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Sunday, 29 March 2015

Sleeping rough with CEOs, a bishop and a star!

I went to Goodison Park, home of Everton FC on Thursday night. That is something that I have done hundreds of times. But this was different from anything that I have done before.

This was CEO Sleepout UK - Liverpool . About 50 of us from the worlds of business, church and sport gathered to spend one night sleeping rough to raise awareness of and raise funds for homeless people in the Merseyside area. The night began like many other networking events. We registered at the welcome desk and then sheepishly looked around for someone to speak to. Except that the conversation came easily as we all had one thing in common. How were we feeling about the night of cold and discomfort, and what possessed us to sign up for it?

It was an interesting group! There were leaders of major businesses who are influential across the city and there was the CEO of a small Mental Health Charity. There was a Bishop, vicars and other church workers who were putting into action the words of their founder – ‘when I was a stranger you welcomed me.’ And there were those from Everton FC including former player, Gareth Farrelly representing the sport which dominates our City. I should say a special word here for the small group of stalwarts wearing red scarves. Spending a night at Goodison was, for them, a major sacrifice under any circumstances.

So the time came to settle down for the night. I found a cosy spot between two rows of seats in the Park End. I was with my old school mate Bill Addy, now a significant local business figure, and the aforesaid Mr Farrelly. It seemed  a bit surreal to be sleeping next to someone who I had once cheered from these very seats! I had come well prepared with a good sleeping bag and plenty of sensible clothes. It was surprising the cold was barely noticeable. In fact I woke up at about 3.00am and had to take off some layers because I was so hot. But the hard ground meant a stiff back and hips for a couple of days. We were all awake by 5.30 and relieved that the night was done. Experiences were varied. Some slept soundly all night. Some did not sleep for a single minute. I was somewhere in between.

The local church of St Lukes put on bacon butties and I was at home by 7.00.

It was a real experience of what it is like to sleep rough. A lot of money was raised by sponsorship. But one thought has haunted me since Thursday. I put my high tech sleeping bag in my posh car before enjoying my buttie and heading for home comforts. Real homeless people do not have that choice. They live like this, night after night after night. Any event which highlights this can only ever be a start.

This also reinforced my growing obsession with Access to Justice.

Every day there are people whose homes are at risk because benefits are sanctioned, or because they are declared fit for work or because of the bedroom tax. Their right to contest these things has been eroded beyond recognition. There is little point in members of a society having any rights, if they have no access to the means of securing them.

This event has emphasised more than ever, the need to support those most in need.

But also to ensure that the state provides the means to defend them.

Wednesday, 18 March 2015

A true experience of anger, frustration and despair!

I went to Manchester yesterday. I know! Someone has to..

I was due to attend a meeting at 5.00pm. I left Liverpool at 3.40 which allows for the heavy traffic leaving Liverpool and going into Manchester. It was a very straightforward drive along the M62 and I was heading into the centre of Manchester in good spirits and  with a good 20 minutes to spare.

This was when it all began to go wrong. I had booked a parking space at the office of the law firm that was hosting the meeting. This was right in the heart of the city not far from the Town Hall. Without warning, it seemed that every street was suddenly undergoing major road works or was closed. My navigation system was on the verge of a nervous breakdown. Every road that we took was blocked. It was as if the City of Manchester was taking revenge for all the bad things that I have ever said about it. Finally, by pure luck I found myself heading for the road where the firm’s car park was located. Guess what? It was closed.

I managed to pull over at a parking meter. My 20 minutes to spare was now 5 minutes late. I needed £4.50 for meter. I had a £5 note. We have sent people to the moon but nobody has invented a parking meter that takes £5 notes. A sign on the meter invited me to ‘pay by mobile’. So I followed the instructions. There was the normal intro about how important I was and how we would surely be friends for life. I set up a pin number, I put in my card number. Then it asked for the last 2 digits of my expiry date which I typed in. My new best friend told me that it was an error and to please try again. So I put it in again more carefully and got the same message. So I did it a third time in the style of an imbecile who needed to check both digits 5 times before pushing the button. I waited with growing anxiety – ‘Error. Transaction aborted. Goodbye’. Some friend you are. P*** Off!!

So I abandoned that idea and ran into a nearby bar clutching my fiver. The young barmaid must never have seen anyone so desperate for a pint! She looked a bit crestfallen when I asked her for 5 one pound coins. I ran back to the meter and finally got my ticket. By now, a diligent traffic warden was approaching so it was a good job I persevered.

I now ran to the meeting – 15 minutes late. I was rehearsing my apologies by way of a shortened version of this story. When I got to the boardroom 2 people were there looking sheepish. Due to a number of 'no shows' the meeting was…………CANCELLED!!! My anger and frustration had built to such a level that I said – ‘Oh dear. Never mind hey..’ in true English Lawyer style.

