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Friday, 31 August 2012

How the other half litigates!!

This is the 7 star Rolls Building in London which houses one of the classiest courts in the world. It is the home of our Commercial Court dealing with cases involving serious money.

Today the court has seen the judgment in the most valuable case in legal history. This was the battle of the Russian billionaires between Chelsea FC owner Roman Abramovich and his former partner Boris Berezovski. Berezovski was seeking damages of over £3b. They were represented by two of the most expensive QCs in the land. Abramovich’s silk Jonathan Sumption has been elevated to the Supreme Court since the case was heard and his fee was over £1m.

For those who are interested, Mr. Berezovski lost so that should leave Chelsea with plenty to spend before the transfer window closes tonight.

 But all of this raises a wider issue. This wonderful court building costs £300m –

In other places around the country we have seen local courts closed in order to save money. So ordinary people have to travel to other cities in order to have their cases heard. As we all know Legal Aid is being withdrawn for most types of work as from next April. We have already talked this week about hard pressed legal aid lawyers being forced to work on a Sunday. Interestingly the savings from the Legal Aid cuts are about £350m. So this magnificent court building has cost the same as the entire Legal Aid budget cuts!

It really does say something about our priorities.

Local people see courts closed and their access to legal advice is cut.

Bit if you are a billionaire we will lay on a Rolls Royce service!

Thursday, 30 August 2012

Who's Behaving Badly?

No win no fee agreements get a bad press.

The media and the insurance industry have even created a new public enemy – the no win no fee lawyer.

In fact these agreements have opened the door to justice for many ordinary people who could not otherwise afford to bring a case.

The reason the press dislike them so much is illustrated by the recent case of Neil Morrissey against the Daily Mail. The former star of Men Behaving Badly sued the Mail for libel after the paper had printed a story that he had behaved badly in a French bar – a story which it could not substantiate. In other words it was libellous. Morrissey accepted an apology and damages of £15k as an out of court settlement.

His lawyers ran the case on a conditional fee basis and the legal costs came out at £130k. The Mail has latched on to this as an example of the system being abused and lawyers claiming grossly excessive fees. It does seem a lot. But the solicitors’ and barristers are paid on the basis of the amount of work done. You have to put the hours in to earn the fees. The court assesses the work done and if it feels that the bill is excessive it reduces it. The Mail would have us believe that the lawyers just make up a figure, which is fanciful. The size of the bill is normally an indication that a defendant has aggressively fought a case before settlement. The earlier the settlement the lower the costs.

They also complain about an element of the costs which is called a success fee. This is an uplift on fees to compensate lawyers for those cases run under the scheme which fail. It used to be a deducted from damages but when New Labour wanted to remove most damages cases from legal aid they changed the law so defendants had to pay it. This will change again next year when we revert to the old way of doing it. But we can’t lose sight of the fact that the whole no win no fee scheme was created by politicians as an alternative to legal aid. Lawyers didn't create that system. They have to work within it and then take the flak when powerful corporations don't like it.

Without conditional fees it would not be possible for most people to sue wealthy newspapers for compensation.And if they didn't libel people in the first place....

Wednesday, 29 August 2012

And on the seventh day.....

Trouble is brewing among lawyers in Liverpool over bizarre proposals to have Sunday sittings in some courts dealing with criminal cases. Solicitors are angry and worried and have every right to be.

This follows the trend that began in the wake of last years’ riots. The government is keen to be seen to acting decisively in relation to criminal justice and these ideas always go down well in the media. But they are both unnecessary and unfair.

They are unnecessary because the courts in Liverpool are not overrun with work. Responding to a huge influx of arrests in the wake of unprecedented riots is one thing. But the day to day work of the courts is something completely different. Over the last few years the government has closed courts in smaller towns to save money – meaning that defendants have to travel miles to attend hearings.

If there is no demand for local justice, then why the sudden enthusiasm for Sunday justice?

Similar plans have failed miserably elsewhere –

Now most people have little sympathy for lawyers but those who do criminal defence work, on legal aid, deserve all the support they can get. They already work long and anti-social hours. They can be called out to a police station in the middle of the night, spend most of the night with a client and then represent the same person at court in the morning. All of this is done at the lowest hourly rates of all. To add insult to injury it appears that prosecuting lawyers will be paid overtime for appearing on a Sunday and/or given time off in lieu. But there will no extra payment for the defence lawyers. Most operate small practices on a shoestring and cannot afford themselves the luxury of time off.

