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Tuesday, 31 July 2012

Welfare Benefits - who gives ATOS?

We are constantly reminded of the need to ‘reform’ the welfare benefit system. This seems to be achieved by a combination of cuts and the portrayal of claimants as scroungers who are living off honest tax payers.

The reality is that many claimants simply unable to work due to disability or ill health. They have no alternative but to seek help from the state and remain amongst the most vulnerable in our society. But despite this they seem to be a group which has come under relentless attack from ministers. This is partly due to the creation of what is ironically called the Employment Support Allowance. In truth its aim seems to be the opposite.

To be entitled to this benefit a claimant’s ability to work is assessed by a company called ATOS who for various reasons keep getting it wrong. I mentioned in an earlier post that appeal rates are reported to be as high as 70%, especially for those claimants who are represented –

A BBC Panorama documentary on 30th July told the tragic tale of one claimant who was declared fit for work and denied benefits and who died a few weeks later. There are reports that as many as 31 claimants have died whilst appealing these decisions.

Now both the government and ATOS would deny that they have a brief to reduce the benefit numbers. But when the numbers are being reduced alongside so many bad decisions one can understand the obvious suspicion.

There is a further problem for claimants linked to the removal of any entitlement to legal aid for benefits advice. So those who most need advice and who can least afford it will be left without support after April 2013. Solicitors, Law Centres, Advice Bureaux are all in the same position.

There have been many critics of the legal aid cuts. But this is surely the worst and the least justified. Our Law Society in Liverpool is committed to keeping up the arguments. I hope that others will do the same.

Monday, 30 July 2012

Torch Chasing Lawyers and other fun and games..

So the Olympics are finally underway after a build up which seems to have lasted forever.

After the spectacular opening ceremony we can all get down to watching wall to wall coverage on the BBC.

The games have also offered lots of opportunities for lawyers. If Jeremy Hunt’s dodgy bell had hit someone there could have been a great personal injury claim –

But the busiest lawyers have been the ones protecting the sponsors. According to one news report today there were two lawyers who followed the famous torch around the UK to protect sponsors against rogue advertising opportunities. According to one member of the Olympic Committee –

"Any ambush advertising or infringement outside the event zone will be addressed. There are two Locog lawyers running all the way with the Olympic torch to make sure that there is no brand ambush or infringement,"

Brand ambush is not as exciting as it sounds. It relates to any opportunist local businesses that might have seen the torch as a chance to promote themselves. And this is something about which the organisers have been very keen to deter. One enterprising butcher in Weymouth was told that his Olympic rings sausage display was illegal as he was not an official sponsor. That story was picked up as far away as New York –

The NYT report also focuses on other more extreme measures taken by the organisers.

I have heard of Ambulance Chasing lawyers but a Torch Chasing Lawyer is a new one. This all makes us look a bit ridiculous. I fail to see how a small butcher in Weymouth is posing any commercial threat to McDonalds or Coca Cola by having 5 rings of sausages. Or how a flaming torch baguette is going to bring Visa to its knees. Would it not have been better to have let things go that were obviously getting into the spirit of the games and doing some harmless promotion in a difficult commercial market.

I think the organisers’ time might have been better used concentrating on getting the right flags, looking after the keys to Wembley and making sure a minister’s bell was not a danger to passers by!

Friday, 27 July 2012

How tweet it is to see commmon sense!!

I wouldn’t dream of suggesting that the Court of Appeal judges avidly read this blog.

But it is encouraging when they agree! In fact it is simple common sense which has prevailed in the case of Paul Chambers.

You will recall from a couple of weeks ago that this was the case where he had been prosecuted and convicted of terrorist related offences after tweeting the words - "Crap! Robin Hood airport is closed. You've got a week and a bit to get your shit together otherwise I'm blowing the airport sky high!!"

He was given a fine and ordered to pay costs.

His appeal against conviction was supported by Stephen Fry and other celebrities and has been successful.

The Court of Appeal said that you had to ask yourself how a person would react to the words –

"If the person or persons who receive or read it, (the message) or may reasonably be expected to receive, or read it, would brush it aside as a silly joke, or a joke in bad taste, or empty bombastic or ridiculous banter, then it would be a contradiction in terms to describe it as a message of a menacing character."

In reality nobody reading his tweet would have believed for one minute that he was intending to blow up the airport. If he had said it in normal conversation it would not have been taken literally. So why should the fact that it is contained in 140 characters make it threatening?

