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Thursday, 11 October 2018

The Walking Season - what's it all about?

This is the time of year when lawyers are seen walking the streets of towns and cities across the country. Today is Manchester’s turn. On Wednesday this week it was the turn of Liverpool. In fact, it is not just lawyers. Liverpool saw local politicians, advice workers and concerned citizens walking with solicitors, barristers and judges. The lead walkers included the Lord Mayor, the High Sheriff, President of Liverpool Law Society together with the Chairs of the Women’s Layers Group and the Junior Lawyers Group.

As we walked past one family near the Pier Head I heard someone say – ‘I don’t know what that’s all about.’ So what is it all about? It is about Access to Justice for all.

The primary purpose of the walk is to raise funds for the North West Legal Support Trust. The Trust provides grants to agencies which offer free legal advice and help to those in greatest need. The need for these agencies has grown dramatically since drastic cuts to legal aid funding have seen thousands deprived of the right to legal advice unless they have the money to pay for it. You would expect this need to be met by society. But it isn’t, by a long distance. So the burden falls onto the third sector.  The money raised via the walks helps many places to keep their doors open. My first proper job as a lawyer was at the Vauxhall Law Centre in Liverpool. That is one organisation which has stayed open following support from the trust.

There is more to the walks than just fundraising. They present a great opportunity for lawyers and others concerned with justice, to make a statement that it is important. As one leading judge said at the end of the walk –

'You can have all the human rights in the world but they mean nothing without the means to enforce them'

The walks are also an occasion when hard working lawyers can let their hair down and bring some humour to the streets. So we had walkers dressed as the Titanic and Yellow Submarine posing with George and Ringo (above), scouse celebrities and hair curlers! This year’s Liverpool walk was the best so far in so many different ways.

But the main reason we walk in cities across the land is to show that access to justice is an important right. There are not many votes in justice. She is not missed until she is needed. There are those who refuse to be silent until this is addressed.  And their numbers are growing buy the day.

Ps you can still donate to the Liverpool Walk here –

Monday, 24 September 2018

Legal Aid Lawyers - an endangered species?

I recently attended a fringe meeting at the Labour Party Conference in Liverpool focussing on Access to Justice. One disturbing comment from Shadow Lord Chancellor, Richard Burgon prompted this post. He predicted a critical shortage of Legal Aid Lawyers in the future. Where will the next generation of campaigning lawyers come from?

My first real job as a solicitor was at the Vauxhall Law Centre in Liverpool. Back in the early 1980s this Law Centre was in the heart of some of the worst housing in Europe. I applied because it was an interesting and challenging job. I would not have called myself a campaigning lawyer when I started, although that soon changed! The first time you visit a flat with sh*t all over the floor from a backed up toilet changes everything. During my years at the Law Centre I was never short of willing volunteers – law students who saw social welfare law as a career option and wanted real experience. And there was no shortage of opportunities. There were two law centres in Liverpool and one in Warrington. There were also firms which specialised in legal aid work – remember those days?

What a difference a few decades makes! Only a few weeks ago I wrote about the absence of any housing lawyers offering legal aid in Cornwall

Thankfully that has been resolved. There is now one brave solicitor in the entire county!

Earlier this year, the Law Society published figures which showed that the average Criminal Duty Solicitor was 47. Within a few years there could be a desperate shortage –

Considering the current state of our criminal justice system, we are unlikely to see queues of young lawyers wanting to earn an uncertain and meagre living –

Our Universities do a fantastic job with their Law Clinics which enable students to do proper legal work. But they will tell you that this is no substitute for legal aid. Is anyone listening?

It is encouraging to hear the Shadow Justice Minister pledge support for a new generation of young lawyers; promising funding for training opportunities. It was also encouraging to hear his commitment to supporting a new wave of Law Centres. 

But this should not really be a party political issue. Access to Justice is, or should be, a basic human right. What is the point of having rights if you need money to enforce them? The real answer lies in the return to a properly funded system of legal aid, across the country which would breathe life into welfare law across the country and provide a whole new landscape for committed young lawyers.

