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Thursday, 28 March 2013

Happy Easter - see you in the new world!!

So we are drawing to the end of one most stressful weeks I can recall. The sheer number of changes due to come into force on Easter Monday has left half the legal profession in need of a long break!

In readiness for next week we have had to –

  1. Review all of our conditional fee cases,
  2. Take out insurance on all cases because after Tuesday the premiums will be payable by the client and not the defence. One insurer tells me that in a normal month they might issue about 2,000 policies. In March it has been 7,000.
  3. Ensure that a legal aid application is lodged for all clients who might be eligible as no more can be sent in after 1st April.
  4. Review every single referral arrangement to ensure that it does breach the ban on referral fees that comes in on; you guessed it, 1st April.

So can I publicly apologise to clients who have not seen me for dust this week. I have been far to busy preparing for the changes than to do any legal work.

It is with great ironic timing that I’m off to the doctors’ this afternoon for my annual blood pressure test! I could be off the scale.

But despite the pressure, the long hours and the general gloom we have got there. Because however much politicians might move the goalposts we will always knuckle down and do the best we can for our clients.

So Monday sees the start of the new world. I had a dream last night that I woke on Monday to be told it was all an April Fool and that we should have seen the clue in the date. Alas it was just a dream.

But we have had enough doom and gloom. It’s Easter. It’s spring and it’s not snowing just at the moment.

So Happy Easter one and all.

See you next week when we certainly won’t be in Kansas any more.

Monday, 25 March 2013

Stop talking about no win no fee lawyers!

In just over a week we will see the first of the devastating changes that will soon hit the legal profession . After 1st April clients will no longer be able to recover all of their legal costs from insurers and could lose anything up to 25% of their damages. Lawyers across the country are frantically trying to get their clients signed up to agreements before the big day arrives.

And that will just be the start. By the end of April we will have the massive cuts to legal costs that have been the dominant theme of this blog for the last few weeks –

The fight will continue but where can claimants expect to find help? The BBC Breakfast programme reported on the changes this morning. The item began encouragingly with a brief interview with a client who was very positive about the legal advice he had received. But then it all went downhill. The only commentary came from the ABI who simply explained why they want costs reducing. The spokesman was given a free rein and was not even pressed to say what premium reductions there might be.

One thing that was notable was the insistence of the BBC in talking about ‘no win no fee’ lawyers, as if this is some new breed of lawyer, and a rather distasteful one at that.

The whole idea of a no win no fee case was created by government. It was introduced by the Conservatives in the mid 1990s and then hugely expanded by New Labour who wanted to get rid of legal aid for accident claims. These agreements are therefore the only way that anybody apart from the wealthiest can obtain access to justice. Lawyers have worked within that system to do their best for clients. There is no other way available. The media would have us believe that the idea was dreamt up by lawyers to make people pay higher insurance premiums!

What is clear then is that ordinary people cannot expect to get much help from the media.

But there some initiatives developing that will keep this high on the agenda. One is the campaign called Save the Legal Industry headed by Manchester Solicitor Martin Coyne. The campaign highlights the job losses across the sector as many firms will be forced to close or make dramatic cuts. As many as 2500 could find themselves out of work.

On its own this is unlikely to change minds.

But I do feel that everybody affected needs to make as much noise as possible to highlight the injustice caused by moves which only benefit insurers.

Tuesday, 19 March 2013

Whiplash is not a dirty word

Over the last year or so whiplash has become a dirty word – so to speak. 
From politicians, to tabloids to insurers the message is that anyone who brings a claim for a whiplash type injury is a fraud. And the attack has then been extended to their lawyers who are portrayed as being almost in conspiracy with their clients –

I can imagine that many victims of whiplash injuries would be too scared to bring a claim in case they were accused of being the ones who make motor insurance premiums so high. Many of us have gone on and on about how false this image is and that the Association of British Insurers themselves have said that 93% of claimants are genuine. These arguments have consistently fallen on stony ground.

