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Thursday, 31 May 2012

Whiplash - a pain in the neck??

Cases arising from injury caused by whiplash have been around for years. If a person is involved in a motor accident where their car is struck from behind the body is thrown forwards and jerked backwards by the seat belt. So a whiplash occurs to the body causing injury – normally to the back and neck.

Over recent months these cases have become highly controversial. The champion of the anti-whiplash lobby is former Labour Home Secretary Jack Straw. At a forum earlier this year he said that whiplash is –

"not so much an injury, more a profitable invention of the human imagination - undiagnosable except by third-rate doctors in the pay of the claims management companies or personal injury lawyers".

He called for more robust medical evidence.

He is right in one sense. It isn’t an injury as such. It is the mechanism which can cause injury. It is far from an invention of the imagination. I once had a whiplash injury. It was nothing to do with a car accident. I was playing one of those fairground games where you had to hit little plastic animals as their heads popped up. I jerked with too much enthusiasm and suffered a whiplash type injury. It was agony! I could barely move my head for about a week. But the pain and discomfort lasted for months. Driving was torture especially looking over my shoulder. Now I had no claim as it was my own stupid fault. But it really hurt.

This sweeping attack on injury victims ignores how medical evidence is used these days. Any lawyer would be opening themselves to a negligence claim if they sent their clients to a medical expert who was not properly qualified. A medical expert's duty is to the court, not to the lawyer or even the client. If insurers doubt the injury they can have their own medical expert. This is the procedure in all injury cases. It has served to identify genuine injuries for many years. Our courts are well equipped to deal with exaggerated or false claims.

It is hardly in lawyers interests to take on hopeless cases where they are highly unlikely to get paid if they fail.

This whole argument seems to come from the insurance industry to try and justify massive increases in insurance premiums. It is interesting that the OFT has announced an investigation into the conduct of insurers particularly in relation to excessive car replacement costs and referral fees that they shell out to various organizations –

There will always be claims that are not genuine but they are a tiny minority. But it is unacceptable to blame victims for the rising cost of motor insurance. Do any of us expect a nice rebate cheque for our insurers if there is a big drop in claims??

Social Mobility - the professions fault??

Former Labour Minister Alan Milburn has produced an interesting, if rather frustrating, report on Social Mobility. The report points out the difficulties faced by those from less privileged backgrounds, in breaking into the professions. He complains in particular about – ‘the refusal of Britain's professions to open themselves up to people from lower-class backgrounds’.

He is quite right that an unacceptable number of lawyers now come from a Private School and Oxbridge background. To be honest I don't care which University a student went to, so long as they can do the job.

What is frustrating is Mr. Milburn blames professionals without referring to the massive obstacles caused by government policies and regulators.

The first of these is the staggering amount of debts which students have to incur before in order to get the qualifications they need. I know of many young lawyers who have finished their training with £40 - £50k, of debts. That is an eye watering figure. Despite the rhetoric that it is not repaid until earnings reach a certain level, it is still a debt. This is bound to deter those from a less privileged background. And in the case of a professional couple that figure can double. The increase of tuition fess to £9k a year is going to load even more debt.

In the case of solicitors there is the additional bad news of the abolition of the minimum salary for Trainees. The Solicitors Regulatory Authority (SRA) have now officially stated that they feel that this will open the door to more jobs –

This is a fanciful suggestion. You might as well abolish any minimum wage in order to reduce unemployment. After many years of hard work a Trainee lawyer is entitled to a reasonable salary –

It is a shame that the SRA do not seem to have listened to the Junior Lawyers Division who raised serious concerns in a 90 page response to the consultation –

The reality is that these are the things that are deterring anybody other than those from wealthy families from going into the Law and other professions. If a bright student is faced with lottery levels of debt and a pittance of a salary to follow then he/she cannot be blamed for looking elsewhere. Many firms will continue to pay a fair salary - but it is the overall perceptioon that is the problem.