Tuesday, 4 September 2018

Concerning Poldark, housing and legal aid deserts


Here are some interesting facts about Cornwall –

1.      Poldark!
2.      The beautiful village of Port Isaac is the setting for Doc Martin,
3.      It is home to Tintagel Castle – said to be the birthplace of King Arthur (above)
4.      It is the second poorest region in Northern Europe -
5.      Even excluding holiday homes, one in ten houses in the county are empty
6.      If you need legal advice on housing matters, you won’t get it unless you have money.

At the end of August, the housing Charity Shelter, closed its office in Truro. It had decided not to apply to renew its legal aid contract for Housing Advice. The reason for the closure was that the charity decided that it should focus work on its 11 urban hubs where there is greatest overall need –

One can understand why a charity would have to make that type of decision.

This was the last surviving provider of legally aided housing advice in the entire county. So now there are none. It is a waste land. If you live in St Ives, you will need to travel almost 80 miles to Plymouth if you need professional advice and help on a housing matter. For us up north, that’s a bit like having to go from Liverpool to Leeds! Just to get some basic legal help.

This is nothing less than a scandal.

Don’t blame Shelter. They are a charity doing their best with limited resources. And why should they shoulder the burden of providing advice to an entire county?

The fault lies well and truly with our government who fail, time and time again, to see access to justice as a priority. It isn’t just Cornwall. Back in July, the Joint Committee on Human Rights warned that large parts of the country had become legal aid deserts.

This has been caused by punitive cuts in the amounts paid to legal aid lawyers, alongside the 2013 removal of huge areas of work from the scope of legal aid. The entitlement to state funded legal aid for those in need began in 1945. Following years of ‘progress’ that entitlement has been reduced to this.

We have a legal system that it is the envy of many.

If we exclude those in need from access to that system, then it becomes a meaningless mockery.

The government is currently reviewing the impact of the 2013 changes. It must urgently acknowledge how those changes have affected the lives of ordinary people and commit to a properly funded system of legal aid.

This is unlikely, there are not many votes in justice, unless we all make as much noise as possible.


Barrister, Russell James who first highlighted this matter has recently tweeted -

Which is good news ... sort of. As he says, it helps access to justice if you know where to find it! And is it really a cause for celebration that an entire county now has one provider of housing advice???

Friday, 10 August 2018

Concerning cold calls, magic registers and Star Wars

This post develops a rant that I posted on Facebook earlier today. During the morning I had 4 calls from a claims farmer. I have a Truecaller App on my phone which told me that it was an Accident Management Company. So, I didn’t pick up. For anyone who is interested the number was  -

When the 5th call came I gave in to temptation and picked up.

A very pleasant caller asked me how I was today, which was very nice. He then launched into his script about the accident I had etc etc. I was trying to think of a witty retort, but I went for the angry approach. I told him that I not had any accident and that I objected to being cold called. He sounded genuinely hurt. He said that he wasn’t cold calling. He was just trying to help. I asked where he got my number from and he replied that he had found my details on the 'national accidents database'. I told him that I had been a lawyer for over 30 years and there was no such thing. He then became aggressive and told me that I was a liar!! I asked if he was in the habit of cold calling people and then insulting them. The call ended at this point.

This is not the first time that I have come across a magic database like this. A few years ago, when hearing loss claims were all the rage, I was told that my name was on a register. This was a register of people who had worked in noisy factories! Not much of register seeing as I’ve worked in an office all my life.

Many of us have had text messages referring to specific sums of money –

It seems that these callers are required to include an element of fantasy into their calls. Honesty is clearly insufficient. Is it me or is getting worse? I seem to get 2 – 3 calls a week. Does my phone number look particularly gullible? All of this is happening at a time when ministers and the media continue to blame victims of accidents for the mythical compensation culture. Surely the time has come for victims, insurers, genuine CMCs and politicians to focus all of their effort where they belong – removing these leeches from our justice system.

When I posted a shorter rant of Facebook I received lots of comments about how best to deal with these callers. The best response was from a friend who said that she once gave the phone to her 5-year-old who proceeded to interrogate the caller about toast and Star Wars…

Friday, 29 June 2018

More stories of troubled lawyers - are we doing enough? Thoughts please?

This is an unusual blog – for me. I am not ranting about injustice but sharing a growing concern and canvassing opinion. Over the last few months I have become increasingly disturbed by the numbers of lawyers – particularly young lawyers, who get themselves into terrible difficulties when things go wrong.

