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Monday, 24 March 2014

Concerning Jackson, Justice and an Eleusinian Mystery!

We are approaching the first anniversary of Lord Justice Jackson’s reforms of our civil justice system. Any reader of this blog will know that I have not been an enthusiastic supporter.

Today sees the first speech from the architect of the reforms at the Civil Justice Conference. He seems to acknowledge that the response is largely negative. But will say we will adjust in time. It is not entirely clear whether that is a prediction or an order. In view of some recent judicial decisions it is probably the latter. He says that the criticisms do not reflect a fair cross section of opinion. I have yet to meet anybody who is a fan of the ‘reforms’. 

Jackson will say that the objections really amount to no more than lawyers protecting their own interests –

 'Every stakeholder group seems to perceive the public interest as residing in a state of affairs which coincides with its own commercial interest,'

But the objections go far wider than this. It is a genuine concern that a victim of an Accident or of Clinical Negligence stands to lose up to 25% of part of their damages under the new rules on Conditional Fee Agreements. This represents a huge windfall for the insurance industry at the expense of victims. The commercial interests of lawyers are not directly affected. It is an issue of justice and not just money.

He also predicts that the cost of litigation will reduce. The evidence so far is that costs are going through the roof. Cost budgeting itself is becoming an expensive exercise. We are seeing a deluge of satellite litigation arising from the decision in Mitchell v News Group Newspapers Ltd. Litigators are spending more time looking at their diaries through fear of the catastrophic consequences of missing a deadline by a day –

He comments that litigation is a process and not an Eleusinian Mystery – apologies for the link but I thought it might save you a trip to Google to find out what on earth it means. To be honest I am not much the wiser. The only real myth here relates to the existence of a compensation culture.!!

We know that something is badly wrong when the Master of the Rolls can say -

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

There are some glimmers of hope. Jackson himself seems uncomfortable with some of the judicial excesses following Mitchell and says that the parties should be able to agree reasonable variations in the court’s timetable. The changes are certainly here to stay but we can hope that new editions of the rules will see a softening in the courts’ approach. 

I have to say that there were some words of comfort from Lady Hale in the recent case of Dunhill v Burgin. This was not a Mitchell type case but she did say – ‘But in this
court we have to do our best to arrive at the right result and thus to allow
all relevant arguments to be deployed before us unless this would be unfair to an
opposing party.’

We haven’t heard the word fairness very much lately so maybe some cases need to get before the Supreme Court before sense will prevail. 


Friday, 14 March 2014

ABI v APIL - Rhetoric v Reality

The Association of British Insurers seems to have a habit of inviting confrontation.

Insurers got pretty well all they asked for from the government in relation to reductions in the amounts of legal costs recoverable by victims. An independent report from the Parliamentary Select Committee On Whiplash injuries strongly criticised the overly close relationship between insurance companies and the conservative led coalition government –

Despite this, the attacks on victims go on and on. Their policy spokesman, Rob Cummings, said this week that there was a ‘whiplash epidemic’. The parliamentary committee found in fact, that the numbers of claims were reducing. This rhetoric suggests that claims are fraudulent even though the ABI could not provide the parliamentary committee with any evidence of the scale of the ‘problem’. The truth is that only a tiny percentage of claims are fraudulent and they damage all of us who are involved in civil justice. We all want to see an end to them, but this is not achieved by these blanket attacks on claimant lawyers.

Mr Cummings then showed an alarming ignorance of the impact of recent reforms on access to justice. He said that there was no evidence that justice for ‘genuinely’ injured claimants was impeded (why the constant suggestion that the genuine are somehow a minority?).

Interestingly the President of the Association of Personal Injury Lawyers (APIL) suggests the opposite. Writing in the March edition of APIL’s PI Focus magazine Matthew Stockwell talks about ‘institutionalised’ cherry picking. What he means is that the new costs regime makes it commercially unviable for lawyers to take on risky cases, especially those with a lower value. Now that a chunk of the legal costs has to come from damages lawyers can only afford to take on those which will provide some return. He warns that many ‘genuine’ claimants are now at risk of falling into a ‘justice gap’. I bet the ABI won’t complain about that.