Those in power need to examine these fundamental obstacles before blaming the professions for having ‘glass ceilings’.

Monday, 21 May 2012

Abolishing Unfair Dismissal - worse than bonkers

This is supposed to be a blog about legal matters but it is becoming increasingly political. I suppose that is unavoidable. Politicians make laws. Sometimes they make bad laws and when they do they should be scrutinised and criticised. 

Over recent months we have seen the decimation of legal aid and relentless attacks on victims of accidents or medical negligence.

But all of this could be overshadowed by plans to ‘reform’ employment law, or rather abolish employment protection all together. Now, historically Conservative governments have always restricted employment rights. But none have come close to some of the stuff being proposed by the coalition.

Adrian Beecroft is a known supporter of the Conservative Party and a significant contributor to its funds. He has prepared a report with a number of recommendations including a chilling proposal for no fault dismissal. That means exactly what it says – that employers will have the right to sack workers for no reason and with no sanction. They will just have to decide that the person is under-performing.

Now to be fair the business secretary Vince Cable has called the proposals bonkers and it was being reported earlier today that the plans might be quietly shelved –

He was expected to answer questions in Parliament on the report today but was replaced by junior minister Mark Prisk, a Conservative MP.  Mr Prisk said that most of the plans were in place and the rest were the subject of consultation until June. Is it just me or does that sound a bit scary  –

Recent experience has shown that once this government gets an idea into its head, it carries on regardless of criticism. This is worse than bonkers. This proposal will take us back to the days when wealthy bosses sacked their workers on a whim regardless of merit or hardship.

The reason given is that it will encourage businesses to employ more staff if they can sack them at will. But what about the problem of motivating a workforce who know that they can be  chopped whenever and for whatever reason.

If these plans ever see the light of day there will be a deluge of litigation. If the politicians successfully block any right of unfair dismissal they will not be able to ban discrimination cases. In fact this will be the route most will have to take. If someone is simply sacked, there is going to some arguable discrimination in there! The awards of damages in discrimination cases far outweigh those for dismissal.

Let’s hope that, for once, the government does simply get away with railroading this into law.

Saturday, 19 May 2012

Halting the March of the Trolls

My first venture into any form of Social Networking was the BBC Big Read site which was effectively a discussion forum around the BBC’s Top 100 Books series about 10 years ago. Every now and then an abusive comment would appear from nowhere.  Those more experienced than me would simply post a brief comment saying ‘ignore the troll.’

That was a minor inconvenience. As Social Networking has grown so has the sinister power of trolling. It is difficult to understand what motivates them but there is clearly a significant group which sees these networks a way to bully users from the comfort of their own homes.

It is encouraging to see recent developments that have endeavoured to clamp down on behaviour which can be extremely frightening and upsetting for victims. We have already seen the prison sentence handed out to the student who posted offensive comments following the collapse of footballer Fabrice Muamba –

But other cases might not be so easy to pursue.

In April there was story of the tribute site to a Kent teenager that was effectively ruined by trolls –

Nicola Brookes became a victim of severe bullying after she posted a message on Facebook about an X Factor Contestant. In an interesting development she has lodged an application to the High Court to force Facebook to disclose the computers from which the abusive comments originated. This is with a view to her bringing a civil action against them or even a prosecution.

It will be interesting to see the outcome. Facebook and Twitter have millions of users and there is clearly the risk of bullying. But such anti-social behaviour should be as unacceptable online as it would be anywhere else.

Friday, 18 May 2012

Come dine with us??

So who is getting excited about the approaching Jubilee celebrations?

No I am not either. Although the extra day off is nice. Now I’m not saying we should not be commemorating a long reign of 60 years – although in tough times the expenditure seems a bit insensitive.

But we should be concerned about the banquet that is planned to take place in the magnificent St. Georges Hall at Windsor Castle. This is the major event for the great and the good. It will be grand gathering of royals and heads of state from across the world. What is worrying is that Hamad al-Khalifa, King of Bahrain seems to be on the guest list. We all know that Bahrain has been in the news lately because the civil unrest there almost stopped this year’s Grand Prix.

