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Friday, 28 October 2016

Court Fees (2) - what are we getting for the pain?

My last post looked at the effect of high court fees in cases where time limits are a problem. From comments received the follow up question is – what are court users getting for their money?

I recently appeared at a Costs and Case Management Conference. For various reasons it was the most contested CCMC that I have done since costs budgeting was introduced. The other side were contesting our budget, directions, location of trial and almost everything else imaginable. There was never any doubt that we were going to use the full 90 minutes for which the case was listed. As we trooped in before the District Judge we were told that the court’s file had been lost and had only turned up 5 minutes before we went in. Of all the cases for this to happen!

As it was, the judge, who was very apologetic, managed to get through the hearing with pragmatic help from both sides – even though we still had our arguments. But this was a difficult enough case without us having to be administrators as well as advocates.

This is just one example of the problems that litigators, and judges, have experienced since recent cuts in funding and massive increases in court fees. Earlier this year I covered a telephone hearing where the poor judge had no file at all. The parties had to explain everything which doubled the length of the hearing. In another case we were asked by the Court to reconstitute a file as it had been lost. Interestingly the correspondence was from a designated ‘Missings Team’ .  So the problem is far from unique.

I have previously mentioned a case where a hearing was adjourned in January 2016 as the judge was unwell and was not relisted until July!

The list could go on. The administration of our civil courts is shambolic.

Lord Justice Gross, speaking at a conference in the Caribbean last month said –

But, more importantly, the reform programme is something we should be doing anyway: using the resources available to us, strategically and imaginatively, with a view to devising a user-oriented, modernised and improved justice system, while preserving the brand of trust, confidence, integrity and expertise it has historically enjoyed and continues to enjoy. The stakes are high. There is no Plan B.’

Most practitioners experience a justice system which is a long way short of one which is ‘user-oriented, modernised and improved’.

This may be an ambition or a hope but it is a million miles from reality.

I normally represent victims of accidents or medical blunders. It is inevitable therefore that this blog usually sees things from their perspective. But the outrageous hike in court fees in 2015 – up to 600% in some cases, affects all of those who use the courts.  The Claimant has to pay the fees up front. But in successful cases the Defendant will have to cough up. Even Mr Mitchell was entitled to his court fees!

What makes things worse is that the quality of service has declined in direct proportion to the increase in fees.

We have a civil justice system that is, or has been, the envy of the world. How long will this last if the current chaos is allowed to continue… 

Wednesday, 26 October 2016

Concerning Time Limits, HMRC Schedules and Elvis Presley

I have a recurring nightmare in which am running to the court with a pile of Claim Forms. It is one of those dreams where the harder you try the slower you run. I get to the court office just as the doors are locked and the sign comes down – ‘TOO LATE’. I turn to see chasing hordes of clients, partners, judges, ATE insurers all baying for my blood…

There is one word that can strike fear into the hearts of litigators – particularly those who act for victims of Occupation Disease. That word is Limitation.

Legal claims for damages are subject to statutory time limits. This is to prevent defendants being subject to claims going back many years where memories fade or documents are lost. Most of the time limits are found in the Limitation Act 1980 which came into force in 1981 – about 35 years ago.
In Accident Claims it is usually 3 years. So if I trip over a pavement today I have until 26th October 2019 to start court proceedings. Easy.

In disease cases the rules are more flexible. Let’s look at cases of noise induced hearing loss. You don’t suddenly become hard of hearing overnight! The Act says that the clock begins to run when a person has sufficient knowledge - ‘.. to justify his instituting proceedings for damages against a defendant who did not dispute liability and was able to satisfy a judgment.’ So the moment somebody knows or should know that they suffer from hearing loss caused by noise then the three years begin. 

Three years seems plenty of time. But time seriously does fly in disease cases for reasons outside the poor victim’s control. 

Firstly there will inevitably be a gap between the date someone has knowledge and the date they go and see a lawyer. Despite rhetoric about a compensation culture most workers are reluctant to pursue claims, especially if they still work for the same employer.  In one case * Dame Janet Smith referred to a year’s ‘thinking time’ from say a doctor’s consultation – although I doubt if she was formulating a hard and fast rule. The reality is that you might be a year or so into your three before you see the client. 

Secondly you have to identify who the client worked for.  This is not easy where someone has been exposed to noise for thirty years with a whole series of employers. Each of those employers might be liable to contribute towards the damages. Many of those employers will have closed down over the years. They may or may not have insurers. So the first task is to obtain a print out from HMRC which sets out a full work history. Back in the 1980s when I first did these claims you would expect to get your print out after about a month. The current waiting time is  about 14 months. Gulp! The clock is ticking remorselessly down and there is little you can do about it. 

Thirdly, having got your print out, you need to laboriously work through this with the client. What work was done at each place of work? Where did the noise come from? What tools/machinery was used? What protection if any, was provided? What health testing was done? What regulations were in force at that particular time? Tick, tick, tick…
You need medical evidence to show that the loss is caused by noise at work. It is question of judgment in each case at what point down the line you incur this costs. But it must be done and it takes time. You will inevitable get to the three years by the time this is done.  Or the three years might have passed before you are ready!