What is alarming is that it has taken him two appeals to clear his name.

This does not alter the need to be very careful about what you put in those 140 characters. But it is good to see common sense prevail and to know that our most senior appeal judges have shown a better understanding than we saw in the earlier  courts - and given us all some clear guidance.

Wednesday, 25 July 2012

Twitter, The Press and the Rule of Law

Many of us remember the good old days – say 5 years ago (!) when a jury in a criminal trial knew nothing of a defendants’ background. They simply heard the evidence and made their decision.

In the age of the internet this is becoming increasingly difficult to achieve. The dilemma was illustrated in the recent trial of Simon Harwood who was cleared of the murder of Ian Tomlinson during the 2009 G20 demonstrations. Some newspapers had archived stories on their websites referring to previous incidents during the police career of Mr. Harwood. Mr. Justice Fulwood was concerned that jurors might access these stories and be influenced by them so he asked the relevant papers to remove them from their sites.

One can see the concern. Viewing such incidents could indeed affect their view of the defendant. But there is a real problem in trying to control what gets onto the web. If it is not on these sites it will be somewhere and it is near impossible to police.

Remember the all encompassing injunction obtained by Ryan Giggs to prevent publication of details of his private life? He was forced to waive his anonymity after over 75,000 posted his details on twitter –

So while the judges have a genuine concern where does leave us in an age where it is effectively not possible to conceal events from a defendants past? We have contempt laws to ensure that a defendant has a fair trial based on the evidence. That has been a cornerstone of our justice system and should certainly be protected. But has the time come for society to acknowledge that material is going to be out there so we need to trust jurors to be able to make their decisions on the basis of the real world in which we all now live?

I can see why judges will need to carefully explain to the jury the dangers of taking notice of anything they might have seen online. But I do not see how they can even begin to try and block such information which will inevitably turn up elsewhere.

I have said before that sites like Twitter are not all good and they can cause injustice. But equally I think that it is unrealistic to censor the internet which, for the time being, seems to be more powerful than maybe we would like.

Tuesday, 24 July 2012

Educating Lawyers by Mr. Frumpy

The whole process of educating lawyers of the future is currently under review. This process is known as the Legal Education and Training Review or LETR in this age of the acronym! As part of that process there was a conference in Manchester, last week, at which a Canadian Academic described the profession here as frumpy and of failing to reform itself in a modern society.

According to one definition, ‘frumpy’ describes ‘a person regarded as colourless and primly sedate.’ Now most lawyers I know are neither colourless nor primly sedate. If you don’t believe me come to the Liverpool Law Society Dinner in November! I have said here on numerous occasions that lawyers need to modernize their way of working and that many are in danger of being left behind.

But I have to disagree with Wesley Pue’s comments in relation to legal education itself. He makes the bold statement that lawyers are wrong to demand a Rolls Royce education when Tata Motors would often suffice. I’m not sure whether that statement was intended to offend lawyers or Tata Motors or both, but let’s not miss the point.

Is he saying that a lower standard of legal education is not only acceptable but that it should be an aspiration?

This suggests a dumbing down of the profession which is certainly not a good thing for society or for law students themselves. The learning of law can occasionally appear be dry and unimaginative. But the best lawyers are those who not only cram information but can adopt a creative approach to the work. Society needs a strong legal profession to look after the rights of the people and to hold authorities to account. This means that the study of law requires the highest of standards.

The practice of law has changed beyond recognition over the last 30 years and there is as much a need for good business grounding as there is for pure legal knowledge. But that goes to the content not the quality of the teaching. We really need both if we are avoid developing John Grisham type characters –

“All students enter law school with a certain amount of idealism and desire to serve the public, but after three years of brutal competition we care for nothing but the right job with the right firm where we can make partner in seven years and earn big bucks.” (Rainmaker).

This whole area does indeed need updating. But what should not, ever, be compromised is quality. I would much rather hear of initiatives that will make it easier for talented students from all areas of society to qualify as lawyers without the spectre of huge debts and a derisory training contract salary.

And if that makes me frumpy I'll wear the T Shirt with pride!!


Monday, 23 July 2012

Why should lawyers pay for justice?

A few blogs ago I raised the question about whether lawyers should pay a levy to cover the cost of access to justice following the abolition of legal aid. The proposal had come from the Law Centres’ Federation who said that if every solicitor paid £25.00 a year that this would fund the provision of a lawyer in every Law Centre thus opening the door for many to free legal assistance.