There has been a catalogue of complaints about Human rights abuses since the unrest began in 2011 as part of the ‘Arab Spring’.

We should be using our diplomatic influence to pressurize such abuses to end.

Do we rally want to see the King taking his place at the table of our monarch at an event that will be witnessed by the world?

Opposition Foreign Office spokesman Dennis McShane is quoted in the Guardian – "Many in Britain will regret that the foreign secretary, who approves all invitations sent in the Queen's name as head of state, has decided to include a representative of the Bahraini regime which has done such terrible things to its own people since the Arab awakening a year ago."

What message is this sending about our commitment to or interest in Human Rights?

And what other ‘honoured’ guests with questionable histories will be welcomed. And do we want them welcomed in our name?

Fighting for your rights

Thursday, 17 May 2012

Law - a Career for the rich?

I remember when I became an Articled clerk in the 1970s I was paid the princely sum of £14 per week. This was for the compulsory two years of work in a solicitors’ firm which has to be completed before somebody can be admitted as a solicitor. When I asked for a rise after a year I went up to £18 and was reminded by my bosses that they had had to pay for the privilege back in their day!

To be honest I managed. But they were distant days when law students did not have massive loans of up to £50k to repay.

This is now known as a Training Contract. In more enlightened days a minimum salary was introduced as it was felt that firms could exploit the need for such a contract by offering very low pay. The current minimum salary levels are £18,590 in Central London and £16,650 outside of London. These are certainly not excessive rates for somebody with a degree and a postgraduate professional qualification.

The Solicitors Regulation Authority has this week confirmed plans to abolish this minimum requirement and rely instead on the National Minimum Wage, currently £6.08 an hour or just over £11k per annum.

For someone who has studied for between 4 and 5 years and run up huge student debts this seems derisory.

There are those who argue that this deregulation of Trainee pay is a good thing. They say that if firms can pay what they like then more students will get contracts – at the present time about 50% of students find Training contracts. But I’m afraid that argument just doesn’t make sense. You might as well argue that there should be no minimum wage in any sector and that the unemployment rates would drop if employers could pay workers a wages below a basic level.

But this raises a bigger issue.

Students from wealthier families will probably manage with from their own resources or with support from their families. Those from lower income families will not. A student who has to rely on huge borrowing to get the academic qualification and then survive a training contract at this level is going to be sorely tempted to pursue a different career!

There is a serious risk that we could go back to the days when the law was a career for the rich. This is a backward step and will simply put more pressure on students.

Wednesday, 16 May 2012

Basic Care - a Basic Right

I have made no secret of my views on the devastating effect that cuts in legal aid will have on Access to Justice for ordinary people.

But we cannot forget that cuts are also hitting the NHS. This affects the lives of vulnerable patients and could result in many claims for medical negligence.

This is highlighted today in a report that says that patients with learning difficulties are being put in danger because of inadequate levels of care –

This report is based on a survey of disability nurses – those in the front line of caring with this most vulnerable of groups. 73% say that they are concerned about the welfare of patients. The number of nurses with specialist training has dropped by a staggering 50% since 1995.

Dr. Peter Carter of the RCN said –

"Politicians need to understand that cheap care is poor care. Even the most hard-nosed economist will tell you that."

This is a double concern for all of us. The NHS has been one of the greatest achievements of the welfare state. All of us, regardless of political persuasion, agree that a service which offers quality care to all, regardless of means, is something for which we are rightly proud. But if the most vulnerable of all are being placed in danger due to economic policies then there is clearly something wrong.

But it is also a false economy.

If patients suffer injury or worse due to inadequate care then the NHS will be subjected to a huge increase in damages claims for negligence. The NHS funds will come under even greater pressure as a result. Now politicians like to blame victims and their lawyers who sue for damages, for putting a burden on taxpayers. But this is a case where nobody could be blamed other than those who are making the cuts. And why should caring nurses have to worry about negligence claims when their resources are stretched?

