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Wednesday, 19 December 2012

Hillsborough - the real truth gets closer

In September we came a step nearer to achieving justice for the victims of the 1989 Hillsborough Disaster. This followed the report of the Hillsborough Independent Panel chaired by the Bishop of Liverpool –

This report was always going to be the start of a long process which will eventually lead us to the truth about why 96 football fans died on 15th April 1989.

One of the biggest question marks from the original investigations related to the coroner’s inquest which found that none of the victims had survived after 3.15 pm. This finding had a huge influence on all that followed. It was a finding that was always disputed by the families and by many independent observers. It was a finding that was finally discredited by publication of the report.

I can still remember my jaw dropping as I heard the panel’s medical adviser say that 58 fans could well have survived after 3.15. This undermined the inquest findings and all other decisions that flowed from it.

Today in London the High Court, following an application by the Attorney General, has quashed the original inquests. Fresh hearings will now follow. The Lord Chief Justice specifically referred to - "deliberate misinformation surrounding the disaster".

This has been one of the worst and most damaging cover ups that I can recall; damaging to the emergency services, damaging to our justice system and damaging to the families who have had to fight for over 23 years for the truth. Those families have often been criticized in the media and have fought against all the odds. The judge paid a particular tribute to their fight saying he wished to record - "our admiration and respect for their determined search for the truth about the disaster and why and how it had occurred, which - despite disappointments and setbacks - has continued for nearly quarter of a century."

It is encouraging that the Home Secretary has also announced a new inquiry into the disaster and has talked openly about securing ‘justice for the 96 football fans.’

The truth has been a long time coming. And there is still much to do. But hopefully we have now moved a significant step nearer.

Tuesday, 18 December 2012

Judges v Ministers

There is trouble brewing between our most Senior Judges and the government. On the face of it the decision over who can appoint the Chief Executive of the Supreme Court is not that exciting. But it raises an extremely important issue over our constitution.

Traditionally the right to make this appointment has been with the Lord Chancellor who is also the Minister of Justice. In days gone by, the Lord Chancellor had a judicial role. It is now very much a political role; the current incumbent is Chris Grayling who is not even a lawyer. The Supreme Court is the final court of appeal in this country. Its judges are our most senior and its decisions are, by their nature, of great social importance.  

The Supreme Court judges argue that the appointment of the Chief Executive should be in their hands and not those of a politician.  It is a role which controls the finding of the court and should therefore be independent of any political influence or control.

The Supreme Court must always be independent of government. It will often be called upon to make decisions about how governments have acted. Politicians have never been slow to vent their disagreement with the courts. Indeed such has been the political displeasure of certain Human Rights Cases that there have been threats to abolish the very act which gives us all the right to enforce them –

I remember the former Home Secretary  David Blunkett once saying that he 'begged to differ' with the views of the courts. That is fine. Politicians can differ as much as they like. But the problems begin when they can excercise control over the judiciary.

This is why it is so important that there is a complete separation between the Courts and the Executive. If the person running our highest court is answerable to a politician it is not difficult to see the potential for a conflict. As Lord Pannick says in the guardian article quoted –

"The existing appointment provision [has] led more than once to confusion in parts of the government machine that the chief executive should in some sense be acting at the behest of ministers."

An independent judicial system has always been at the heart of our democracy. That is why this apparently dull argument over who has the power to give someone a job is so important and could ultimately affect all of us.

Thursday, 13 December 2012

Twitter trial on the cards?

We seem to be heading for a high profile court action over a tweet.

This concerns the action taken by Lord McAlpine over a tweet from Sally Bercow which, he alleges, associated him with claims of sexual abuse.

She is a well known user of twitter with over 56,000 followers and is married to John Bercow, the speaker of the House of Commons. She denies that her tweet - "Why is Lord McAlpine trending? *innocent face*" amounts to defamation.

Neither side is showing any sign of backing down so we could see a full blown trial some time next year. 

I have said before that a comment made via a social media site can be as damaging as anything published in the press or on TV. If 56,000 people retweet to just a 100 followers each, then we are talking big numbers. 

A person who tweets before they think can expose themselves to expensive legal proceedings –

Whether Sally Bercow’s words are in fact defamatory is for a court to decide and I would not presume to predict what the outcome will be.

But what is clear is that the litigation was avoidable. She did not have to post the comment. This is a clear danger of social networking. We have all become social commentators. That can only be a good thing for democracy and anything which widens free speech must be encouraged. But if we are going to become the new media we must be subject to the same legal rules. And if we defame someone then we can be sued or prosecuted.

Is it really worth the 140 characters to find ourselves dragged into court; whether rightly or wrongly?

Maybe sites like twitter need to have a safety net system so before you tweet it asks you if you seriously considered the possible consequences!