These plans are nothing short of a disgrace. They will not advance criminal justice and the main thinking behind them is to enable politicians to score popularity points with some areas of the press. The quicker they are abandoned the better.

Tuesday, 28 August 2012

Tweeting to Infinity and Beyond!!

We have news again today about somebody in trouble because of Twitter.

This follows the posting of racists tweets aimed at footballer Carlton Cole after his club West Ham lost badly at the weekend. The tweeter came out with racist comments and has been arrested for a racism related offence.

When will they ever learn? This again demonstrates the power of twitter and social media generally. The offender might have thought that only his followers would see his comments. But if you target a well know personality with over 55k followers it goes to another dimension. If he retweets then at least another 55k people see what is written. If they all retweet then we are talking in millions. It would be like going on live TV, racially abusing a well known character and then wondering what the fuss was about! The offender deserves all he gets.

This multiplying of information can be a good thing. There have never been better opportunities for anyone with a serious message to reach huge numbers in a short space of time. I was in Egypt in 2011 when the uprising began. I was following developments on Twitter well before I started getting calls from home to check that I was safe even though I was 250 miles from Cairo. News is almost instant and can be interactive. Every BBC presenter seems to have a twitter account. I have commented on news stories, mentioned the presenter and had a response on more than one occasion.

The same goes for Facebook and LinkedIn. My current ‘reach’ according to LinkedIn is approaching 5m. So if all of my contacts pass on something I say to all their contacts then that is how many people will see it. That is almost the population of Singapore – not that I would want the entire population of a  nation to read a tweet but you get the idea. It is big. You could reach infinity and beyond!

It is not hard to see why businesses, politicians and activists see the importance.

But getting back to the news at hand it also shows why you have to careful. These three Social Media giants should have a health warning. What you put out could seriously damage your liberty if you are not careful.

Thursday, 23 August 2012

Slavery RemembranceDay

A special mention today for Slavery Remembrance Day.

23rd August is designated by UNESCO as the day we remember the victims of the slave trade which was officially outlawed in the UK in 1807. This is being commemorated in Liverpool by a visit from Martin Luther King III who is the son of the great Civil rights Campaigner assassinated in 1968.

The City of Liverpool was one of the biggest players in this terrible trade. At its height the City was dealing with up to 75% of all slave ships passing from Africa to the Americas. It is a dark part of our history which we would rather forget but which should make us all the more determined that any form of slavery should be wiped out for good.

Nobody knows the exact figures but they are numbered in millions. For example about 74,000 a year were transported between 1776 and 1800 which totals about 1.85m. Much of the wealth and fame of my home city was built on the suffering of slaves.

Although this is now consigned to history, slavery has not disappeared. In fact the numbers are higher than ever. The form of slavery is different. Many are forced to work to pay debts and are paid at such a low level that the debts are never paid leading to a life of servitude. There are countless stories of young women trafficked into the sex trade against their will or following false promises of employment.

Some of the worst offenders are familiar. Chocolate production is known to be one industry in which children are forced to work. It is likely that most of the chocolate we enjoy has seen forced labour at some point down the line –

Whatever you call it – slavery, forced labour, people trafficking – it has been and remains one of the great injustices of the world. Anybody who works is entitled to a living wage and tolerable working conditions.

So for this day there is no legal rant! Let us remember those who are still victims, let us educate ourselves and do all we can to eliminate it once and for all.

Wednesday, 22 August 2012

Bogus Lawyers - a real problem

Identity fraud is something that we have all become aware of in recent years. The digital age has resulted in many sophisticated scams by organised criminals. Many of us will have received emails pretending that they are from our bank or even the tax office asking for us to send our bank details. It goes without saying that nobody should ever volunteer their details in response to something like that.

But a recent development has been the creation of bogus law firms. They are either completely fake or they steal the details of an existing firm. The website of the Solicitors Regulation Authority (SRA) currently has five warnings posted -

The aim of the fraud is to get you to send money to the ‘firm’ which you may never see again.

In one case in 2010 a couple handed over £800,000 to criminals posing as a solicitors' practice in relation to a house purhcase. 

This is a concern for consumers but also for all genuine lawyers who find themselves the innocent victims and may often need to pick up the pieces.

