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Wednesday, 10 December 2014

A very bad week for Christopher Stephen Grayling

We all have bad weeks. 

But it has been a particularly bad one for the first non lawyer Lord Chancellor for over 400 years. 

Was it only two months ago that he was proclaiming that it was a good thing that he was not a lawyer 

Last night, I actually missed part of Liverpool FC’s exit from the Champions League to witness the mauling which the House of Lords gave to Mr Grayling's proposals to restrict the right to bring Judicial Review proceedings. A key proposal would remove the power of judges to decide whether to hear such applications. In effect the right to bring proceedings against the Government will be controlled by the Government. This was roundly rejected by the Lords. Those opposing the move included a number of Tory and Lib Dem peers –

Grayling's advocate in the House, Lord Faulks QC, was increasingly ineffective in the face of relentless attacks, particularly from the masterful crossbencher, Lord Pannick. It doesn't matter how eminent a barrister you are, defending the indefensible is always a thankless task.

Further misery was heaped on Mr Grayling as he was forced to admit that he misled Parliament over the proposals. He had suggested that there was to be an exception to the rules barring applications whereby the court would retain discretion in certain circumstances. He wrote to Conservative MP, Geoffrey Cox, to confirm that he had ‘inadvertently’ said that this was the case when it fact it was not. So he was either misleading the House deliberately or had no idea what was in his Bill –

While we are on the subject of Judicial Review! Mr Grayling was told by the High Court this week that his appalling plans to ban books for prisoners was unlawful –

It is no wonder that he remains so anxious to abolish the right to subject the Government to review by the courts. Could he be trying to avoid the honour (ahem) of being the most judicially reviewed Minister in history?

All of this makes you wonder whether Cameron’s experiment in placing a career politician at the head of the legal system was such a good idea after all.

Friday, 5 December 2014

Access to Justice - its all about the money, money, money

It's not about the money, money, money
We don't need your money, money, money
We just wanna make the world dance,
Forget about the price tag

This is the first time that Jessie J has made an appearance on this blog. Or any other legal blog for that matter! When it comes to putting a value of Access to Justice her words are sadly wide of the mark. It seems that it is in fact all about the money, money, money.

That was certainly the impression given by top MOJ Civil Servant Ursula Brennan, when she gave evidence before the Public Accounts committee this week.

She confirmed that her department was given a mandate to cut the Legal aid Budget at all costs and that they were given no time to carry out any research into the possible impact of the cuts, which virtually wiped legal aid for the most vulnerable.

It was clear from her responses that no thought was given to the likely consequences. The overwhelming brief was to save the money from the legal aid budget regardless of whether this might be a false economy. This is something that most campaigners have been saying for the last couple of years.

What about the cost to the Court system of a deluge of litigants in person?

What about the cost to other public bodies who have to pick up the pieces?

What about the issues of quality as legal aid lawyers are forced into a race to the bottom on fees?

As one MP asked - ‘How do you know there is not £100m of mental health costs flowing from these reforms?’

This emphasises again the contempt that the current government has for our once proud justice system. I have talked before about where their true values lie –

Barrister Harriet Johnson tweeted this week –
‘Grayling: This isn't ideological; I HAVE to cut £220m from #LegalAid. We've no money. Govt: Sod it; have £15bn for some new roads.’  
That says it all! Money is found for some things. It is all about priorities. Access to Justice is a very low priority for our politicians.

This is something that we must force onto the agenda over the next 5 months.





Friday, 28 November 2014

The Continuing Insanity of the Mitchell Litigation

If there is one word that still strikes fear into the hearts of even the most robust litigators it is the word Mitchell. Just say it in their company and your will see a total personality change. They will stare blankly ahead like rabbit in headlights. Their bottom lip will quiver and they will quickly head for the door. It is a word that they associate with missed deadlines, strike outs and sheepish letters to their indemnity insurers.

It was a name that dominated this blog for several months last year –

The worst excesses of that decision were eventually mitigated by the Court of Appeal in the later case of Denton but that overriding fear of missing the bus by a few days has never gone away –

So with all the excitement of the Mitchell case it has been easy to forget that there was real dispute taking place between Mr Mitchell, a former government Whip, and the Sun Newspaper. This, of course, was all about Plebgate – the infamous exchange between Mitchell and a Police Officer in Downing Street during which the MP allegedly called the officer a ‘fucking pleb’. The exchange made the front page of the Sun. Mr Mitchell sued them for libel. Yesterday the High Court found against him. Mitting J ruled that he probably did use the offending language. Not only has he lost a case that was brought in order to salvage his reputation, he also faces a huge legal bill. Various figures are going around of between £1.5m and £3m. He has to pay £300k on account by January.

That estimate of the legal costs beggars belief when you think about the ‘scary’ Mitchell case – the one about missing deadlines. What happened there was that his lawyers were supposed to file a costs budget with the court by a particular date. They failed to do it and were effectively deprived of all of their costs as against the other side. But lets stand back from that for a minute.