Wednesday, 12 December 2012

Would we miss whiplash??

Claims for whiplash injuries following Road Traffic Accidents have been controversial for a couple of years. Whilst the insurance industry has attacked personal injury claims in general they have pulled out all of the stops as far as whiplash cases go.

Following intense lobbying from insurers the government yesterday published its long awaited consultation paper. The Ministry of Justice says that the purpose of the process is to make it easier for insurers to challenge ‘fraudulent and exaggerated’ claims. This is a worrying statement. The Motor Accidents Solicitors Society (MASS) says that the Insurers themselves acknowledge that only 7% of all motor insurance claims are fraudulent –

So we have a proposal to dramatically change the system for pursuing motor claims generally. Those changes will make it hugely more difficult for the 93% i.e. the overwhelming majority, to pursue their cases. Fraudulent claims are a problem and they should be eliminated but this seems to attack all claimants; which is clearly disproportionate. It seems to be part of a deliberate plan to make all victims feel that they are the ones at fault and are fraudsters just because they have been injured through no fault of their own.

The consultation itself has two main proposals. The first is to increase the small claims limit for whiplash or, more likely, all RTA claims to £5,000. The effect of this is that no legal costs will be recoverable. So there will either be a big increase in litigants acting without legal advice, or people will be deterred from claiming. For most people £5000 is a lot of money and cases of that value can require expensive medical evidence. Although the ministry talks of preserving access to justice, the proposals will have the opposite effect.

The second, more controversial, suggestion is that there will be a panel of medical experts and only they will be permitted to prepare reports in whiplash cases. This is extremely dangerous and will inevitably lead to satellite litigation. Who will be eligible to be on the panel? Will an expert be removed if he is not sufficiently hostile to whiplash claims? Why should the evidence of one independent medical expert be safer than another? We already have a robust system for vetting medical evidence. If insurers are concerned they obtain their own evidence. The claimant’s expert can be questioned about his/her opinion.

In fact one of the biggest problems with the current system is that insurers try to settle claims directly with victims before they get to lawyers, and do so without any medical evidence at all!

The government needs to ask itself whether these proposals will protect the public and maintain justice or simply enable wealthy insurance companies to make bigger profits.We are told that these claims are the cause of high motor premiums. I have yet to meet a single person who expects that insurers will give them a rebate from any savings..

Tuesday, 11 December 2012

A Year in the Life of El Presidente!!

My year as President of Liverpool Law Society has ended today! 
It is the season for Reviews of the Year. So here is the speech I gave to the AGM.

'Can I start by saying how proud I am, to have been president for the past year? My Association with Liverpool Law Society goes back to 1980 when I first qualified. I worked at the Vauxhall Law Centre for three years and was employed by Liverpool Law Society. That fact alone must give a unique place in the society’s history. It also demonstrates the Society’s long commitment to Access to Justice for ordinary people.

This has been a very busy year but also one of transition. We have seen the seeds planted for major changes across the profession most of which will have their full impact during my successor’s year. So good luck with that one Vice President.

But firstly let me report on what I have been up to. I have done 18 formal dinners. You don’t want to think about how many Crème Brûlées that is. I have been to Belfast, Dublin, London and Leeds. In the latter case I have to report that I temporality lost the jewel which was not a pleasant experience in a multi storey car park at midnight. Thankfully it was in the lining of my jacket. 

I have done about seven valedictions - speeches in court to retiring judges -  which have been a great experience. The most memorable was the one for HHJ Adrian Lyon which was presided over by Leveson LJ. I was quite proud to tweet that I had just appeared before Leveson.

I have chaired numerous meetings including our HR, IT and Training Forums which have been excellent opportunity for those involved in these important support roles to network and discuss issues of common concern. I have also chaired two meetings with local MPs and two with our local councillors. These meeting were bound to be dominated by the Legal Aid, Sentencing and Punishment of Offenders Act – affectionately known as LASPO. All of those that we met were sympathetic to the case we made against removal of legal aid and it was a disappointment that most of the bill got through without amendment despite its mauling in the House of Lords. But we have built up strong relationships with those elected representatives which can only serve us well in the future. It was encouraging that we had MPs from the two major parties last time we met and it almost the fulfilment of a life’s ambition when I had to call them to order in the style of the speaker.