The proposal seems to be popular with the public who recently voted in favour of the idea in a Guardian poll –

But having thought about it I’m afraid I do have major concerns. I also take on board the thoughful observation of Patrick Torsney at -

That is nothing to do with paying the £25.00. I would happily pay that ensure that people of limited means get access to lawyers. Indeed I would encourage any of my colleagues to get involved in any voluntary initiatives. In Liverpool we are hoping to put on a sponsored walk later in the year to raise funds for a charity which funds pro bono, or to you and me, free legal work. Many lawyers and their firms already do huge amounts of free work.

No – my main concern is that the element of compulsion makes it a tax on lawyers to fund legal work. Why should one professional group be forced to pay for work, which benefits the whole community? Would anybody suggest that doctors should pay a surcharge to fund the NHS or teachers pay extra to fund education? Why should those who are committed to a sector then be called upon to fund it?

This proposal overlooks the responsibility upon society as a whole to look after the most vulnerable. If a £25 charge on lawyers would fund law centre lawyers then it would cost the population pennies. This was the whole idea behind the legal aid scheme which provided assistance for those in need at a relatively low cost to the country. I have been a regular critic of the cuts. If the profession ends up paying the government can look upon it as a job well done.

That is my main objection.

This must not be seen as a substitute for a properly funded legal aid scheme accessible to all. The political argument must continue. It may be popular with guardian readers but does that make it right?

Thursday, 19 July 2012

Virtual Courts for Virtual Lawyers

The Government has recently unveiled proposals for a much faster and high tech Criminal Justice system. This is a development of the fast track procedures introduced during last years’ riots. The plan is to have courts sitting out of hours and at venues; such a community centres. Defendants will appear by video link as will witnesses.

Any measure which makes our justice system quicker and more efficient is to be welcomed. But how far will this go? The Law Society’s Criminal Justice Chair, Richard Atkinson, points out the dangers in such virtual courts where the Defendant might never have to make a personal appearance. Where does the Defendants’ Lawyer go? Do they remain with the accused at the Prison thus losing the opportunity to discuss the case with their opponent – a vital part of any court based litigation? Or do they go to court and leave the accused without the facility of discussing the case with his own lawyer.

This is a valid concern. Lawyers, for all their other skills, cannot be in two places at the same time. Now there may be a time when Virtual Lawyers will be able to appear by hologram in many different places. But we are not there yet!

I can see a dangerous scenario developing where Virtual Courts are seen as a cheap alternative to the real thing. Why not have all courts operating without the inconvenient presence of the parties or even the lawyers. We can all conduct our litigation from the comfort of our own living rooms.

The difficulty with all this is that it ignores the real world. Cases are often resolved by all parties coming together, around a table or at court. This involves complex discussions and major decisions. They are not going to happen over a video link or any other virtual form of communication.

I am all for modernising procedures but not at the cost of justice.

As John Atkinson says in his article –

‘A more efficient justice system is possible, but the government needs to recognise that speed does not always equate to efficiency and efficiency should never be promoted over justice.’

Article 6 of the European Convention on Human Rights says that a person is entitled to a fair trial. It could be that a trial in which any party cannot access his lawyer in unfair.

Wednesday, 18 July 2012

A Graduation, An inspiration and a Reflection

I felt like I was turning the clock back 30 years yesterday when I was a guest at the Liverpool University Graduation Ceremony for Law Graduates at the Liverpool Philharmonic Hall. So I donned the cap and gown along with the Presidents Jewel - felt a bit self conscious to be honest – and joined the fun.

I have mentioned before about those moments when you recall why you went into law in the first place. Well there was certainly such a moment when Mrs. Gee Walker was presented with her Honorary Doctorate for the anti-racism work of the Anthony Walker Trust. Few of us in Liverpool can forget the terrible events in July 2005 when Anthony was the victim of a violent racist murder. 

His mother, Gee Walker, subsequently stunned the world by saying that on the basis of her Christian faith she forgave the killers. She repeated that in her acceptance speech yesterday. She has also worked tirelessly through the trust named after her son, to combat racism. She is an inspiration to us all.

What was particularly moving was when she said that Anthony had wanted to study law and so this could well have been his day rather then hers. Her advice to the students was - “I encourage you to get better in life – don’t get angry, don’t get bitter.”

I have to say that I was glad that I was there.