I posted a blog about this a few weeks ago, which had one of my biggest ever responses –

There seems to be no end to these distressing stories.

This week we have read about the voluntary striking off of a young solicitor who backdated 23 letters to ‘giver herself breathing space’ –

Today there is the story of another young lawyer who has been suspended from practice after fabricating a letter which was given to an SRA investigator –

How many times do we have to say it? The short-term discomfort of admitting a mistake, vastly outweighs the horrors of disciplinary action which inevitably follow efforts to cover things up. Do our young lawyers really have no one that they can talk to? The answer to that is – of course they do. Most caring firms will have an open-door policy, which is why these incidents are rare. But they can still be devastating for the lawyer and the firm. And there are clearly a minority of cases where the lawyer does not feel able to speak to a manager.

With all of this in mind I have been thinking about offering a facility, via my consultancy, to enable lawyers – of whatever level – to have a confidential discussion if they find themselves floundering for whatever reason. This will be at no cost to the lawyer. So three questions come from this –

1.      Would something like this serve a purpose? I am aware of the fantastic work done by Law Care - . They certainly offer the best service for those lawyers who need care and support. The Law Society also have an excellent pastoral care helpline -  020 7320 5795. What I have in mind is a much more low-key affair – a confidential sounding board for lawyers who are facing an immediate problem and do not feel that they have anyone to turn to. This might involve anything from a simple word of wisdom to a signposting to someone like Law Care if needed, 

2.      Would there be scope for a wider network of senior and experience lawyers to form a wider group? 

3.      Is there enough support out there anyway?

Answers on a postcard

Thursday, 21 June 2018

Concerning emails, getting a life and watching Love Island

This blog post from Mondipa Foudza in the Law Society Gazette has started me thinking about how my own management of emails has changed over the years.

I am old enough to remember the days when you sent a letter and then waited several days for a reply – unless you had an ultra-high tech opponent who owned a fax machine. Then we began to send and receive emails via our PCs in the late 1990s. This made things a bit more immediate, but you still had to go and switch on your computer.

Then the smart-phone changed the world. Suddenly, our emails began to follow us everywhere we went. My wife once caught me sitting up in bed reading them on holiday in Mexico. I blamed jet lag and the time difference. But in truth they were there, I was awake, and the rest just happened! On a more serious note I once received an aggressive email from a complaining client at 1155 on Christmas Eve – why did I read it? Because my phone was telling me it was there, and I couldn’t resist. 

These incidents caused me to introduce some strict rules which I have found very useful over the years –

1.      I initially started to disable my work emails when I went on holiday. Now, I understand why it is useful to reduce the number of emails crying out for attention when I get back to work. But on balance, getting a life won the day. I made sure that someone had my mobile phone number, so I could be contacted if I became as indispensable as I thought I was. This worked up to a point, but I still found myself with my nose in my phone while watching The Bridge on a Saturday night.

2.      In time, the penny dropped – the world did not cease to orbit the sun if I did not check them all the time. So I really did take the plunge. I firstly disabled notifications altogether. Then I regressed a full decade and removed my account from my phone. Guess what? I’m still alive, the sun is shining, and Trump would have been elected whether I had my emails on or not.

3.      I have never gone back. I check my emails once or twice when I am at home and never on holiday. But I am now in control.

4.      Much of that energy now goes into twitter!!

There is a real benefit in cutting yourself free from your emails. It creates time for you to relax, to read a book, watch the World Cup or even Love Island if you really must. It also creates space for a more considered reply. If you receive a scary email while you are eating out or travelling, there is a real temptation to fire back a reply immediately. How often has someone pressed the send button and then regretted it. Recalling an email does not erase it! If you create time to read emails you will also create time to reply. You might even ask yourself whether a reply can wait for a day or so.

This might not work for everyone. But if your time is ruled by your mail box you need to change things. Now.