Here are some of the key events of the year –

  • In April we had a successful spring Lunch at the Liver Building. This was well attended and the, then, Law Society President John Wotton gave an address and also faced some robust questions about the Law Society’s Legal Aid Campaign,
  • The Local Law Societies’ Conference was hosted by Nottingham Law Society and I attended along with the Treasurer and Sarah Poblete.
  • In May we hosted the tripartite event with our friends from Dublin and Belfast. They particularly enjoyed the treasure hunt around iconic Liverpool Hostelries – pub crawl! This annual meeting with our Irish friends has grown over the years and we hope to see it develop into more of a networking opportunity over the next few years. We also had our Summer Ball at the Liverpool Hilton hotel which had a 60s theme and was compered by the Society’s own aging hippies Charlie Jones and yours truly.
  • We have had two very successful wine tasting events in the winter and the spring. On both occasions the sign of a successful night was the President flicking the lights on and off at 10.30 to call last orders.
  • We have continued to maintain and develop our excellent relationship with the Judiciary. We had our annual Judges Question Time with their Honours De Haas, Goldstone, Gore and Hodge. This has become an important feature of our programme and I am very grateful to our local judges for their support.
  • On a similar note we also hosted the Conkerton Memorial Lecture given by Baroness Hale of Richmond on the independence of the judiciary. This was a fascinating talk which was followed by the Opening of the New Legal Year and then dinner with Lady Hale and the Senior Judges at the Raquets Club.
  • We have two international moments this year. Firstly I hosted a visit from 22 Lawyers from the Peoples Republic of China none of whom spoke any English so networking was not easy. They were fascinated by the photos of the Past Presidents especially the older ones with the most impressive facial hair. We also welcomed two lawyers from Rwanda who were here on placement at our two Universities. I was surprised at how young they were. They explained that the reason for this was that the profession was largely wiped out in the genocide and so they were starting from scratch. A sobering thought.
  • I have been keen to strengthen our links with Chancery Lane. The relationship between the National and Local Law Societies has not always been healthy. But this has certainly changed over the last few years. We each have important and different roles to play. Chancery Lane is able to deal with national and even international issues. We have the local expertise and experience and can best serve our members when we work together. In July, I attended a private dinner in Birmingham with the current President Lucy Scott Moncrieff. She is keen to work with local law societies and understands the issues that we face.
  • We did have an opportunity to work together in September this year when the MOJ announced proposals to impose Sunday Court Sittings on our Criminal Law Practitioners. Our Committee Chair John Ballam organised an effective campaign of opposition which saw a unanimous statement from local firms that they would not sign up for the voluntary duty solicitor scheme on which the initiative depended. Nick Fluck who is the Vice President of the Law Society came up for a meeting at Weightmans where he confirmed the Society’s support. In all this was an effective campaign which led to our getting a mention in the Law Society’s as mutinous Liverpool lawyers which I have to say was one of my proudest moments of the year!
  • We also took part in the first legal sponsored walk at the beginning of October. This was to raise funds for the North West Legal Support Trust which promotes Pro Bono initiatives. The work of the trust is likely to increase dramatically in the wake of the impending legal aid cuts. We walked alongside colleagues from the bar, the Judiciary and CILEX and I hope that this is the first of what will be an annual event. This resulted in our second mention in the Gazette in as many weeks!
  • In November we had our 185th Annual Dinner at the Adelphi Hotel. The attendance was about 220. There has been a gradual decline over recent years which is to be expected in a challenging economic climate. Other organizations have seen a similar picture. But the dinner was a success none the less. Our guest speakers were Nick Fluck and Rick Pratt QC, Leader of the Northern Circuit. I was particularly grateful to Rick who stepped in at the last moment to give one of the most memorable speeches of recent years. Despite the reduced numbers we are committed to continuing with the event and certainly hope to reach Dinner number 200 but I will be well gone by then.

Alongside these events we have continued with our CPD Programme of Seminars and conferences. This has been a very difficult year as seen by the accounts. The provision of CPD training has been a major source of income over the last few years and we have benefitted from this. But there has certainly been a decline in the demand particularly during the recession. We have also seen more firms providing training in-house and the growth of webinars. We had tried to introduce webinars with a view to modernising our programme but there was a very poor take up from members for an expensive product. This has been the most significant cause of the losses that have been made in the last year and we have now decided to suspend the programme. This is regrettable but it was something that we had to try in order to offer our members a wide range of options. I do wish to pass on a particular thank you to Past President, Donal Bannon whom I persuaded to take on the extremely challenging role of chairing our Training Committee for the last year. I’m not sure if he will thank me in return!

So while I am on the subject I also wish to thank my Vice President Alistair Fletcher for his wonderful support over the last year. Thanks also to out treasurer Glenys Hunt who has looked after accounts through two of the most difficult years in our recent history, and also the Joint Honorary Secretaries Cathy Fielding and Nina Ferris. Congratulations also go to Nina for having the unique distinction of giving birth to Antonia Thymaris Dawson whilst serving as an officer of the society. Presumably that also makes her the first to be congratulated in the president’s annual report!!