After Mrs. Walker we had the main graduation ceremony. Normally this is just a flow of name after name after name as each graduate has their moment. But on this occasion I couldn’t help thinking what the future holds for them. There must have been over a hundred students embarking on their new life in the law. And it is not going to be easy. They have huge student debts. There is a shortage of training contract and pupilage places and there is the abolition of the minimum salary which means that after all the hard work, those who find contracts, could work for a pittance for two years.

It is far harder for this generation of young lawyers than it was for us. The students I saw were clearly from a cross section of society. How long that remains the case is uncertain. We could end up back in the days when only the children of the wealthy end up as lawyers. That cannot be good for society.

But then it was also clear that this was a strong group of intelligent and hard working young people. So they are the future of the law and I am confident that they will have the strength and imagination to deal with all of these hurdles.

Monday, 16 July 2012

Law in a trolley? A challenge ahead.

Throughout most of my years as a solicitor there was one non negotiable fact of life. Only solicitors could own solicitors’ firms. This was to protect the independence of the legal profession from outside influence.

All of this has changed over he last few years. Firstly it became possible to have a limited outside ownership. This was the precursor to the Alternative Business Structure which became permissible under the Legal Services Act 2007 which came into force last year. It is now possible for law firms to be entirely owned by outside interests – subject to approval by regulators. This has become known as Tesco Law, based on the idea of the popular supermarket providing legal services to customers. In fact Tesco’s have not to date, showed any interest.

But other big players have thrown their hat in the ring; most notably the Co-op who are operating as Co-Operative Legal Services. It is likely that many other household names will follow suit. I have already mentioned the plans by Eddie Stobart to offer barrister services –

So does this mean the end of the High Street Solicitors’ Firm? I don’t think so, although it certainly poses new challenges. Challenges can improve quality. If I want my firm to compete with mega rich PLCs it will only be because my firm does a better job and is more reliable. Even in the cut throat retail world there are niche, quality providers who have done well. Will clients who need legal assistance trust a big brand just because it is familiar? Time will tell but there is work to be done which might ultimately benefit consumers.

One major concern about outside ownership is that this will mean outside control and therefore a loss of independence. This seems to have been the view of the profession in the USA and Germany and most recently France whose profession has firmly rejected the idea –

I was recently at a dinner in Dublin where a Minister was promoting a similar idea and it was definitely not popular with the guests, again because of a loss if independence. In England and Wales those arguments are over. ABSs are here and are here to stay.

I predict that we will see a mix in the future. There will be Hyper Firms, even Tesco will get on board eventually. But there will also be modern and imaginative law firms who will still offer an excellent service and maintain the trust of their clients. There will even be Virtual Lawyers who may outshine all the rest!

But I am Mr. Half-Full by nature. Interesting times are ahead…


Obstetric Care - is bigger better?

Of all the Medical Negligence cases that I have done over the years the most distressing are those that relate to child birth and neonatal care. This should be a time a celebration and in the vast majority of cases it is. There are however those rare cases where something goes wrong. I have seen cases where babies suffer tragic brain injuries due to lack of oxygen and suffer life long disabilities. These cases are few and far between but when they happen the consequences are devastating.

If there is any area of medicine which should be given a top priority it is this.

There are proposals from one expert that there should be a small number of ‘centres of excellence’ with a strong concentration of consultants to ensure the best possible care.

The idea is to reduce the number of obstetric departments and concentrate the funding in larger centres that are able to offer high quality care. It sounds good. Who would object to improving care?

But there is also a downside. Fewer centres inevitably mean closure of units and the loss of local facilities. It does not seem that long ago that the community midwife visited mothers on her bike and was there when the baby was delivered at home. So will the loss of local facilities mean a less personal service? This is the concern of Mary Newburn from the National Childbirth Trust –

"We are concerned that very large hospital units can seem like baby factories to parents: impersonal and preoccupied with pushing mothers and babies through the system, that people are processed like components in a factory, and that some don't get personalised care."

This is a finely balanced argument. I can see the concerns of mothers who feel that they will lose a locally available service. Some may have to travel long distances. On the other hand I have seen the terrible consequences of things going wrong which suggests that anything that improves standards is a good thing.

I have to say that my concern is that this will all be about saving money. Closing units is associated with cuts. And if the welfare of the newborn is placed at risk for economic reasons then the proposals should be vigorously opposed. The final decision should be with local health providers to decide the best means of providing care in their area.

