Total Pageviews

Thursday, 28 February 2013

Misery for Claimants

Litigation lawyers across the country have been anxiously awaiting the Government’s final word on the proposals to slash the amounts that claimants in Personal Injury Cases are allowed to recover by way of legal costs. 

I have mentioned before that this is an agenda which is driven by the insurance industry –

Following the announcement in November 2012 there was a consultation process. Many firms responded and we have today had confirmation that for the most part the cuts will be introduced without any amendment. This means that a claimant in a motor accident case which settles early will only recover £500 for legal costs as opposed to the current figure of £1200.

Many arguments have been made that the figure seems to have been calculated on the back of an envelope following rhetoric from the insurance companies. This has been to the effect that firms currently pay £700 per case by way of referral fees. When those fees are banned in April then they will save that amount, which can be sliced off the recoverable costs. This completely ignores the fact that most firms have never paid anything like that amount for motor accident cases. It also ignores research published by the Law Society that the existing rate of £1200 was unrealistic after inflation, marketing and general management costs are taken into account –

Most of us have been expecting this result. The government appear to only hear the arguments of their friends in the insurance market.

This is going to have a marked impact on the legal profession. A large number of firms will not be able to continue in business. If the recoverable costs do not match expenses then we cannot avoid the wisdom of Dickens’ Mr Micawber –

"Annual income twenty pounds, annual expenditure nineteen pounds nineteen shillings and six pence, result happiness. Annual income twenty pounds, annual expenditure twenty pounds ought and six, result misery."

Others will have no alternative but to do the work as cheaply as possible with inevitable effects on quality. 

Either way it will be far more difficult for ordinary people to get independent professional advice  in cases againt insurers who make no secret of their wish to have lawyers taken out of the system altogether.

Tuesday, 26 February 2013

Tweeting without due care and attention

It seems that Social Media users are still not getting the message about the serious consequences of tweeting before you think!

Today we have the news that the Attorney General is planning to bring contempt of court proceedings against people who have posted recent pictures of James Bulger killer Jon Venables. This is in direct breach of a court order prohibiting publication of their identities. So it seems that the penny still hasn’t dropped that a tweet or status update or anything else for that matter is still a publication. The fact that we may do it from the comfort of our own living room or office is neither here nor there.

We are seeing case after case relating to Twitter or Facebook. There has been the high profile action taken by Lord McAlpine against those tweeters who wrongly implicated him in an abuse scandal. He has recently offered to withdraw the case against those with limited followers, but the still continues against high profile users like Sally Bercow MP –

Last year saw the imprisonment of the pranksters who posted Facebook messages inciting people to riot, and also the twitter user who posted offensive remarks about footballer Fabrice Muamba.

Of course there have been bizarre prosecutions including that of Paul Chambers who joked that he would ‘blow up’ his local airport if it did not re-open soon. He was dragged all the way to the court of Appeal before common sense prevailed. Hopefully those cases will diminish following the Director of Prosecutions’ statement that comments which were deleted quickly might avoid prosecutions –

But that will not help those who ignore court orders or commit libel.

Social Media is changing the world of communication and this can only be good thing. But if we all think carefully before we hit the keypad a whole of trouble can be avoided.

The best advice is ‘don’t do it!!’

Friday, 22 February 2013

Male, Pale and Stale? Time for change!

One highlight of my time as Liverpool Law Society President was when we welcomed Baroness Hale of Richmond to deliver our Conkerton Memorial Lecture on the subject of the Independence of the Judiciary. Lady Hale is the most senior woman judge that we have ever had in England and Wales. She was recently named the fourth most powerful woman in the UK in a recent BBC poll –

During her time with us I found her to be both charming and down to earth as well as having an intellect the size on Mount Everest!

I mention her for two reasons; firstly because I am a shameless name dropper and secondly because she is the ideal person to speak on judicial diversity. We are rightly proud of our courts system but when it comes to diversity we are lagging well behind the rest. In a recent lecture Lady Hale has pointed out that, across Europe, the male/female split on the bench is close to 50/50. But in the UK the percentage of women is just 23% -

“England and Wales is fourth from the bottom, followed only by Azerbaijan, Scotland and Armenia".