Now the Limitation Act does give the court discretion to disapply the time limit, but no lawyer can rely on that and still sleep at night.

The reality is that at some point you begin the race to the court office – see above. And then you have to pay a massive court fee. If a claim is valued at about £20k then the fee will be £1k. Moving away from hearing loss, some serious cases such as those involving asbestos can involve a fee of £10k. In many cases this is paid just to ensure that you don’t miss the bus.

All of this begs the question – do we need a re-think? 

The world was different in 1981. Things moved more quickly. You did not need a mortgage to pay court fees. Today, you can be almost at the end of the time limit before you get your work history. Discretion is a help but nobody really wants to let the 3 years go by in the hope of getting it.

Of course one option would be a huge investment in HMRC to enable them to process requests more quickly. There are those who still believe that Elvis is alive! 

Another option would be to extend the limitation period to say 6 years in those cases which can take time to investigate – usually Disease or Clinical Negligence.

I quite like the idea of the Spanish option. Limitation is only one year but can be interrupted by sending a letter to the Defendant. So if, before the end of the three years, a Letter of Claim was sent to the Defendant this would enable them, to begin investigations. This would deal with the stale claims dilemma but would avoid the need to incur the cost of embarking on expensive litigation. Those costs are a drain of claimants, defendants and the courts. Litigation might then become a last resort – once all other options are exhausted. 

But whatever option is best, I think we need to revisit Limitation in these cases. Starting court proceedings purely to comply with time limits, under pressure is a drain on the resources of claimants, defendants and the court staff. 

We need to be thinking about this before it is too late….

*Johnson v MOD [2012] EWCA Civ 1505

Monday, 17 October 2016

Compensation Scheme for birth injuries - could this change everything?

How often have legal commentators called for steps to be taken to reduce the number of medical accidents that lead to claims for damages? The tendency has been to blame victims and their lawyers for the spiralling costs of litigation; particularly in cases where babies suffer catastrophic injuries at birth.

It is encouraging therefore to see reports in today’s press that the Ministry of Health may finally be getting the message. Details will be set out in a speech from Minister of Health, Jeremy Hunt. The government proposes to publish maternity ward league tables as part of a drive to improve performance. It remains to be seen what that, on its own, will achieve. But at least it is a step in the right direction.

Jeremy Hunt will also announce a voluntary scheme for resolution of claims for damages. The scheme will involve a panel of medical and legal experts who will review incidents and decide whether payments are appropriate and, it seems, assess how much will be paid.

Again this has to be welcomed. Details of the content of the speech appear in the Guardian report and there are still comments that cause concern. The speech will refer to the need to dismantle a ‘litigation culture’. I have acted for a number of families in these cases. There has not been a single occasion where ‘litigation’ was of any interest. Families want answers to questions. They want accountability and they want financial help as they care for a child who will have life long needs. 

Litigation is always a last resort as the NHS have tended to fight cases until the last minute –

The speech will refer to litigation as ‘an automatic first step’. There already exists a protocol under which Trusts have 4 months, or longer if necessary, to investigate incidents. Litigation only follows when liability is denied. It is far from being a ‘first step’.  There still seems to be an underlying assumption that victim and their lawyers are looking for litigation.

So there are still negative attitudes that need to be ironed out. Describing lawyers as ‘vultures’ does not help!

On the other hand these proposals could change everything. If we begin to see a genuine will on the part of the NHS to acknowledge fault and work with families, if we see a real commitment to reducing or even eliminating negligence, if we see a desire to listen to the families of victims, then we might finally see some real progress.

I really hope that this leads to a new culture of co operation with the needs of disabled children at the centre.

Thursday, 13 October 2016

Osborne's Whiplash proposals - gone for good?

I have never written a blog post as quickly as the one that appeared on 25th November 2015. This followed the former chancellor’s announcement that he intended to increase the small claims limit to £5k and abolish altogether the right to claim damages for whiplash injuries –

The speed and tone of that blog reflected the sense of shock and incredulity. We were being told that there was to be a non actionable injury for the first time in our legal history. George Osborne also promised a £50pa reduction in motor insurance premiums on the back of his reforms.

It has been an equal, and far less painful surprise, to hear today, that the whole package has been shelved…for now.

Whilst there is no promise that they have been abandoned they are certainly no longer imminent. According to The Times, the MOJ have confirmed that new minister, Liz Truss, is more focussed on prison reform –

The response from the ABI is less than enthusiastic which suggests that they feel  the reforms will be off the table for some time to come.

It is fair to say that the plans outlined by Osborne were on shaky ground from the start. The whole idea of abolishing any right to damages for whiplash was fanciful. Some injuries caused by whiplash are very serious. Where would the line be drawn? I said at the time that this would require a huge shift in legal thinking and would set an alarming precedent. Most lawyers questioned the basis on which such a measure could be introduced. Maybe the new minster felt that she was left holding a grenade with the pin removed and has got rid of the idea as quickly as possible.

