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Friday, 29 December 2017

Personal Injury 2018 - some thoughts and predictions!

As the sun goes down on another year, we all look forward to what lies ahead. I will make some resolutions that will last a day or so. I also like to predict what lies in store. I normally predict, with great confidence, that Everton will win a major trophy. Read into that what you want. With that in mind, here are some thoughts for 2018!

1.     By the end of 2018 we will know with some certainty, the date in 2019 when fixed fees will be introduced for Personal injury and Disease Claims. This will largely follow the recommendations in Jackson’s July 2017 report including the Intermediate Track and the four bands – with disease cases becoming subject to FRC but at the highest band. NIHL Claims will be subject to the costs and procedure agreed between Claimants’ and Defendants’ representatives and approved by Jackson. Clinical Negligence cases up to £25k will become subject to some limited form of FRC following further discussions between representatives of each side. My hunch is that April 2019 will be the date but it could even fall to October 2019. I wouldn’t rule out 2018 but neither would I put money on it.

2.     I expect there to be a regrouping of the Claimant PI sector with a growth in the number of smaller niche firms. Ever since the 2004 Clementi report there has been a consensus that big is best. But big is also expensive with many hungry mouths to feed. This will happen alongside a revival of the old style high street practice with less dependence on CMCs and a greater emphasis on local marketing and passing trade. Firms who downsize and control expenses will actually be better equipped to manage the inevitable changes, with some consolidation and then organic growth. This flies in the face of most commentators who predict that many firms will fall by the way and that we will be left with a small number of mega providers. I think some smaller firms who fail to adapt will struggle. Bigger firms will also struggle. Growth from grassroots will in my view be an exciting an unexpected outcome. All of this will happen alongside the relentless march of Social Medial and Robots (see below)

Alongside the above there will be a continued growth in the number of ABSs, particularly in the RTA sector. It will certainly make commercial sense for hire companies and repairers to develop their legal work from within. This is more likely to be based on a smaller grouping of providers working together rather than the huge monoliths which have failed so badly.

4    One factor driving a move towards smaller entities providing PI work will be the ever-accelerating power of Social Media and Artificial Intelligence. Social Media platforms provide quick and affordable marketing to a huge potential audience. I was a Conference in 2016 at which someone from Google stated that YouTube was the world’s second largest search engine –

Videos are easy to make. Video marketing lends itself to a person-centred approach which is very suitable for smaller units, which emphasise a closer client/lawyer relationship. Client communication will also change dramatically as emails fall in use and messaging apps such as The Link App come to the fore.

I recently used LISA to draft an Non-Disclosure Agreement . It took less than 15 minutes to produce the document which required little amendment. This is one example of a trend which will continue to grow at great pace.

As all of this progresses throughout 2018 I think more individuals and smaller firms will say –‘With all of this happening, I can provide a good service, earn a reasonable living and have a life’. I am already in contact with lawyers who are thinking along these lines.

      Firms who traditionally did Fast Track PI work will continue to diversify into Multi Track PI, Disease and Clinical Negligence where there will be some scope for targeted marketing as the influence of CMCs fades. The firms who focus on excellence and professional service can do well. The current trend for Holiday Sickness and Cavity Wall claims will play a role for a year or so but probably have a limited shelf life.

      Further reforms to litigation costs will find their way on to the agenda. QOCS needs a complete overhaul. Any system under which Defendants can only recover their legal costs by proving fundamental dishonesty on the part of the loser is bound to end in tears. This needs a root and branch re-think. Will this lead to a move away from any recoverable costs to be replaced by Damages Based Agreements and an increase in the level of compensation? I think that this will certainly be discussed by the end of the year - for good or for bad.

So, these are my initial thoughts for 2018. Some may disagree. I would love to discuss! It promises to be a busy time, a time of much upheaval but also a time of some optimism for those who can see change as an opportunity rather than a threat.

Happy new Year.

Monday, 11 December 2017

Missing a deadline - ending a career?

There seems to be no let up in the number of stories concerning lawyers who throw their careers off a cliff to try and cover up mistakes. The most recent, concerns the signing of documents.  

In a case reported in Legal futures last week a solicitor had missed a deadline for exchange of witness statements and then went to drastic measures to try and cover up the mistake. Of course, the insurers have used the incident to suggest that lawyers are involved fraudulent claims. In fact that is not the case here. But it is no less serious for that.

Since the decisions in Mitchell and Denton, the exchanging of statements has become a more serious matter than it used to be. The court rules say that oral evidence cannot be called from a witness whose statement is not disclosed or is disclosed late. This is the sanction for the breach.

But it is still capable of resolution. Although there it can be an uphill struggle, there is still a right to apply for relief from sanctions.  The worst possible outcome is a claim of the firm's indemnity insurance policy. It can be a difficult moment when a solicitor has to confess to a supervisor that a mistake has been made. There might even be some sleepless nights. But ending a career is a far more serious thing.

In this case the solicitor told a colleague to copy the client’s signature from other documents, trace over them in Biro and remove the date of the statement of truth. All of this was soon found out. The solicitor lost her job and was recently struck off by the SDT. Yet again, we have to ask ... why??

Is it more embarrassing to confess a mistake then to face the Disciplinary Tribunal and its consequent publicity? Is the temporary discomfort of sharing the mistake really worse than the months of anxiety that accompanies disciplinary action?