Basic care should be a right for all and those responsible for depriving patients of this should be held responsible.

Tuesday, 15 May 2012

Silk and other TV Dramas

I have to admit that Silk has been one of my favourite TV Dramas of the last few years. It manages to combine a bit of realism – especially the portrayal of the Barristers’ clerks and the power that they can exert – with the pure fantasy of a young pupil stealing his first wig! There are also great performances from Maxine Peak as Martha Costelllo QC and  Rupert Penry Jones as Clive. The new series begins on BBC 1 tonight. I have it on series record already.

There is something compelling about courtroom dramas, from the dry humour of Rumpole to the wonderful Judge John Deed who managed to sit in judgement, appear for both sides and maintain a romance with the only barrister who ever appeared in his court. 

But even these do not match the drama of the real thing.

I can remember spending far too many hours glued to my TV screen during the OJ Simpson and Louise Woodward trials in the USA a few years back. I found myself watching them with that same sense of nervous excitement and fear that I would have if they were my own cases.

We may soon be experiencing similar dramas over here.

In the Queens speech last week the Government confirmed a commitment to permitting the filming of court proceedings. This has been warmly welcomed by the main broadcasters who, in a joint statement, have said;

"The presence of cameras in our courtrooms will lead to greater public engagement and understanding of our legal system. We look forward to working closely with the judiciary and the government to ensure that justice will now truly be seen to be done."

Of course it is not all OJ Simpson  style glamour and drama. Many court hearings can be rather technical and dull – not always good TV. But there can also be moments of high drama and it will be fascinating to see how this works out.

However, I wouldn’t go as far as to say that this will lead to more open justice when, at the same time, there are proposals to hold some court hearings in absolute secrecy. That is actually a far more disturbing proposition. 

I would love to hear Ms Costello QC arguing that one!

Monday, 14 May 2012

Closing Times for Justice

The new laws which virtually wipe out access to publicly funded legal advice have now received Royal Assent. This means that it is no longer possible for most people to get access to lawyers unless they are wealthy. As I have said before, alternative schemes to increase access by no win no fee agreements have also been severely hit by the recent cuts.

The upshot of this is that people will not pursue legal claims or they will do it themselves as litigants in person. It is inevitable that there is going to be a massive increase in the number of people bringing their own claims. It is estimated that a case involving a litigant in person takes twice as long as a case involving lawyers. So, unless there is a huge drop in the numbers of cases there will be a doubling of work for court staff and judges. So will there be a big increase in the number of judges? No. At present there are no plans for any such increase.and it would certainly make the cutbacks a false economy - which it probably is anyway.

So the courts are going to become busier, slower and more expensive. If litigants cannot access legal advice then they will increasingly look to the courts for help.

To make matters worse there are now plans to restrict public access to Court Offices. If a person is bringing their own claim they can go to the office and get the right forms and lodge them there and then. The Court Offices have, for many years, opened between 10.00 and 4.00. Under the new plans they will open for just 2 hours between 11.00 and 1.00. If you can’t make it during those hours then tough.

So if you want to bring a claim you may not be able to use lawyers and will find it extremely hard to get to the court in person.

Is it just me or is this an all out attack on people’s rights to justice?

Is there a hope here that people will just give up and not bother?

We have a justice system of which we have been rightly proud. Many countries have copied and continue to copy our common law. Nobody would dare to suggest an abolition of that system. But if there isn’t equal access to that system regardless of means, then there seems little point in having it.

It is fair to say that solicitors will do all they can to help clients. But it won’t be easy and it is hoped that if the new regime does indeed send the courts into meltdown that the whole thing will be re-assessed.

Friday, 11 May 2012

The Power of the Tweet (2)

We talked earlier in the week about the impact of Twitter and its influence as a means of immediate and widespread communication.