Tuesday, 5 June 2018

A dishonest claim - and the damage it causes

A recent case has reminded us again of the dangers of exaggerated compensation claims. This time it is a clinical negligence case, but the same issues could arise in any claim involving the alleged consequences of an injury. The facts are summarised in a report in yesterdays’ Litigation Futures –

Mr Atwal alleged that he was significantly disabled and claimed damages just over £800k. It was not disputed that his treatment had fallen below an acceptable standard and that he had suffered some injury as a result. The Trust had offered £30k. He could have had a reasonable claim and secured a fair settlement. As it was he grossly exaggerated the effects of the negligence. He has ended up with a 3 month prison sentence, a £75k adverse costs liability and no damages.

NHS Resolution have published the video footage which led to his downfall –

Cases like this are so frustrating for those who seek justice for victims of medical negligence and accidents. Over the last few years there have been relentless attacks by the media and politicians against the so called ‘compensation culture’. The vast majority of claimants are genuine victims who are simply seeking some acknowledgment that they have been wronged. For many, the compensation is not their main concern. They want to know what happened and who will be held to account. Compensation plays a huge role in providing support for those who often suffer life changing injuries –

Then a case like this comes along and sends us back to the start like a sinister game of snakes and ladders. It is difficult to disagree with the CEO of NHS Resolution that there must be a clear message that ‘you cannot submit fraudulent claims’ with impunity.  They damage everybody.
There is also a real message here for lawyers who represent victims. Any claim for damages must be vigorously scrutinised.

Mr Atwal’s solicitors were, presumably, acting on a Conditional Fee Agreement. They will have suffered massive commercial damage which would bring many firms to their knees. Some might be tempted to submit a six-figure claim on the basis that liability is admitted so ‘we are bound to get more than is offered’. 

A case like this highlights that the consequences can be catastrophic. It also does untold damage to the real vicitms.

Monday, 21 May 2018

Criminal Justice in meltdown? Let's form an ABS!

Most observers agree that the Criminal Justice system in England and Wales is on the verge of collapse. There has been no clearer analysis of this than the Secret Barrister’s recent bestseller. A former MOJ Minister has now weighed in with his own contribution to the debate which is so wide of the mark we should all be pleased that he hasn’t taken up a career in knife throwing!

Jonathan Djanogly’s answer is straightforward. We need more efficiency from Criminal defence lawyers. This will be via a network of ABSs, fewer and bigger firms, and more competition. Why didn’t we think of this before??

It is hard to know where to start. How about the shocking treatment of victims? How will bigger and fewer firms result in less trials being cancelled at the last minute or moved to an unreachable court in another area? How will it stop the collapse of trials because the CPS are so underesourced that they fail to provide their own lawyers with the necessary documents? How will it resolve the iniquitous innocence tax which means that a person can be acquitted of a serious offence but still lose everything in successfully defending themselves?

I am not a criminal lawyer. But I know a bit about ABSs and am involved in two such business. The obvious commercial question is – who in their right mind would be interested in investing in an ABS which is dependent on legally aided criminal work? Work in which the rates are so low that a young barrister, paid £80 for a day’s trial finds herself having to borrow the fare home –

According to a report from Young Legal Aid Lawyers, more than half of legal aid lawyers earn less than £25k a year –

According to some reports, earnings have dropped by 40% in real terms since 2007.

Which ambitious entrepreneurs are going to join the queue to set up an ABS in this climate? It is pure fantasy. It also shows a complete disregard for the thoughtful arguments that have come from across the profession in the last few months. The criminal justice system needs a complete overhaul and return of the funds that have been stripped from it. Empty management speak is meaningless.

As an MP, MR Djanogly has presumably received his free copy of the Secret Barrister’s book. He might like to read it…

Thursday, 17 May 2018

Concerning the Select Committee on small claims and who is an honest driver

We have today seen the publication of the Justice Select Committee Report on the Small Claims Limit for Personal Injury Claims. The report can be viewed here –

The plan is to increase the small claims limit for personal injury claims to £2000 and for RTA related PI Claims to £5000. Parties who succeed in the small claims court do not normally recover legal costs if they win. So in effect there is no right to legal representation.

The Committee has expressed concerns which are shared by lawyers, judges and most commentators outside of the government and the insurance industry. They make the very important observation – 

‘We conclude that increasing the small claims limit for PI creates significant access to justice concerns.’ 