The idea of the budgeting exercise was to control costs. The whole point of the Jackson reforms was to rein in the cost of civil litigation. A much quoted statement from the Master of the Rolls was –

‘Doing justice in each set of proceedings is to ensure that proceedings are dealt with justly and at proportionate cost.’
So we have a case which is about a heated conversation between a politician and a police officer that lasted a few seconds. We have seen a satellite argument go to the Court of Appeal, costing thousands of pounds, because lawyers missed a deadline to serve a budget that is supposed to part of a procedure to control costs. Now we have seen the conclusion of the main action with costs possible running into millions. 

As John Hyde of the Law Society's Gazette tweeted yesterday - 

'I wonder how often Andrew Mitchell wishes he'd just taken the Tube home that night'

Is it just me? How have we gone from ‘justly and at proportionate cost’ to this?

The famous words of DH Lawrence come to mind –

‘The world of men is dreaming, it has gone mad in its sleep, and a snake is strangling it, but it can't wake up.’

Wednesday, 26 November 2014

Rolls Royce Justice for the Rich

The Lord Chancellor, Chris Grayling believes that London should take its place at the heart of the International Legal community.

These were his encouraging words ahead of next year’s Global Law Summit –

For those who are interested this is a major event with high level speakers including Cherie Booth QC , Aung San Suu Kyi and erm Boris Johnson. It is two day event – tickets on the door - £1750.00.

Grayling spoke of our long and proud legal tradition. And in one small sense, he is right. As a country we do seem to have plenty of money to spend encouraging the rich and powerful to litigate here. We have the Rolls Building which is certainly a top of the range facility for the highest level commercial disputes –

The cost of building that beautiful court would have funded access to legal aid for thousands of people.

We cannot claim to be at the heart of any Legal Community whilst substantial numbers of our citizens have no access to our justice system. Just this week we have seen a shocking report from the National Audit Office that there has been a doubling of cases involving children where neither party has legal representation. This is causing injustice, delay and increased public expense as cases take far longer.

This report made the very reasonable comment that – ‘… the MoJ had failed to think through the impact the changes would have on the wider system…’ We have been trying to tell them that for the last 4 years.

We have also seen attacks on the rights of accident victims to recover their full legal costs alongside a full blown media campaign to demonise those victims.

When it comes to providing a Rolls Royce service for those who have endless funds to spend, we are right there at the top. When it comes to providing ordinary people with a means of protecting their rights, most people find the door well and truly shut in their faces. Until that door is opened we cannot claim to be at the heart of any justice system worth the name.

Monday, 17 November 2014

Is a surgeon negligent because he's having a bad day at the office?

How about a nice tricky legal question to start the week?

I have to confess that I am not at my best on Mondays. I wouldn’t say that I am in the Boomtown Rats league but it is not normally my favourite day! So let’s say I bump my car on the way home. And let’s say it isn’t clear whether or not it was my fault. Could the other driver say it must be my fault? Could he say that everyone knows I’m not at my best on Mondays, so that that must be taken into account?

In other words; to what extent can external factors influence a decision as to whether I have or haven’t been negligent? The answer might appear obvious but that very problem has exercised the Court of Appeal in a recent Medical Negligence case.

Mrs Laughton underwent a left hip replacement operation on 30th July 2007. The surgeon was Mr Shalaby. The operation was not a success. She needed a further operation about 18 months later. It was necessary for the second surgeon to re-attach the gluteus medius muscle to the trochanter bone. Mrs Laughton’s case was that Mr Shalaby had negligently failed to do this at the time of the original surgery.

The case went to trial and experts for each side had differing opinions. The expert for Mrs Laughton said that it was self evident that Mr Shalaby had not re-attached the muscle and therefore he was negligent. The expert for Mr Shalaby said that the muscle could have come away after the surgery, that this was a known complication and did not in itself indicate negligence. The judge preferred the evidence of the latter. He decided that there no negligence and Mrs Laughton lost. She appealed to the Court of Appeal.
At the appeal hearing an attempt was made to rely on extraneous factors. The surgeon had been made subject to conditions by the GMC. This was due to complaints about the standard of his surgery in other cases. He had also, allegedly assaulted a bus driver and been suspended from practice. It was suggested that all of those factors would have put him under stress and more likely to make a mistake.

This was dismissed by the Court of Appeal. Mr Shalaby should been open about these matters. But they made no difference to any assessment of the standard of surgery offered to this particular patient on this particular day. There was no evidence of any similar problems in other hip replacement operations carried out by Mr Shalaby.

Lord Justice Longmore said -

‘The fact that a doctor is under stress does not of itself mean that he is more likely than not to have been negligent on a particular occasion.

Those who are interested can see the full decision here –

This is a significant decision. It means that in a Medical Negligence case the court has to focus on the incident itself and cannot take into account unrelated factors in the absence of evidence of negligence. That doesn’t mean that the court will never consider other factors. If Mr Shalaby had a habit of failing to attach the gluteus muscle then that might be used against him. But a claimant cannot rely on unrelated factors to try and swing the pendulum their way.