Such decisions should not be left to politicians.

Friday, 13 July 2012

Dying of a hospital .. in this century??

Twenty Two year old Kane Gorny battled numerous health problems. He had survived a brain tumour which left him with a tendency to be aggressive. He also suffered from a diabetic condition which also caused him to be aggressive and also to have an inability to conserve water.

His treatment for these conditions had included steroids. A known side effect of steroids is weakening of the bones. This led to him going into St. George’s Hospital in London for a hip replacement operation in May 2009. Apart from his complex medical history this should have been a straightforward operation.

During this admission he became aggressive and was sedated and placed in a side room. His fluid levels dropped causing him to develop a desperate thirst. He was not given the medication that he needed. At one point he became so desperate that he called the police. His cries for help were attributed to behavioural problems. Eventually the seriousness of his plight was noticed but it was too late and he died shortly afterwards of dehydration.

In other words he died of thirst in a UK hospital in 2009.

This is one of the worst cases of neglect that I have come across. And it led to strong words from a Coroner yesterday who said –

"Kane was undoubtedly let down by incompetence of staff, poor communication, lack of leadership, both medical and nursing, a culture of assumption."

The NHS Trust has apologised to his family.

This will surely lead to an indefensible claim for clinical negligence against the trust which says that it has admitted responsibility – they didn’t really have much choice.

I hope that Kane’s family get prompt and adequate justice for what he went through.

What is really frustrating is that we see cases like this happening on a regular basis there are still those who try and blame victims who sue hospitals for putting the NHS under pressure. If there was adequate care in the first place this would not be necessary.

Thursday, 12 July 2012

Asbestos - even the Romans knew...

So what is the big deal about asbestos? We all know that it was a flame proof substance that was used in the building trade years and years ago. We all know that it is life threatening and its use was banned sometime in the 1990s. So isn’t that the end of the matter?

Sadly it is not the end of the matter. The effects of asbestos will be with us for years.

The use of asbestos goes back many years, possibly centuries. It is a natural mineral which was mined by the Romans. The name comes from the Greek word meaning indestructible. The dangers were known even then. Historians talk of illnesses which it might cause and some warned against buying slaves who had worked with it because they tended not to live long.

But it became used at an industrial level in the 1950s and 60s and was widely used in the constructions of buildings and ships because it was fireproof and cheap. Throughout that time the dangers were well known.

But why is it still a problem in 2012? This is because of the nature of the fibres which can be in someone’s lungs for many years before anything happens. I once did a case for a railway worker who was exposed in the 1940s and became ill in about 2002. He developed mesothelioma and died within months.

A report back in 1999 was predicting 250k deaths by 2035 and we are seeing that happening –

The danger is still present in some older buildings so the figures could get worse. This is why householders are advised to take care when carrying out DIY –

Lawyers will be dealing with these cases for many years. During the recent debates over the funding of litigation proposals to restrict the rights of claimants in mesothelioma cases (this is the worst of the asbestos related illnesses, almost only ever caused by asbestos and almost always fatal). The proposals could see victims losing up to 25% of their damages. It is simply a delay pending further investigations  

If there is one group of workers who deserve all the support that society can offer it is these. They were exposed to a life threatening substance whose dangers were well documented.

Great work is being done to campaign for victims especially by Merseyside MP Bill Esterton and Trade Unions. I would hope that all us will support this fight.

Wednesday, 11 July 2012

Access to Justice - Continuing the fight

The legislation which effectively wipes out Legal aid for those of limited means received the Royal Assent in May and will come into force in April 2013.

The debate has already begun about where we go from here. What is to be done to try and protect access to justice for ordinary people? Do we simply give up and allow whole swathes of the population to try their hand at litigation in person, against wealthy insurers and public bodies? That is unthinkable.

Firstly I entirely support the views of the Legal Action Group (LAG) that there is still lobbying to be done. Writing in their June bulletin Director Steve Hynes says – ‘The Act is not the last word on what the legal aid system will look like as secondary legislation will now follow and there will be opportunities to influence this.’ He also points out that the government was persuaded to leave the door open to bring areas of work back into the scope of legal aid. This is certainly the view of Liverpool Law Society and we are continuing to meet with local elected representatives to makes this case and encouraging the national Law Society to continue the fight.

But in the short term it is inevitable that there will be areas of unmet need. This will include those most in need of assistance, such as those needing advice on welfare benefits.