The effect of the increase will be to deny thousands of victims of accidents the right to be legally represented. However this is explained away, it cannot avoid the obvious conclusion that insurers will continue to have huge resources to fight claims. Most victims will not.

The committee goes on to summarise its additional concerns including these –

They are troubled by the absence of reliable data on the level of insurance fraud,

They recommend a detailed analysis of the extent to which any reductions in insurance premiums are likely to be attributed to the ‘reforms’ and that there be a report after 12 months,  

They recommend an inflation only increase in the Small Claims limit to £1500, noting that Employers liability and Public liability claims are complex and note the contribution towards maintenance of safe places of work,

They advise against the £5000 limit in RTA cases,

They recommend that vulnerable road users be excluded from any increase,

They remain to be convinced that the inequality of arms issue will be addressed by the proposed on-line platforms,

They question the basis on which the MOJ has concluded that the PI Legal Sector will replace any lost work with other work of equivalent value.

This is very carefully considered report which, in many ways, reflects the obvious. It remains to be seen what effect this will have.

Of course, the response from the ABI has been less than enthusiastic –

James Dalton, in three very dismissive paragraphs simply repeats the familiar rhetoric that this is all about lawyers ‘lining their pockets.’ He makes the disgraceful comment that ‘honest motorists’ will continue to have to pay higher premiums. In other words, any victim who pursues a claim for damages is not an ‘honest motorist’, despite the committee’s finding that there is no reliable data in relation to insurance fraud.

Experience shows that the MOJ will probably listen to its friends in the ABI. But it is encouraging to hear that the voices of victims are beginning to be heard.

Thursday, 12 April 2018

The Secret Barrister - Get it, read it, share it...NOW

It is certainly not unheard of for a book written by a lawyer to make headlines. John Grisham comes to mind and Rumpole of the Bailey gave me many a happy hour as a student.  But is a rare thing for a book about the practice of law to rise up to Number 3 in The Times charts – especially one written by an anonymous barrister. Stories of the Law – and How It’s Broken by The Secret Barrister has managed to do just that.

For the purpose of this review I will call the author SB whom, I will also assume is a she for no particular reason!

What she has written is a devastating critique of our criminal justice system. It is based on her experience as a working criminal barrister over many years. This is certainly the voice of someone who deserves to be heard. It is also very readable. The book is interesting, funny and terrifying at the same time.

Time and space don’t permit an analysis of every detail. I intend to focus on three key issues that caused me particular alarm as I read it.

The first of these took me back many years to my early days as a young and terrified criminal advocate who was destined to be a civil litigator! This is the wonderful and fascinating world of the Magistrates Court, where the majority of criminal cases start and end. It is clear from SB that little has changed over those years. Bail applications are routinely refused. Defendants are routinely convicted. All of this is done by willing volunteers recruited via a system which ‘prizes whether you ran a tombola over your capacity for legal analysis.’ There are many examples of the eccentricity of the courts including one enthusiastic magistrate criticising cross examining counsel for asking a leading question – which is of course the whole point of cross examination. SB finds no justification for this – ‘sausage factory paradigm of justice’, other than that it is ‘cheap,  is the way we’ve always done it and no one who votes knows or cares.’ There are those who support the idea of local lay justices. But no one reading this section of the book can avoid a sense of alarm that the liberty of citizens is left in the hands of these courts. That sense of alarm is unrelenting.

The next issue that shocked me was the appalling treatment of victims. Politicians like to talk about victims of crime. The tabloids love it. There is a Victims’ code, a Victims’ minister, a Victims’ Commissioner, a Victims’ Task Force. But ultimately, no one really gives a shit. They are routinely excluded from the entire process. Cases are listed for floating trials with no hope of actually starting. But the victim is led to believe that this will be their day in court. Many months can go by before a case is relisted. Two thirds of Crown Court Trials do not go ahead. Who knew? The victims certainly didn’t. In one shocking case a victim of serious domestic abuse sees the prosecution of her former partner collapse because a seriously under-resourced CPS failed to get its act together. According to one survey, only 55% of victims would be willing to go through the process again. All of this is done under the tagline – Putting the Victims First.