All of which means that if I bump into your car tonight, you can’t say it’s my fault just because it’s Monday!

Thursday, 13 November 2014

The Courts v The State The next round!

I said last week that it was unthinkable that the state should be able to bring an action against its citizens and then deprive them of representation. That argument should be even stronger in cases where the state wrongly interferes with their liberty. But this has not stopped the current government from trying.

In 2013 legal aid was virtually wiped out in this country. In that small number of cases where it is still available it is very tightly restricted. Getting blood out of a stone comes to mind.

This was the problem faced by Sunita Sisangia who was wrongly detained by the police for over 13 hours. She was denied legal aid to bring an action against the police for false imprisonment. A Claimant can only get public funding for this type of case if they can show that the police have been guilty of a deliberate or dishonest abuse of power. The Legal Aid Agency ruled that this meant that there had to have been an element of malice. Simply to deprive somebody, wrongly, of their liberty was not enough.

This shocking decision has been overturned by the High Court which has ruled that she is entitled to legal aid. The Court held that protection from imprisonment is an important right. It was enough to show that the arrest was deliberate. No further 'abuse' was needed. 

This is further evidence of the increasing tension between the Judiciary and a Government which walks rough shod over the rule of law. What sort of state are we in? Is it a state where the police can wrongly arrest and detain somebody who then has no right to bring a claim for damages? That is the world of Kafka. It is not the world of a modern democracy.  This seems far removed from simply the saving of money. It seems to be an ideological attack on our civil liberties.

What is alarming is that the Minister of Justice wants to restrict the rights of citizens to Judicial Review.

Last week we saw the anger of the President of the Family Division where a person with learning difficulties was refused legal aid. I can see more and more of these occurring where judges – often accused of being out of touch – are left to protect our liberties.

I do not hold out much hope that the legal aid cuts will be reversed by whoever wins the next election. But we must at the very least protect the remnant from further attacks.

Tuesday, 4 November 2014

Concerning a heroic lawyer, an angry judge and washed hands!

In yesterday’s blog I mentioned the massive amounts of free work carried out by lawyers, and which barely gets a mention in the mainstream media.

There can be no greater example than the heroic efforts of Rebecca Stevens of Withy King, Solicitors. She has represented the parents of a child in adoption proceedings. It is a case where there are plans to place the child for adoption. Both parents have learning difficulties.  This is a case which is crying out for independent representation. Rebecca Stevens has been acting free of charge and it is estimated that she has done at least 100 hours of unpaid work. I cannot see the tabloid press queuing up to tell the world!

The case came before Mr. Justice Munby last week. He is the President of the Family Division of the High Court. He paid tribute to the remarkable efforts of Ms Stevens referring to her  

‘devotion to the client far above and far beyond the call of duty’

He then went on to deliver a judgment which should send shock waves through the Ministry of Justice. He said that the government has ‘washed its hands’ of the problem of ensuring that these parents are properly represented. 

“Thus far the state has simply washed its hands of the problem, leaving the solution to the problem which the state itself has created – for the state has brought the proceedings but declined all responsibility for ensuring that the parents are able to participate effectively in the proceedings it has brought – to the goodwill, the charity, of the legal profession.
This is, it might be thought, both unprincipled and unconscionable.’”

He said that it is unfair that representation is only available if a lawyer is willing to work for nothing. He has ordered that there be a hearing to decide who should fund the representation. He has invited the Justice Secretary, the Legal aid Agency, The Courts’ Service and the Local Authority all to attend to make representations.

In National Pro Bono week there cannot be a stronger example of the shocking state of Access to Justice in this country.  

The High Court’s most senior Family Judge has now said it – enough is enough. This cannot continue. It should be unthinkable that the state can bring a court action against citizens and then deprive them of representation.

Monday, 3 November 2014

Who needs Legal Aid when Lawyers do it for free???

My last blog touched upon the culture of blaming claimants and, particularly their lawyers, for pretty well everything. Politicians, government bodies, the media and insurers just love to dish it out in huge helpings.

One thing that hardly ever features in the news is the huge amount of free work done by lawyers in order to maintain some access to justice for ordinary people.

According to the Law Society Gazette, firms provide free or Pro bono work worth an average of about 3% of turnover of all firms - £601m. This is largely done by smaller firms or sole practitioners but large commercial firms also play their part.

Indeed, we are the start of National Pro bono week –

This sort of work can range from attending advice clinics in CABx or Law Centres to conducting heavy litigation at no cost to the client. These statistics will not include the hours of unrecorded free work by way of telephone advice etc. I have mentioned previously that up to 60% of lawyers have provided free advice at some time –

This barely merits a mention in mainstream media. Lawyers and Judges have also been seen walking through our major cities raising funds for agencies providing free legal assistance to support the stalwart work of North West Legal Support Trust and London Legal Support Trust.