The poet Steve Turner one wrote –

History repeats itself
Has too
No one listens

Here is the lesson for lawyers. If you make a mistake, tell someone. Mistakes can be rectified. There isn’t a lawyer who has never got something wrong. We are human. The sharing of a mistake is the beginning of the resolution. Burying it can mean that your career will be buried with it.

Here is the lesson for law firms. Cultivate a culture of openness and support so that anybody who finds themselves in this situation can be open, honest and assured of support.

Tuesday, 21 November 2017

Lord Sumption openly calls for limits on PI damages to protect insurers' profits

If the insurance industry was in need of a high profile advocate it has found one in the shape of a Supreme Court judge no less.

Lord Sumption was elevated to the Supreme Court in 2012, directly from the bar. In 2005 he appeared in The Lawyer’s list of barrister’s earning more than £2m a year.

He famously acted for Roman Abramovic for a fee alleged to have been £10m although his chambers insisted it was mere £3m –

Interestingly in the late 1970s he co-wrote a book called Equality with the late Keith Joseph, member of Margaret Thatcher’s cabinet. I haven’t read it (!) but according to an enthusiastic Amazon reviewer –

‘To a considerable extent the book is an expose --- an expose of the woolly thinking, bad logic and incredible assumptions that have underlain the utterances of those who advocate economic equality. Nor is it merely a critique of extreme egalitarianism. The logic is as bad and the assumptions as untenable whether it is complete or only partial equality that one wishes to enforce.

I cannot comment on the detail but it is probably fair to say that this book was not a call for equality and justice for all. It is probably also fair to say that his practice at the bar did not bring him into contact with many ordinary people seeking compensation for injuries.

All of this brings me to his recent speech to the Personal Injury Bar Association (PIBA). In the speech, entitled -  Abolishing Personal Injury Law – A Project, he launched a full-on broadside against victims. He firstly called for removal of indemnity as the basis for compensation and to replace it with some sort of tariff, in the hope of removing ‘small claims’. Damages for pain and suffering can be abolished save for those suffering long term injuries.  

Most alarmingly he called for a re-think on the basis for calculating loss of earnings. He suggested that such claims might be linked to a reasonable standard of living rather than replacement of actual earnings.

This is something which defendant bodies have been advocating recently.

It is hard to imagine a more damaging proposal. So, a doctor on a reasonably high income becomes unable to work due to a motor accident. She still has a mortgage to pay. She may well have a nice house but why should she lose it because of someone else’s bad driving. This sounds like a call for punishment of victims.

His Lordship did not conceal his sympathy for the beleaguered insurers –

‘Thirdly, although the taxpayer has a bottomless pocket, insurers do not. Beyond a certain point, the cost of rising claims volumes cannot simply be piled onto premiums and begin to erode profits.’

All of this was said against the background of our current ‘fault’ based system which tended to favour claimants.

Some may agree with his views. Many will disagree, particularly among those who fight for justice for those who are injured. He is entitled to his view and to express that view.

But it is still disturbing to hear one of our most senior judges openly flying the flag for insurers.

Sunday, 5 November 2017

Concerning Access to Justice and 1000 Wildlife Photographs

This slightly unusual post has been inspired by two things.

The first was my decision to re-join the trustees of North West Legal Support Trust (NWLST). This trust will be known to many readers. We organise the Legal Walks across the region and other initiatives to raise finds in support of agencies which off free legal advice and assistance to those in greatest need.

This desperate need was recently highlighted by the shocking statistic that there has been in drop of 99.5% in the numbers of people receiving state funded legal assistance in benefits cases. When you think that in the days before legal aid was virtually wiped out, 80% of benefit appeals were successful where there was representation, this quite shocking –

The second thing was a TV programme I saw on the National Geographic Channel last week about the Photo Ark. Photographer Joel Sartore is on a lifelong mission to take and post pictures of every living creature! His gallery is stunning. I am a keen photographer although not in his league! –

So these two things together have led me to set myself a challenge!

Starting on 15th November I began a challenge to post 1000 wildlife photographs in 12 months. These will all be mainly new photgraphs. However I will post some from my existing collection.  This is because I will not be travelling to places like Australia, USA and Egypt between now and November and there are some interesting creatures who will miss out! And 1000 is a big challenge!

 Each photograph will be of a different species – no repetition but i will allow a male and female - if it is good enough for Noah!  The challenge will be helped by my recent trip to Costa Rica and Panama! I am doing this with three things in mind –

      To  hone my photography skills – I certainly aim to be producing higher quality photos by November 2018,

2.     To highlight the magnificent beauty and diversity of nature which has never been under greater threat,

3.     To raise funds for NWLST for Access to Justice. From the start of the project I will be pestering people for sponsorship. A penny a picture will raise a tenner and so on. Some might want to sponsor the entire project. Every penny raised will go to the Trust. I will post details shortly. In November 2018, I am planning to put 12 of the best onto a calendar to sell and raise further funds. I will be posting the photgraphs on Flickr, across Social Media and of course on this blog!
As a taster, here are some recent shots from Costa Rica. So watch this space! Please also let me have any thoughts, comments or advice!

Sometimes ranting about justice isn’t enough. The government should do the honourable thing and reinstate legal aid. But in the meantime, something has to be done.