So what can you do to ensure that your lawyer is genuine? Well if you have a longstanding relationship with a solicitor you trust then you should be able to rely on that. But if, for example, you receive a call or a letter from a solicitor that you have never heard of then you should be concerned. So you may get an email saying that you have been left a huge sum in a will but asking you to send money on account of charges. That is almost certainly not genuine and you should never hand a penny over if that happens.

All Solicitors are regulated by the SRA and have a registration number. This should appear on all communications including emails and on their website. So if there is no number you should be concerned.

The number could be fake. The Law Society has a very useful Find A Solicitor search which is very easy to use and has the details of all solicitors and firms in England and Wales –

If the solicitor isn’t on there then there is a problem. None of these are foolproof and the criminals in the 2010 case seem to have slipped through those nets and all solicitors are now advised to be extremely vigilant.

Other more subtle clues might be a general email address. Most genuine firms would not have a Gmail or hotmail address. The same goes for telephone numbers. If all you get is a mobile number then be careful!

If you have a concern and you are in England and Wales you should contact the SRA whose details are on their site. If you are outside this area should still be cautious and contact your local regulator via google or even contacting another lawyer.

Tuesday, 21 August 2012

Failure to protect asbestos victims is simply scandalous

There are certain groups of victims to whom the law gives special treatment. So a person who is injured by a driver who is uninsured or untraced will be compensated by the Motor Insurance Bureau (MIB). A victim of a crime of violence is compensated via the state funded Criminal Injuries Compensation Scheme. The client of a negligent Solicitor will always be compensated for losses as all solicitors have to be insured and cannot open their doors to the public if they aren’t.

But if there is one group that deserves special treatment it is the victims of asbestos. These men and women worked for years with a substance that was known to be a serious danger to life. They normally worked in relatively low paid sectors including shipbuilding and construction. Asbestos diseases can take many years to show themselves and so huge numbers of these workers approach retirement and discover that that the asbestos has caused a terrible illness which in many cases is fatal. It is a problem which is not going away in a hurry. It is predicted that many thousands will be affected in the next 10 – 20 years.

But there is a problem. In order to secure compensation for them and their families you have to sue companies who may have closed years ago and for whom there is no insurance. If there is no company or no insurance then there are no damages. It was hoped that this would change following recent announcements by the government of a safety net scheme along the lines of the MIB which would secure damages in these circumstances. But the scheme which has been revealed falls woefully short of what is needed.

The scheme provides for compensation to be paid to victims who are diagnosed with mesothelioma after 25th July 2012 but will not come into effect for two years. This guarantees that hardly anybody diagnosed now will ever see any damages. This is because the life expectancy of a mesothelioma victim is less that a year in most cases. The scheme also ignores other serious illnesses. Asbestosis kills people. Lung cancer kills people. Respiratory failure kills people. But the scheme is limited to victims of just one illness.

This failure to protect this group of workers is simply scandalous. The Asbestos Victims Support Groups Forum UK rightly say – ‘We welcome this first move on untraced insurance but we are bitterly disappointed that the scheme doesn't cover 50% of asbestos victims who are excluded.’ -

Anyone who has contact with their elected representatives should lobby for this scheme to be extended to all victims. In the meantime lawyers will do all they can to ensure justice for victims in whatever way they can.

Monday, 20 August 2012

Virtual Judge? Not yet!!

I have said on many occasions that the days of the Virtual Lawyer are not far off – in many respects they are already here.

But it seems that the days of the Virtual Judge are still some distance away.

According to Guidance issued by Senior Judges and posted on the Legal Cheek site. The guidance does not actually ban blogging by judges but certainly does not encourage it. It says that judges who write a blog must not identify themselves as such or say anything that might damage public confidence in the judiciary.

Judges are told in no uncertain terms to follow these guidelines and take down any material which does not comply under threat of disciplinary action.

This is an unfortunate development.

I have written before about the need for a judiciary which is relevant and in touch with modern culture and thinking.

We need judges who blog so that the world can see the real world in which they live and work. If judges are perceived as remote and out of touch the courts will be seen in the same way.

Why shouldn’t the public be allowed to see what judges do? Why does it undermine the confidence of the public if a judge wishes to share his world online? The whole purpose of this blog and others is to show the world that lawyers are human and have a life outside of the office.

The same should surely go for judges.

I hope that those judges who wish to blog will strongly oppose these guidelines.

