s help with a PIP form.


The work is now dependent on fundraising. This is why lawyers will be hitting the streets in September and October. This was why Liverpool Law Society in 2012 decided to launch an annual walk, in anticipation of the cuts which were imminent. This followed the work already done in Manchester, London and many other cities. Lawyers are indeed walking for justice –


I have sounded a bit like a broken record for many years, but there is no point in having a system of justice, if ordinary people cannot get access to that system for lack of funds.

To mark the 10th Liverpool Walk, I am doing a Justice Tour this year. I am walking in Liverpool on 21st September, Carlisle on 27th September and London on 18th October. You can donate to the tour on this link –

https://uk.virginmoneygiving.com/JusticeTour2021

But there are many others also raising funds. You can support any of the walkers – the money all goes to meet the same need!

http://www.nwlst.org.uk/liverpool-legal-walk.html

http://www.nwlst.org.uk/carlisle-legal-walk.html

https://londonlegalsupporttrust.org.uk/our-events/london-legal-walk-2021/

In fact most of us can find a walk within walking distance, so to speak!

https://atjf.org.uk/legal-walks

You can also get your walking shoes out and join in. The walks are open to anyone who cares justice.

Hope to see you on my tour!!








Monday, 2 August 2021

Fitness for Human Habitation Act - without Legal Aid what is the point?

 

 I have spent much of my time this year, training solicitors and experts about Tenants’ Rights in relation to Housing Conditions. This has been driven, in part by the recent ‘reforms’ of road traffic claims that will see a huge reduction in the number of such cases. Many firms are looking to diversify. Another factor has been the arrival of the Homes (Fitness for Human Habitation) Act 2018. This Act, and the new covenants that it brings, does have the potential to change everything. The purpose of this article is to highlight the extent to which such change will be limited by the restricted availability of legal aid.

In all of my training sessions, I refer to the well-known House of Lords case of Liverpool City Council v Irwin [1977] AC 239 which was a ground-breaking case about landlords’ responsibilities in relation to common parts such as stairways, lifts etc. As an incorrigible name dropper, I will always mention that the Vauxhall Law Centre acted for the tenants of what were known locally as ‘The Piggeries’. I was the solicitor at the Law Centre in the early 1980s, so it was a bit before my time! My involvement was limited to tying up some loose ends in relation to the legal aid bill! I mention this case here because it was cutting-edge and made possible because legal aid funding was available. 

What has this got to do with the 2018 Act? 

Let’s think about properties affected by condensation. When the rights of tenants were limited to ‘repairs’ under s11 Landlord and Tenant Act 1985, many cases failed because there was moisture and dampness caused by condensation. It was often hard to identify a ‘repair’ that was needed. The 2018 Act could bring in dramatic changes to this. The Act amends the 1985 Act by introducing a new s9A which introduces implied covenants by the lessor that the dwelling – 

(a)is fit for human habitation at the time the lease is granted or otherwise created or, if later, at the beginning of the term of the lease, and

(b)will remain fit for human habitation during the term of the lease.

A new s10 looks at matters that should be considered. These includes – ‘freedom from damp’. The section also refers to ‘prescribed hazards’. These 29 hazards from the Housing Health and Safety Rating System (HHSRS) include damp and mould growth. Earlier cases on the meaning of ‘fitness’ include health and safety as a major factor. So, there is potential for tenants now to bring claims in relation to mould even where there is no actual disrepair. 

What is often argued by landlords’ experts is that condensation is caused by tenants’ lifestyle. So, they should open all their windows to maintain airflow. This is said to be part of their duty act in a ‘tenant-like’ manner. What about those who live on the 15th floor of a tower block in December? Would I open all my windows in that situation? What about fuel poverty? Is a tenant who cannot afford to the inevitable extra heating costs, acting unreasonably? 

We are not going to answer these questions here. What we need are cases to be litigated so that we can test the arguments and develop/clarify the law. This is what happened in Liverpool City Council v Irwin and many similar cases. 

The problem of course, is funding. The unfortunate residents of The Piggeries had legal aid. Legal Aid funding is now very limited in housing conditions cases. You might get help, in extreme cases, to force the landlord to do urgent work. But that is about it.  Almost all firms that I have spoken to over the last few years have to act on a CFA. After the Event Insurance is essential because there is no QOCS protection in most cases. 

This raises all sorts of problems – 

1. Do the prospects of success mean that the firm can take the risk?, 

2. Will there be sufficient funds to meet the cost of the irrecoverable ATE policy?,

3. What about rent arrears that can wipe out most if not all of any damages?

How many firms are going to be in a position to run the cutting-edge cases to the Court of Appeal on a CFA? How many ATE insurers will back them? Law Centre’s were often the pioneers in the past, but there is no way that they can be expected to carry the burden. How many tenants are able to fund cases?

All of which is very frustrating.

We have a new and exciting Act which could indeed change everything. But it will be meaningless if tenants are unable to bring cases. 