Monday, 30 October 2017

There is a time for everything - especially serving Claim Forms

It never ceases to surprise me that there are many lawyers – on both sides of litigation who do not fully understand the rules about when a Claim Form must be served. We all know that it has to be served within 4 months or the world will end.  There seems to be a mental block which affects those who act for both claimants and defendants about when such end will happen.

On the face of it the rule is straightforward. CPR 7.5 says that, if you are posting the Claim Form by First Class, it must be posted ‘before 12.00 midnight on the calendar day four months after the date of issue of the claim form’. So if I issue a claim Form 1st November 2017 it has to be posted by midnight on 1st March 2018. It doesn’t matter when it actually arrives. There is no ‘deemed date’ as far as this deadline is concerned. If the Claim Form is posted before midnight on the 1st March 2018 it is properly served…end of!

So why does this fairly obvious rule cause such confusion? This is because there is another date in CPR 6.4. This says that if a Claim form is posted First Class it is ‘deemed served’ 2 days later. There is nothing like an apparent contradiction in the rules to throw lawyers into a blind panic – we are all quite obsessive after all. This particular rule is completely different. It is nothing to do with deadlines for service. It is in fact the date from which the time runs against the Defendant to file an acknowledgment of service or a defence.

The issue has actually found its way before Master McCloud (she of Mitchell fame) in the recent case of  Jones v Chichester Harbour Conservancy and Others [2017] EWHC 2270. She spelt out the purpose of 6.4 in clear terms –

‘as to the purpose of the ‘deemed date’ provisions in rule 6.14 those have to be given an interpretation which gives them a meaningful function and in my judgment the deeming provisions operate as a means to ensure that it is clear to the parties what date is to be used for the purpose of calculating such things as the date for service of acknowledgement of service or defence.’

So hopefully we have cleared that one up and we can all sleep soundly in our beds again.

But what about extensions? CPR 7.6 allows us to apply for an extension of time provided we are still within the primary 4 months (in fact such extension can also be agreed in writing). But when does the Claim Form have to be served following such an order? This was the core issue in the Jones v Chichester case. The claimant obtained an order extending the time for service of the Claim Form to 17th January 2017. A dispute arose over what the Claimant was supposed to do by that date. The claimant said that they had to post it by midnight on 17th January under 7.5. The Defendant said this was different from the normal rule and that they should have posted it on 15th January as it was deemed served 2 days later. So they had missed the bus.

Master McCloud decided in favour of the Claimant –

‘in this case the application itself was seeking the exercise of the court’s powers to extend time for compliance with rule 7.5 and .. it is plain that the court’s intention in extending time for service was to extend time for compliance with rule 7.5.’

I think the lesson learned from this case is to adopt a belt and braces approach and ensure that the order extending time specifically refers to the requirements of 7.5 to avoid any unnecessary insomnia.

It might also be helpful if those who draft the rules could spell all of this out in big letters preferably with pictures.

Thursday, 19 October 2017

Concerning a train ride, real people and yooman rights

I was on the train home last week when three fairly ‘hard’ looking scouse workers sat in the three seats surrounding me. They were already in the middle of animated conversation about a Muslim work colleague. The conversation went on a bit like this –

‘Eee goes off to pray all the time’
‘Yeah then ‘ee doesn’t ‘ave breaks with the rest of uz during that Ramadan thingy’
I braced myself for a racist rant. They went on –
‘Fair dooz like. It’s ‘iz religion. Respect ‘im like.’
‘Izz right. That’s iz yooman right’
‘Izz that lad. Dee shud give him a break out place where ‘ee can go..’

And so they carried on, affirming and supporting him. I wanted to hug them. But then thought – I had been expecting them to come out with stereotypical comments. In fact I was the one who was guilty of stereotyping, because they looked a bit scary and spoke in very broad scouse accents with the odd ‘F’ word thrown in.

I am the one who goes on and on about justice and, albeit briefly, had unfairly passed judgment on someone else!

That’s the thing about injustice. It affects real people. Behind every person who is threatened with homelessness or is a victim of catastrophic injuries, or who is having to face the humiliation of a food bank, is a real story. Injustice happens when they are depersonalised. When they become a ‘problem’ on the one hand or a ‘cause’ on the other. We can all be guilty of being too concerned about being ‘right’ than about being fair.

When Rosa Parks refused to give up her seat on a segregated bus, she wasn’t intending to change the world –

‘All I was doing was trying to get home from work.’

So here is belated thanks to those guys on the train.
A timely lesson in the real world.

Wednesday, 18 October 2017

Head of NHS Resolution says claimant's refuse to mediate!!

It was really no great surprise when the head of NHS Resolution yesterday blamed Claimant lawyers for the small number of claims which have been successfully mediated since the NHS Litigation Authority changed its name in April 2017. 

This change followed an announcement from Health Secretary Jeremy Hunt earlier this year –

“I can inform the House that the NHS Litigation Authority will radically change its focus from simply defending NHS litigation claims to the early settlement of cases, learning from what goes wrong and the prevention of errors. As part of those changes, it will change its name to NHS Resolution.”

And to give credit where it is due the name has in fact changed. I recently discussed the announcement with a group of claimant lawyers who were unanimously of the view the nothing much else had changed.

