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Friday, 29 November 2013

Road to Singapore - don't be late!!

We are all now familiar with the infamous plebgate incident concerning the former Minister Andrew Mitchell. That is story which is very well covered elsewhere. But there has been a sub-plot to all this which has caused most litigation lawyers sleepless nights.

Mr. Mitchell sued the Sun Newspaper for libel. That was always going to be a high profile and expensive case. In matters like this is necessary for lawyers to file costs budgets at court. The idea is to control the level of costs. The court ordered the parties to attend a preliminary hearing on 10th June 2013, later changed to 18th June, due to an error by the court. In preparation for this the lawyers for both sides were to file draft budgets 7 days in advance.

Mr. Mitchell’s lawyers failed to do this on time. They filed their budget the day before the hearing. The cost of that delay has been catastrophic. If Mr. Mitchell wins his case he will recover no legal costs at all apart from court fees. Those costs are estimated to exceed £500k. In reality his lawyers will simply not get paid. In the case of a small firm this would probably lead to closure and job losses. 

The lawyers asked the judge to allow ‘relief from sanctions’ under the court rules and were refused. This week the Court of Appeal upheld that decision.

This is part of a new and tough regime imported from Singapore which dramatically restricts the court’s powers to exercise discretion in the face of delay. It is all part of a drive to save money in relation to the administration of civil justice. It seems that Lord Justice Jackson, whose report has driven most of the recent ‘reforms’ visited Singapore and was impressed by their zero tolerance approach to deadlines.

Nobody would argue that lawyers should disregard deadline set by the courts. But until this year was always some acknowledgement that nobody is perfect i.e. that there can be slippage or even human error, as there was by the court itself in this case. So if a claim was struck out because a document was lodged a few days late the claim could be reinstated and the lawyers penalised by having to pay any costs incurred in sorting out their breach. That actually worked quite well despite rhetoric to the contrary.

We now have a situation where citizens will be deprived of justice due to administrative failings which are quite capable of correction. Alarmingly the Court of appeal appear to acknowledge this. Lord Justice Dyson said –  

There now has to be a shift away from exclusively focussing on doing justice in the individual case”. 

If that is the case then let’s stop calling it a justice system?

There will be some exceptions for ‘trivial’ breaches or in the case of illness or accident! But there is no exception for simple human error. I have been practising law for over 30 years and would never dream of claiming perfection! I do have an efficient system for logging dates but if I mistakenly record a date as 02/03/14 instead of 03/02/14 it could have disastrous consequences.

I predict two possible consequences. Firstly there will be a deluge of claims against lawyers by claimants who lose their claims for administrative reasons. Secondly the courts will be overrun with applications by lawyers applying for extensions of time because they are terrified of the commercial consequences.

Going back to the Mitchell case, the lawyers were clearly at fault. They should have lodged their budget in time. But a business could close here with inevitable job losses. Is that a proportionate sanction? There was no prejudice at all to the Sun who have a windfall of unimaginable levels. The only prejudice was to the court’s administrators who had to find some additional diary time.

We should have a justice system based on justice and not the convenience of court administrators. At this rate I can see litigators packing up shop and heading out of the country – but not to Singapore!

Monday, 25 November 2013

Accident claims - you can lower the cost but you can't lower the bar

A recent decision in Leeds County Court has caused alarm among some Personal Injury Lawyers.

Yorkshire firm, Raleys were sued by a former client for Professional Negligence. He alleged that they had under settled his claim for work related Vibration White Finger. They had recovered damages for pain and suffering and loss of earnings. But they had failed to recover anything for what is known as, loss of services. This included that need for assistance with gardening, DIY etc.

It appears that there were no meetings between solicitor and client. It was all done by way of forms and standard letters. Unfortunately the prospect of a services claim slipped through the net. The lawyers were at fault because they had not met the client and explained what he could and could not claim.

There is no doubt that this is the right decision. If solicitors take on the responsibility recovering damages for a client, and something is missed, then it is their fault. They cannot excuse themselves by saying that it was all done by post (or email) and the client never mentioned it.

But, following developments over the last year, it is still a worry. The government have slashed the levels of legal costs that victims can recover in successful cases.