Thirdly SB explains the iniquitous ‘Innocence Tax’.  ‘You can be refused legal aid and forced to pay privately. You can be found not guilty of any criminal offence. And the life savings you have exhausted in the process of defending yourself will not be refunded.’ In what civilised society is this acceptable?

There is far more in the book as she takes us through a nightmarish procession of wrongful convictions, wrongly abandoned prosecutions, disillusioned victims, a desperately underfunded CPS and woefully underpaid legal aid lawyers.

I would encourage all lawyers to read the book. Unless you are doing this work day in day out you do not really have any idea. I knew there was a big problem but did not fully appreciate just how bad it was. All MPs have been sent a copy. They should read it. They will not be the same again if they do. Anyone with a concern about how our country treats those accused of and the victims of crime (in other words all of us!) should read this book now! Not everyone will agree with it all. But no one can disagree that the law is broken and urgent action is needed.

Thursday, 22 March 2018

Another career lost - seeing the wood for the trees

I have lost count of the number of posts that I have written which concern solicitors who have seen their careers brought to an end through misguided efforts to cover up a mistake. Today’s case is unusual because it involves an experienced solicitor who might have been expected to know better. Michael Maoileoin had simply recorded the wrong date for a court hearing. He had diarised the 14th and not the 4th August. Who hasn’t done that? Rather than admit what had happened he filed a statement with the court asserting that a document had been filed in error. The truth eventually came out – it always does. The unfortunate Mr Maoileoin has been struck off at just 50.

His explanation to the Solicitors’ Disciplinary Tribunal was that he had been under stress at the time. The SRA told the Tribunal that stress and pressure were occupational hazards.

Harsh as it sounds, that must be right. Lying to the court is only ever going to end badly. I have said this over and over again – an early acknowledgment of a mistake can save a lot of worry and in some cases can save a career. It is so sad that a professional person can get into such a state that rational thinking goes out of the window.

So how do we manage the pressure?

Here are five tips from a blog that I posted a long time ago on how to practice law and sleep at night. 
It is not a comprehensive list but might be helpful –

1.     In the famous words of Michael Jackson - You are not alone. Find someone that you can talk to – it is so easy to be isolated in your little cell. Surrounded by files, emails, deadlines, telephone messages, meetings. To get into that mindset that says ‘I have no time to speak to anyone’. You have. And if you haven’t then make it. 20 mins speaking to someone will get you hours of payback in avoiding sleepless nights. It is a truth universally acknowledged that a problem is never anywhere near as bad when you talk to someone about it. Especially someone who has been there, which if we are honest is all of us! Speak to someone. Right away. Turn your computer off and go and do it now.
2.     Be generous in giving files away. That file that you are scared to look at. The one that has been festering by the side of your desk so long that even the spiders won’t go near it. Give it to someone. It won’t go away on its own. If you can’t look at it, find someone who can. Many solicitors have a file swapping arrangement. I’ll give you mine; you give me yours. Don’t hog matters to protect your bills. You can be far more productive by liberating yourself. Don’t be scared of being criticised. You won’t be. You are more likely to be told – ‘Leave it with me and while you’re there can you look at this one of mine.’  
3.     See the wood for the trees. It is never as bad as you think it is at 3.00am. The world will not end. I’ve been a lawyer since 1st April 1980. I have had more 3.00am moments than I like to admit – especially in the early days. Guess what? I’m still here. I’m still alive. I have got to an age where I can say. ‘Phew oblivion never happened.’ It was never going to and never will.
4.     If you need to – confess. If you think the worst has happened – you've missed a deadline and can’t think of a way out. Then tell someone. Today’s is just the next in line of those nightmare cases where lawyers have tried to cover up and been struck off because they were scared to own up. No one was ever struck off for admitting a mistake. Partners, supervisors, insurers will never bite your head off for coming clean. And if they do they shouldn’t be in the job. It also means that it is no longer just your problem. Get it out there and do it as soon as possible. The consequences are less scary than you think and much less stressful than waking up at night or even jeopardising your hard earned career.
5.     Get a life. Don’t get sucked into that bubble where your legal world becomes all consuming. Being a lawyer is what you do. It is not who you are. See your work as part of your life but not everything. Develop interests and friends outside the pressure cooker. I support Everton. That can very stressful and cause sleepless nights. But it is something different. I love music and photography. I also waste far too much time on social media!