Yesterday’s assertion was made to the House of Commons Public Accounts Committee by Helen Vernon. She told the committee that few cases had been referred to mediation and shamelessly attributed this to the reluctance of Claimant lawyers to engage in the process. 

I have litigated hundreds of medical negligence cases and have never refused mediation. Neither do I know any other lawyers who have refused. What Ms Vernon overlooked is that the courts have introduced a huge incentive on parties to resolve claims in this way. There is a power to impose costs sanctions on any party who unreasonably refuses an offer to mediate. Most experienced lawyers include a paragraph in their initial letter of claim offering to refer the case to mediation. This is routinely refused or even ignored. The reason that the NHS give for such refusal is that the matter is disputed – even though the vast majority end up being settled.

The last Clinical Negligence case that I dealt with at my last firm was listed for trial in February 2017. We had made an early offer to settle and in 2016 proposed a Joint Settlement Meeting which is designed to resolve disputes without trial. There was no response until less than 2 weeks before trial when the case settled on terms that would have been accepted 2 years earlier. The costs were through the roof by then.

Interestingly the meeting was to discuss legal costs in clinical negligence cases. As Law Society Gazette’s John Hyde tweeted –

If claimant representatives had been there they would certainly have pointed out what a ludicrous statement Ms Vernon made. Claimant lawyers are under a professional duty to achieve the best result for their client. This would never included a refusal to discuss resolution.

I wrote about this in January 2016 and quoted retired judge Sir Henry Brooke in a case where the NHS were penalised for refusing to mediate –

“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.”

Costs in clinical negligence cases are a burden on the tax payer. Resolution of claims should be a priority. 

It takes two to mediate! It is unhelpful for a manager of NHS Resolution to blame one set of lawyers for this. Especially or possibly because those lawyers were not there to set the record straight.

Tuesday, 10 October 2017

Walking for Justice 2017

On Tuesday last week, I was proud to be part of the 6th Liverpool Legal Walk. About 150 of us from Law Firms, big and small, walked 5k around the centre of Liverpool. I have to say, it was a very pleasant walk around the city. It really has been transformed beyond recognition over the last few years. And the rain kept off!

The highlight of the event was however to see the efforts of the walkers to raise much needed funds for legal charities.

The walk was organised by North West Legal Support (Trust) which exists to provide funding for agencies which provide free legal advice for those who cannot afford it. This is a sector which has been under pressure for the last 5 or 6 years. Many of them were dependent on funds raised via legal aid contracts. Most of these were ended by the government in 2013. This left what can only be described as a waste land –

The effect of this is that thousands of ordinary people have been left with legal rights that they cannot enforce.

This point was made by the Supreme court in the recent case concerning the introduction of tribunal fees. Lord Reed said –

‘Courts exist in order to ensure that the laws made by Parliament, and the common law created by the courts themselves, are applied and enforced. That role includes ensuring that the executive branch of government carries out its functions in accordance with the law.

In order for the courts to perform that role, people must in principle have unimpeded access to them..’

It is also a point I have made on this blog over and over again!

I have been involved in this walk since the start. It is fair to say that there was some hesitation at first. Why should the legal profession be raising funds for legal advice which should be properly funded by the government? That was, and still is, a fair question. But in the meantime, peoples’ fundamental rights are at risk. There is now no alternative to doing all we can, whilst at the same time campaigning for change. Liverpool Law Society have supported the event from the start and John Ballam is the latest President to walk for justice. We were also well supported by the Women Lawyers Division.

We were very pleased to welcome the Lord Mayor of Liverpool, Cllr Malcolm Kennedy. At the end of the walk, as we enjoyed a well-deserved drink, he commented that lawyers do not always get a good press! He went on to thank all of those who had given up their time to help secure justice for those in greatest need in Liverpool and across the North West. It is often overlooked that the drive to fight for justice is what led many to become lawyers in the first place. Another well known face was actor, Michael Starke - known to us all as Sinbad from Brookside!

So thank you to all of our walkers. We will be back again next year – and we will continue until we are no longer needed. 

I fear I may be on my zimmer by then!

Monday, 2 October 2017

Suing your solicitor to get more damages

I presented a training course last week, for Liverpool Law Society on Professional Negligence in Personal Injury Claims. These claims have become more common over the last few years. This is partly because of the pressure on firms to delegate work to junior case workers because of limited recoverable costs. It is also because some firms have actively advertised for work. We discussed the things that can go wrong including missing limitation and court deadlines which are often the cause of sleepless nights for PI Lawyers.

The most interesting discussion concerned ‘under settlements’, those cases where the client is unhappy with the outcome of the case and wants more compensation. Some of these are fairly straightforward. I acted for a client last year, whose case had settled for £2.5k. We were now 4 yeurs post accident and he still had problems with his knee. His original solicitors had obtained a report from a GP expert who had given him an optimistic prognosis for a soft tissue injury. But he had also said that he would need to be seen by an orthopaedic surgeon if he had ongoing symptoms. This had not been done and the case had settled. The client had not recovered. Further evidence revealed a significant ligament injury and the claim against the solicitors settled for about £24k. That was a clear error by the junior case worker who had processed the claim. The advice from the expert had simply been missed.

Under settlement claims are not always that straightforward. The idea of claimants effectively bringing a secondary claim for an uplift is controversial. There are concerns about the growth of a secondary market for these cases, especially when backed up by adverts promising more money.