Now, I’m sure that some people love Manchester. Their two famous football teams have many fans although to be honest they mostly live in Surrey. But if you ever hear me suggest driving there again you have permission to chain me to a mast and detain me until the madness passes.

So why am I telling you this tale? Partly to get it off my chest. Partly because some might find it amusing in places and most legal blogs are gloomy these days.
But there is in fact a serious message.

What I went through last night gives a small insight into the frustrations of anybody trying to work for the legal rights of those in need. 

It seems that all roads are being blocked by the MOJ, insurers, the media, regulators etc. 

It doesn’t seem to matter which way you turn, someone is there to try and block the way.

Sometimes it is tempting to give up. But we will be here long after Mr Grayling has gone (hopefully that will not be too long anyway). If we can celebrate 800 years of Magna Carta we will not get rid of the rights of ordinary people this easily!

End of rant.

Monday, 16 March 2015

When is a Disease not a Disease?

When is a disease not a disease? 

When it might cost insurers money – appears to be the answer in view of the arguments put forward in the case of Dalton v British Telecom which was decided in the High Court last week.

This was not simply an academic argument. Claims for damages for Noise Induced Hearing Loss (NIHL) are the most common Occupational Disease claims. Under rules which were in force until April 2013, insurers had to pay a ‘success fee’ where a case was funded by under a Conditional Fee agreement. This involves percentage uplift to the claimant’s lawyers’ fees. In a disease case the uplift was 67.5%. in an injury case it was 25%. So in the Dalton case, and others, insurers sought to argue that hearing loss is an injury and not a ‘disease’, thus reducing the amount they had to pay. Although those rules have now gone, there are still hundreds of claims being pursued under them i.e. which started before April 2013.

Their argument was that Hearing Loss is not a ‘disease’ as such but an injury caused by some external factor i.e. noise.

In all of my 30 odd years as a solicitor this has never been argued by anybody. In fact the consensus in relation to NIHL claims goes back a lot longer than that.

In a very detailed judgment, Mr. Justice Phillips firmly rejected the insurers’ argument. 

The key point is that hearing loss is caused by exposure over a period of time rather than a single incident. The judge noted that – “...the term ‘disease’ has been used in legislation relating to employers’ liability claims and insurance since 1906 ….to cover conditions (including injuries) which have arisen by process rather than by accident.”

He then noted the 1985 Prescribed Disease Regulations which specifically referred to Occupational Deafness as – “the disease numbered A10 in part one of schedule 1 to the Regulations." 

The judge also noted that the Protocol for Occupational Disease claims that was published in 2003 defined a disease a follows –

‘..any illness physical or psychological, any disorder, ailment, affliction, compliant, malady or derangement other than a physical or psychological injury caused by an accident or other similar single event.’

Then there were negotiations including insurers, which resulted in the fixed ‘success fees’ which were at the heart of this case. Those discussions led to data which formed the basis of a report in 2004 entitled Calculating Reasonable Success Fees in Employers Liability Disease Claims. The report included NIHL as the third largest category of disease.

The judge found that NIHL was, by any sensible reckoning,  a disease – ‘NIHL is not merely an occupational disease, but it is the paradigm case of such a disease.’
The judge went on to criticise the conduct of the insurers who appeared to be going back on what they had agreed in 2005. He described their arguments as ‘an opportunistic attempt to avoid part of the overall bargain..’

It is comforting to lawyers and victims of disease claims that this argument has been so decisively rejected. It shows again the lengths to which insurers will go to avoid or minimise their liability. This is an attitude which has underpinned many attacks on victims over the last few years.

The insurers could still appeal but the hope is that they will see this hopeless argument for what it was and let us all get on with the job of securing proper compensation for victims.

Wednesday, 11 March 2015

The difference Between Access to Justice and Collecting Stamps

The one issue which has dominated the legal press in the last week, has been the shocking increase in court fees from Monday 9th March. I don’t propose to discuss that particular issue again today. But the debate which took place in the House of Lords last week showed very starkly, the attitude of our Ministry of Justice to the rights of ordinary people and small businesses.

In his speech to the House, Lord Faulks QC for the government, dismissed litigation as ‘very much an optional activity’. So there we have it in five brief words. Defending the rights of ordinary people is seen as something alongside bird watching or stamp collecting. You can take it or leave it. And if you take it you can pay through the nose for it!