Other groups are even less well represented – only 4.5% of High Court judges are from an ethnic minority background. Lady Hale herself is the only woman in the Supreme Court - indeed she is the only woman there has ever been in that Court or its predecessor The House of Lords! One third of the US Supreme Court Justices are women.

We do of course need to ensure that the best people become the top judges. But we also need a judiciary which represents all of those in society. I have mentioned before that we need judges from as wide a grouping as possible. The male, pale and stale image is outdated and frankly embarrassing in a multicultural world.

Lady Hale has brought the possibility of positive discrimination back on to the agenda to ensure a balanced representation. I would agree that the time for such measures has probably arrived. That is not to say that there should be any lowering of standards but amongst those who are qualified to serve on the bench we should do all we can to balance out the numbers and catch up with the rest of the modern world.

Thursday, 21 February 2013

Is the jury out on jury trial?

Two high profile cases have brought Juries into the news over the last few days.

I have never sat on a jury. Up until a few years ago lawyers were banned from jury service because it was feared that they might exert some influence. That was changed a few years ago and I know a few people including a judge who have been summonsed. I’m sure it would be fascinating to see the workings of the courts from a different angle. I await the call and will be read to go.

The first of the two well known cases has been the trial of Vicky Pryce in the Chris Huhne penalty points case –

Her jury were discharged after failing to reach a verdict and she now faces a retrial –

It has been suggested that the jury were somehow at fault because they failed to grasp ‘the basics of their task.’ This could add ammunition to those who would like to see that system abolished with cases tried by judges alone. This would be a big mistake. Whilst we cannot comment on this particular case pending a retrial, a jury has to do its best to reach a verdict based on the facts. We have a person’s liberty at stake here and if they are not able to reach a verdict then so be it. Whilst a retrial involves more cost it is still the fairest system for getting to the facts of a case. Hundreds of cases are tried in this way and there will always be cases where they cannot agree. That does not mean that the system itself is at fault.

We have had jury trials for hundreds of years and a person’s right to be tried by a group of ordinary citizens is one that we should defend to the end – even if there are occasional inconveniences.

The other case concerns Oscar Pistorius who is accused of murdering his girlfriend Reeva Steenkamp. He will not be tried by a jury. The system was abolished in South Africa during the apartheid years. As there were only ‘white’ juries there was no certainly that a black defendant would get a fair trial –

So the familiar reporting restrictions will not apply as a judge will not be expected to be influenced in the way that a jury would. In this country that would be anomalous as a judge can now sit on a jury!

It will be interesting to see how the two cases compare.

Saturday, 16 February 2013

Real justice for NHS victims

Police are considering bringing criminal proceedings following the shocking report from Robert Francis QC into the failings of the Staffordshire Hospital which might have led to the deaths of over 1000 patients –

This has led the Prime Minister to publicly apologise for the failings –

It is clear that those responsible should be made accountable. I am concerned, however, that certain individuals might be prosecuted for their failings, in a way that will mask institutional failings from the very top.  Any potential criminal action cannot gloss over the need for a root and branch review of the NHS from funding, to management, to a culture of cover up. Criminal proceedings are difficult to bring and might not ultimately bring justice to the families who have lost loved ones.

I have written very recently about the tragic damage caused by medical blunders –

I would rather see a greater emphasis on achieving justice for those families. On the one hand we see huge amounts of money invested in an inquiry, possible criminal action and re-organization – all perfectly reasonable – but on the other hand, victims’ access to justice is being swept aside. If those victims try to seek justice they are vilified and accused of feeding a compensation culture. The right to state funded justice will shortly be removed. The right to use no win no fee agreements will shortly become far more difficult –

The proposed actions promised by the government are to be welcomed – we should never criticise any steps that avoid these tragedies happening in the first place. But if we truly want to secure justice we need to ensure that all victims have access to that justice regardless of wealth.