All of this was considered by the Court of Appeal, including Jackson LJ, in the recent case of Thomas v Hugh James Ford Simey Solicitors [2017] EWCA Civ 1303. The original case concerned a claim under the old Coal Miners VWF Scheme. This was a procedure for processing high volumes of cases on the basis of processed work and relatively low fixed fees. So it has many of the features of those cases brought under the PI protocol or fixed fees. In 2001, his solicitors secured an offer of £10,373 for pain and suffering. They wrote to him to say that he might be able to claim further damages if he was no longer able to do – ‘things such as gardening, DIY, home decoration, window cleaning, car maintenance, and car washing.’ The letter went on to say – ‘The amount of compensation payable in such cases can be significant.’ No figure was mentioned.

Mr Thomas met the solicitor. There was a detailed discussion and he said that he did not wish to a pursue a services claim. So he got £10,373. Years later he saw an advertisement from other solicitors offering the chance to obtain top up damages in these cases. They brought an action against the first firm and the case went to trial in 2016 – 15 years after the settlement. The Trial Judge and the Court of Appeal firmly rejected the claim. Mr Thomas had told the solicitor that he did not wish to pursue a claim. They were under no duty to go further. There was no duty on them to try and persuade him to change his mind. Jackson LJ commented on the need for realism in relation to what is expected of solicitors –

‘It is significant that this was a modest claim which the defendant solicitors were running under a fixed costs regime. I have read through their substantial file with admiration, bearing in mind the small amount of costs which they received at the end. Neither advocates nor judges should lose touch with reality. The CHA is a scheme for dealing with high volume, low value personal injury cases for fixed costs. There must be a sensible limit upon what we can expect solicitors to do in such cases.’

So what will be expected of solicitors as we move into a world where most straightforward PI claims will be – ‘high volume, low value personal injury cases for fixed costs’?

Will the bar be lowered? Where will the line be drawn?

Jackson LJ pointedly said in Thomas –

‘What is regrettable, however, is that a second firm of solicitors then recruited the claimant to bring an action against the first solicitors in order to 'top up' his award. The information given to the claimant by the second firm of solicitors "turned his head" so that he was "prepared to advance incorrect assertions’ and

‘The civil justice system exists to enable injured parties to recover compensation for genuine wrongs. It does not exist to service artificial claims stirred up by advertisements.’ (my emphasis).

I think any solicitors looking to bring claims for under settlements need to exercise great caution. There will always be the obvious cases such as the one I dealt with where things were simply missed. And there was the other recent case of Procter v Raleys (another VWF scheme case) where Tomlinson LJ said -

‘The written advice given to him was unclear, and there were clear indications that it may not have been understood. It is not asking much of a solicitor in such circumstances to make sure that his client understands the opportunity apparently being passed up.’

So the solicitor has to ensure that the basis issues are explained and understood. But beyond that it is going to be a challenge. It isn’t enough to show that there was an under settlement if the lawyer did what was expected.

And any solicitors who are considering advertising for, or buying in these cases, can expect a hostile reception from the courts.

Monday, 11 September 2017

15 cold calls in a week

In the last week I have had 14 missed calls from mobile number 07520905031. I have rejected them all because my Truecaller app identified them as coming from an ‘Accident Claims Manager’. This morning I decided to take the 15th call. The caller asked me how I was today. I asked why they kept pestering me. He immediately hung up.

On 2nd September I received a text from 07817906405 which said –

‘FINALISED – you have 2662.85 in your name for the accident you had, for us to put in your bank Now just fill out

Two days later I received another text from 07817906203 which said –

‘Your recent accident has been signed off & funds allocated, fill out for us to put 2766.88 in your Bank Now.’

Out of curiosity I clicked the link and it took me to this –

Sadly, there was no mention of the specific sums that were waiting to go into my bank.

I have had occasional calls and texts over the years but 15 calls and 2 texts in one month smacks a bit of desperation. Just for the record I haven’t been in an accident since I fell off my bike in 1982.

I have now registered my home and mobile numbers with - I should have done a long time ago.

This kind of behaviour puts all genuine victims at risk. Ordinary people are being pushed to pursue claims – even they are for fictitious sums of money following fictitious accidents.

I have written many times that the so called compensation culture is a myth.

Claimants, Insurers and the government should be doing all they can to stop those who are trying to create one.

Tuesday, 5 September 2017

Concerning activists, squatters, an injunction and lots of running

I was reminded last week about a case in which I was involved back in the 1980s – when the world of legal practice was very different. And I was younger and fitter.

Towards the end of 1986 there had been a growing dispute between Liverpool City Council and local residents in Everton. This focussed on council plans to build what is now known as Everton Park. And a very nice park it is. This was part of the regeneration of what had become a very deprived area of the city. The problem was that the plans included the demolition of some good quality four bed roomed houses. Residents, including local church leaders formed the Langrove Street Action Group. Activists began to squat in empty houses to delay demolition. They were supported by a barrister, Mark Hedley who lived in the community – he later became Mr Justice Hedley. I was advising the group who were also supported by the housing charity Shelter.

