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Thursday, 10 September 2015

Concerning plonkers, sexism and professional dignity

I was once at a dinner at which I sat next to a former world snooker champion. He told me a story about a conversation, many years ago, between another leading player and an umpire which went something like this –

‘What would do say if called you a bent b******?’
‘I’d disqualify you immediately’.
‘What would you do if I thought you were a bent b******?’
‘I can’t stop what you think’
‘Well I think you’re a bent b******’

Which brings me nicely to two recent stories concerning how lawyers speak to each other.

Firstly there was the reprimand handed out to Richard Gregory Barca for calling an opponent ‘a complete plonker’.

To many this was a light-hearted reference to a favourite word used by Del Boy Trotter. The Solicitors’ Disciplinary Tribunal found that this ‘tipped over into unacceptable conduct’. To be honest this sort of language is completely alien in the context of most litigation that I have ever handled. Whilst you want to advocate robustly for your client it should never become a personal confrontation between the lawyers. Some of my best friends in the profession have been regular opponents. This is because you spend so much time dealing with each other that you develop a mutual respect – not in a Stockholm Syndrome sort of way! You just learn that being respectful can lead to an effective outcome for your clients.

The second story shows that being offensive does not need to involve the use of insulting words.

This is the unfortunate LinkedIn message sent by solicitor Alexander Carter-Silk to barrister Charlotte Proudman. He began by saying – ‘I appreciate this is probably horrendously politically incorrect but that is a stunning picture.’ He then went on to say - ‘You definitely win the prize for the best Linked in (sic) picture I have ever seen.’

Now if you read any message which begins with a reference to political correctness you have a fairly good idea of what is coming next. Every time I read those words I want to curl up under my desk in embarrassment at the thought of an experienced member of my profession coming out with something like that. I am tempted to use the P word. But in fact it is more serious than that.

I can remember a time when it was almost unheard of to have a woman partner in a law firm. I can remember newly called women barristers of my age who struggled to get work because of their sex. Some even struggled to find a loo that they could use. In 2016, Liverpool Law society will have the 5th woman President in its 189 year history, although Alison Lobb will be the 4th in the last 10 years. So things are changing. Most of the bright young lawyers in my own firm are women.

So we are making progress. But there is still some way to go. In 2014, Lady Hale, the most senior woman judge in UK history, called for greater gender equality across our legal system –

We are moving steadily forwards. There are encouraging signs of progress. Then we hit a moment like this when an experienced solicitor drags us back a few decades. On what planet in 2016 is a professional woman measured by her photograph?– on a platform designed to enable us all to showcase professional skills and experience. It is like hitting the wrong square when you think you’re about to win a game of snakes and ladders.  

This is nothing to do with being politically correct.

It is about professional people treating each other with respect and dignity.

Tuesday, 1 September 2015

Fixed Fees in Medical Cases and conflict at the Law Society

I talked recently about Government plans to limit the fees recoverable by those who represent victims of Medical Negligence –

This is an issue which has been simmering for a while. 

Back in 2014 the Telegraph wrote an overtly political article which was titled – Ambulance Chasers push NHS Costs Bill to £200m.

The article blamed Claimant lawyers, alleging that they were adding to the beleaguered NHS bill. In particular they quoted the, then, CEO of the NHS Litigation Authority, Catherine Dixon – 

“They [some lawyers] are trying to maximise their profit. It seems to me that it is out of kilter with the level of damages they are seeking to recover from their clients and defence costs. I don’t think that charging significantly higher costs is appropriate, particularly against a body like the NHS which is looking after the health of the nation.”

She alleged that Law Firms frontloaded the costs by conducting ‘extensive investigations’. Anyone who has ever done one of these cases knows that you have to investigate any case before you submit a claim because advice from a medical expert is essential. The Telegraph stated that NHSLA had provided them with a list of firms whose costs had been reduced following assessment by the court.

In the light of recent rhetoric from the DOH Ms Dixon’s words are particularly alarming. This is because she is now the CEO of the Law Society. In this role she will inevitably be called upon to argue the case for lawyers to be paid fairly for the work done. This has to put her in a conflicted position. She has not merely argued the case for cutting back on the costs of those fighting for victims. She has associated herself with an undisguised political agenda which included publishing the names of particular law firms. These are firms which have done nothing wrong other than do their best for their clients within a legal costs system created by ministers.

The President of the Law Society has inevitably had to come to her defence saying that she was fully committed to ensuring that claimant lawyers were fairly rewarded. She herself has written in the Law Society’s Gazette calling for investment in NHS care as the effective way to reduce the legal bill. Some of us have been saying that for years.

The problem is she that is on record as saying what she thinks constitutes ‘fair reward’. How can she conduct robust negotiations on behalf of Law Society members? Will she openly repudiate what she said in the Telegraph Article and the tactics used by the organisation which she led.

Negotiations inevitably involve concessions. I suspect that fixed fees at some level will be introduced in medical negligence cases.

How can the Society’s CEO conduct realistic negotiations without constant reminders of what she has previously said and done.

It is a worry.