One interesting if controversial proposal has come from the Law Centre’s Federation. They have proposed that the Law Society impose a levy on all solicitors of say £25 a head. The money raised would cover the cost of placing a lawyer in every Law Centre in the country. Law Centres do a fantastic job offering free legal assistance to those in greatest need. I spent three years in a Law Centre in Liverpool and saw first hand the important work that they do.

From a personal viewpoint I would be happy to pay this. If it means that the most vulnerable get access to professional advice then it seems a modest amount to pay. And it would improve the image of the profession who are usually portrayed by the media as being interested only in their own businesses. So to that extent I would support it.

But I can also see why others would object. Lawyers already do huge amounts of unpaid work – from giving free initial advice to giving voluntary advice at CABs and Law Centres. So why should they have to go even further to lessen the effect of the governments policies? The government will see it as a job well done if they have dismantled the legal aid system and the lawyers pick up the bill. So I can see real and justified opposition. This is going to be an ongoing debate as we regroup and continue the fight for people’s rights.

Tuesday, 10 July 2012

Terry's Trial, Rio's Tweet and other lessons

The papers are currently full of the John Terry racism trial as the Chelsea and former England Captain is accused of racially abusing QPR’s Anton Ferdinand during a match last season. 

It seems that whenever there is an event like, this involving a well known personality, that Twitter raises its head.

I have gone on before about the massive influence of social media platforms and twitter in particular.

And we have seen issues arising in this trial.

Rio Ferdinand, brother of Anton, posted a tweet on Monday about the trial. He has about 3m followers. According to the Guardian he was retweeted by 3287 of them. Each of them probably retweeted again. So that means Rio’s tweet would have been read, within minutes, by millions. This obviously raises serious questions about whether it could influence the outcome of a trial and render a fair trial impossible.

In fact that isn’t an issue in this case as the trial is before a magistrate and it is not felt that there is a "substantial risk of serious prejudice or serious impediment to active proceedings". That may just about be the case here –

But it does raise a serious question about the power of twitter that will need to be addressed. If this had been a jury trial it could well have been a different matter. There could then be a risk that if a juror read a tweet from a high profile Premier League Footballer that the proceedings might have been placed at risk. We would then have been looking at serious contempt of court charges.

Once again this is a sobering reminder that you should think first and tweet later. It is so easy to bash out 140 syllables without considering the consequences. But what we say can quickly be read by thousands, at least, and there can be consequences – even for the most well known as could have happened here.

As social medial develops further I think it is inevitable that there will be calls for tighter regulation and we could then see even more twitter based prosecutions.

But the message should be clear enough. If you have something to say just stop, take a deep breath, think about the consequences and who is going to read it.

Monday, 9 July 2012

Victims footing the bill

There can be few things worse then being a victim of a crime of violence.

Not only do such attacks leave physical injuries they can also leave mental scars. 

Since the early 1960s the UK has had a system of Criminal Injuries Compensation which is highly regarded across the world. In a report in 1962, former Attorney General (and Liverpool Lawyer!) Lord Shawcross said –

No great philosophical revolution is therefore required for an acceptance of the simple principle, that the innocent victim of violent crime should be entitled to compensation from the State for his personal injuries.’

The system has never been perfect. There have been criticisms that the levels of payments were to low or that  certain victims are excluded from eligibility based on their lifestyle etc. But overall the system has provided some recompense for victims who are injured as a result of criminal behavior.

It is a shame therefore that the government has announced plans to exclude even more victims from payments on purely financial grounds. The planned cuts were announced by Minister of Justice Ken Clarke last week. You know that cuts for victims are on the horizon when ministers talk about focusing on ‘seriously injured victims of serious crime’. Under plans there is no award if an injury is worth less than £2.5k and payments up to £11k are to be reduced. These are not minor injuries.

This seems to create an arbitrary distinction between victims. If a person is mugged in the street they have had an extremely distressing experience through no fault of their own. If they suffer a significant injury but one which attracts less than £2.5k under the CICA tariff they get nothing. If a person’s injury is a bit more serious they get a payment. They have both been mugged. So they should both be compensated.

This seems to be another example of victims being deprived of justice to fund cuts elsewhere. We have seen story after story of bankers getting away with misconduct on an industrial scale. We also saw billions of pounds of taxpayers’ money go on bailing out the system.

When there is a hole in the state’s finances why should the victims of crime – who are often the most vulnerable, be the ones to pay.