In February 1987 I received a telephone call from Mark to advise me that demolition workers were due on site the next day. It was likely that so much damage would be done, that further opposition would be pointless. The next morning I was in Liverpool County Court on another matter when I was paged on the tannoy system to ring the office. I had a message to ring Mr Hedley (no mobile phones back then). He advised me that work had started. He said that there were grounds for an injunction based on a failure to consult residents. He had handwritten the papers. I ran to my car, drove at great speed to his house and then to my office where I had every available secretary typing up the application.

I then ran back to the car (running features a lot in this story), drove to Langrove Street to collect the two residents who were to be the Plaintiffs, drove them to a local solicitors office to swear their affidavits and then to county court office where Mark was waiting for us. These were days when you could turn up at the court office and have real people to help. I explained the urgency and told them that slates were being pulled off rooves as we spoke. Their support was remarkable. They issued the application and then went to find a judge. Within half an hour we were before Judge Bernstein who granted the order. Court staff again worked at staggering speed and within an hour of arriving at court I had the piece of paper in my hand. I left the others and ran (more running) back to the car and drove to Langrove Street. I ran across the estate waving the injunction. It was only at this point that I realised that the demolition team were big, strong and not too happy! One of them towered over me like Giant Haystacks (remember him?) and aggressively asked if I was ordering him to stop work. My knees and hands were shaking as I muttered something like – 'It’s not me it’s the judge’. Thankfully he backed off just as the TV cameras arrived. The work stopped. The damage was contained.

The dispute was finally resolved outside the courts. A change in the make up of the council meant that the decision to demolish was reversed. The court action had bought the residents essential time. The estate was eventually renovated and I was there when Glenda Jackson officially opened the new project in 1990.

This was one of those days when you remember why you became a lawyer in the first place. It was remarkable example of teamwork between local activists, lawyers and the courts. The court in particular acted swiftly and efficiently.

The law can be used effectively to secure justice for ordinary people.

It just seems so much more of a challenge these days.

Or is it?

Thursday, 17 August 2017

Insurers again - costs go through the roof

If you only ever heard the voices of insurance companies you could easily believe that lawyers who act for accidents and occupational disease are entirely responsible for the escalating costs of litigation. This is turn means that they are responsible for high insurance premiums. This in turn means that the government feels the need to ‘crack down’ on the so called compensation culture.  It also leads to a distorted view of the real world. One leading business figure in Liverpool recently commented that ‘the no win no fee culture is a stain on modern society’!

Over the last 3 – 4 years it has become increasingly difficult to secure justice for victims.

So how about a story that redresses the balance. This is a case dealt with by EAD Solicitors. The names have been changed but every other detail is real.

Mr Smith complained of noise induced hearing loss caused by his work. Initial investigations confirmed that he did have some NIHL. He had worked in noise with 2 employers. A claim was intimated against both. It was not a huge value claim. At an early stage a Part 36 offer of £5,500 was made to both Defendants, D1’s share of which is £1,481.70 and D2’s share is £3,653.10, plus there was a small element that was not recoverable because of Holtby. D2 settled within a few weeks.

D1 argued causation and refused to settle. Court proceedings were issued. A second Part 36 Offer of £1250 was made. This was rejected. The court approved the instruction of a single joint engineer and allowed D1 to instruct their own medical expert. The engineer confirmed unprotected exposure to noise exceeded 90dB. D1 instructed a well-known ENT expert who argued that any hearing loss suffered by Mr Smith was de minimis and not therefore compensatable. He maintained that view following a joint meeting of medical experts. The matter progressed to a 2 day trial earlier this year. D1’s expert gave evidence. He made some concessions during cross examination. He then stated that he had changed his view substantially in recent months. He referred in particular to a paper that he had recently read. This took the Mr Smith’s lawyers and experts by surprise. The judge adjourned the trial for further reports from both experts.

Reports were duly exchanged and the trial relisted in July 2017. Shortly before the new date, D1 offered £1k plus costs. This was accepted.  This was almost 3 years after the first offer and almost 2 years after the second offer. D1 achieved a saving of just £481.70 from the first offer and just £250 from the second.

Mr Smith’s costs have been drawn at over £66k plus costs of assessment. D1’s costs are in the region of £25-£30k based on cost estimate provided at listing stage. So the insurers of D1 are shelling out the best part of £100k to save between £250 and £481.70.

I don’t think further comment is needed.

Friday, 4 August 2017

In praise of independent judges

Remember last year when the first panel of judges who heard the BREXIT case were scandalously described as – 'Enemies of the State'. I commented at the time that what the courts did, was assert the supremacy of parliament –

That whole debate emphasised the need for a strong independent judiciary.

We have seen two examples of that over the last week or so. In the celebrated Supreme Court Judgment in relation to Tribunal Fees, the judges unanimously reminded ministers of the need to understand the rule of law and in particular of the right of ordinary people to access justice. I quoted part of Lord Reed’s judgment last week but one section should be repeated over and over again –

‘Courts exist in order to ensure that the laws made by Parliament, and the common law created by the courts themselves, are applied and enforced. That role includes ensuring that the executive branch of government carries out its functions in accordance with the law.

In order for the courts to perform that role, people must in principle have unimpeded access to them..’

This is one of the most powerful statements of the role of the courts that I have ever read.

He went on to say that without such access, our entire democratic process was at risk of becoming a ‘meaningless charade’. 