The Legal Profession is doing as much as it can to plug the gaping hole in Access to Justice, caused by recent cuts to Legal Aid. But it cannot and should not be seen as the answer. There is a danger that politicians will see what the lawyers are doing for nothing and see that as a ‘job well done’. Why should the state fund Access to Justice if lawyers are doing it anyway? This is a real dilemma. If we do nothing people are left unrepresented. If we do something then the cuts will not be reversed.

Free work by lawyers can only do so much. It can never come close to replacing a properly funded legal aid scheme. It is no exaggeration to say that the advice sector is now a waste land. Agencies are closing by the day. Others are having to turn away all but the most urgent of cases.

Why should ordinary people with a genuine case have to find a lawyer who will do it for free? In what other profession would that sort of expectation exist? It is very disheartening that none of the major political parties have shown the slightest interest in reversing these cuts.
The profession will do what it can. But this can only scratch the surface.

It is time that the mainstream media and politicians took responsibility for an issue where there is desperate need even if there are few votes…

Wednesday, 29 October 2014

The tragic case of Mrs K and the real cause of medical disasters

In about October last year Mrs K had a heart attack at home. She was 40 years old and the mother of a young child. Paramedics arrived at her house and noted that she was not breathing. They attempted to ventilate her. There then followed a catalogue of errors. When she arrived at hospital it was discovered that the endotracheal tube was in the oesophagus. This meant that any oxygen was going into her abdomen and not into her lungs.

The shortage of oxygen caused her to suffer massive brain damage and she died a few days later. But for this mistake, she would probably have survived. An independent report found that wrong equipment had been used, no proper tests had been done to check that the oxygen was going to the lungs and that all but one of the paramedics, had not had clinical training for cardiac arrest management.

This was a tragic and avoidable death. I am currently dealing with the clinical negligence claim on behalf of the family. This is just one of many similar cases. It is almost two years since I posted my angriest blog of all, and the one which has had the most visits - by a mile.

A recent report from the Public and Health Service Ombudsman makes for disturbing reading. This document reported in today’s Guardian reviews 161 incidents between April and June 2014.

In one case a male patient died of a heart attack whilst on holiday. Doctors were aware that he was at high risk if he was to fly, but failed to warn him. In another case a mother gave birth at home after a junior midwife wrongly advised her that she was not in labour and sent her home from hospital. Perhaps the most tragic case concerns a new born baby who suffered brain damage after a nurse and two doctors failed to properly carry out a blood transfusion.

The Ombudsman, Dame Julia Mellor talks of the ‘devastating impact’ that these failures have on peoples’ lives – people like Mr K and his young family.

In its annual report, earlier this year the NHS Litigation Authority reported an 18% increase in Clinical Negligence Claims between 2013 and 2014. In time honoured fashion they laid the blame at the door of lawyers acting for victims and their families –

The NHSLA might wish to read the Ombudsman’s report, or speak to the families of victims. If the government wishes to see a reduction in claims, they should focus their
efforts on reducing the numbers of avoidable catastrophes. Ensuring resources are available for essential training seems to be a good staring point.

What is not acceptable is to blame the victims. Mr K has done nothing wrong. Why should he, and others, be made to think that the NHS is short of money because of him or his legal advisers? 

I hope that the Ombudsman's comments will see the start of a shift from passing the blame to victims to addressing the true causes of a serious problem.

Saturday, 25 October 2014

My Top 5 Legal Blogs

This blog is just over two and a half years old.

One great benefit has been the discovery of other legal blogs which have become an important resourse both for my writing and for the day job!

So here are my top 5 blawgs, in the style of Strictly Come Dancing, they are in ‘no particular order’!

I have included a link to their websites and also the twitter ID which is a great way to receive updates to their regular blogs.

Civil Litigation Brief


Gordon Exall is a busy barrister from Leeds. How he finds the time to produce this remarkable blog beggars belief. It is probably the most comprehensive collection of articles and links in relation to Civil Practice and procedure. If I need to check a tricky procedural point I will look here before anything else – including the White Book. In particular it has been a good friend through the traumas of Mitchell, Dental and Relief from Sanctions.

A quick visit now will take you to articles about Indemnity Costs against Funders, Solicitors’ Retainers and of course, relief from sanctions.

For any Civil Litigator it is a worth the visit at the start of each day.

Kerry Underwood


Kerry has been around for a few years, writing and speaking on law and procedure. The first time I came across him followed the introduction of Conditional Fees with his book – No Win No Fee No Worries. This was in the days before ‘No Win No Fee’ lawyer became a favourite tabloid insult!

This very detailed blog deals with most areas of civil litigation but with a particularly emphasis on funding issues. He writes as he speaks – direct, provocative and pulling no punches. Kerry is happy to respond to comments and questions. He is currently touring the country speaking on Jackson. So how he manages to keep this up to date is a mystery. But then he does support QPR which explains many things!

Go there now and the top post discusses the impact of The Criminal Judtice and Courts Bill and the impact of ‘fundamental dishonesty.’

Legal Cheek


Legal Work can be stressful, laborious and often unrewarding. There is no better antidote than a visit to this great, irreverent site.