And of course the biggest thanks go to Sarah and the amazing team in the Law Society’s Office. As I have travelled around and met with other Law Societies I have realised what a remarkable role they play. An expression I have used throughout the year is – ‘We don’t we are born.’

And so another year draws to an end. I cannot believe the speed at which it has passed. Thanks to you all for allowing me to serve as your President for the last year. And good luck to Alistair Fletcher for 2013.

Finally I want to acknowledge the fantastic support from my Partners and Colleagues at EAD Solicitors

Friday, 7 December 2012

Fighting for justice - the end of a career choice?

I have often been asked what made me decide to be a lawyer. To be honest I would have to say that it seemed a secure career that would be intellectually challenging and provide a reasonable living. But I know that I am not alone in saying that there was something more than just that. I genuinely wanted to fight for justice for ordinary people who were having to battle against powerful government bodies or wealthy Companies including insurers.

I could point to many solicitors and barristers who would say the same. Justice for all has been seen as a foundation stone for any civilised society. The great civil rights campaigner Martin Luther King said – ‘The moral arm of the universe bends at the elbow of justice.’ This has drawn many into the profession for centuries. Never before has the opportunity to do it been under greater threat.

In April 2013 we will see the worst cuts to legal aid since the scheme was created after WW2. Thousands of our most vulnerable citizens – the unemployed, the disabled, tenants of rogue landlords, those going through family breakdown will have their right to legal representation swept away. I have already commented on the effect that this has on access to justice –

Another consequence of this will be to deter a whole generation of students from choosing the law as a career. If they want to fight for the rights of the weak and vulnerable then it seems that this particular option is not for them.

And it is not only legal aid. We have seen recent devastating announcements about cuts to the fees which lawyers can recover for pursuing damages claims for ordinary people – in many cases as much as 60%. Lawyers will not get a lot of sympathy for this. But it will have wider effects. The ability to recover fees from wealthy insurers and companies has been the gateway to justice for many who do not have the massive resources available to them. If lawyers are simply unable to work at those rates, and stay in business, then that gateway is closed. 

The main beneficiaries will be the wealthy insurers who will see a huge increase in their profits. You don’t need me to tell you that Insurance Companies are big supporters of the Conservative Party –

I already know of firms who are planning closure leading to inevitable job losses – not only of lawyers but of hundreds of support workers.

So again if anyone is attracted to the law to fight for the weak then again it would seem that the door is being slammed in their faces. Are we going to be left with a profession which represents the wealthy commercial sector but is barred from representing the less well off?

That is a real and serious danger. I suspect that the real fight will only begin once the cuts begin to bite. 

Tuesday, 4 December 2012

Leveson - not an attack on free speech

I suppose it was inevitable that Lord Justice Leveson’s report on the media would dominate the media for the last week. Most of the comment from press has been defensive and has opposed some parts of the report.

I am no media lawyer, although to some degree we all now have a role to play –

There cannot be any doubt that more robust regulation is needed. 

The Leveson Report recommends a new Press Regulator which is truly independent. In particular it must be independent of editors, owners or politicians. I doubt if anybody could dispute that. What is a bit more controversial is his suggestion about what happens if say a newspaper refused to sign up. Leveson suggests that there should be a safety net in the form of a statutory body like Ofcom. This would give the new regulator some statutory power.

This suggestion of a legal ‘stick’ has some commentators up in arms. The Prime minister has talked about his serious misgivings about State Regulation. Not surprisingly, many of the most powerful media players are saying the same.

But I think that Leveson has it right. Over the last few months we have seen horror story after horror story of press excesses – the lowest point being the hacking of Mille Dowler’s phone. Nobody can doubt that something far reaching is necessary. There is no public support for the status quo. But will the statutory powers undermine our treasured freedom of speech. I don’t think so. Hopefully the responsible papers will agree to a tighter self regulation. Those who do not deserve all they get.

The opposition of powerful Conservative politicians is bound to be influenced by their need to be close to the press barons as was all too obvious during the inquiry. Top Human Rights Barrister Ben Emmerson writing in the Guardian says –

‘It is because they rely on the newspaper editors to support their policies and endorse them at election time. They want to carry on having tea together, laughing out loud in their private texts, going horse riding together. And they want to keep well-oiled the revolving door that sees prominent journalists from Murdoch owned newspapers becoming politicians and ministers.’

We should do all that we can to protect free speech. But there has to be a difference between that treasured right and the power of the press to walk all over people.

The sooner Leveson is brought into law the better.

Wednesday, 28 November 2012

The End of One World - welcome to the new!

I am always interested to know what influences clients in their choice of lawyer.

I was brought up in the days when solicitors were banned from advertising and all work was introduced by word of mouth, previous clients or just having a ‘shop front’ office on the High Street. That has of course now changed beyond all recognition since the advertising ban was lifted and the introduction of referral fees, which saw some firms buying in cases at an industrial level.