Can I just say in passing that this was the heart of the judgment? The tribunal fees case was nothing to do with opening the floodgates to spurious claims as has been claimed by some unhappy commentators. Fees were unacceptable because ordinary people could not afford them –

’The fall in the number of claims has … been so sharp, so substantial and so sustained as to warrant the conclusion that a significant number of people who would otherwise have brought claims have found the fees to be unaffordable.’ (Lord Reed)

The second example is the remarkable statement by our Senior Family Judge, Mr Justice Munby in the case of X (A Child). This is the case involving a teenager who is at serious risk of taking her own life if a suitably supportive placement is not found. The problem is that no such suitable placement can be found –

“We are, even in these times of austerity, one of the richest countries in the world. Our children and young people are our future. X is part of our future. It is a disgrace to any country with pretensions to civilisation, compassion and, dare one say it, basic human decency, that a judge in 2017 should be faced with the problems thrown up by this case and should have to express himself in such terms.”
He expressed shame and embarrassment that there was no safe place for her -
‘as a citizen and as an agent of the state; embarrassment as president of the family division and, as such, head of family justice’

His comments have been reported across the media. This reminder of the needs of young people in a similar position have hopefully shocked us all into saying that this is not acceptable. Despite being the most powerful Family Judge in the land, he was unable to order a placement that did not exist. But what he has done is use that important position to shake us into action.

These two cases demonstrate why it is so crucial that he have strong independent judges. Where it rests within their power they can keep the executive in check. Where it does not rest within their power they can bring issues to the attention of the world.

I can think of some places where these judges would be in personal danger for what they have said over the last week or so.

Our judges are not enemies of the state. They are not perfect. They make mistakes. But society is in trouble without them. And it is equally in trouble if people are prevented from accessing them.

Wednesday, 26 July 2017

Supreme Court Judgment - no more words needed

I sat down to write a post about today's momentous decision from the Supreme Court on Employment Tribunal Fees. But having read the judgment of Lord Reed I need do no more than quote these words on access to justice. I hope they are still quoted by teachers of law in years to come.

'At the heart of the concept of the rule of law is the idea that society is governed by lawParliament exists primarily in order to make laws for society in this country. Democratic procedures exist primarily in order to ensure that the Parliament which makes those laws includes Members of Parliament who are chosen by the people of this country and are accountable to them.

Courts exist in order to ensure that the laws made by Parliament, and the common law created by the courts themselves, are applied and enforced. That role includes ensuring that the executive branch of government carries out its functions in accordance with the law.

In order for the courts to perform that role, people must in principle have unimpeded access to themWithout such access, laws are liable to become a dead letter, the work done by Parliament may be rendered nugatory, and the democratic election of Members of Parliament may become a meaningless charade.'
Thank you!

Monday, 24 July 2017

What is the point of civil justice?

I can still remember my first legal rant. It wasn’t a blog. The internet was very much a new thing in 1999 when I wrote a letter to the New Statesman complaining about Lord Irving’s plans to abolish legal aid for Civil Proceedings. My rant was all about the price of justice v the value of justice.

Who could have predicted the downward spiral that would follow?

Last week, we received the news that our civil courts had recorded a profit of £100m. This would be encouraging if the point of justice was the generating of profit. There has been a growing attitude towards civil justice which has seen it become a commodity rather than a right. In 2015 Justice Minister Lord Faulks went as far as to say that litigation was ‘very much an optional activity’ –

I wrote at the time about a case many years earlier, in which I had instructed Faulks in a case where clients were seeking damages for their child who had been severely brain damaged at birth. What was optional about that?

The minister’s comments came in the context massive increases in court fees. Those increases are also at the heart of the profits that have been announced. Most lawyers do not need to be reminded about the level of those increases. In some cases the hike has been as much as 600%! It costs £10,000 to commence a claim for the most severely injured victims. Whilst there is a scheme for remission of fees it does not apply to everyone. In the meantime those fees deter all but the rich. In reality lawyers will pay the fees up front. But at those levels there is an obvious limit on how much can be loaned to clients. 

One can see the logic of this if the idea of the exercise is to make money.

But is that really what we want? What is the point of having a justice system if ordinary people are excluded? The current President of the Supreme Court commented in 2013 - 

Cutting the cost of legal aid deprives the very people who most need the protection of the courts of the ability to get legal advice and representation." 

In the continuing absence of legal aid, the imposition of prohibitive court fees adds insult to injury.

A civil justice system ensures that the rights of ordinary citizens are protected. That protection becomes a fantasy if those citizens are deterred by cost, especially when that cost is expected to generate a profit!

Imagine the outcry if a private business was exploiting the weak and vulnerable in order to make money!

So will see a reduction in court fees? Hands up if you’re not holding your breath.

Friday, 30 June 2017

Medical Negligence - Striking a massive imbalance

The Medical Protection Society has published proposals calling for the ‘urgent’ reform of the procedure for pursuing claims for damages for Clinical Negligence. Their plan is called – Striking the Balance. It is interesting that all of their points would heavily weight the system against victims. 