The Legal Cheek team take neither themselves not the law too seriously. A visit to the site today includes a review of the movie The Judge – ‘pissing all over legal accuracy’, a look at this week’s episode of The Apprentice, with a focus on lawyer Felipe and the problems faced by a US Lawyer who took her baby to court. Some of it is hilarious and some of it is very serious, particularly in relation to the hurdles faced by anyone starting off in the law. I was drawn to one headline – ‘Become a Lawyer because you are passionate about it, not to please your parents.’ Hmm if I had read that 40 years ago!

Law and Lawyers – Obiter J


This blog looks at serious issues of legal and constitutional importance, with a strong emphasis on Human Rights. There has been a lot of talk about the Human Rights Act in the last few weeks. It seems to have become the target of a Conservative Party which needs to more euro sceptic than UKIP. Obiter J provides a detailed explanation of the importance of the Act.

I was particularly touched by the link to a reflection on the 1966 Aber Fan disaster. I was 11 years old at the time and still remember the tragedy as being the first time the time that I shocked and upset by official incompetence. These were children of about my age.

The Justice Gap


Any regular reader of my blog will know about my worries about Access to Justice for all. For anyone with a similar concern, or who just wants to find out more, this is the place to go.

A strong team of experienced and committed writers keep producing provocative and challenging material. This week, there was an article from Michael Mansfield QC on the case of Tony Stock – A Massive Blot on the Judicial Landscape. Hands up if you nothing about this case. Well you should go to The Justice Gap now. Not only will you learn something, you will want to add your voice to those who want to see this terrible miscarriage of justice overturned.

So there we have it. They are the 5 blogs that I visit almost on a daily basis. There are many others including - and

Reading blogs has certainly overtaken the reading of law books for keeping up to date about what is happening in the world of law and lawyers. They will not replace the classic publications. But they are accessible, readable and up to date – often to the minute!

Wednesday, 15 October 2014

Mr Downton's unfortunate joke and modern freedom of speech

Back in the 1890s Mr Downton decided to play a joke on Mrs Wilkinson. He told her that her husband had been seriously injured in an accident and that she needed to go to him urgently. She suffered psychological damage – no surprise there! Mr Downton’s conduct was found to be outrageous and to be the cause of her harm or distress. Mrs Wilkinson succeeded in her claim for damages because –

  • He had willfully done the act causing injury,
  • There was no doubt that the act would cause distress and
  • He must therefore have intended this outcome.

This all sounds like the interesting basis of a University exam question. But the case of Wilkinson v Downton has been at the heart of a major decision of the Court of Appeal this week. It concerns the publication of a book.

Mr. A has written about his experience of childhood sexual abuse. That is nothing new. Many similar books have appeared in recent years and they have become a important encouragement for victims to come forward. They have also enabled the authors to articulate the horrors of their experience and have contributed greatly to the public understanding of what used to be hidden pain. Surely books like this should be encouraged.

But the spanner in the works is that Mr A’s own son suffers from Aspergers Syndrome, ADHD and other medical conditions. There is expert evidence that if the son was to read the book, it could have a massive effect on his mental health. It seems that Mr A and his ex-wife had agreed that they would try to prevent the son becoming aware of events in their lives which could have a detrimental effect. It was the ex-wife who brought these proceedings for an injunction, to prevent publication.

The issue before the Court of Appeal was whether there was any legal basis to even ask for publication to be blocked. There was no claim in negligence as a parent does not owe a child any duty of care in these circumstances. There was no law to prevent Mr A from publishing private information about himself. The Court of Appeal clearly had major concerns and felt that there should be a full hearing. So Mr Downton’s unfortunate joke came to the rescue.

Arden LJ said that the case of Wilkinson v Downton applied. 

Publication of the book is a deliberate act. It is highly likely to harm Mr A’s son. She described this as an obscure tort, but a tort none the less. So publication has been blocked for now, pending a full hearing.

This case raises an issue of great interest to us all. Where is the line between freedom of speech and the protection from harm? Any restriction on freedom of expression must be a concern. The facts of this case of unusual. But could the principle be used in relation to anybody who is likely to be traumatised by somebody else’s work. All that has been decided so far is that there is a right to ask for an injunction. Publication has been stopped for the time being. The final hearing will be watched across the world.

This case also demonstrates the power of our common law system. We do not have all of our laws written down in one place. Courts can look back at decisions made in the past – however distant – and use the legal thinking in a creative way to seek remedies to modern issues.

For those who are interested the full decision is here –

Tuesday, 23 September 2014

I dreamed last night that Miliband stood up and promised to reverse the devastating Legal Aid cuts!

Now I have to confess that I am a bit of a political anorak and follow every detail of the party conferences. 

But the Labour Party gathering this week has been of particular interest. They could well form the next government and so those of us who care about justice have hung on to every word. Although to be honest there haven’t been too many.

Last year I described Access to Justice for those in need, as a waste land –

It has got far worse since then. Agencies across the country are closing or turning away desperate clients because they simply do not have the resources to do anything. So what will the future hold if Ed and Co win a majority in 2015? Not much I’m afraid.