At the moment these are just proposals as part of a consultation. Let’s hope that they do not go any further.

Friday, 6 July 2012

Presumption of Death - tipping the balance

Dealing with the loss of a loved one can be one of the worst things any of us have to face. The emotional trauma is often made worse by the legal complexities that you have to deal with.

All of this is aggravated when a person goes missing, particularly in England and Wales. Under the law as it stands a person’s family has to wait years before they can be presumed dead by the courts. 

This means that there cannot even begin to be closure until many years have passed. It also means that all sorts of other issues from finances to new relationships are effectively in no man's land. Mortgages linked to life policies cannot be paid off. 
Today’s Guardian highlights the case of Manic Street Preachers’ Richey Edwards who went missing in 1995 but was not declared dead by the court until 2008 – 

His is a high profile case but many family members have to go through a similarly painful and drawn out process. 

This is a law that has been crying out for reform for decades. The proposals follow a report earlier this year from a parliamentary committee which said –

 "The evidence we have heard from families faced with the problems of resolving these affairs is overwhelming. The law needs to be changed.”

It is encouraging therefore that the government has announced plans to introduce legislation which will make things simpler. The plan is that it will be possible to obtain a Certificate of Presumption of Death far earlier. The announcement does not actually say how much earlier. In Scotland it is possible to obtain such a certificate after seven years. Even this seems to be too long and four years would probably suffice

This will not in any way ease the pain and uncertainty suffered by loved ones but it will at least ease the added burden of bureaucracy and uncertainty.

The fear is that matters will become complicated if a person re-appears. But there should be a balance here. In reality it is an extremely rare occurrence – in Scotland there has been one re-appearance in over 30 years. If this is balanced against the hardship suffered by families the case is really overwhelming. 

Thursday, 5 July 2012

Idiot's Guide to Barclays Bad Boys

OK confession time. Hands up you if are really angry about the way that Barclays Bank has behaved. Hands up again if, like me, you know they have done something really bad but are not absolutely sure what it is.

This is something which affects all of us at some level so here is what I know.

It is all about LIBOR which stands for London Inter Banks Offered Rate. Now something many of us have learned since the banking crisis of 2008 is that banks lend to each other. There can be all sorts of reasons for this. At the end of a day’s trading a bank might be a bit short of cash – if it has paid out more than it has had in deposits. So they borrow the shortfall. On another day it might have a surplus. So it will lend money to a competitor with a shortfall.

LIBOR is the average rate they have to pay for this borrowing. It is calculated by the British Bankers Association based on information they receive from the leading banks about what they have to pay. It gives a broad picture of how strong the banks are generally. The lower the rate a bank has to pay the stronger it looks and this boosts its standing. This is where Barclays come into it. They were putting in false figures to make them look stronger than they were. During the worst of the crisis putting in low figures made them look stronger than the rest.

So what?

Well not only did this give a false impression of Barclays it also skewed the LIBOR rate which gave a false impression across the sector. This in turn has a knock on effect down the line which can ultimately affect the amount you and I are paying for our mortgages or any other loans for that matter.

It also adds to a general feeling of mistrust. This is the main concern. Most of us place all of our income and savings with one or more banks. If they are guilty of this level of misconduct – with our money – how can we trust them with anything?

There clearly needs to be a full investigation. Some commentators are saying that whilst the behaviour was wrong it was not illegal. This has to be looked at. A person can be prosecuted for working in order to supplement a meagre benefits income, or for understating their income on a tax return. So wealthy bankers must be no less accountable for their misdeeds.

Wednesday, 4 July 2012

TheValue of Justice (Continued)

Sunday’s blog about legal aid and clinical negligence prompted an interesting late night discussion on Twitter about whether it was in fact necessary in these cases. The point was made that it is perfectly possibly to pursue them on the basis of no win no fee agreements (CFAs) and the money would be better spent in other areas such as family law and crime.

To be honest they are fair points even though I disagree that CFAs are an ideal substitute for legal aid. Firstly it should be said that these agreements have opened the way to justice for many who were not financially eligible for legal aid. Despite the hostile rhetoric from the media and politicians they have provided many people with access to justice.

But there is still a need for legal aid in many cases. Firstly there are the cutting edge cases that I have talked about before –

There have been many cases where our laws have developed by lawyers pushing the boundaries and legal aid played a big role in this. A compete reliance on CFAs does create a commercial pressure to only take on the safest cases.