If we want the Fitness for Human Habitation provisions to bring about real change then tenants must have access to the means of enforcing them. There is little point in having radical new legal rights, if there is no access to the enforcement of these rights. 

This can only be achieved by way of a properly funded legal aid system. 



Monday, 19 July 2021

Re-thinking Clinical Negligence again - Part 2 NHS or Private Care? (and a short history lesson)

 



This is the second blog post in relation to the recent report by the commons committee – the Safety of Maternity Services in England –

https://publications.parliament.uk/pa/cm5802/cmselect/cmhealth/19/1902.htm

My previous post looked at the problem of separating Clinical Negligence from other types of negligence claim, and the so called ‘blame culture’.

Today I am looking at proposals to change the basis on which compensation is calculated. The report rightly notes that financial compensation is not always the only or primary reason for pursuing litigation. From the many cases that I handled in practice, it was clear that many victims and families are looking for explanations, answers to questions and an apology. One common outcome which many were seeking is unachievable in a negligence claim - the knowledge that ‘this person’ will never practice medicine again'. But while all this is true, it is also misleading, to think of damages as no more than a ‘payout’ – a word commonly used in the tabloid press. Seriously injured people need care, often for life. A suitable award of compensation is essential to meet these needs. This is a topic that I have touched on before –

 https://thestevecornforthblog.blogspot.com/2019/06/medical-negligence-lets-talk-about.html

“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.

Which brings me to a familiar proposal in this report –

“100. At present compensation is calculated on the cost of providing private healthcare even when care is provided by the NHS. This is based on legislation that predates the NHS.”

To avoid confusion, if a victim actually does receive treatment on the NHS, they cannot then claim a sum of money based on a fiction that they received private treatment. I think the report is actually referring to treatment being available on the NHS. The proposal is that there should no longer be a right to claim the cost of private medical care; that victims should be required to use the NHS.

A person’s entitlement to claim the cost of private medical care and treatment is not limited to clinical negligence cases. This right is as old as the NHS itself – it does not predate it as the report suggests. It is worth briefly revisiting the history of the legislation.  Interestingly, the Beveridge Report itself looked at this issue. A possible requirement for an injured person to rely on the NHS was rejected by the Monkton Committee for two reasons –

1.       It would lead to courts having to make a choice between the relative merits of the state and other services,

2.       It would be inconsistent with the liberty of the individual if a person was barred from choosing the type of care they received.

This led to s 2 (4) of the Law Reform (Personal Injuries) Act 1948 –

In an action for damages for personal injuries (including any such action arising out of a contract), there shall be disregarded, in determining the reasonableness of any expenses, the possibility of avoiding those expenses or part of them by taking advantage of facilities available under the National Health Service Act 2006 or the National Health Service (Wales) Act 2006 ] or the National Health Service (Scotland) Act 1978], or of any corresponding facilities in Northern Ireland.

For further reading on this, there is an excellent law commission report from 2015 here - 

http://www.lawcom.gov.uk/app/uploads/2015/03/cp144_Damages_Personal_Injury_Medical_Nursing_Consultation.pdf

In other words, why should an innocent victim of negligence have to rely on treatment from the state, particularly when the need for that treatment is caused by the state itself? That injustice becomes even greater in cases of clinical negligence. This would lead to the unacceptable situation where victims of NHS negligence would be in a worse position than any other injured person.

It is also false economics. The treatment is still being provided. It is not going way. It just becomes a hidden cost as services are diverted.

This again demonstrates the risk in isolating one particular area of negligence for special treatment in order to save costs.

Finally, and a brief aside, it is worth noting that the number and the cost of clinical negligence claims being resolved without litigation has reached a record high –

https://www.legalfutures.co.uk/latest-news/more-nhs-claims-settling-without-proceedings-as-costs-payouts-fall

In my next post we will look at the basis for calculating loss of earnings.

Monday, 12 July 2021

Re-thinking Clinical Negligence - again Part 1

If your taxi driver is negligent and you are injured, you expect to be compensated. If a surgeon is negligent and your child is damaged for life, you are part of a blame culture.

This is the first of a few posts on the recent Commons Committee report – The Safety of Maternity Services in England –

https://publications.parliament.uk/pa/cm5802/cmselect/cmhealth/19/1902.htm

The report includes a section headed – Rethinking the current approach to clinical negligence.

I have to confess to feeling an instinctive sense of unease when politicians talk about ‘rethinking’ or ‘reform’. It rarely ends well.

The report starts out by referring to cost – “Staggeringly, the £1bn paid out in maternity compensation in 2018/19 was nearly twice the wage bill for all of England’s obstetricians and gynaecologists combined”. This is indeed an alarming figure. But we cannot lose sight of the incidents which are leading to these payments. They will not go away just because the system is changed. The report subtly shifts responsibility to claimant lawyers and to victims themselves – “Even more concerning is how much of this rising bill goes on lawyers’ fees” In fairness the report acknowledges the need to learn from mistakes, but the body of the report is not encouraging. In particular we meet a familiar villain – ‘blame culture’.

