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Wednesday, 25 February 2015

The scandalous increase in court fees (2)

I have already mentioned the proposed increases in court fees which are due to be introduced from April 2015. This will have such a devastating impact on Access to Justice that it merits some further comment.

Firstly it is important that we all understand the eye watering sums involved. A person who is severely disabled and dependent on carers for life will require the highest level of damages. At the moment the fee payable to the court to start a claim is £1920. Under the new rules it will £10,000. Forget any talk about percentages. That is simply scandalous.

The government is intent on pressing on with the move in the absence of any support at all. Indeed the response has been universally hostile.

The Civil Justice Council (CJC), a body which exists to advise the Lord Chancellor on Civil Justice and Procedure has talked about the risk that the increase will –

‘…act as an effective barrier to entry to the justice system through pricing many court users out of the courts and thereby reducing access to justice for those litigants for whom court fees form a significant cost element of the overall process…’

The most senior judges in the land wrote to the Ministry of Justice in December 2014. They adopted the concerns of the Civil Justice Council and went on to say –

‘In addition, the draft impact assessment for these proposals makes some very sweeping and, in our view, unduly complacent assumptions about the likely effect on the volume of court claims issued and access to justice of the proposed fee increases….’

The President of the Law Society has called the increases a flat tax on justice. Who would disagree with Andrew Caplan’s statement? –

“State provision for people to redress wrongs through the courts is the hallmark of a civilised society.”

The Law Society is leading the judicial review action against the rises.

One sector which has benefited hugely from this government attacks on justice has been the insurance industry. They have found a real friend in ministers who have given them virtually everything they have asked for in terms of restricting the ability of victims to bring damages claims. But those lawyers who represent insurers have joined in the chorus of opposition. The Forum of Insurance Lawyers (FOIL) have joined in the Law Society’s action. Their President, Nick Parsons signed a letter to the Times which talked about ‘disaster for access to justice’.

Nobody is telling ministers that this is a good idea. According to the CJC the consultation process comprised 17 telephone conversations.

They are simply not listening. They cannot possibly say that they do not understand. So the conclusion must be that they do not care. This is straight from the Homer Simpson school of politics..

They have failed to consider the damage which this could cause the NHS. Most Medical Negligence cases come into the highest bracket and so many cases will attract the £10,000 fee. Victims will struggle to pay it. But in many cases the bill will ultimately fall to be met by the NHS following a successful claim. So the government is imposing a 600% surcharge on itself for negligence. The same goes for insurers, which presumably explains their concern.

The one message that they will hear loud and clear is via the ballot box in May.

Counting the days …….

PS Since I posted this the MOJ have rushed through the Statutory Instrument enabling the increases to take effect. This means that they could be with us as soon as 9th March 2015. This is no time at all for lawyers, on both sides, to consider how they can best advise clients. Hopefully the Law Society's Judicial Review will be heard soon.

Monday, 23 February 2015

Pricing Justice beyond the reach of all but the rich

For anyone who is not a lawyer, the idea of going to court can be daunting. It has the feel of a different world where lawyers and judges wear a form of fancy dress that can be intimidating, buildings are often like something from Dickens and the language is completely alien. One of my earliest blogs concerned the time when I lost a client –

But with the help of lawyers many ordinary people have gritted their teeth, got on with it and achieved a just result. One thing which they did not need to worry about was cost. Legal Aid helped many but this has all but disappeared. For the last 15 years or so access to civil courts has been maintained by no win no fee arrangements. This is in the face of severe hostility from the media and politicians who created a new public enemy – The No Win No Fee Lawyer –

Despite these attacks, the rights of ordinary citizens have been secured.

The latest development could; however be the most damaging of all. This is the plan to increase court fees to a level beyond the means of all but the wealthiest. The government have announced that fees will increase by as much as 600%. In a case where damages are claimed in excess of £10,000 the fee will be 5% of the amount claimed with a cap of £10,000. So let’s be clear about this. That is £10k just to commence a claim. That is the amount that will have to be paid, up front, to start a case for those who are most seriously injured or disabled. Many victims like the one I mentioned the other day, could find themselves priced out of the market - 

In most cases legal aid is no longer available. Solicitors’ firms have assisted clients by meeting the cost of the court fees until the case concludes. But firms will not be able to support many cases with fees in that league. It is a scandalous attack on the rights of ordinary people. There is no doubt that this will lead to a huge reduction in the number of cases that are pursued through the courts. A recent move to impose fees in Employment Tribunals has seen an 80% fall off.

The move has been severely criticised by the judiciary who have pointed out that fees will between 25 – 100 times more than those payable in New York!