At a fringe event today, Andy Slaughter, a shadow justice minister was giving away very little. The Gazette’s John Hyde tweeted that said that  Labour was not like the Tardis and would not reverse every cut –

Just a few reversals would be like an oasis in the desert.

I watched the whole of Ed Miliband’s speech this afternoon. At one point he used a phrase to sum up how people have been treated by the present government – ‘They’ve been told – you’re on your own’. He repeated the phrase 5 times, applying it to hard working people, young people, small businesses, the vulnerable, those with access to politics. I started to get excited that he might extend the list further but that was as far as it went.

So if you are a victim of domestic violence, if you have been wrongly told that you are fit for work, if your benefits have been wrongly sanctioned, if you are weighed down with debt – then you are still being told – ‘you’re on your own.’

The same thing applies in relation to tribunal fees. The introduction of these charges was intended to reduce the number of cases for unfair dismissal etc being brought. In fact it has decimated employment rights across the board. It is estimated that the drop off in claims is as high as 80%. Don’t try and tell me that they were all bogus. This has been a shameful attack on workers’ rights. Shadow Business Secretary, Chuka Umunna spoke generally about reforming the system. But he has said nothing about abolishing fees. We heard the same rhetoric in a speech to the TUC earlier this month –

He talked about openness, rights and justice but very little about how you might gain access to that justice if you don’t have the resources to pay for it. 

There were reassuring comments from Shadow Justice Secretary, Sadiq Khan about the Human Rights Act and Judicial Review. So you still have to say that a Labour Government would be less damaging than what we have now.

That is hardly a ringing endorsement for the party that I have supported all my life!

It will be interesting to see if these agenda develop over the next 6 months.

Friday, 5 September 2014

Justice for All - no walk in the park

On 25th September 2014 there will be a strange and scary site in the city of Liverpool as a few hundred lawyers and judges take to the streets!

However we will not be protesting (much), and we certainly will not be looking for ambulances to chase. This is in fact the day of the 2014 Liverpool Legal Walk. Never in all of my 30 odd years in the law has there been a greater need for free legal advice and help for those in need.

I once described Access to Justice in this country as a Waste Land. That, if anything, was an understatement.

Legal Aid was virtually wiped out in 2013. This particularly affected those who could least afford to pay for legal advice. Advice agencies and the courts are struggling to meet the demand.

In the meantime there lawyers and other advisers, across the country who are doing their best to give what help they can. This includes Citizens Advice Bureaux, Law Centres and even Legal Clinics at Universities manned by students. Most of these agencies are having to turn many deserving clients away as they simply do not have the resources.

One of the first blogs that I ever posted concerned the dismantling of justice for ordinary people –

The situation now is far worse.

This is a shocking indictment on our society. There is no point in having a justice system if it is only available to the wealthy. There is no point in ordinary people having rights if they cannot do anything about it. I could rant on all day. It might, one day, make a difference.

In the meantime what I can do is drag myself around the city and try and raise some much needed support for these beleaguered agencies.

So I make no apology for using this blog to ask readers to click the link below and make a donation!

Wednesday, 20 August 2014

The Bitter Sweet Story of a massive damages award

It is almost 15 years to the day since I settled what was at that time, the biggest case that I had ever handled.

John – not his real name – was born in good health. He then developed jaundice, which is not uncommon in young babies. In severe cases treatment is necessary either by phototherapy, using lights, or a full blood transfusion. So long as the condition is treated promptly there are rarely any major problems. John was born over a holiday period. The hospital staff, with the best of intentions, wanted to get the new young family home. He was discharged without being checked by a paediatrician. This was a catastrophic decision.

His condition deteriorated. By the time he was admitted to a local children’s’ hospital it was too late. He had suffered major and permanent brain damage.

This is a very oversimplified account of the medical issues but the outcome was that he had no use of his limbs, no speech and would need care from his family for the rest of his life. However, he was otherwise, as bright as the rest of us – if not more so.

Liability was disputed at first. However it seemed such a blatant case that, for the only time in my life, I applied to the High Court for summary judgment. This is a quick procedure to bring cases to a conclusion where there is no realistic argument. Surprisingly the NHS agreed and the case eventually settled for just under £2.5m which back then was a sizeable award.

There are still those who criticise victims and families for pursuing compensation claims for medical blunders. They are accused of draining the NHS and depriving other patients of the care they need. Others think of awards like this as if they were lottery wins. This could not be further from the truth. Compensation is needed to provide for the care and support necessary to give the victim a reasonable quality of life.

The reason I mention this story is that I am still in touch with the family. I have had a limited role over the years, assisting with occasional matters arising from the various trusts. So I have been able to see how the award has worked for John and his family. I met his mum recently. She told me that he has managed to get a University Degree. She said that he is now planning on working abroad for a year. Despite massive obstacles he is working toward a successful career. Now this is a tribute to John’s own determination and intelligence alongside the support from his family. But it is also a result of what has been achieved by a fair award of compensation for his injury which has provided the framework for him to develop.

