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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…