Last year I was a t conference where the BBC’s Legal Expert Joshua Rozenberg was speaking. He made an interesting point about changes in the practice of Law which I immediately tweeted including a mention of @JoshuaRozenberg. To my surprise and alarm he immediately told the conference that I had just tweeted what he had said! (The power of having your notes on an iPad!!).

An extension of this has been its use in presenting live updates in what used to be entirely remote areas. Such as court proceedings –

In fact the UK Supreme Court - the highest court in the land - now has its own twitter account - @SupremeCourtUK.

Twitter was my main source of news on the passage of the recent Legal Aid Bill through the House of Lords.

Today we read of a surgeon in the USA tweeting his way through brain surgery. Dr Dong Kim told the Guardian –

"Social media is a powerful vehicle to help demystify brain surgery, a source of much fascination to people. We think that by providing this up-close glimpse of the OR, we can educate the public, particularly future patients, about what happens during brain surgery, about what to expect."

Mind you I think I'd rather my surgeon  remained focussed on the job in hand.

It is as if social media is democratising the world. Doors to knowledge are being opened in a way that would have been unheard of even 5 – 10 years. It will be interesting to see where this takes us in the next 5 – 10 years.

In my profession this is something that all lawyers need to grasp. The relationship between lawyer and client was once one of mystery and a bit of fear. How often did we see older TV programmes where a character would put on their best suit and tie to go and see the ‘brief’. We are now in a world where communication is instant and informed.

In the long run this can only be a positive development for us all.

Thursday, 10 May 2012

Spooks Charter?

This week has seen the Queens Speech in which the government sets out its agenda for the coming Parliament. The Prime Minister, David Cameron, has commented that Justice is a key feature of that agenda. This seems ironic in the light of the most dramatic attack on Access to Justice that most lawyers can remember.

The Queen’s speech included a commitment to another measure which is less of an attack on Access to Justice but more an attack on Justice itself.

This is the proposal for secret court hearings.

Under these plans courts will hear some evidence behind closed doors. Now there will always be highly sensitive cases involving national security when reporting of evidence needs to be restricted. Judges can deal with that when the situation arises. But these proposals go way beyond that. Defendants or Claimants will be barred from hearing evidence directly related to their case. Even their legal representatives will be excluded.

This flies in the face of any understanding of open justice – of Justice being seen to be done.

According to the Guardian newspaper this has come following pressure from our own secret services and also from the USA. Their main concern has followed recent cases where evidence obtained by torture or other abuse has been disclosed.

There is even a suggestion that politicians rather than judges will have the final say in what is to be concealed.

Most Human Rights groups including Amnesty International and Liberty have expressed concern.

This comes alongside other provisions which will make it easier for the state to tap telephone calls and emails.

Will the coalition which includes a party with Liberal and Democrat in the name support secret courts? In the UK we all have elected representatives. They should be left in no doubt that we do not want secret justice where we are unable to see what is done in our name.

Wednesday, 9 May 2012

The Power of the Tweet

Hands up if you still think that tweeting is something a budgie does?

I must confess it took me a long time to get into Twitter. I had dabbled in Social Media generally, especially MySpace and then Facebook. But I didn’t really get the point of Twitter. I couldn’t get my head around the idea of not having a ‘page’ and of limiting posts to 140 characters.

Ironically it was only when I read How to Leave Twitter by Grace Dent that the penny dropped.

It is now the platform I use the most! It is such an effective way of getting a simple message to a huge audience very quickly. The maths speaks for itself. If I tweet to a thousand followers and just ten of them retweet to another thousand, and so on, then we are talking massive numbers.

This point is made by well known legal blogger Kevin O’Keefe who says that an effective tweet can be more effective than any press release. He talks of one PR Professional who says she is 9 times more likely to get a response on twitter than by sending a press release.