So it is not surprising that the Law Society has begun moves to seek a Judicial Review of the decision. Interestingly the proposed action is supported by those who represent victims and those who represent insurers. Law Society President, Andrew Caplan says –

‘The government’s policy on "enhanced court fees" amounts to a flat tax on those seeking justice. The government’s hikes - due to come in from April - will price the public out of the courts and leave small businesses saddled with debts they are due but unable to afford to recover.’

The government has done much to undermine access to justice in this country. But this promises to be the worst of all and should be opposed by anybody with a concern for justice – especially as we celebrate 800 years of the Magna Carta.

Thursday, 19 February 2015

A Tribute to a victim - An inspiration to us all!

I seem to most of my time on this blog complaining about something or other. That is understandable in the light of the relentless attacks on Access to Justice for ordinary people.

But today, for a change I want to pay tribute to a young man who has faced adversity beyond anything that I could imagine and who is an inspiration to us all.

Richard Hopley has been disabled from birth. My colleague Helen Barry in EAD’s Clinical Negligence Dept acted for him many years ago in a successful case against the NHS. He has no speech and no independent mobility. But he is as bright as the rest of us – well brighter than most to be honest!

I have met him on a few occasions. I have never come across anybody more determined to make the best of his life despite his massive limitations. His communication back then, was by way of a keyboard which he operated with his nose. He has now moved on to an iPad, which he still controls with his nose but which is presumably a bit more comfortable.

The Liverpool Echo has reported this week that Richard has just published his first book of poetry –

He describes one of his poems in the article – 

“Living by the River Mersey at the Albert Dock, has influenced by life and my poetry tremendously.

“I can look out if my window onto the river and, to me, water tells stories in its movement. My favourite poem I have ever written is River Book, where the waves are like pages of a book that you can actually read, placing new thoughts in your mind.

“I wonder as I look on the surface, my mind dives in, revealing untold stories.”

The last few years have been a challenge for those of us who seek to secure justice for victims of negligence, of whatever sort. As Governments, insurers and the media make the work harder and harder, it is tempting to wonder if it is all worth while.

Then a Richard Hopley comes along and says it all for us. And says it in a way that no blog could ever do. He is an inspiration, not only to other victims but to all of us.

Thank you Richard!

Wednesday, 18 February 2015

Medical Negligence, Claimant Lawyers and Medals for heroism!!

In 2014 the NHS Litigation Authority, who deal with Clinical Negligence cases for the government, blamed lawyers for, what they called ‘record numbers of claims’. This has been a familiar theme over recent years. Government Departments and insurers all appear to have bought, rehearsed and learned to sing from the same hymn sheet! If they want to blame anyone they blame the lawyers.

The report observed that –

“We have also seen an increase in poorly investigated claims and claims where the care was clearly not negligent being brought by lawyers who do not specialise in clinical negligence work.”

Back in 2009 the target of the attack was the specialist lawyers who were accused or racking up massive charges –

I have said before that the culture of blaming lawyers is really just a politically safe way of blaming victims. Who would dare attack the family of a severely inured child for seeking justice –

But these attacks also disregard the massive contribution made by claimant lawyers in reducing the burden of dealing with weaker cases. I was a conference last year where a speaker on behalf of the NHS gave some interesting statistics. She said that 80 – 90% of initial approaches did not lead to a substantive claim. An initial approach is where a solicitor will intimate a possible claim and request records for investigation.

So let’s look at some real figures. My firm accepts about 30% of cases that come through the door. The rest are rejected after a strict screening process. So out of every 1000 inquiries 300 will result in us making an initial approach to the NHS. On the NHS statistics no more than 20% of those will result in a claim. In other words for every 1000 unhappy patients, the NHS will face 60 substantive claims. The NHS will never see the other 940 because of the efforts of the lawyers who are supposed to be the villains. In a world of no win no fee litigation, most of this work is unpaid.

On the basis of those figures I would suggest that the government should be dishing out medals rather than blame.

I would loved to hear the Minister of Justice of the Health Secretary  publicly praise lawyers for their role in ensuring that the NHS only faces cases of genuine negligence.

It won’t happen but if we were only interested in political popularity we would never have gone into this job in the first place!

Friday, 13 February 2015

SARAH - work of genius or meaningless drivel???

In the late 1970s the Rock Band Thin Lizzy had a hit with a song called Sarah. It included the memorable lyrics -

‘When you begin to smile you change my style
My Sarah
When I look in your eyes I see my prize
My Sarah’

As an aging hippy I still love the track. But to many modern listeners this is sentimental, meaningless drivel. Which brings me to another SARAH, which has been in the news this week. But there is a difference. This one is definitely meaningless drivel.