All of this is likely to change again with the proposed ban on referral fees and the arrival of the ABS which brings well known brands into the market. So what will influence peoples’ choice?

According to a report on the legal futures web site a significant majority will look online. The figure is 68% overall but rises to 75% in the 18 – 44 age range –

Interestingly a similar number of clients in the younger group, would look to supermarkets for legal advice.

This is certainly a challenge to those of us working in traditional law firms. But it should be seen as a challenge rather than a threat. Firms need to seriously examine where they need to change rather than simply bury their heads and wait for the worst to happen.

The main concerns about lawyers relate to cost and communication.

There is no doubt that there will be a reduction in the fees that can be charged. The expectations of business clients combined with impending changes to personal injury claims, make this inevitable. The days of the hourly rate are numbered. Fixed fees are the future, whether we like it or not.

So there will be a need to have that part of the work which involves process – more than you think – done by non lawyers and by using effective technology. The lawyers then focus on the work which requires their expertise. So a greater number of cases will be done; at a lower overall cost.

Social media is the key to better communication. I recently heard of a survey where only 5% of clients wanted their lawyers to communicate by letter. Facebook, Twitter and emails are how people speak to each other in the real world.

Those new providers of legal services will embrace this – most have been doing it for years. Those lawyers who embrace this change can hope to compete. Good luck to the rest!

Tuesday, 27 November 2012

Double worry for flood victims

Once again the news is all about floods. Most of the country has been affected including the North Wales City of St. Asaph which is not far from Liverpool –

These unfortunate residents have had to evacuate their homes and lost thousands in damaged or ruined possessions. Never have they been more in need of good insurance cover. The last news they need to hear is that they could have difficulties getting insurance in the future just because of where they happen to live.

Following floods in 2008 the insurance industry agreed with the government to renew cover albeit at a high cost. That agreement is coming to an end and today we hear that talks between the Association of British Insurers (ABI) and the Government have stalled –

This means that the flood victims could find that future insurance premiums will be too steep to afford or simply unavailable. There cannot be anything worse than losing your home and possessions and then having to face the extra worry about whether you will have any protection if the same thing happens again.

This breakdown in talks comes as a bit of a surprise.

When it comes to slashing the rights of ordinary people to bring claims for compensation, the Government and the ABI seem to work in perfect harmony –

But when it comes to protecting the rights of ordinary people to insurance following a disaster the whole thing grinds to a halt.

Of course, there will be those who will say that it is the victims fault for living there, and that they should move. That is much easier said than done. It has never been harder to sell properties and these houses will be virtually unsellable. In the meantime these residents are stuck where they are. The government and the industry should do all they can to sort out this mess.

The insurers will be saving a fortune as a result of the massive cuts in the right to bring motor claims. How about some of that going to flood victims rather than shareholders?

Thursday, 22 November 2012

Concerning Judges and Claret over lunch...

In the 1980s it was not unusual to go for a business lunch, down a few beers and be back at the office for a full afternoon’s work. Whether it is age or cultural changes but that would never happen now. If I go out for lunch it is a glass of sparking water and if I’m in the office it is a nice cup of tea! If I went near a glass of wine I would be found snoring at my desk by 2.30.

According to members of a Parliamentary Committee our judges have a far stronger constitution. New Minister of Justice, Chris Grayling, recently appeared before them for the first time. Concerns were expressed that Old Bailey Judges would happily down a few glasses of claret over lunch and then return to the bench –

You would think the committee had more pressing issues, such as the attacks on Access to Justice that I mentioned yesterday. So who cares if the judges have a tipple over lunch so long as they do their jobs? But there is one serious issue behind this. That is the ongoing difficulty of ensuring that our judiciary is representative of society as a whole. The claret over lunch might give a misleading image.

The most recent addition to the Supreme Court, Lord Sumption reckons that it will take 50 years before we see a fully diverse bench –

We must all hope that he is wrong. We are approaching the position where women make up about 50% of the legal profession. There are probably more women qualifying than men. This has been the developing picture throughout my thirty years as a solicitor.

I cannot believe that there are not more women with the skills to reach the higher courts. I recently had the privilege of meeting Baroness Hale of the Supreme Court. She clearly has a great intellect but was also in touch with the real world and had a sense of humour. Surely she is not the only woman with those skills. In fact she isn’t. I know many judges who are perfectly in touch with the real world. 

But it is the perception that is the problem.

There are many women lawyers out there who would be well suited to bench. The same goes for ethnic minority groups. We must increase that representation sooner rather than later. Should that mean positive discrimination? Possibly. But there certainly needs to be a positive effort to recruit judges from all social groups. Otherwise I will be 107 before we have a broad judiciary and I’d rather not wait that long.