This is the potential power of social media generally and Twitter in particular. We all need to be aware of the power of the tweet. Of course it is not always good news. I have talked before about the dangers of tweeting first and thinking later –

It can even shake governments - Amnesty International is beginning to highlight those who see the influence of twitter. They have today reported on the case of Nabeel Rajab a human rights activist who has been arrested in Bahrain for posting tweets that criticised the government.

Such is the power of the tweet. Twitter, if properly used, can be the most effective form of marketing and communication for lawyers.  It is a powerful tool to be used with careful thought. To ignore it is to be well and truly left behind!

Tuesday, 8 May 2012

Text Appeal?

Have you had a text asking you why you haven’t claimed your £3521.00 for the accident you suffered 2 years ago? Or something similar?

 I seem to get about one a week which I completely ignore because I haven’t had an accident since I fell off my bike on the way to work in 1982.

Or have you had a telephone call at home asking if you have had an accident in the last three years? My mum got one a few weeks ago, asking if my late father wanted to pursue a claim for an accident at work. He had retired in the last 1980s! I was visiting at the time and took the phone from here. When I pursued them for details of who they were the call was ended abruptly.

These call come from what are known as claims farmers who collect details of accident claimants which they then sell on to solicitors. This type of conduct is what has led to the call for the banning of referral fees. Cold calling is, however, already barred and solicitors are not permitted to pay any agency for cases which come from this form of very direct marketing. Presumably this is why my caller rang off in a hurry.

Now there are some very reputable Claims Management Companies who have opened the door to many victims who would not have pursued cases. The Underdog campaign is one example.

But the unsolicited texts and calls and texts are what give victims and their lawyers a bad name. They open the door to those who want to promote the idea of a compensation culture – especially the insurance industry who want to reduce the number of cases, for obvious reasons.

So if you get one of these texts it is probably best to ignore it. If you have actually had an accident then seek legal advice. As a lawyer, I’m bound to say that but it is what we are here for and it rarely costs anything. Responding to a text just gets you to a lawyer via a middle-man (or woman!).

If you get a phone call then ask who they are, how they got your details, and if they are registered with the Ministry of Justice.

Monday, 7 May 2012

We're all going on a summer holiday

No I am not admitting that I am a closet Cliff Richard fan.

But I have booked a holiday! 

In two weeks time we off to Crete for a much needed break in the sun. Hopefully it will be a relaxing few days with a fair share of wine and Greek food.

But if something goes wrong (perish the thought but I am a lawyer so can’t help it) then I have actually  not booked the break in the most sensible way. Although we have used an agency the flights and accommodation are booked independently. So this is not a package tour. That would make any legal case more tricky.

This is because of what are known as the Package Tour Regulations. The advantage of these regulations is that if you suffer an accident abroad which is the fault of your hotel you can bring a claim in this country against the tour operator. Although the legal standard is that of the country you can consult lawyers and avoid the nightmare of having to use unfamiliar courts or instruct foreign lawyers. For the Regulations to apply it has to be a 'package'. This means that the price must include both transport and accommodation.

If the holiday is not covered by the Regulations then the whole thing is more complicated. The case has to be brought in the local courts and is subject to their laws, procedures and time limits. That is not to say that the local system is not as good. It is just far more difficult to do once you have got home.

This is something to bear in mind when you are planning your break – especially on line. If you are nut sure then just ask the agent if it is a package tour. Now many of you, like me, prefer to do things independently.

But it is always safer to book a passage..

Saturday, 5 May 2012

The Virtual Lawyer

I can still remember my first mobile phone. It resembled a house brick and was certainly as heavy. The battery lasted about 45 minutes. I remember taking it on a camping holiday and within an hour I was looking for a call box.

I can also remember when I first had a PC on my desk. I stared at it in awe and wondered what happened next! I was certainly not the worst. I remember a cry of panic when someone said that their computer had just told them that they had performed an illegal operation. And somebody else complained that theirs was not working when, at that point, they only had a monitor!