What is frightening is that I suspect Grayling, Faulks and Co know just how insulting that statement is. I once instructed Lord Faulks as a QC. It was a Clinical Negligence case on behalf of a child who was profoundly brain damaged at birth. She had Legal Aid. I do not recall him ever suggesting that we were embarking on some optional activity, some sort of hobby on the side. He knew very well that we were fighting for rights of this child to be compensated for negligence and to receive the best possible care for life. That wasn’t an optional activity then and it isn’t now.

I have previously mentioned how proud I was to hear that another young victim of negligence had graduated from University and was looking to work abroad –

This is called the securing of justice for a victim. Not pursuing the case was never an ‘option’.

The same goes for small businesses that might need to pursue debtors. Earlier this year, Tescos hit the news with claims that they were unfairly delaying payments to suppliers. This was undermining the viability of some –

A representative of the Federation of Small Businesses said at the time,

“Late payment can have disastrous effects on a small firms’ cashflow and pushes many businesses to the brink. We’ve raised the issue to the highest levels and have called for a full scale independent inquiry into the payment practices of big business."

So a small business is pushed to the brink because a major PLC fails to pay on time. This business then has to sue for the debt. This is not an ‘optional activity’. Jobs are at stake. They do not have the luxury of choosing whether to sue.
This remarkable statement from an experienced lawyer says a lot. This government is no friend of victims of negligence.

But it also appears that it is no friend of business either – which comes as a bit of a shock.

Thursday, 5 March 2015

Dismantling Justice for Ordinary People - Job Done?

I almost choked on my coffee this morning!

I opened the latest Law Society Gazette which devotes a number of pages to the Global Law Summit that took place in London last week. What led to the coffee incident, was the quote from Lord Chancellor, Chris Grayling where he talked of a thriving legal sector and promised to all he could to promote the right environment for it to thrive! I wondered for a minute if I had turned up on the wrong planet. He also talked about unpopular changes being driven by economic reality.

So I thought it might be useful to see what he and his government have achieved since 2010. I wrote in 2012 that there was a dismantling of Access to Justice for ordinary people –

When it comes to such dismantling it has to be said that he has done this rather effectively. 

So let’s consider just a few of his ‘reforms’ –

First we have had the effective elimination of Legal Aid in civil and family proceedings. I have written about this many times but the injustice beggars belief. Who would ever have thought that the day would come when the Senior Family Judge in England and Wales would have to summons public officials to explain to him who was going to fund the representation of a party to care proceedings in order to avoid a manifest injustice –

These particular cuts have seen the closure of many voluntary agencies that existed to provide legal help to those in greatest need. Even the Housing Charity, Shelter, was forced to close its legal advice service –

I recently attended a meeting at Liverpool County Court. Volunteer workers from CAB and PSU all said that they are stretched to the limit and have nobody that they can send people to for help. It is indeed a Waste Land

Then there have been the relentless attacks on Criminal Lawyers and those who accused of criminal offences ie innocent until proven guilty. Fees have been cut to such a level that none but the most committed would ever be interested in life of crime – so to speak.

Turning to personal injury victims there was the infamous LASPO which saw fees recoverable from insurers and public bodies slashed to unrealistic levels. In almost all cases, victims now stand to lose up to 25% of their compensation to go towards fees. This led to a highly publicised Judicial Review application that ultimately failed –

But the most recent attack is surely the most damaging of all. On Monday 9th March the fees charged by the Court to start proceedings will rise to eye watering levels. As my friend Mike Williamson has pointed out, this represents a hike of 660% in cases involving damages of £200k –

This exceeds, by a country mile, the cost of the administration involved. Can you imagine what Ministers would say if lawyers charged £10,000 for about an hours work? The Law Society has taken Judicial Review proceedings but no one expects a positive outcome.

So is this the environment within which a legal sector is expected to thrive? Who would ever advise their children to take up a career in the law? Running away with a circus seems a far more secure option. Life for unfortunate victims is far worse.

The economic argument is seriously flawed. Most of the so called ‘economies’ are false. The removal of legal aid has seen a massive increase in unrepresented parties, causing trials to take, at least, twice as long.

The most obvious false economy is in relation to the shambolic increase in fees. Statistically, most Personal Injury and Clinical Negligence Claims succeed following commencement of court proceedings. The Claimant has to find the cash up front. But the burden will finally fall on insurers on the NHS. So in the latter case we have the bizarre situation where a £10,000 fee is payable to one Government Department and the burden finally rests with another one! I cannot think of a clearer example of moving deckchairs on the Titanic.

So there we have it. This has been a brief and sketchy journey through the most painful few years that most lawyers can remember.

Far be it from me to make any party political points.

But you wish to bear this sorry tale in mine when deciding where to put your cross on 7th May 2015 or should that be where not to put your cross??