Tuesday, 20 November 2012

Justice for ordinary people - another brick out of the wall

One of my regular themes has been the relentless attacks by the present Government on Access to Justice for Ordinary people. Their approach seems to swing between indifference and outright hostility in favour of its friends in the insurance industry –

So we have seen the removal of Civil Legal Aid for almost all clients. Interestingly this was said to be needed to save the treasury £350m when the same politicians have squandered £100m on a Police Commissioner election that nobody wanted. We have also seen attacks on lawyers who try to promote access to justice by running cases on no win no fee agreements. Those lawyers are vilified by the media and ministers for promoting a ‘compensation culture’ which most commentators accept, is a myth.

But this week has seen one of the most devastating attacks of all. This is the Ministry of Justice's announcement yesterday of a ‘consultation’ to slash huge amounts off the amounts which lawyers can be paid for pursuing cases for victims of motor accidents, accidents at work and most other personal injury claims. It says that it is a consultation but it requires responses by 4th January 2013. So once we knock Christmas out of the equation it is just we few weeks for changes which will have massive consequences for victims. So it seems that the decision is made –

In many cases this will see a reduction of up to 60%.

The problem we have is that any lawyers who complain will be accused of acting out of self interest to maintain their incomes. But this goes far beyond that. Some lawyers will find other work to do. Others will go out of business. But why should the most vulnerable have to suffer. The fixed fees are rightly described by the Law Society as ‘woefully inadequate’. This will have a double effect. Many firms will decide that they can no longer do this work and stay in business. So they will do other work. All will decide that to do the work at such derisory rates will mean a reduction in quality. If work has to be done on the cheap then that is bound to be the result. On the other hand insurers will ensure that they have the best that money can buy.

One ironic outcome predicted by Liverpool Solicitor Mike Sexton is that we could see a no fault compensation outcome. Insurers will have a huge incentive to settle claims following first notification of a claim. They can pay out with no questions asked and have to pay legal fees of a few hundred pounds. So the economic result could override any concerns about the merits of a claim. Is this outcome really good for society?

What is certain is that this will make it massively more difficult for ordinary people to pursue justice. Insurers will save millions in the process. We are always being told that their agenda is to reduce insurance premiums for motorists. But I have never heard any give a guarantee that any savings will result in a rebate. I doubt if any motorist really expects that to happen.

Saturday, 17 November 2012

I will defend to the death your right to tweet

Rose Heilbron QC is one of Liverpool’s most famous lawyers. In a famous speech on Human Rights in 1950 she said –

‘We in this country have not achieved freedom of speech or freedom of conscience or liberty without having fought long and bitter battles for them over the centuries…Liberty does not happen overnight.’ *

Freedom of speech is a right of which we are rightly proud and, often, take for granted. But two recent cases raise the question about how it applies in the modern world of Social Media.

Adrian Smith is a Christian who is against same sex marriage. He expressed his views on his Facebook page calling it – ‘An equality too far.’ His Employers, Trafford Housing Trust, took disciplinary action against him and demoted him.

This is clearly an emotive subject. There are hugely differing opinions even among Christians. For what it’s worth I do not agree with him. But he has every right to express that opinion. Thankfully, the High Court took a similar view yesterday and found the employers to be in breach of contract. What type of society are we becoming when it becomes a disciplinary matter to say something we disagree with?

A similar situation arose earlier in the week. A teenager was arrested and detained for allegedly burning a poppy and posting a picture on Facebook.

Now most of us will find what did distasteful. But if we are to be a society which proudly protects free speech we cannot criminalise his actions. We can ignore his views, we can deplore them and present strong arguments against them. But he doesn’t become a criminal because he says something we don’t like.

I have commented on numerous occasions about the growing influence of both Facebook and Twitter and how they are transforming modern communication. But they still work against the background of free speech. We must avoid excessive policing of opinions. It is the first step towards Orwell’s terrifying ‘thought police.’

A French philosopher, possibly Voltaire, once said ‘I do not agree with what you said but I will defend to the death your right to say it.’

This is a right we should treasure and protect. We cannot limit it to things of which we approve.

*Rose Heilbron by Hilary Heilbron HART Press 2012

Thursday, 15 November 2012

Lawyers - The Next Generation?

I was at a fascinating meeting this week,  with a group of post-graduate Law Students at Liverpool University. These were studying for Masters Degrees or PhD’s in Law and so they were a particularly talented bunch. Some were local but others were from as far afield as South America and Asia.

What was noticeable was that hardly any of them had any interest in traditional legal practice. They were drawn to high end commercial work or international human rights. Sadly I didn’t speak to one who was planning a career as a High Street Solicitor! When I was a student it was a very different world with most if not all of planning such a career.

