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Tuesday, 12 January 2016

Spiralling cost of medical negligence claims? - 'Oh Dear!'

2016 promises to be another interesting and challenging year for lawyers who represent victims of accidents and medical blunders.

I have previously looked at the proposed increase in the small claims limit and abolition of the right to claim damages for whiplash injuries. By the way, I had completely missed the recent introduction of a right to compensation for rail delays. So you can be compensated for the inconvenience of standing on a cold platform but not for being injured by a careless driver!

I also have to say that is encouraging to see those who represent victims, coming together in order to fight these cuts –

The other change which is on the cards is the introduction of fixed fees in clinical negligence cases. The Department of Health has been attacking the cost of pursuing these cases for a while. They complained that the costs claimed by lawyers acting for victims were excessive and were a drain on limited resources. The spiralling costs of claims were blamed squarely on the shoulders of victims and those who represent them –

The point has been made that the NHS would be better served by focussing on the elimination of incidents rather than attacking victims.

Two recent cases show the shameless inconsistency of the government's approach. In both cases the NHS Litigation authority unreasonably refused an offer to mediate in relation to disputed costs. In both cases the court found against them and ordered them to pay indemnity costs – 

Litigation Futures also quote from the blog of Sir Henry Brooke, former present of the Court of Appeal (Civil) –

“If, by way of illustration, the taxpayer had to pay £50,000 in each case more than he would have had to pay if those representing the NHSLA had behaved prudently and reasonably, that would mean that £100,000 of public money went down the drain for no real purpose. Oh dear.”

So on the one hand we see the government attacking the conduct of claimant lawyers. Then they themselves refuse to mediate and end up wasting thousands of pounds of public money.

One rule for you and one for me?

These proposed changes will dominate the legal news in coming months. A determined government with a majority, however small, will tend to get its way. But I hope that the whole legal profession, on all sides, will unite to fight the plans, and the illogical thinking behind them.

Wednesday, 6 January 2016

A new year and more political interference in the Pratice of Law

It has always been fundamental to the practice of law that a client’s interest should come before anything. 

Solicitors are subject to the SRA’s Code of conduct which requires us to act in the best interests of each client and to ensure that our independence is not compromised. The effect of this is that we should fearlessly represent their interests without interference from outsiders. In particular lawyers must be free from political interference.

This foundation stone has been significantly eroded in recent years. So we have seen government working with the insurance industry to frustrate the rights of victims of negligence – even proposing the removal of an actionable injury –

Access to Justice for ordinary citizens has been eroded to an alarming level –

Most lawyers cannot recall at time when there was greater government interference in the practice of law. 

But reports of action against Leigh Day and Co take these concerns to a new level.

Following the enquiry into alleged abuse of Iraqi detainees the government made it clear that they were unhappy with the lawyers who had represented the alleged victims. Defence Secretary Michael Fallon clearly wanted action taken. Now we hear that Leigh Day have been referred to the Solicitors Disciplinary Tribunal (SDT) by the SRA who are also investigating Public Interest Lawyers.

This certainly gives the appearance of politicians influencing the actions of the SRA. If so, this goes to the heart of the independence of our profession. Have we really reached the stage where lawyers will live in fear of challenging those in power? In the UK? In 2016? What do lawyers do? If they give way to these fears then they might breach the Code of Practice. If they fight fearlessly for their clients they might find themselves on the wrong side of disciplinary action.

I certainly hope that the SDT take on board these concerns and reject the referral.