Tuesday, 14 August 2012

Where there's no blame, there's no claim

It isn’t always appreciated that if you are going to succeed in a claim for damages you normally have to show that the incident causing the injury was somebody’s fault. This is straightforward in some cases. If you are stationary in your car when it is struck from behind it is usually not hard to prove it was the other driver’s fault.

This is what we mean by negligence and it is a concept which underpins a person’s right to be compensated if they are injured.

This might sound obvious but some politicians and media commentators would have us believe otherwise. We are told about the cost of motor insurance premiums caused by road traffic claims or the cost to the NHS of Medical claims. But without some initial fault there is no claim. You are compensated by the person or the insurer of the person who negligently hurt you. It doesn’t matter how serious the injury is – if it is nobody’s fault there is no case.

This is starkly illustrated by the tragic case of Glennroy Blair-Ford who has just failed in a claim before the High Court despite suffering a catastrophic injury. He was teacher who was on a school holiday. They were all taking part in a welly wanging contest which simply involves throwing a wellington boot as far as possible. It is usually a piece of harmless fun. I’ve done it myself. The catch here was that the teachers had to throw their welly backwards and through their legs. As Mr. Blair- Ford threw his he fell forwards and cracked his head on the ground suffering a broken neck. He is paralysed for life and his claim was potentially worth millions of pounds.

His case failed because the judge was unable to find that the accident was caused by anybody’s negligence. He found that no steps taken by the organisers could have made any difference. He said - 

"There was no foreseeable real risk. Extremely sad though it be, this was a tragic and freak accident for which no blame can be established."

So there is no compensation. It is highly likely that his lawyers will not be paid a penny if it was pursued on a no win no fee basis. Nobody would deny that a person who suffers a life changing injury should not have the opportunity to pursue a case like this, especially a person who will never work again.

This is nothing to do with a compensation culture. It is a case of somebody seeking damages which would mainly cover medical care for life. In the end I think it is probably a fair result. But don’t let anyone say he had no right to bring the case. This is the real world of litigation as opposed to the fantasy world portrayed in the media.

He may have lost his case but as a society we should do all we can to protect his right to bring it.

Monday, 13 August 2012

Well, baby, baby, baby, you're out of time

I used to have a recurring nightmare. I was running to court with a pile of writs under my arm – it was a long time ago! As I arrived at court I metal shutter came down with the words – ‘Too Late’. As I turned round there was a gathering of clients, judges, lawyers all shaking their heads. All this was against the background of the Rolling Stones classic – Out of Time.

Thankfully I no longer have the bad dream but it is true to say that time-limits for bringing claims to court can be a headache.

Many of us have calls and texts asking if we have had an accident in the last three years. And that is the norm. If I get hit by a bus today, then I have three years from today to bring an action in court. Unless I am only 16, unlikely but stay with me, in which case I have five years until my 21st birthday, as the three years clock doesn’t start until I am 18.

Or let’s say the injury doesn’t seem to be serious until two years have passed then the three years might not start until then. In all of these cases the courts can exercise some discretion.

It is even less clear if I am on a cruise holiday when I have an accident. Under the Athens convention I only have two years. The same applies with most accidents in the air where the limit is two years under the Montreal Convention. This has even been applied in the case of someone injured in a ballooning accident. If I have an accident abroad the time limit might be governed by local law. In parts of Spain it is just one year. But if I booked a package tour I may be able to bring a claim in this country. I explained these Regulations in an earlier blog –

If you sue in this country then you will have three years – unless you are only 16 etc etc!!

The point of all this is that time limits are a minefield. Lawyers get them wrong. It is one of the greatest sources of negligence claims against lawyers.

This, once again, demonstrates how imperative it is to get good legal advice. The impending decimation of the legal aid scheme and the massive hurdles facing no win no fee litigants mean that ordinary people will be expected to bring their own claims. And many of these time limits are unforgiving. If a defendant waits until 3 years and a day have passed and then tell you that you are too late, they may be right. There will be injustice.

But if you do have an accident it pays to get advice right away.

Friday, 10 August 2012

Tweeting without tears

There is no doubting the power and growing influence of Twitter. Over the last two weeks we have seen Olympic Medal Winners and losers tweeting to their fans about how they feel. After Usain Bolt won the 200m gold on Thursday evening his twitter account was getting 80,000 tweets a minute. That is another record that he has broken.