I am certainly not against CFAs and have run many cases using them. To some extent the cost of losing a case on a CFA, and not being paid is met by what is known as a success fee. So if a case is won there is a percentage increase which can be claimed to cover the losses in the losing cases. This success fee is currently paid by the NHS Trust if a case against them succeeds. So that does allow for some cutting edge work. But that will all change next year. The success fee will no longer be payable by the losing party. It will have to be paid by the victim out of their damages for pain and suffering – up to a maximum of 25%.

All solicitors have a professional duty to advise clients about the available funding arrangements and to act in the in clients’ best interests. With legal aid a victim gets most and normally all of their compensation. Under a no win no fee agreement they could lose a huge chunk. Although many lawyers will not charge this fee it is bound to deter them from running all but the strongest claims.

But it is going to be more difficult all round, for victims to pursue their cases. The double effect of abolishing legal aid and making claimants pay the success fee will reduce the number of victims who are able to find justice. This is alongside the relentless rhetoric about a compensation culture that makes victims believe that they are ruining the country if the bring a case.

This is why the removal of legal aid – with its negligible savings for the treasury is such a serious blow for ordinary people. And it is why the politicians need to be regularly reminded of the injustice that will be caused.

Tuesday, 3 July 2012

Apprentice - your'e hired

One subject that should concern us all is the way young people get to become lawyers.

I have written before about the SRA’s plan to abolish the minimum salary for Trainee Solicitors and how this might deter all but the wealthy from pursuing a career in the law. Other concerns are the huge student debts that are accumulated and the general shortage of jobs in the profession –

This is a real worry. Society needs a legal profession that is representative of society as a whole. This is why I have opposed the SRA’s decision on the minimum salary as have the Junior Lawyers Division who represents trainees and newly qualified solicitors.

There is talk of a new initiative which might present a different route into legal work. This is the announcement that the government has made funding available to create legal apprenticeships which train non graduates in certain areas of legal work such as litigation or debt recovery. This will lead in turn to a wave of trained paralegals who will work in law firms but who do not wish to become qualified. In fact there is a route to qualification as paralegals can work to become Chartered Legal Executives and they in turn can become solicitors by a combination of practical experience and passing professional exams.

I have to say that I can see why this would become popular with school leavers who do not want to take a huge risk on student debt alongside the lottery of getting a job at the end.

If this initiative leads to more young people finding jobs in the law then it is clearly a good thing. But I do not think it replaces the need for properly paid training contracts for graduates who have studied for years and have the right to expect a reasonably paid job at the end. If that option is removed then the most talented graduates will go into other careers.

So the reality is that the profession needs both. We should encourage students into law at every level. Society will benefit from an influx of apprentices who go on to become highly experienced paralegals. But we also need to encourage the best undergraduates to pursue careers in law as well.

So whilst this is a positive development, there is still the need to revisit prohibitive student debts and to maintain a fair salary.

Sunday, 1 July 2012

The Value of Justice?

Eva Hudson should have been able to feel she was in safe hands when she was taken to A/E at Bournemouth Hospital in December last year. She had been rushed to the hospital with all the signs of kidney failure. Tragically, an inexperienced doctor diagnosed a rare kind of infection and sent her home.

She died four days later.

At her inquest in Bournemouth last week the coroner found that neglect contributed to her death. This was a straightforward and treatable condition and her tragic death was caused by the doctors’ failure to recognise and treat the symptoms. The Hospital trust was also at fault for placing this doctor in a position where life and death decisions were being made without adequate supervision.

Her family should have a clear case against the trust for negligence. But they will face hurdles. I cannot comment on this particular case but it does bring a general injustice to mind.

Any claim against the NHS is effectively a claim against the government. This is now a difficult exercise because another department of the government has abolished Legal Aid for medical negligence cases in all but a tiny minority of cases. So if a person is not wealthy what do they do? They may find a solicitor who will pursue the case on a no win no fee basis – in the face of heavy medial and political hostility. And even then the lawyer will have to spend several thousand pounds to investigate the case. Or, as is most likely, the case will never see the light of day.

These cuts will come into effect in April next year. How many victims will be deprived of justice before this is changed?

We have seen hundreds of billions of pounds spent on bailing out a banking industry which shows no sign of changing its ways. The legal aid cuts amount to £350m. Interestingly the Foreign Office has recently tendered that amount for a new desk top overhaul!

The value of justice?