SARAH is the short name for the grandly titled Social Action, Responsibility And Heroism bill which has received the royal Assent this week. The new Act says that if someone is injured due to negligence, the court has to consider the following factors –
  • If the person being sued was doing something for ‘the benefit of society’ – to take account of the fact people were doing a good deed like volunteering, running an event or trip, or helping out by clearing snow.
  • If they had been acting in a ‘predominantly responsible way’ – to make sure the court will give consideration to the fact that people may have taken care when organising an activity but, in spite of their best efforts, an accident has happened.
  • If they were ‘intervening in an emergency’ – if they stepped in to help someone in danger but something went wrong.

SARAH has been widely derided by lawyers as one of the most pointless enactments of all time. This is because it is meaningless in practice. So let’s say that I drive into the back of somebody at traffic lights or hit a pedestrian on a zebra crossing, do my insurers avoid liability if I was acting in a way that was ‘predominantly responsible’? So if was only a little bit reckless the poor victim gets nothing. Or if I overload the shelves in our local food bank and they collpase onto soembody, do my insurers pay nothing because I was doing a good deed? Of course not.

The logical outcome could be that motor insurers will insist that all drivers do voluntary work – think of the millions that they could save. During the debate in the upper house, Lord Pannick QC brilliantly observed that it was - ‘so anodyne and pointless that the only appropriate response is a shrug of the shoulders or the raising of an eyebrow’
It is in fact a dangerous use of law making powers in order to make a political statement. Minister of Justice, Chris Grayling said that the provision was needed as a ‘balance to counter the health and safety culture’. 

This government is no fan of Health and Safety. Back in 2012 the Prime Minister declared himself determined to - 'kill off the health and safety culture for good'. This frightening comment disregards the many thousands of lives that have been saved since the Health and Safety Executive was launched in the 1970s. This negative attitude to safety is fed by myths promoted in the tabloid press and exploited by hostile politicians.

In response to the 2012 outburst from Mr. Cameron the HSE published – 

This highlighted a number of fictitious Health and Safety issues including – 

The truth is that Health and Safety saves lives. It may be unpopular with businesses that have to take care of their workers but what is more important? 

As for SARAH – she is now on the statute book and her name may never be heard again!

Thursday, 12 February 2015

Concerning Deafness, insurers and other hopeless cases

I have a friday afternoon ritual. At about 3.30, I meet with one my of colleagues. Over a coffee and a cake we carry out our screening of the new Occupational Deafness cases that have come in during the course of the week. This is not a Friday afternoon ‘easy job’. It is hard work.

Before we even look at them there has to be professionally prepared audiometry. If any of those tests are questionable the case is rejected. We then look at numerous other factors including the nature and dates of the exposure, the provision of hearing protection, limitation, the number of employers etc. Only the best cases survive the exercise. We reject about 70% of the cases that we screen.

I spoke at a conference in Liverpool last year on this very subject. From what I could tell, most experienced practitioners adopt a similar approach.

It seems, however, that the insurance industry would have us believe otherwise. According to a press release this week, Aviva allege that lawyers are actually interested in pursuing hopeless cases. They say that too many cases are submitted by ‘opportunistic personal injury lawyers’. They go on to make the remarkable assertion that lawyers need to be deterred from submitting – ‘weak cases they know are likely to fail’. They call for a clampdown on ‘spurious’ claims.

This is of course complete nonsense. These cases have to be pursued on a no win no fee basis. There is no other way that a victim can secure justice. For obvious reasons, lawyers will only pursue cases with at least a reasonable chance of success. Why on earth would we have any interest in running case that we ‘know are likely to fail?’ Or to put it more bluntly - why would we ever want to run cases for which we do not have a cat in hell’s chance of getting paid? This is why cases are so carefully screened. To do otherwise would be commercial suicide.

Aviva and their insurance colleagues are not trying to clamp down on ‘spurious’ claims. They are trying to get rid of all claims. They want to persuade their political allies to introduce procedures that will make it virtually impossible to pursue most cases. They did this very effectively in motor accident cases and have now moved on to another agenda. And they will go to great lengths to deter claimants.

EAD settled one claim last year after a long and very expensive battle with insurers. It was a genuine claim but was of modest value. It is fair to say that they threw the kitchen sink at this poor claimant. It became a war of attrition. Any point that could be taken was taken. The case came within an inch of trial when it finally settled for just under £4k. Two years earlier, we had put forward a proposal to settle at £4.5k. The legal costs were
eventually agreed at £69k. They were so high because the claimant had been made to fight to the end. The insurers did not even try to argue that the costs were disproportionate.

They did all of this in the hope that the claimant would give up. And presumably to send a message out that you ‘don’t mess with us’! Try telling this client that insurers acknowledge that genuine claimants deserve compensation.

This is going to be the next battle ground and it will not be long before the Minister of Justice starts to come out with similar rhetoric.

The only hope is that the election will see a different government and one which sees the value and not simply the price of justice.