The report talks of ending this culture. It discusses the problems of ‘compensation based on finding fault.’ This is based on the false assumption that damages claims that arise from negligence in a clinical setting are somehow different  from those arising in other contexts. The law of Tort in this country has developed over many years. The law of Negligence has developed within this. As long ago as the 1930s there was a classic legal case, familiar to all first year law students involving a snail in a bottle of ginger beer. Lord Atkin gave us a quote that has underpinned negligence claims –

‘The rule that you are to love your neighbour becomes in law you must not injure your neighbour; and the lawyer's question " Who is my neighbour ?" receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour’*

In other words, if you owe me a duty to take care, if you fail in that duty and I am injured as a result, you (or your insurer) must pay me compensation. This has become such an accepted part of our world that we rarely think about it.  If your accountant is negligent and you lose money you expect to be compensated. If your lawyer is negligent and you lose money you expect to be compensated. If your taxi driver is negligent and you are injured, you expect to be compensated. If a surgeon is negligent and your child is damaged for life, you are part of a blame culture. This is the danger of focussing on one are of life and treating it differently from others, for political reasons.

The report mentions a ‘new’ approach based on what is avoidable and refers to the experience in Sweden.

This risks setting aside decades of jurisprudence for the sake of political acceptability. The current system of clinical negligence, developed by judges over many decades has given us a strong foundation that has been capable of adapting to change. Two examples come to mind –

            1. Informed consent. A medical practitioner can only interfere with my body if I consent. In order to give that consent, I must be properly informed. I must know the risks and benefits. For many years, the medical profession decided what information I should be given. In a case called Siddaway v Board of Governors of Bethlem Hospital **, Lord Diplock said – “To decide what risks the existence of which a patient should be voluntarily warned and the terms in which such warning, if any, should be given, having regard to the effect that the warning may have, is as much an exercise of professional skill and judgment as any other part of the doctor’s comprehensive duty of care to the individual patient, and expert medical evidence on this matter should be treated in just the same way.” By 2015 society had changed. In Montgomery v Lanarkshire Health Board*** the Supreme Court confirmed this in a strongly worded judgment. This was a case about risks and benefits of caesarean section delivery in the case of a mum with diabetes who had a large baby. There was a risk of shoulder dystocia which can be catastrophic. The treating doctor explained why she had not discussed the matter - “since I felt the risk of her baby having a significant enough shoulder dystocia to cause even a nerve palsy or severe hypoxic damage to the baby was low I didn’t raise it with her, and had I raised it with her then yes, she would have no doubt requested a caesarean section, as would any diabetic today.” The lower courts were bound to follow the Siddaway principle. The Supreme Court took the opportunity to bring the law into the 21st Century – “A patient is entitled to take into account her own values, her own assessment of the comparative merits of giving birth in the “natural” and traditional way and of giving birth by caesarean section, whatever medical opinion may say, alongside the medical evaluation of the risks to herself and her baby. Gone are the days when it was thought that, on becoming pregnant, a woman lost, not only her capacity, but also her right to act as a genuinely autonomous human being” – Lady Hale. This is an example of how our common law has been able to adapt in order to reflect modern thinking.

            2. Damages. In 2002 Patricia Briody brought an action against St Helens and Knowsley Health Authority**** having lost her fertility due to their negligence. She wanted to recover the cost of a commercial surrogacy arrangement in the USA and to use donor eggs. That part of her claim failed. A commercial surrogacy arrangement was illegal in this country. In 2021 the Supreme Court allowed similar arrangements. Society had moved on. The arrangement was perfectly legal in California. Lady Hale observed that the persuasiveness of Briody had been mitigated by - subsequent developments in the law and social attitudes relating to surrogacy’*****

             

These are examples of the way in which our law of negligence has grown and developed in a way that properly compensates victims and has reflected changes in and value of society. It is a backwards step, to take clinical negligence away from that whole body of law and introduce a entirely new concept of avoidability. That would also leave us in the strange situation where some jurisprudence applicable to clinical cases could apply if you were suing your financial adviser but not if you were suing your doctor.

 

It is healthy to learn from the experience of other countries. But they have their own history from which their approach has developed.  There is room for improvement. But we have a long and detailed history that cannot be cast aside just by calling it a blame culture.

 

I will discuss this in later posts. The report also includes worrying comments on how damages for care and for loss of earnings are calculated. Watch this space.

 

*Donohue v Stevenson [1932] AC 562

** Siddaway v Board of Governors of Bethlem Hospital [1985] AC 871

*** Montgomery v Lanarkshire Health Board [2015] UKSC 11

**** Briody v St Helens and Knowsley Health Authority [2001] EWCA Civ 1010

**** XX v Whittington [2020 UKSC 14