But a voice of reason and good sense has finally come from the very top of the judiciary. The Civil Justice Council (CJC) is an independent body whose role is to –
‘..provide advice to the Lord Chancellor, the Judiciary and Civil Procedure Rule Committee on the effectiveness of aspects of the civil justice system, and make recommendations to test, review or conduct research into specific areas.’
It is headed by the Master of the Rolls – one of the country’s senior judges. The CJC has heavily criticised the moves by the government to change the way these claims are brought. In a statement they said –
‘There is a sense that there is a danger of the problem being overstated, that only a small minority of claims are exaggerated or fraudulent, and the way to tackle fraud is by a robust approach by defendants to civil actions where there is evidence to support such an allegation or, in appropriate cases, through criminal prosecution.’
Their statement goes on to say that it is misconceived to suggest that forcing more claims into the small claims court would have any impact. They rightly say that any case involving allegations of fraud would be immediately removed from the small claims court whatever the value of the claim. They actually state what many of us have been saying all along i.e. that insurers already have the right to bring a robust defence to claims that are suspected to be bogus or exaggerated.
It is interesting that the CJC also observes that there are far to many ‘reforms’ being pushed at the present time and that there should be a proper, evidence based, assessment.
Will this make any difference? Well you would hope that an independent body set up by statute to advise the government will have some influence. But it is difficult to be optimistic when we have politicians who are hell-bent on delivering the heads of victims on a plate for their insurance friends. 
But equally this could be the first of many statements that will ultimately see sense prevail.

Monday, 18 March 2013

Lawyers - down but never out!

There was once a time when law firms were seen as stable, reliable businesses. ‘You never see a poor lawyer’, was a phrase often used. Of course the media has often gone well beyond this happy image and used the phrase ‘fat cat’, especially to describe those lawyers that they dislike!

Anybody who inhabits the real world knows that this is pure fantasy, and it is not going to get any better. Already this year we have seen the demise of some major names including Cobbetts and Blakemores. In view of the imminent changes to the legal costs recoverable for victims of accidents they will not be the last –

I was at a Conference in London last Friday at which the Executive Director of the Solicitors’ Regulation Authority (SRA) told us that Financial Stability is now at the top of their agenda. A few years it was not even on the agenda at all.

According to one poll in the North West, 20% of firms are thinking of closing the door –

And it is not just law firms; many advice agencies will also have to close because of the abolition of legal aid for many areas of social welfare law.

It is as if there has been a deliberate decision by the government to wipe out whole swathes of the legal profession. We know that politicians often dislike the courts or lawyers but this seems to be taking matters to the extreme! It is hard to avoid thinking that they are out to get us.

But lawyers are too resourceful to allow this to happen.

The next few months will be difficult. Some firms may fall by the way. But there will also be many forward thinking firms who are prepared to review the way they work. If anything there is a determination to make sure that the insurance industry and their political friends do not get their own way. There may be fewer fat cats.  But lawyers will continue to fight for their clients.

There will still be victims and lawyers will still be there to represent them. The legal profession will probably look very different in five years’ time. But in the words of that great cultural giant P Diddy – ‘We ain't going nowhere..’

Thursday, 14 March 2013

Liberal Democrats and Secret Courts

There are divisions in the coalition government over the issue of secret courts.

This is something that I discussed last year –

The split this time is within the ranks of the Liberal Democrats. The Conservatives seem to be fully behind the proposals. That is not a party political swipe as the last Labour Government was no fan of open justice either.

This week a number of high profile lawyers have publicly quit the Lib Dems over the policy. The most well known is Philippe Sands QC who is one of the world’s leading authorities on international human rights law. I read his book Lawless World a few years ago. It is a brilliant and devastating attack on the Bush/Blair Wars on Terror. He has left the party because of its support for the Justice and Security Bill will see the development of these very worrying courts. The new style courts will deny defendants the right to see what evidence there is against them. This makes it virtually impossible to prepare a meaningful defence and could certainly lead to major injustices.

Mr. Sands said –

“It is wrong in principle, and will not deliver justice. It will be used to shield governmental wrongdoing from public and judicial scrutiny under conditions that are fair and just. The bill threatens greater corrosion of the rights of the individual in the UK, in the name of 'national security'."