Matthew is right. We are seeing firm after firm decide that personal injury work is no longer viable. They are either closing or selling their work to other firms. I have no doubt that this will lead to a further reduction in the numbers of cases. This is the reality and it is happening as we speak.

This time next year; we will still hear insurers banging on about a compensation culture. 

But there will certainly be fewer lawyers for them to target..

Friday, 7 March 2014

Striking at the heart of injustice

Today sees the second day of action by criminal lawyers against the government’s cuts to Legal Aid and its resulting impact on Access to Justice.

Across England and Wales Solicitors and Barristers have stayed away from court hearings. there have been demonstrations outisde courts in Londion and nationwide.

Who would ever have thought that the day would come when lawyers would have to resort to this kind of action? Demonstrators include the brilliant actress Maxine Peake who is known and loved by us all as Martha Costello QC in Silk!

But in the face of a Government that does not listen and which has questionable priorities, what choice do they have. The proposed changes include huge cuts in pay. Solicitors’ will see an immediate cut of 8.75% rising to 15%. Barristers face similar cuts. Those who do this work are already among the lowest paid lawyers. Anybody who does Legal Aid work is doing so because the work is important to them. They work long and demanding hours for a relatively modest return. Most could earn far more if they decided to move into other areas of work. 

In fact a key demand is for equality for all before the courts regardless of wealth –

They warn of legal advice ‘deserts’ as firms are forced to close. This is something that I have blogged about before in relation to cut backs in legal aid –

This is not about lawyers complaining about losing fees. It is about doing what is right.

The response from the government and the media is that cuts have to be made and that we are all ‘in it together’. But it is really a question of priority. We find the money to spend on defence. According to a report in the Telegraph last year the government is committed to spending £60bn on defence in the next 10 years of which £38.5bn is on nuclear submarines –

The current spend on criminal legal aid is less than a drop in the ocean compared to that.  

We do have the money.

Martin Luther King once said –

“A nation that continues year after year to spend more money on military defence than on programs of social uplift is approaching spiritual doom.”

That is why I support the day of action.

Monday, 3 March 2014

Fees for Benefits Appeals? Can we get any lower?

Many of were shocked over the weekend to read about the tragic death of Mark Wood. 

He was a 44 year old with numerous mental health problems. A few months before his death, his benefits had been drastically reduced to just £40 a week. This was because ATOS had declared him fit for work. Prior to this he had been living independently. His health deteriorated dramatically. At an inquest last week the coroner found that his death was - “caused or contributed to by Wood being markedly underweight and malnourished”. 

His BMI was incompatible with life.

In short he starved to death, in the UK in the 21st Century.

This is a particularly sad story because of the terrible outcome. But hundreds of claimants have faced hardship because of the decisions of this agency. I first blogged about this almost 2 years ago –

But developments since then have made their plight far worse. This concerns the steps that have been taken to block any effective right of appeal. Back in 2012, I was told by a CAB advocate that the success rate at appeals for claimants who were represented was as high as 80%. In April 2013 the right to Legal Aid to pursue the appeals was removed. Most voluntary agencies including CABx simply do not have the resources to help them. This has created a virtual waste land.

There are now moves afoot to make things even worse by charging claimants who wish to pursue appeals. So somebody’s benefits can be reduced to below the poverty level but they then have to find a fee to pay to put things right. The outcome will certainly be a dramatic drop in the number of appeals. In 2013 the Government brought in similar rules for those who wished to go to Employment Tribunals. This has led to a huge reduction in the number of cases being brought. The same will happen with benefit appeals, leaving thousands facing destitution with no realistic avenue of appeal, even if they can find someone to represent them.

You begin to wonder what else can be thrown at the most vulnerable in society.

We are now on the run in to another election. The party which deserves a vote will be the one which commits to reversing these shocking cuts. We cannot afford to have another Mark Wood.