The highlight of the Olympic Opening ceremony for me was following the commentary from @queen_uk . 

The world of business has got the message with many brands seeing the platform as a way of getting their message across to a huge audience in a matter of minutes. It has also given us access to previously hidden worlds including brain surgery –

But we have also seen a downside. I have mentioned some of these before. Earlier this year there was the student who was sent to prison for sending offensive tweets following the illness of Fabrice Muamba. And then there was the bizarre prosecution of Paul Chambers for posting his wish to blow up Robin Hood Airport because it was closed.

Understanding the power of twitter can actually help us to tweet without getting ourselves into trouble. So here are just a few tips.

Firstly be aware that the law of libel applies as much to twitter as any other publication. So if you say something that is not true and is offensive you could find yourself being sued. However much someone annoys you still have to be careful what you tell the world about them.

Secondly you must be sensitive to the risk of criminal action. Poor Mr Chambers is a case in point. He was obviously not threatening to blow up an airport but had to go through two appeals before he cleared his name. And without high profile celebrity support he might not have been able to do that. So avoid anything which might be interpreted as a threat! It is always wise to give yourself an hour or so before you respond to an annoying tweet. Things seem different when you have calmed down a bit.

Do not use Twitter or Facebook for that matter to get back at your boss or work colleagues! You can still be subject to disciplinary action and the evidence is there for all to see. Remember the football sacked for sending homophobic tweets about another player –

In fact just remind yourself that what you are saying can be seen by the whole world. It only takes a few retweets for your comments to be read by thousands. So don’t say anything that you wouldn’t say on live TV or in a crowded pub!

Thursday, 9 August 2012

A Case To Shout About

I don’t usually use this blog to report on my own cases or those dealt with by colleagues at EAD but every now and again something comes along that you just have to mention. This is a case involving a claim for Criminal Injuries Compensation.

The claimant was assaulted at work which caused severe Post Traumatic Stress Disorder (PTSD) and Depression. She eventually had to leave work and in turn lost her home which went with the job.

She claimed criminal injuries compensation and was initially awarded just under £4k. The Criminal Injuries Compensation Authority (CICA) refused to accept any psychiatric injury because she had not actually been seen by a consultant and therefore there was no diagnosis. They also denied that the accommodation was a loss that could be part of the claim as they argued that it should have been declared for tax purposes.

EAD appealed on her behalf. My colleague Peter Kneale obtained a psychiatric report which confirmed that she did indeed have PTSD and depression both of which were caused by the incident and both of which were still affecting her. In addition he obtained confirmation from HMRC that there was no issue over the provision of the accommodation.

The Appeal went all the way to a Tribunal Hearing at which she was awarded just under £110k. We are thrilled at this result as a result of Peter’s hard work and dedication to her case.

But this also illustrates a wider issue that is a major concern to all of us.

It shows what an overwhelming difference it can make if somebody is legally represented. The difference between the initial award and the final award is over £100k. Without the legal expertise and experience she might have been tempted just to walk away with the initial £4k.

There are going to many cases in future where claimants will not have access to lawyers. Our client was fortunate in having the support of her Trade Union. But thousands of people will find themselves deprived of basic legal advice when next years legal aid cuts start to bite. Maybe it is stories like this that will lead politicians to listen.

Wednesday, 8 August 2012

Equality And Diversity (EAD!!)

One way the legal profession can widen its appeal is by welcoming entrants from across society.

One of the most disturbing myths is that all lawyers are male, pale and stale!

The ‘male’ bit has changed to some extent over the last few years. There are about as many women qualifying as solicitors as men. But there remains a big difference at the top where senior positions are still dominated by men. In a 2011 survey most women lawyers felt that they were paid less than their male counterparts and this is probably true

Hopefully that will change as the women who have come into the law in the last ten years become a bigger influence.

It is interesting that the report on trust that I mentioned yesterday showed a particularly poor result in black and minority ethnic groups.

One very positive initiative here is the Law Society’s Inclusion Charter. Signatories to the charter are committed to a profession which is inclusive, by working together to develop recruitment, development and other projects which promote this agenda.

I have been proud to have my firm’s name included in the charter.

This is only a small step but it is something positive.

It was also encouraging to see the Law Society taking an active role in the London Pride Event in July this year. Law Firms – including EAD were also well represented at the Liverpool event last week.