There is a briefing document available at –

Here are some of the highlights

  1. A limit on recoverable care costs based on ‘the realities’ of providing home based care.

This proposal assumes that victims and those who care for them are simply seeking to make as much money as possible. This could not be further from reality. Most victims prefer to receive care from family members if possible. In most cases this is what happens. So if a victim is unable to cook their own meals, in the vast majority of cases it is family members who pick up the burden. There is a right to claim for their time but this is already discounted. You cannot claim damages based on the 100% cost of employing a carer. Rates are already reduced by up to 30%. Many victims are so severely disabled that they require specialist care, often 24/7. I cannot imagine that the MPS are seeking to have those costs reduced.

  1. Limiting loss of earnings to national averages so that higher earners get less compensation.

This would create a ‘first’ in English Law. Damages are calculated by reference to what is needed to put a victim, as far as possible, in the position they would have been if the incident had not happened. So a person who earns £100k a year is so badly injured that they will never work again. The national average salary is £27,600.00. So where does the poor victim find the shortfall of £72,400.00? Who pays their mortgage? They are left with a life changing injury and could be forced out of their house into the bargain…

  1. An introduction of fixed costs for claims under £250,000.

As the MPS know, this is currently the subject of two separate consultations. The government has proposed a scheme for limiting the recoverable legal costs in cases worth up to £25,000.00. They did flirt with the idea of £250,000.00 but soon dropped it. Lord Justice Jackson is currently working on a report looking at the fixing of recoverable costs for all cases up to £250,000.00. He has suggested that it would be difficult to extend such a scheme to Clinical Negligence in most cases. This is because these cases are inevitably expensive to run – not least because they are so often contested until the very last minute.

  1. The introduction of an ‘ultimate’ Limitation Period of 10 years.

This is the most jaw dropping proposal, and again would mean introducing entirely new law just to save money for the MPS. At the moment the Limitation Period in most cases is 3 years. This runs from the date the victim ‘knows’ or should know that there is likely to be a claim. So if I woke up from a tonsillectomy with a leg missing it would be fairly obvious when the 3 years began to run. Sometimes an injury, say a fracture, is missed but the truth does not come out until years later. So the Limitation Act 1980 says that the clock starts ticking when the victim knows what has happened. In the case of say a child who suffers catastrophic brain injury at birth, there is effectively no deadline if they are rendered incapable of deciding for themselves whether to pursue an action. The same goes for an adult who loses all capacity to manage their lives. These victims are the most badly affected by negligence. They are, by definition, the most vulnerable members of society. Why should they lose access to any justice because somebody else does not know to bring a claim on their behalf?

The MPS seem to have learned lessons from RTA insurers. If they lobby hard enough they hope to get their way – regardless of the clear injustice that would follow to those who are least able to speak for themselves.

In fairness, the report also touches on the need for the avoidance of incidents. But the briefing document makes it clear where their main concern lies.

The cost of pursuing claims for clinical negligence is undoubtedly high. But you don’t strike a balance by passing the burden to entirely innocent victims.

Sunday, 11 June 2017

Introducing our new Justice Minister!!!

Well it has been an interesting few days. Who would have thought that the outcome of the election would have been a hung parliament and deals done with the DUP to shore up a minority Tory government?

But there was one thing that was widely predicted. This was the removal of Liz Truss as Justice Secretary. Her days were clearly numbered after a number of gaffes, not least being her failure to robustly defend the judiciary following the Brexit decision and the Daily Mail’s infamous ‘Enemies of the State’ headline. This resulted in a withering attack from the Lord Chief Justice –

This has also led to calls for any replacement to be a lawyer.

Today we hear that she has been sacked by Theresa May. It was with some excitement that many of us waited to find out about her replacement. And it is ….. David Lidington. Who?

Well he is the Honourable Member for Aylesbury, Bucks. He was Minister of State for Europe until 2016. He has been leader of the House for a year. His other claim to fame is about expenses. According to the the Telegraph he submitted claims in 2016 for cleaning, L'Oriel moisturisers, body spray and Sensodyne toothpaste!

 But above all, he is not a lawyer!

He is no fan of Human Rights and is known to favour abolition of the Human Rights Act. To be honest these come as no surprise. It is well known that Theresa May is hostile to the HRA.

But the appointment of a fourth successive non lawyer Lord Chancellor is a major disappointment. You would have thought that the disastrous experiment of Grayling, Gove and Truss would have taught the government something. Of course, it is not compulsory for the Secretary of State to have relevant qualifications. You would not expect all Health Minsters to be Doctors or Transport Ministers to be Highways Engineers. But the Justice role is different. It is not a purely political appointment. The Justice Minister carries a huge constitutional responsibility as Lord Chancellor.  

The Constitutional Reform Act 2005 requires him/her to swear the following –

"I, , do swear that in the office of Lord High Chancellor of Great Britain I will respect the rule of law, defend the independence of the judiciary and discharge my duty to ensure the provision of resources for the efficient and effective support of the courts for which I am responsible. So help me God."

Will Mr Lidington understand this? Will he ‘defend the independence’ of judges even if this means upsetting the right wing tabloid press? Will he appreciate the importance of ‘justice’ as something more than a commodity? He might surprise us (!) but this is a lost opportunity to give back some credibility to an important position, which has now seen three incumbents in two years!

Time will tell what Mr Lidington will make of the pressures from the insurance industry to press on with attacks on the rights of accident victims.

Of course, that time might be short!

Who knows who will be at the helm in October 2018?

*Thanks to my friend Mike Williamson (Williamsons Solicitors) for this link