Friday, 15 February 2013

Good will hunting!

It comes as a surprise to some that not all legal work has to be done by lawyers. In fact a huge amount of very good work is done by those working in welfare rights centres, Trade Unions etc.

There are areas of work that do have to be done by qualified lawyers such as handling litigation, conveyancing property and advocacy in most courts. These are known as reserved activities.

One bizarre exception to all this has been will writing. This is an unreserved activity which means that anybody can do it and it is currently unregulated. As an unregulated activity it means that there is no requirement for those writing wills to have indemnity insurance, so if they make a major mistake which costs beneficiaries thousands of pounds there might be no recourse if they have no insurance and no money to pay a claim. There is no access to the Legal Services Ombudsman in case of poor service

Making a will is one of the most important documents that a person will ever make. It will govern what happens to all that we have once we are gone.

Solicitors have long campaigned for will writing to become regulated. Indeed I blogged on this very topic last year when noises were being made about regulation –

The Legal Services Board has, this week, finally recommended to the government that this be changed –

This means that if the government accept the advice then there will be far greater protection for consumers.  The Minister of Justice has 90 days to decide whether to implement the advice so it is likely to be a year or so before we see any change.But the sooner the better.

Of course the safest thing to do is instruct a solicitor. Now I would say that wouldn’t I?! But in fact it is the best way to ensure that a professional and experienced person deals with the drafting of such an important document. It also means that there is the full backing of professional regulation and insurance!

Which reminds me - I really do need to make one myself!!

Thursday, 14 February 2013

Trust me I'm the Insurance man!!

It seems that insurance companies are starting to rack up the rhetoric in their attempts to block people’s access to legal advice in relation to motor accidents. A report by the major insurance company AVIVA really does pull out all the stops.

They make the staggering claim that – ‘UK drivers overwhelmingly want to see the back of the personal injury (PI) ‘compensation culture that is now costing every motorist an extra £118 on their annual motor insurance premium’. 

Firstly most people would accept that the so called compensation culture is a myth dreamt up by the insurers to support their rhetoric. All of the evidence points to a decline in the number of claims.

They make the obvious statement that most claimants want to spend compensation on what they want and the report itself makes reference to clearing household debts as one area where damages are spent, a small number even have the affrontery to go on holiday. The whole idea of compensation is to make the offending party accountable for negligence. Who says that the insurers should somehow dictate how it is spent?

Of course the whole emphasis here is to persuade drivers that they should trust the nice insurers to deal with them directly and cut out the nasty lawyers. Well they would say that wouldn’t they.

Independent legal advice ensures that people receive adequate compensation i.e. all that they are entitled to, no more but certainly no less. So why should we leave it in the hands of insurance companies who have a duty to their shareholders to keep payments as low as possible.

Once again we are being told that depriving drivers of independent advice would lead to a reduction in premiums. AVIVA have gone further than most and told us how much will be saved - £60 a year, which is £5 a month. They don’t say what happens to the rest of the £118 that they refer to!

I have said before that the vast majority of claims – 93% - are genuine –

The focus should be on driving down the offending 7%. All lawyers would support such moves including the need for clear independent medical evidence to support alleged injuries.

Saturday, 9 February 2013

Unashamed rant from one angry lawyer!

I went to see a new client this week. Nothing new there but in 30 years I have rarely left a meeting feeling more angry and upset.

Sharon, not her real name, is in her thirties. She first went to her doctors over a year ago complaining of heavy bleeding. She returned to the surgery over and over again. She was given medication for her periods. She was never examined or referred for tests. This continued for months until she stopped going because she felt a nuisance.

Eventually she developed severe pain and was finally referred to her local hospital. She was told that she had probably had kidney stones which had she had passed as there was nothing to see. She was sent home only to be back in hospital a week or so later with symptoms that were far worse. She had been bleeding consistently throughout this time. This time she underwent full tests including biopsies and was found to have a primary tumour of the cervix and secondary tumours in her bladder and lymph nodes. She was told that it was too late for any effective surgery but could have made a full recovery if she had been treated months earlier. She now has just a matter of weeks to live and will leave behind a husband and young children.