But there is still a long way to go. BME groups are massively under represented in the law. This is one area where there needs to be a major drive to encourage students from these groups to become lawyers. This isn’t easy. It is hard enough to qualify in the law because of eye watering student fees, the recession and the abolition of a minimum salary for trainees. But there needs to be a particular emphasis on making it easier for talented students from all areas of life to become lawyers.

Maybe then we can say that we represent society as a whole. This again will do much to increase trust across the board.

Equality And Diversity

Tuesday, 7 August 2012

Trust me - I'm a Lawyer

It seems that a majority of consumers say that they do not trust lawyers.

In a recent survey by the Legal Services Consumer Panel just 43% said that they trusted them. This is a real problem especially as other suppliers including the Co-Op and Eddie Stobart are now in the market for providing legal services.

It is fair to say that lawyers have always had an image problem. I can remember years ago as a newly qualified solicitor being told by a colleague that someone had said all lawyers were like bananas – yellow, bent and normally hanging round in bunches.

TV Dramas don’t help. In soap operas the lawyer is normally a rogue, is a complete wet blanket or battling with an addiction.

Even in quality dramas like Silk, solicitors do not exist unless they are a love interest for the main characters or criminal bullies!

These are false images but ones which are deeply entrenched.

So what can we do to increase levels of trust?

Lawyers were seen by most people as expensive money grabbers. For ordinary people those days are well and truly in the past. Most litigation is run on the basis of no win no fee agreements which do not involve any cost at all to the consumer. Conveyancing work is so competitive that high quotes just mean the client goes elsewhere. But clients are still afraid of excessive fees so there is a communication issue there somewhere.

There are some mega rich lawyers in the big City Firms but there are the minority now. Some legal aid lawyers are very low paid.

So it is really a question of relevance and communication. Lawyers do huge amounts of free work but do not shout about it. It is even hidden behind a Latin phrase – pro bono, as if we are embarrassed to say what it really is. Many lawyers spend hours on voluntary projects or lobbying elected representatives on behalf of their clients. But very little is ever said about this.

Now I’m not promoting a hug-a-lawyer week! Even I wouldn’t go that far.

But I do think all lawyers need to look at how they and their businesses are perceived by their communities. It is by active engagement that these distorted images can be changed.

There has never been a better opportunity for this through the arrival of modern social media. A lawyer who tweets is a lawyer who is in touch. A lawyer who is active in the virtual world is seen as a real person – ironic but true. But above all we all live and work in real communities and if we are going to build trust we have to be involved but also let the world know!

Monday, 6 August 2012

Government Help or Slave Labour?

So when is forced unpaid work not slave labour?

When it is part of a government scheme.

This was the decision of the High Court in London following the case brought by unemployed Cait Reilly who alleged that the scheme, which meant she had to work unpaid for six months breached her Human Rights.

Article 4 of the European Convention on Human Rights states –

  1. No one shall be held in slavery or servitude.

  2.  No one shall be required to perform forced or compulsory labour.
Claimants were warned that they could lose benefits if they did not take part in the scheme. So they felt that they were being forced to work for nothing. That looks and sounds like slave labour to me.

The High Court decided that the Article in question was enacted to prevent ‘colonial exploitation of labour’ and that it was a long way from modern thinking to say that these schemes fall into this category. 

I have to say that if somebody is made to work for nothing and will suffer consequences if they refuse, then that sounds no less oppressive in 2012 than it might have done in 1812.

But the DWP did not get away with it entirely. The judge did say that the letter did not make it clear enough to her that the scheme was not in fact mandatory. The government has said that it will appeal that part of the decision - 

"We do not believe there is anything wrong with the original letters and we will appeal this aspect of the judgment, but in the meantime we have revised our standard letters."

I can see why a judge might not want to find that this amounts to slavery which does have a particular stigma attached to it. But if it is, or appears to be, compulsory then it is hard to know what else to call it. 

It is encouraging that the Court has found that the misleading letters should be revised and it is to be hopes that the Court of Appeal will give the DWP the short shrift that they deserve.

Friday, 3 August 2012

Lawyers and their balls

Something a bit lighter for a Friday even though it involves a serious judgment from Italy.

Lawyers have to be robust in arguing their clients cases. They may use strong language to counter questionable arguments. But they can get into trouble if they go beyond this and launch insults at each other. So if I tell an opponent that his case is a fantasy that is probably alright. 