The profession has been told that this is straightforward work that does not require high level expertise. We have been told that the way forward is to commoditise the work, so we end up with troops of unqualified clerks who simply input data onto computers. In this way we can all earn a reasonable living. It is in effect an official dumbing down of the work. It all sounds very sensible, apart from one problem. To quote that guru of jurisprudence, Blackadder – ‘It’s b*ll*cks’.

The level of expertise might reduce but the standards stay the same. And rightly so. I can’t invite the public to instruct my firm and then, if something is missed, say ‘Sorry but the person dealing with your case has only just done their GCSEs’.  

You can lower the cost but you can’t lower the bar.

I suspect that we will see more claims of this kind. That in turn could have a knock on effect when firms look to renew their indemnity insurance next year. Others might simply say enough is enough, and leave the sector altogether.

This was predicted by many, but it all fell on stony ground.

What we really need is a system where the party at fault pays whatever it costs the victim to pursue the case.

But I am not holding my breath!

Thursday, 21 November 2013

Cuts at the Co-Op - is big as beautiful as we are told??

It has not been the best of weeks for the Co-Op.

Every day we have seen more damning news about Paul Flowers, the former chairman of the bank and Methodist Minister. I don’t propose to dwell on that matter which is getting plenty of coverage elsewhere.

On the back of all this comes the news, this week, that Co-Operative Legal Services are to cut 60 jobs their Personal injury division. In fact it is a 50% reduction is size. According to the report in the Law Society’s Gazette the cuts are the result of losing a ‘large source of personal injury work’ with ‘not enough new claims coming in’.

The Legal Services Act 2007 heralded the birth of ABSs. For the first time, legal services could be provided by non-lawyer organizations. Interestingly we all referred to TescoLaw even though that particular retailer has yet to show any significant interest. But the Co-Op has gone for it in a big way. They were among the first to be granted an ABS licence by the Solicitors’ Regulation Authority.

The first thing that this demonstrates is that no organization is immune from the commercial pressures affecting anybody who deals with personal injury work. We have seen a number of high profile firms either closed the door or decide to wind down their businesses. Companies like are busily buying up work from those who no longer see the work as viable following the dramatic changes that have been a big feature of this blog –

So to that extent, we are all in it together.

But it also raises a question over the mantra that ‘big is beautiful’. We have been told time and time again that it is only big and powerful entitles that will survive the recent changes. It is being predicted that in ten years time there will only be 5 or 6 companies dealing with personal injury. But you begin to wonder..

We have recently seen the demise of some big firms including Halliwells and Cobbett’s. Now we see the most enthusiastic retailer in the sector cutting back by 50%.

In truth the consumers don’t seem to want to be represented by a faceless corporation. They want a lawyer they know and can trust.

I have no doubt that the Co-Op will come through all this and remain big players in the legal market. But hose who talk of the demise of the private law firm are being premature. There will still be a demand for those who offer a high quality and personal service to their clients.

Tuesday, 19 November 2013

Divided we fall!!

I suspect that there have been sighs of relief at the Ministry of Justice as solicitors have gone to war with each other over the handling of the government’s proposed cuts to criminal legal aid.

This is an issue which has been simmering for months. We know that this government has no love for funding access to justice for those who cannot afford to pay for it. Criminal lawyers have had it worse than anybody else. They have been threatened with competitive tendering on price, removal of a client’s choice of lawyer and the inevitable attack on their fees. It should never be forgotten that these lawyers work long, anti social hours for little reward. It is work for the committed.

The Law Society’s response has been to negotiate with the MOJ. They have maintained a firm opposition to the cuts but maintain that dialogue is the only realistic way to achieve concessions to the proposed changes. A group of solicitors who feel that the Society has not gone far enough have submitted a motion of no confidence in the Society’s President, Nick Fluck and its CEO Des Hudson. The motion will be considered on 17th December. Under the Law Society’s constitution it has to be a personal vote. If passed then there will be a postal ballot of the whole membership. 

The Law Society has called a meeting of its council for the same day. Supporters of the motion have accused the Law Society of doing this to ensure a strong turn out of supporters. The Society says it had to call the meeting on that day in order to respond to the outcome of the motion. And so the rhetoric goes on.

In the meantime the heat is well and truly off as far as ministers are concerned.

I am not a criminal lawyer and would be first in the queue to support them. They work incredibly hard for little reward. I would not presume to have an opinion on whether the Law Society has done enough. It is simply not a subject on which I know enough to express a view.