The other lawyers who are leaving the party are Dinah Rose QC and Jo Shaw. The Lib Dem Party has officially opposed the bill in conference but this has not deterred its ministers from following the conservative line.

There is much rhetoric that these courts are needed for our national safety. But the truth is that they would not have prevented the few incidents which have occurred. We have a justice system of which have the right to be proud. It is a system that we have exported across the world. It is one that guarantees our freedoms and rights and proposals like this constitute a real threat.

As with other recent attacks on justice it seems that the only effective opposition will be via the ballot box. But the public statements of these well known figures should certainly make us stop and think.

Tuesday, 12 March 2013

Access to Justice - The Waste Land

April is the cruellest month
Breeding lilacs out of the dead land
                                             TS Eliot

I was at a meeting yesterday with various advice agencies discussing the problem of what happens to those in need after April 1st when Legal Aid is wiped out for many areas of work. Waste Land is the only way to describe it. And those most in need are the worst affected.

Advice on welfare benefits is removed entirely from the scope of legal aid. The Liverpool Citizens’ Advice Bureaux have been among the leading providers of advice in this field. In the last few years they have been able to assist 2500 people in debt cases and 6270 people with welfare rights issues. That is a total of 8770 people is the direst of need. After 1st April they will be able to advise…. None. Of course their dedicated workers do not want to let people down and many will continue help clients on a voluntary basis. But the reality is that thousands of our most vulnerable are going to be deprived of professional advice and assistance.

The much derided Bedroom Tax is an example of the hardship that might be caused. This is the draconian measure that will see the poorest tenants have their Housing Benefit reduced if they have too many rooms. Under the rules mixed sex siblings are expected to share rooms, some disabled tenants will be penalised if they have double occupancy and parents who share residence of children will have to choose which one is allowed the extra room. It is one of the most heartless attacks on he poor imaginable. I recently heard Minister Iain Duncan Smith trying to defend by saying it was designed to ‘help’ people move into more suitable accommodation. The reality is that tenants on the breadline will lose income but still be liable for the same rent. So they will go into arrears. Then they face eviction. And at the time that they most need legal help the government is taking away their right to legal aid. To make matters worse, most experts say that there so called ‘suitable accommodation’ doesn’t exist.

This is just one example.

The county’s most Senior Judge – Lord Neuberger who is head of the Supreme Court has recently spoken of the social danger of these policies. He has said openly what most of think – “that those frustrated by an inability to seek justice would take the law into their own hands".

These are policies from a government that is committing to spending billions on a nuclear deterrent to save us from a threat which is largely fanciful while allowing its own most needy citizens to pay the cost.

Many lawyers will provide free advice to save the suffering of the worst.

But that will only be a sticking plaster until these cuts are reversed. And the sooner the better.

Thursday, 7 March 2013

Motor Insurers - the real world and the fantasy world

Those lawyers who act for the victims of motor accidents are bracing themselves for some of the most far reaching changes that we have ever seen. I don’t propose to repeat the details of the cuts which I mentioned last week.

Now one of the points made by insurers is that the number of claims and the amount of costs paid out is the reason why insurance premiums are so high. We have been told that we will see a reduction in motor premiums as a result of the cuts. Indeed the government, who have given the insurers everything they have asked for, have virtually made that a promise –

Of course, no-one I know, is holding their breath. The first signs of what to expect have come at the ABI Motor Claims Conference this week. According to the website litigation futures there was a heated discussion during which the Chair of The Motor Accident Solicitors Society (MASS) asked when we were likely to see the much vaunted reductions. John O’Roarke of LV= insurance company simply said that premiums have already come down and we might see about 3% but - “I’m not hopeful of much more”.

So this is the way it is going to be. We are seeing huge cuts in the rights of victims to bring claims but when it comes to premium reductions we may have a long wait.