But if I tell them that they are dishonest vipers who should burn in hell then I will probably get into trouble. And so I should.

It is even worse to insult a client. In one Australian case a lawyer got into trouble for calling his client a moron and it continued –

‘I can't deal with #### morons. Get out of my office’. He used the word 'bullshit'. He also said to a client in the reception area ‘What the #### are you doing here?... You don’t have the right to waste our ####ing time. I have spent enough ####ing time on the ####ing file. You are a ####ing moron. If you had signed the ####ing contract properly in the first place we wouldn't be in the ####ing mess. #### off out of my reception area.’

All of this has become a major issue in Italy where a magistrate told a lawyer in court that he had no balls. The offending magistrate was fined and this has been upheld by an appeal court. The offence was not that the statement questioned the physical attributes of the lawyer but because it suggested that he lacked – ‘determination, competence and consistency – virtues which, rightly or wrongly, continue to be regarded as suggestive of the male sex'.

In other words he lacked balls in the courage sense rather than the biological sense.

It was the attack on the lawyers’ qualities as a person rather than as a true male that was the problem. 

Interestingly the lawyer and the magistrate were cousins.

So there we have it. I doubt if the UK courts will be called upon to decide any similar cases as we are far to civilized and genteel to ever get involved in such uncouth beaviour - ahem!

Thursday, 2 August 2012

Another Medical blunder, Another Victim

Cases against medical practitioners are often based on failure to diagnose a condition or injury early enough. Delay can often have disastrous consequences resulting in severe injuries or even death.

In the case of Kate Woodward the damage caused by the delay was unusual but very severe none the less. She suffered from a pituitary tumour which went undiagnosed for years and which caused her to have a massive growth spurt. She is now 20 and is 6’ 5” tall. She alleged that this had ruined her plans to become an actor and she that will also need medical care for life. How do you put a figure on that?

The case came before the High Court this week and she was awarded £1.3m. The reasoning of the judge was that her entire life had been massively affected by the condition –

"My assessment is that the claimant's life has undoubtedly been severely affected to a very great extent and will always be very different from what she might otherwise reasonably have expected to look forward to. That will result in a substantial award."

Now whilst that might look like a lottery win it just about compensates for a lost career and a lifetime’s medical care. The trust had admitted negligence but disputed the amount of compensation.

This is one of many cases where a victim achieves justice following blunders by doctors. We are bombarded on all sides by rhetoric from politicians and the media that there is a compensation culture. These relentless attacks on victims create a belief amongst claimants that it is somehow their fault, that they are causing a drain on limited NHS funds.

But if a person’s life is ruined by the negligence of those who should care for her then they should be entitled to proper compensation from the state.

I have said this before and will say it again – it is a scandal that after April it will be impossible to get Legal Aid for a case like this. The alternative to legal aid has been no win no fee agreements but from the same time claimants could lose up to 25% of their damages in many cases.

If ever there was a case which demonstrated the injustice of these changes it is this.

Wednesday, 1 August 2012

If you go down to the wards today...

Today is the day that many new doctors embark on their new careers as junior hospital doctors.

If you believe some areas of the press it is also not a good day to go into hospital on a day some describe a black Wednesday. According to the Daily Telegraph there is a 6% rise in hospital deaths on the first Wednesday in August.

So does this really mean that people should avoid this day at all costs or that lawyers should form an orderly queue outside Accident and Emergency Units waiting for new cases? According to Full Fact  these figures are based on a report from 2009 which compared the number of deaths in the last Wednesday of July with those in the first one in August over a number of years. It does seem that there is an increase in death following emergency of about 6%.

But it is stretching things a bit to say that this is all down to an influx of new doctors, or somehow their fault.

I have done scores of  Medical Negligence Cases over the years and there can be any number of reasons why a person might die in hospital. All that these statistics tell us is that hospital deaths appear to increase on this day compared to the week before.

But the vast majority are probably nobody’s fault. There is nothing to say how many of the deaths are caused by error, lack of supervision, natural causes, age or whatever. And to talk of a percentage increase without reference to figures is not really telling us anything.

There are reportedly over 12000 avoidable deaths a year due to hospital errors according to one recent report –

It would be a worthwhile exercise to concentrate on bringing down this figure. To simply come up with a figure that seems to point the finger at new doctors is unhelpful and hardly encouraging for them at the start of their careers.