What I would say is that division will achieve nothing. Will the government take any more notice of the profession which is at war with itself? We know that the Ministry of Justice takes little notice of arguments against its cuts. Maybe those supporting the motion are expecting too much. Maybe there is more the Society could do. But they need to thrash these issues out and reach a united position at all costs. 

Because the status quo is going to achieve nothing apart from some bad press about lawyers bickering among themselves.

Friday, 15 November 2013

Plugging the Justice Gap - A rant!!

This has been a tough year for the legal profession, especially those who provide services for ordinary people.

Legal aid has been virtually wiped out. In that small number of cases where it remains available, the fees have been reduced to such levels as to make it prohibitive as a commercial option. Criminal Practitioners in particular have had to face the spectre of competitive tendering and the possibility of losing work to major corporate providers –

These are some of the most hardworking and dedicated lawyers.

Those who do Personal injury work have seen their fees slashed to a level that has seen many firms decide to close the door –

This has been largely driven by the insurance industry on the back of a fantasy known as the compensation culture. As the dust settles on all of this, firms are now having to take stock and plan their futures in this very different world. One recent report has found that one third of small to medium sized firms expect that they will need to merge or be taken over in order to continue –

This is all familiar news especially to anybody who has followed this blog for the last few months. And it is all a bit bleak for law firms and those who need legal advice but lack the means to pay for it.

But one recent proposal just adds insult to injury. It is being suggested that the gaps in access to justice can be filled by making it mandatory for lawyers to work for nothing. So lawyers would not be permitted to practice unless they carried out a set number of hours of free work. Another proposal is it to make it a compulsory element of legal training so a student cannot qualify unless he/she does so many hours of free work.

How far are we expected to go?

Most lawyers already do huge amounts of free work. According to the Law Society Gazette, 44% of solicitors did free work in the last year. I imagine that that understates the reality. At the same time as a record number of firms are closing, they could be forced to plug the gap in legal services by working for nothing. Get real.

If the government acknowledge that there is unmet legal need then they should deal with this by way of a properly funded legal aid scheme. The stock answer to this is that cuts have to be made. Of course they do. But the money is found to pay for a top class court building for big businesses –

It is really a matter of priority.

Lawyers who want to act for the less well off are told to do it at rock bottom rates or better still, for nothing.

Friday, 1 November 2013

Law - only a career option for the privileged?

I posted a blog last year raising concerns about the shrinking access to careers in the law. 

I questioned whether the law was becoming a career for the rich –

This followed a decision by the Solicitors Regulation Authority to abolish the minimum salary for Trainee Solicitors. These concerns have been echoed this week by Baroness Hale who is the Deputy President of the Supreme Court and the most senior woman judge that we have ever had. She was speaking at the launch of report by the Young Legal Aid Lawyers (YLAL) which calls for return of the minimum salary.

Lady Hale expressed gave concern about the disparity between the number of students being trained in the law and the number of jobs available. She actually said that many aspire to a legal career that they can never have –

She went on to say that it was a major worry that we could be returning the days when “social advantage, independent schooling and Oxbridge”, determined access to a legal career.

It is certainly true that there are far too many students being trained than there are training contracts available. Those institutions who a charging huge fees need to ask themselves some difficult questions. Baroness Hale agrees that we cannot block access to that opportunity. But there are many disincentives. Why would the brightest students want to run up thousands of pounds in loans with little prospect of a career at the end?

The abolition of the minimum salary is just one such obstacle but it is significant. Why struggle through years of academic training to end up being paid buttons. In their report, published this week, YLAL acknowledge that most who work in the legal aid sector do not expect huge salaries but –

“The combination of prohibitively expensive professional courses, high levels of debt and low salaries makes it extremely difficult for those from a lower socio-economic background to enter the legal aid profession and then to sustain a career in the sector”.

They also express concern about the impact on social mobility caused by the requirement for most students to carry out unpaid work experience.

This should be a real concern for us all. We need a diverse legal profession. Legal problems affect the whole population and those who represent them should not come from a small social group who can afford to pay the fees, do the unpaid work and earn low salaries whilst training. In the current climate, it is highly unlikely that I would ever have been able to qualify.

We should be doing all we can to encourage entry for all based on ability and not on wealth. A starting point will be return to a realistic salary for trainees. It would be a great step forward if the government provided funding for work experience in the legal aid sector although this is highly unlikely with the present government.