We all wish that tragedies like this did not happen.

But those who go on and on about a compensation culture should, now and then, consider the real lives behind the stories.

Wednesday, 13 August 2014

Are we in a Post Legal Aid world?

I remember getting hot under the collar last year when I heard someone in the voluntary sector say that we were now in a ‘post welfare’ state. He was saying that we can no longer assume that the state will provide for those in greatest need and the burden will fall on charitable organisations. I disagreed with him but am beginning to wonder whether he has a point, certainly as far as legal services are concerned.

Should we now talk about a post legal aid world? That is almost certainly the case as far as civil and family work is concerned. It is now almost impossible to get legal aid for any claim involving damages. The last surviving area of work – Clinical Negligence - was removed last year, apart from a very narrow group of those who suffer a brain injury at or very shortly after birth. For most other work it has gone. 

The situation is worse for those in private family disputes. This problem has been highlighted by the President of the Family Division, Sir James Munby. In a recent decision he has said that there are cases where it is simply essential for there to be legal or representation or expert evidence. In a case involving the need for an interpreter and legal assistance he has said that the Court Service could be required to pick up the bill in the absence of legal aid –

"HMCTS will also have to pay the cost of providing the father with an interpreter in court. If the father is still unable to obtain representation, I will have to consider whether the cost of that should also be borne by HMCTS. That, however, is a matter for a future day."

This could leave us in the bizarre situation where the government refuses assistance via legal aid but ends up paying the cost anyway through the courts. This certainly makes it clear, beyond doubt that the need had not gone away. When the most senior Family Judge is making comments like this, no further comment is needed. But this would surely only ever happen in a small number of extreme cases.

The devastating cuts to legal aid funding are indefensible. But nobody expects it to be re-instated. I have not heard anything from the opposition to suggest any change at all.

So should we now be looking towards a new world?

Will we see a new generation of free legal advice centres, funded by charities, philanthropists, churches etc? I will argue to the death that it is the job of the state to ensure that everyone has access to justice regardless of means. This is sound politics. But in the meantime I suspect that the world has changed for good. So do we now need to look at other alternatives to ensure that people get the help that they need?


Wednesday, 6 August 2014

Blaming injury victims is becoming an industry

It seems that if you repeat a statement often enough, people will eventually grow to accept it as fact. This is certainly the case with the so called compensation culture. 

It has even been used today in relation to scandalous delays dealing with claims from injured armed forces veterans. One explanation for the delays on behalf of the government has been an alleged - "rising claiming culture" –

I’m not sure whether this statement is meant to suggest that war veterans are submitting claims that are not genuine!

The phrase is now in such common usage that any victim who seeks compensation is marked as being a part of this culture and therefore to be frowned upon. It is apparently of no relevance whether the injury is genuine or serious.

I have said many times that the ‘compensation culture’ is a myth which has been created by politicians and insurers and which has, for some reason, been promoted by the media.

This has been highlighted by a recent YouGov Poll reported in the Law Gazette last week. This revealed that only 25% of people who suffer from personal injuries actually go on to claim compensation. Various reasons are given for this reluctance ranging from those who believe that a condition or injury is not serious enough to those who object in principle to making claims. That is hardly the basis of a ‘culture’ and the report suggests that there has in fact been a reduction in claims.

The reality is that the majority of victims do not claim compensation. This is not a statement that you will ever hear from the government or the media. You will hear the opposite. You will hear that there is a culture that has to be eliminated. You will hear that this ‘culture’ is the fault of lawyers who spend their days chasing ambulances. In fact most lawyers are simply trying to do the best for victims in an increasingly hostile environment –

Yesterday I had a meeting with the mother and financial adviser of a lad that I acted for 15 years ago. He suffered a severe brain injury shortly after he was born, due to the negligence of a local hospital. We recovered several million pounds for him. He will shortly complete his degree and is considering working abroad. This has been achieved by his own intelligence and determination alongside the funds that were recovered for him all those years ago.Would somebody like to tell him or his family that he is part of a compensation culture?

Monday, 7 July 2014

Mitchell - heading back to planet earth?

I have gone on and on here about the insanity that followed the Court of Appeal decision in Mitchell v News Group Newspapers towards the end of last year. The madness was summed up by one insurance spokesman who commented that we no longer had a clue what we were doing!

Cases worth thousands of pounds were being struck out because of documents being filed a few days late. This all led to the bizarre and chaotic situation where solicitors were becoming so afraid of missing deadlines, however minor, that they had no choice but to issue application after application to extend time limits.

So there were sighs of relief on Friday as the Court of Appeal including Dyson LJ, who gave the Mitchell judgment, and Jackson LJ, he of the eponymous ‘reforms’, told us that enough was enough. The chaos was not caused by the Mitchell judgment itself. It was all a misunderstanding by judges who had been over enthusiastic in their draconian interpretation.

