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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.