I also remember my first effort at Facebook which saw me banned within 30 minutes. I thought it might be fun to form a group of people with my unusual surname. I was happily inviting everyone with my name to join up when, to my horror, a message came up to say I have broken the rules and was banned. I thought that was the end of my Facebook experience - forever!

How things have changed.

Who could imagine a law office without a computer on every desk? We are all used to working from Office Systems and emailing each other and clients.

But it seems that lawyers are less active than they should be in the field of Social Media. One recent report suggests that law firms are not the greatest users of the world’s most popular means of communication and interaction. My Linkedin page tells me that my 780 connections link me to 5,400,540 people. Who knew? And what sort of connections are possible through Facebook and Twitter??

Things have changed so much in 10 years that any law firm that does not embrace this new world is going to be left behind. I doubt if we are far away from the arrival of the virtual lawyer. It is already possible to communicate entirely online and social networking is developing this further. So, in years to come, will there be offices, desks, telephones – will all communications be with an avatar? Or maybe we will catch up with the Science Museum who have produced a phone App that enables you to scan a bar code at certain exhibits and see a pop up James May giving a short talk about it -

So will you be able to scan a picture of me and get a hologram explaining the law of Contributory Negligence?? Maybe not..

The world is changing around us and lawyers will need to completely change how they work.

But what will never change will be the need for someone who knows their stuff, is approachable, through whatever medium, and will go as far as it takes to progress their clients’ interests.

Friday, 4 May 2012

Medical Miracles

The UK has seen remarkable developments in eye surgery which have been reported this week.

Two patients who were totally blind have had implants fitted which have given them a perception of light and shape for the first time since losing their eyesight to the condition retinitis pigmentosa . The remarkable implant seems to work along similar lines to a digital camera. It appears that the tiny chip picks up light which is converted to electrical impulses which are passed to the brain.

One of the two patients interviewed on TV described one outcome of the surgery as being the ability to dream in colour for the first time in many years. A few years ago this would have sounded like something from science fiction.

The chips are of German manufacture and the procedure carried out by surgeons at Kings College London and the Oxford Eye hospital.

Further good medical news was the appearance at Bolton Wanderers game this week, of Fabrice Muamba, who famously collapsed with a cardiac arrest during an FA Cup game with Tottenham Hotspur. He had no independent heartbeat for 78 minutes and was therefore technically dead. His life was saved by the remarkable efforts of the medical team at the football ground, including a cardiologist from the crowd and the London Chest Hospital.

His survival and recovery has been described as a miracle.

Now you may wonder what all this has to do with a blog about the law and the practice of Law.

Well it has everything to do with it because we all live in the real world. Sometimes it easy to think that all medical lawyers are involved in is the criticism of the NHS and suing them. Things do go wrong and when that happens the wrongdoer is and should be accountable.

But we should never lose sight of the wonderful work carried out day in day out in the NHS.

Doctors have been under as much political pressure as lawyers in recent months and they deserve great credit for everything that they do.

Thursday, 3 May 2012

Accident Claims - no small matter

The Small claims court has been around for many years. Its role is to resolve straightforward and low value claims such as consumer problems or neighbour disputes. It is a lawyer free court and neither side can recover legal costs in most cases. Apart from Personal Injury cases the limit for the court is claims up to £5k.

Personal Injury Claims were always felt to be different because of the need for medical evidence and because they are generally more complex. In those cases the limit is just £1k. This acknowledged the need for accident claimants to have professional advice when dealing with insurers and their lawyers.

This was still the view of the Ministry of Justice earlier this year. It published a document as recently as February stating that the limit of £1k should remain.

Now apparently at the whim of the insurance industry the MOJ has changed its mind. The limit is to be increased to £5k. This will place the majority of accident claims in the small claims court and remove the right of claimants to have legal representation.

Minister Jonathan Djanogly has made it quite clear what the government’s agenda is –

“Our proposed reforms will make it much easier for insurers to defend claims through the court system”

They will also make it virtually impossible for genuine claimants to pursue cases with proper professional advice. There is bound to be a big reduction in the amount of claims.