This again shows that the insurance industry and their friends in government have no real interest in making driving cheaper for us all. That is just an effective way of selling their plans, especially to the populist press. To add insult to injury we have learned that motor insurers Admiral made £6 per car it insures from referral fees –

Mr. O’Roarke also showed a remarkable lack of understanding of the concerns of lawyers who are genuinely worried that the cuts will put them out of business and lead to redundancies. He talked about stopping claimant lawyers from buying - “another house in Barbados”. It is difficult to imagine a statement more insensitive and more removed from the real world. I have been overwhelmed in the last week with calls and emails from concerned solicitors who do not know what the future holds. This is the real world and it is a long long way from holiday homes in the sun.

Monday, 4 March 2013

Human Rights and Tabloid Ping Pong

The Government cannot make its mind up about Human Rights.

We know that it doesn’t like them and we have seen numerous threats to abolish the Human Rights Act –

Over the weekend their approach has become confusing to say the least. Home Secretary Teresa Nasty Party May reportedly declared an intention to remove us from the Jurisdiction of the European Court of Human Rights –

This actually contradicts their previously declared wish to get rid of the Human Rights Act. That Act did not create any new rights. It simply incorporated the European Convention on rights into English Law so that they could be enforced in UK Courts.  Before the Act came into force in 2001 the only way a person could take action for breach of the Convention was to go to the European Court in Strasbourg. After 2001 they could go to the High Court here and have a decision made by UK judges.

There is a final right of appeal to the European Court but that is all. So if a prisoner objects to deportation because they don’t want to be separated from their children in this country, they will apply to the UK courts not to Strasbourg. So taking us out of the jurisdiction of that court would actually change hardly anything. In effect our Supreme Court would be the final court of Appeal in the small number of cases that get that far.

This seems to demonstrate a disturbing lack of understanding on the part of our government – apart from a need to say something that goes down well with the tabloid press. It is like a game of ping pong only with our cherished freedoms at stake.

The rhetoric also hides the fact that what they cannot do is abolish any actual rights. They are enshrined in the Convention and also the Universal Declaration on Human Rights. That was the work of Winston Churchill and Eleanor Roosevelt and was described  the latter as her greatest achievement.

Rather than come out with confusing and contradictory rhetoric about which courts can hear cases they should just come out and tell us which of our rights they want to get rid of! Freedom of Speech? Right to Life? Freedom of Association? Family Life?

Saturday, 2 March 2013

APIL's Judicial Review - the morning after

My last blog talked about the massive cuts announced by the Ministry of Justice in the fees Insurers have to pay to victims of motor accidents for legal costs. I commented that the government only seems to hear the arguments of its friends in the insurance industry.

In the High court yesterday we saw just how close they are. 

This was the Judicial Review action brought by the Association of Personal Injury Lawyers (APIL) and the Motor Accidents Solicitors Society (MASS) contesting the way the decision was reached and seeking to have it set aside. I should say right at the start that the action failed. More of that in a minute.

But what was alarming was just how closely the government and insurers have worked together. A ‘summit meeting’ took place in Downing Street in February 2012. Nobody representing the interests and concerns of victims was invited. But what came out of the court hearing was that there had been close communications between them before that meeting. Paul Nicholls QC for APIL referred the court to a series of emails including one which said – ‘This looks good I think we’re getting close.’

The basis of the court action was that these secret communications made a nonsense of any so called consultation. The court found that there was in fact no legal duty on the government to consult in the matter. Lord Justice Elias said that this was really a political rather than legal matter and that the correct road for redress is via the ballot box.

So although there is no effective legal challenge we now know how just how close this friendship is between government and the insurance industry whose main duty is to its shareholders and for whom access to justice is of no concern. These are the very insurers who want to take over the whole injury claims process and exclude lawyers.

What is clear is that those who represent victims will not lie down. In many ways the battle starts now. There will be an Appeal which is unlikely to succeed. But as Elias LJ says this is a political matter and that is where the argument should go, especially over the next two years as we head towards an election. Two years to put justice on the agenda and to remove a government which has apparently washed its hands of any concern for victims for the sake of enhancing insurers profits.