The heralded reductions in motor premiums have become increasingly distant over the last few months –

I don’t think that those who represent victims can relax. Insurers will not change their approach which has yielded considerable fruits over the last few years. They will keep on lobbying and those of us who care about justice for victims cannot rest for a minute.

I also echo who those voices who are calling for co operation between insurers and lawyers. By working together we can take steps to eliminate cold calling, fraud and exaggerated claims that do so much harm to genuine victims. But where the PM has called lawyers ‘vultures’ and the ABI complain about -ambulance-chasers laughing all the way to the bank’ this may be some time away. There is much still to do.

In the words of Winstion Churchill - "We may allow ourselves a brief period of rejoicing; but let us not forget for a moment the toil and efforts that lie ahead.

Monday, 10 October 2016

Calling us 'vultures' will never stop us fighting for victims

The Daily Mail has launched an all-out attack on law firms who represent victims of medical negligence. In a report on Saturday they described them as ‘vultures’ and ‘ambulance chasers’ who were claiming ‘grossly inflated’ fees.

These attacks are clearly designed to deter victims from seeking legal advice following blunders which can leave some patients with life changing disabilities.

The ‘report’ cites a very small number of examples of cases where lawyers have submitted claims for costs against the NHS which have subsequently been reduced by the courts. This system whereby the courts assess the amount of legal costs payable by any losing defendants has always been in existence.  It is an effective way of ensuring that the loser only pays costs which are reasonably incurred.

There are however some major errors in the Daily Mail story. The headline says that lawyers ‘bleed’ the NHS for costs of pursuing claims. It then refers to the sum of £418m. On the assumption that these are costs that the NHS have actually  paid, then they represent costs that the NHS have either agreed or which have been assessed by the court as reasonable. If they are agreed or assessed as reasonable then they are the real costs that have been necessary to secure justice.

And this is where the real problem lies.

Any lawyer who acts for victims can produce case after case where the NHS have steadfastly fought cases which have then settled late in the day. This year I have been involved in three cases which were heading for a trial. All three of them settled when the trial was in sight. By this stage the costs were substantial. This was because the victim had been made to fight every inch of the way. If the NHS had held their hands up and made an early admission, then the cost to the tax payer would have been massively reduced. 

This point was powerfully made early this year by a former Court of Appeal judge. Sir Henry Brooke referred to two cases where the conduct of the NHSLA inflated the costs by huge sums.  

“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 NHS refusing to mediate and then the next minute attacking the victims’ lawyers for allegedly inflating the costs. Oh dear.

The cost of medical negligence can be reduced. It can be reduced firstly by a focus on prevention of such incidents in the first place. It can be reduced by an early admission and apology. I have been told many times by clients that they would not have considered lawyers if they had been given a full and frank explanation at the start.  

I will continue to fight for victims as along as it is necessary. 

If carrying the ‘vulture’ label from the Daily Mail is the price I have to pay then so be it.

Friday, 7 October 2016

You don't protect the vulnerable by abolishing their rights

Whatever else has changed with the Conservative Party in recent months, they have not yet discovered any affection for lawyers. Or rather they haven’t discovered affection for those lawyers who fight for the rights of ordinary people.

In her speech to the party faithful this week, Theresa May promised to never again let -  ‘activist left-wing human rights lawyers harangue and harass the bravest of the brave the men and women of our armed forces’. She returned to a favourite Conservative Party theme – opting out of our human rights obligations. She said that the government would use this power during times of conflict so that soldiers could not be sued.

This is not in fact as easy as it sounds. Nations do have the right to suspend their obligations during times of emergency. But this does not extend to – “torture and inhuman or degrading treatment or punishment, the prohibition of slavery and servitude, and the rule of “no punishment without law”. This is of course exactly the sort of behaviour that leads to legal actions. So will she try and remove these rights as well?  Surely we do not want to be seen as a nation that would ever tolerate torture or degrading treatment or punishment. Would anyone guilty of such behaviour be ‘the bravest of the brave’?

Lawyers who bring actions against wrongdoers are neither left wing, nor activists. They are simply doing their job to ensure that the rule of law is enforced and that perpetrators are held to account. Her speech was heavily criticised by leading QC and former UN judge Geoffrey Robertson who said - “These actions have been war crimes for centuries and Mrs May, quite disgracefully, wants to cover them up when they are committed – and it is a matter of record that they are occasionally committed – by British forces.”

Would our Prime minister really want to guarantee the immunity of those responsible for the torture and death of Baha Mousa?  -

A spokesman for the PM later explained that Mrs May –

"always said it's right to investigate legitimate instances, but it's the industry of vexatious claims that must end". 

But you cannot investigate legitimate cases if the right not to be abused is removed.

I would be the first to criticise any lawyers who fabricated these claims. They deserve all they get. They should be ‘drummed out of the profession’, in the words of Geoffrey Robertson. But you don’t solve that problem by sweeping away the rights of the vulnerable. We already have a civil justice system for testing the validity of complaints. It is the envy of the world. It does not need help from politicians.

Genuine victims should be compensated and the guilty should be punished.

To simply abolish the right helps nobody.

To then attack the hard working lawyers – who are amongst the lowest paid in the profession just adds insult to injury.