This is to reduce insurance payments and thereby to increase the profits of wealthy insurance companies. The rhetoric being used to promote this is that the claims are causing premiums to increase. So these so called reforms will benefit all of us.

I should say that as a driver, I would be extremely surprised if that happened. Will the Insurance Industry guarantee that they will publish the total increase in profits that these measures will achieve? Will they also guarantee that the whole of such increase will be rebated to motorists? There might be a small reduction before the next election for obvious reasons. But to suggest a huge and generous reduction is fanciful.

We are told that there is a need to reduce fake claims. There have always been fake claims. These can be removed by robust medical evidence not by effectively removing from everybody the right to bring a claim.

Wednesday, 2 May 2012

Dismantling Justice for Ordinary People (2)

One of the main tactics used by those who seek to dismantle access to justice for ordinary people is to make them feel guilty. So we are told that there is a Compensation Culture, with no evidence that any such culture exists. Victims are made to feel that if they pursue damages claims that they are somehow the cause of a breakdown in society.

This could not be further from the truth.

Claims are brought if a person suffers an injury caused by somebody’s negligence or breach of their duty. If that happens the wrongdoer pays. In fact it usually an insurance company who pays. This system not only ensures that the innocent victim is compensated, it also improves standards. The best way to avoid repeated claims is to deal with the cause.

So today we read that there have been major errors by GPs in issuing prescriptions. According to a General Medical Council report the error rate is as high as 1:6. Many of these errors are described as severe, with mention of patients being prescribed drugs to which they were known to be allergic.

Who would try to argue that any patient injured by a wrong prescription should not have the right to sue the doctor? In fact they do have the right. But the means of enforcing that right are becoming heavily restricted for those not wealthy enough to pay for their own case. Legal Aid will have gone by this time next year.

Lawyers may be willing to run cases on a Conditional Fee Basis where they don’t get paid if the claim fails. But those agreements themselves are attacked and the lawyers accused of being part of a racket to run up fees. Claimants could find themselves having to lose up to 25% of their damages to cover costs.

There is little point in having rights when the right to enforce them is limited to the rich.

The long term result will be fewer cases and higher profits for insurers.

Lawyers will continue to do all they can to support clients in any way possible.

But the government need to know that victims will not just go away.

Tuesday, 1 May 2012

Dismantling of Justice for Ordinary People

11 year old Milly Evans was awarded just under £11m in one of the biggest settlements for Medical Negligence. She suffered catastrophic brain damage due to inadequate monitoring of her heart rate during labour. Whilst £11m sounds like a lot of money this will be needed to cover the cost of her care for life.

As a result of recent government attacks on Legal Aid cases like this will be extremely difficult to investigate and pursue. It is inevitable that fewer victims will be able to obtain justice.

A few weeks ago I wrote about good news for asbestos victims following what is known as trigger litigation –

The majority of those seeking justice for asbestos illnesses pursue their cases on a no win no fee basis. And many would find it impossible to pursue in any other way especially in the absence of legal aid. The government have agreed to delay bringing in dramatic restrictions on these agreements for mesothelioma victims. But they haven’t gone away and the restrictions, which could see victims deprived of up to 25% of their damages will still apply in all other work related health cases.

Many of us are following the Leveson inquiry and the alarming revelations about phone hacking. This scandal came to the fore following news that murder victim Milly Dowler’s phone had been hacked.  Her family successfully sued News International with the help of a no Win No Fee agreement. The family went on record to say that they could not have pursued the case otherwise –

These cuts are said to be part of a drive to eliminate ‘spurious’ claims. There is nothing spurious about any of these cases. These are ordinary people seeking justice normally against those who are more wealthy and powerful.

In thirty years this is the most aggressive attack on the rights of ordinary people that I have ever known. Most of the cuts have now passed through parliament – some by the skin of their teeth.

But this does not mean that all those committed to justice should not keep on  reminding those in power that this is not acceptable and must change.