I know that this was just one, particularly talented, group. But it did get me thinking about where the best young lawyers will come from in the future. 

The pathway to a traditional career in the law is not easy. Students have to pay massive fees and run up staggering debts before they qualify. Then they have to find a training contract and then a job as a solicitor/barrister when they finish. And if they find training contract they can find themselves paid no more than the statutory minimum wage –

This is hardly an attractive to any but the most determined. When you add to that the added difficulties of working for ordinary people the landscape looks bleak. Having negotiated the daunting hurdles of qualification they find themselves working in a system where Legal Aid has virtually disappeared and working on a no win no fee basis makes them a target for politicians and the media!

So it is hardly surprising that International Commercial Law is a more attractive option to the best students. Who can blame them?

But this is shoring up problems for the future. Where will we find a new generation of lawyers to look after those who are not wealthy or major corporations? There will always be the dedicated few who will see the law as a vocation. But why should they have to?

We have a legal system which is the envy of the world. But if people do not have access to that system, and to the best legal representation then we will all be the worse off for it.

Friday, 9 November 2012

Sorry doesn't have to be the hardest word..

I have handled many Clinical Negligence cases over the last 20 years. These have covered all areas of medicine from simple missed fractures to major brain injuries at birth.

There is one thing which has been common to almost all claimants. Despite all of the rhetoric from politicians and the media – they are not primarily interested in money. They are actually more concerned about getting an explanation about what happened, an acknowledgement that there has been a mistake and, where appropriate, an apology.

Compensation is hugely important in helping victims; especially those needing care for life. But it is not normally the main concern. In fact much litigation and much distress could be avoided by open communication and an acknowledgment that mistakes have been made.

Unfortunately that is not the case according to statistics published by the Health Service Ombudsman. In the last year there has been a 50% increase in the number of complaints about the NHS. There was a similar increase in the number who complained about poor explanations –

This is a major concern. Victims of medical blunders can often feel that they are responsible for the NHS finances. There are constant assertions made that claims against hospitals are a drain on the NHS budget and that payments made to patients are preventing others from having life saving treatment.

That could not be further from the truth. It is not the victims’ fault that their lives are devastated by a medical mistake. The cost of litigation can be avoided if open admissions and apologies are made right away. If there is an open admission that there has been negligence then both sides can work together to deliver a compensation package which provides for the victims needs. It is often a long and drawn out war of attrition to get to that position with thousands of pound spent along the way.

Life will become even more difficult for victims next year when the government’s devastating attacks on legal aid will remove help for all claimants except babies injured at birth. So injured patients and their lawyers will revert to no win no fee agreements which are again attacked by the media for feeding the so called compensation culture.

It would be better all round if the NHS took on board the observation of the Ombudsman - "The NHS needs to get better at listening to patients and their families and responding to their concerns."

Tuesday, 6 November 2012

Decision Day - Choose Wisely!!

So today is the day that the USA goes to the polls. 

This time tomorrow we should know who will be in charge of the biggest hoard of nuclear weapons in the world, for the next four years.

The changeover on the other side of the pond is a bit more civilised that in the UK. If Barack Obama wins then he carries on in the White House as before and will be sworn in early in 2013 for another term. If he loses then he will not have to bring the removal people in overnight! He will carry on in a transition period until Mitt Romney, please no (!), takes the reins in January.

This promises to be one of the closest elections in recent years. The result in many states is predictable. Obama will be expected to win in New York and California and Romney in Texas and many of the southern states. The result will ultimately come down to a few marginal states.

Opinion in the UK overwhelmingly favours Obama. According to the Mail Online the margin is 85% to 15% in the UK. The pattern is similar across the world –

Obama remains hugely popular because of his historic win in 2008 and because the world was so relieved to see the back of GW Bush. In fairness we do not have the same insight into domestic issues and this partly explains why it is so close in the USA itself. And Romney has hardly endeared himself over here with his insulting statement that London was not fit to host the Olympics!

Whatever the result I hope that the decision is made by voters and not by the Supreme Court as happened in 2000 when Bush won a finely balanced election despite losing the popular vote –

I still remember the confusion and uncertainty that followed that election. It was bad for the USA and bad for the rest of the world due to the massive influence of American Foreign Policy.

I would prefer a resounding Obama victory. But I would prefer to see Romney win than have the lawyers decide who the people voted for!

So to all our friends over there - have a good day and choose wisely.

It promises to be a late night.

Monday, 5 November 2012

Twitter - a media lawyer on every street?

Twitter and Facebook are changing the way the world receives and shares information.

It wasn’t so long ago that all we had were newspapers and TV/Radio news. Now we can get almost immediate, on the spot tweets straight to our phones. In many ways this is making the news far more democratic.