The Appeal judges heavily criticised the opportunism of parties who had used the judgment to their advantage. In future they can expect o be heavily penalised in costs if they refuse reasonable requests for extensions of time.

The judges laid out some guidelines for courts dealing with failure to comply with directions.

They have set out a 3 stage approach to such applications. Rather than summarise them I have set them out below for future reference. This is not quite returing us to planet earth but is certainly a very positive development. I do wonder what happens now to the claims being pursued against lawyers in relation to claims struck out due to the judicial 'misunderstanding'. I see some litigation ahead on that one!

 The full judgment is available here –

1. The seriousness of the breach

“It seems that the word “trivial” has given rise to some difficulty. For example, it has given rise to arguments as to whether a substantial delay in complying with the terms of a rule or order which has no effect on the efficient running of the litigation is or is not to be regarded as trivial. Such semantic disputes do not promote the conduct of litigation efficiently and at proportionate cost. In these circumstances, we think it would be preferable if in future the focus of the enquiry at the first stage should not be on whether the breach has been trivial. Rather, it should be on whether the breach has been serious or significant…”

“We therefore prefer simply to say that, in evaluating a breach, judges should assess its seriousness and significance. We recognise that the concepts of seriousness and significance are not hard-edged and that there are degrees of seriousness and significance, but we hope that, assisted by the guidance given in this decision and its application in individual cases over time, courts will deal with these applications in a consistent manner.”

2.The reason for the breach

“The second stage cannot be derived from the express wording of rule 3.9(1), but it is nonetheless important particularly where the breach is serious or significant. The
court should consider why the failure or default occurred: this is what the court said in Mitchell at para 41. It would be inappropriate to produce an encyclopedia of good and bad reasons for a failure to comply with rules, practice directions or court orders. Para 41 of Mitchell gives some examples, but they are no more than examples.”

3. Opportunism

“The important misunderstanding that has occurred is that, if (i) there is a non-trivial
(now serious or significant) breach and (ii) there is no good reason for the breach, the
application for relief from sanctions will automatically fail. That is not so and is not
what the court said in Mitchell: see para 37. Rule 3.9(1) requires that, in every case,the court will consider “all the circumstances of the case, so as to enable it to deal justly with the application”.

“Thus, the court must, in considering all the circumstances of the case so as to enable it
to deal with the application justly, give particular weight to these two important
factors. In doing so, it will take account of the seriousness and significance of the
breach (which has been assessed at the first stage) and any explanation (which has
been considered at the second stage). The more serious or significant the breach the
less likely it is that relief will be granted unless there is a good reason for it. Where
there is a good reason for a serious or significant breach, relief is likely to be granted.
Where the breach is not serious or significant, relief is also likely to be granted.
But it is always necessary to have regard to all the circumstances of the case.”

“We are concerned that some judges are adopting an unreasonable approach to rule

“It seems that some judges are approaching applications for relief on the basis that,
unless a default can be characterised as trivial or there is a good reason for it, they are
bound to refuse relief. This is leading to decisions which are manifestly unjust and

“Litigation cannot be conducted efficiently and at proportionate cost without (a)
fostering a culture of compliance with rules, practice directions and court orders, and
(b) cooperation between the parties and their lawyers. This applies as much to
litigation undertaken by litigants in person as it does to others. This was part of the
foundation of the Jackson report. Nor should it be overlooked that CPR rule 1.3
provides that “the parties are required to help the court to further the overriding
objective”. Parties who opportunistically and unreasonably oppose applications for
relief from sanctions take up court time and act in breach of this obligation.
We think we should make it plain that it is wholly inappropriate for litigants or their
lawyers to take advantage of mistakes made by opposing parties in the hope that relief
from sanctions will be denied and that they will obtain a windfall strike out or other
litigation advantage. In a case where (a) the failure can be seen to be neither serious
nor significant, (b) where a good reason is demonstrated, or (c) where it is otherwise
obvious that relief from sanctions is appropriate, parties should agree that relief from
sanctions be granted without the need for further costs to be expended in satellite
litigation. The parties should in any event be ready to agree limited but reasonable
extensions of time up to 28 days as envisaged by the new rule 3.8(4).”

“It should be very much the exceptional case where a contested application for relief
from sanctions is necessary. This is for two reasons: first because compliance should
become the norm, rather than the exception as it was in the past, and secondly,
because the parties should work together to make sure that, in all but the most serious
cases, satellite litigation is avoided even where a breach has occurred.”

“Heavy costs sanctions should, therefore, be imposed on parties who
behave unreasonably in refusing to agree extensions of time or unreasonably oppose
applications for relief from sanctions. An order to pay the costs of the application
under rule 3.9 may not always be sufficient. The court can, in an appropriate case,
also record in its order that the opposition to the relief application was unreasonable
conduct to be taken into account under CPR rule 44.11 when costs are dealt with at
the end of the case. If the offending party ultimately wins, the court may make a
substantial reduction in its costs recovery on grounds of conduct under rule 44.11. If
the offending party ultimately loses, then its conduct may be a good reason to order it
to pay indemnity costs.”