Her life has been ruined by an illness that could have been treated but for a series of blunders by the different doctors who saw her. I had to tell her that her case was very likely to win. But this is, of course, meaningless. She will never see the result. Her young family would rather have their mother than a good case. That was why I felt so angry.

Don’t tell me that this victim is part of any compensation culture.

Don’t tell me that her and her family should not take action because it might be a drain on the health budget.

Don’t tell me they don’t merit the full support of the state in pursuing this case with state funds – after April that right will be removed from her family.

Don’t tell me that this all about lawyers wanting to protect their own interests.

They are victims, full stop. They are not alone. Actions taken by politicians to make it more difficult for them to obtain justice are shameful.

Tuesday, 5 February 2013

The Scandalous Closure of Shelter's Advice Service

We are now within a couple of months of the most wide ranging cuts in Legal Aid since it was introduced in the 1940s. I have gone on about this for months. There was widespread opposition to the cuts most of which fell on stony ground. So by April we will see huge areas of unmet legal need.

Politicians and the press have accused those lawyers who oppose the move of just protecting their own interests. The reality is brought home by the announcement by the Housing Charity, Shelter that their advice service faces closure with inevitable redundancies.

It is hard to overstate the importance of Shelter’s work. I remember back in the 1980s taking out an injunction to prevent a Local Authority from demolishing a Housing Estate to make way for a park. The case was backed by Shelter. Within an hour or so of the first slates being removed we were before a judge and the work was stopped before lunch. The estate is still there to this day. None of this would have been possible without the expertise and commitment of this Charity. It is nothing short of a scandal that ordinary people will find it impossible to get the support that they need.

I have talked before about initiatives to make lawyers pay for some form of legal aid by way of a levy and that is completely unrealistic –

And there are even suggestions that Law Students should be forced to carry out a minimum number of hours of free legal work before they can qualify. This system is already in force in New York –

This proposal would add insult to injury to a group of students who are already facing massive debts and poor prospects of finding work. What greater deterrent could there be than to impose another burden.

The reality is that any civilised society should guarantee access to justice to all regardless of wealth. Such access should be funded by that Society. Shelter will not be the last voluntary organization to face cuts.

When the reality hits home; when courts are overwhelmed with unrepresented parties and when MPs surgeries are full of disgruntled voters with nowhere else to go, maybe the government will begin to listen.

Monday, 4 February 2013

Taking someone else's Penalty Points - Go to Jail!

One of the most unpleasant things that any of us receive in the post is a dreaded – Notice of Intended Prosecution from the Police. This means of course that we have been caught by a speed camera and will have to face a fixed penalty of £60.00 and three points on our driving licence.

I can still remember the day I received one and then noticed there was another one attached to the back. I had been caught by the same set of cameras, on the way there and on the way back, and had to face the double consequences! It also put me on 9 points. As 12 points normally leads to a ban I was the most cautious driver in the UK for the next year or so. It can be a worrying time.

Former Minister Chris Huhne found himself facing a possible ban back in 2003. He got his then wife to take the rap and say that she had been driving his car. That must have seemed a good idea at the time but it is now going to see him behind bars.

This is because the arrangement with is wife amounted to Conspiracy to Pervert the Course of Justice. In this country that is a serious criminal offence. 

Earlier this year the BBC reported that one person had helped hundreds of drivers to provide false information and was handed a 7 year prison sentence.

Mr. Huhne had already resigned from the Cabinet. He will now have to stand down as a Member of Parliament and has been told by the judge to expect to go to jail when he is sentenced next week -

"You should have no illusion whatsoever as to the sort of sentence that you are likely to receive."

It is fair to say that he would have been better advised to simply take the consequences.

It may be tempting to simply ask someone else to ‘take the points’ but the consequences are severe. For the sake of avoiding some points and £60.00 fine drivers face the risk of a prison sentence and a criminal conviction which will ruin many a career.