But it also carries legal risks for all of us. We may publish something and be blissfully unaware that we are breaking the law.

This is what happened in the recent rape trial of footballer Ched Evans who was convicted earlier this year. Nine defendants have been fined for revealing the name of the victim on both Twitter and Facebook. They have also been ordered to pay her compensation –

Their Defence was that they did not know it was against the law. Unfortunately that does not amount to a legal defence. If you publish unlawful material then you pay the consequences. Ignorance of the law is not an excuse.

This is where the development of social media causes problems. We are all becoming reporters. But not everyone is trained. Not everyone has access to media lawyers who can proof read what we write and warn us of any problems that might arise. As we know 140 characters can cause much pain!

So what do we do? We are hardly going to have access to lawyers to vet everything we say! So the only advice is ‘don’t do it’. If there is any potential for causing offence, or upset or other negative reaction then ask yourself ‘is it worth it?’ There is plenty going on in the world to keep us occupied without causing unnecessary heartache to ourselves and others.

Think first tweet later!!

Thursday, 1 November 2012

What Justice for Savile Victims?

The Jimmy Savile story continues to develop with more victims and increasingly disturbing details coming forward by the day.

As we all know it is too late for any criminal action to be taken against him. We may see others prosecuted for their involvement in his crimes and this process began with a high profile arrest last week 

But there are remedies available to his victims and we could see a deluge of claims for compensation. Such claims are often not viable after the wrongdoer has died. But here we have a person who has left an estate valued at more than £4m and which has already been frozen by his executors –

The sheer volume of claims could wipe out the estate.

What other remedies do victims have?

Well they can submit a claim to the Criminal Injuries Compensation Authority (CICA) which is funded by the taxpayer and compensates victims of crimes of violence. These will not be entirely straightforward because it is normally necessary to submit a claim within two years of the incident. In these many of these cases we are going back over 20 or even 30 years. Whilst the CICA can waive the time-limits, but the tests are quite strict and it is by no means guaranteed. But I would anticipate public pressure for flexibility here.

There is also a potential claim against any organization that employed Savile if assaults were committed during the course of his employment. This is what we call vicarious liability and could certainly apply if the incidents were linked to the employment. In most cases it seems that that was the case.

And there can also be claims against organizations who were themselves negligent for not protecting victims or even facilitating the assaults by allowing him unlimited access to the vulnerable.

These civil claims are again subject to time limits which could well be a major obstacle across the board. But again the courts will hopefully be sympathetic to claimants as they have been in the recent case of Kenyan torture victims in the 1950s –

The whole area is a bit of a minefield and expert legal advice is going to be essential.

I suspect that this whole unfortunate story could see the civil and criminal courts busy for some time.

We all keep asking ourselves how this could have happened. We certainly owe it to the victims to do all that we can to secure justice for what they have suffered.

Tuesday, 30 October 2012

Pro What??

Lawyers are often accused of only being concerned with making money. If that was ever the case then it has certainly changed in my working life.

One problem is that when they do get involved in free legal work for those most in need it gets a Latin name that no-one can understand. To us lawyers the phrase is Pro Bono. To most non lawyers it either means nothing or it is something to do with a well known Irish rock Star! If it was called Free Legal work then everyone would get the picture.

The reality is that many lawyers and their firms spend hours on free work. My first job as a solicitor, in the 1980s was in a Law Centre in what was then one of the most deprived areas in Europe. The centre existed to provide legal support free of charge. We had a voluntary clinic on a Tuesday night at which local lawyers would give 3 – 4 hours of their own time to advise on areas of law not covered by the centre.

Almost 60% of solicitors have provided free legal assistance at some time. There are a number of agencies which co-ordinate this work -  

This doesn’t always get the publicity it deserves and the name certainly doesn’t help.

The need for this kind of legal support is going to increase dramatically next year when we experience the most devastating cuts to legal aid since its creation. Those who are most in need from the disabled to genuine asylum seekers to victims of medical negligence are going to find it impossible to access legal support. Some reports show that of those who appeal against refusal of disability benefits as many as 80% succeed if they are represented.

The legal profession faces a dilemma. We have opposed the cuts from the start. This is because we support a society where all citizens have equal access to justice regardless of wealth. I remain of the view that the cuts are misconceived, unfair and a false economy. If lawyers then increase even further the amount of free work then isn’t this doing the government’s work for it? If people continue to access lawyers because it is being done for free then the politicians might see that as a job well done.

That is obviously wrong.

But in the meantime there are still those in need.

There are lawyers who will take up their cases for little or no pay. But that cannot mean that the message will be abandoned. The case for a properly funded scheme available to all is too strong to abandon and this is why the fight will continue.