Don’t ever be silent or isolated. Speak to me if you have no-one else!

Monday, 12 March 2018

LASPO Review and other lessons in missing the point

In April 2013 the Government introduced the legislation which we all know as LASPO. So dramatic were the changes, that two phrases in common usage are now Pre-LASPO and Post-LASPO. As far as Access to Justice is concerned the world was never the same again.

There was fierce opposition to the ‘reforms’ almost all of which fell on stony ground. The Government promised a review after 5 years. So we have all been on the edge of seats waiting for April 2018 to arrive. Sadly, the review is not happening any time soon. We were told that it could be  done by the summer but this is now described as ambitious –

The Beatles once sang – ‘I’ve got no car and its breaking my heart, but I’ve found a driver and that’s a start’. Similarly, we have no review and its breaking our hearts. But we do have Post Implementation Review Evidence Gathering Exercise Terms of Reference – and that’s a start!

This is the first of a series of posts looking at this document and how those of us who are concerned about justice can most effectively respond.

The Terms of Reference remind us of the objectives for the ‘reforms’ published in 2010, the first of which was –

To discourage unnecessary and adversarial litigation at public expense

Looking at that statement eight years on it is remarkable that it managed to miss the point by such a huge margin. The most effective role played by Legal Aid was not the funding of litigation, but avoiding litigation in the first place. Let’s look at Housing Advice. Most people believe that all Legal Aid has been abolished. It is available for those who are at risk of losing their home, although this is not widely publicised. Even where legal aid is available there has been a relentless pressure on providers leading to legal aid deserts, according to The Law Society –

Many housing problems can be sorted if addressed early. Experienced lawyers, and other advice agencies, can contact landlords and local authorities, provide debt advice and in many cases resolve the problem before it gets out of hand. This is particularly important where cuts to legal aid have been imposed alongside changes to benefit entitlement. The right to legal aid is now so convoluted that you cannot get legal advice for help over rent or mortgage arrears. But you can get legal aid once there are possession proceedings.

Effective early advice is less expensive than representation at court. Is there a more effective way to - To discourage unnecessary and adversarial litigation at public expense?

If the government remains serious about this objective then it needs acknowledge that it is better for all if problems are headed off at the pass before litigation become inevitable.

A former justice minister and QC, Lord Faulks, once observed that litigation was – ‘very much an optional activity’. Sadly, fighting for your home is not the same as collecting stamps or birdwatching. But stressful and expensive litigation can often be avoided if people can get access to prompt professional advice.

This should be a primary objective of the review whenever it happens….

Tuesday, 6 March 2018

Personal injury Work - there is another world out there

A leading player in the world of Personal Injury finance has predicted that within a few years there be only be about a dozen firms specialising in this work.  The rest will, presumably, ride into the sunset or retrain in corporate finance...

This is the prediction of Steve Dinn of Doorway Capital which has recently hit the news with their investment in Simpson Millar. I do see his point. The introduction of the so called ‘reforms' to the PI sector in 2019 will present a major challenge to many. I would certainly agree that the market will look very different in a few years time. There will be a reduction in the number of major providers many of whom have found themselves in difficulties. But there is more to the world of PI then these monoliths. It would easy to believe that these firms are the only providers of PI work.

Back in December I predicted that there was likely to be a re-grouping in the sector driven by a growth in the number of smaller, niche providers –

I have worked with a number of firms – more than 12 (!),  which are realistic about the challenges ahead but have no intention of leaving the marketplace. Big might be beautiful but it also expensive and often cumbersome. I predicted in December that we will see smaller, trimmed down units with lower overheads which will adapt to the changes and grow. This will happen alongside the continuing development of social Media Marketing and remote working. We might even see a return to the old idea  local solicitors.

There will be those who do not adapt and could well fall by the way. But to talk of wholesale failures and exits is unrealistic. There is a whole world of small, tightly managed firms which will continue, albeit with tighter belts and lower expectations!

I have no doubt that companies such as Doorway are very much the experts in the high end world of legal services. But there is another world out there. With a lot of planning and willingness to change, these smaller providers will still be around for years to come.

Friday, 2 February 2018

Medical Negligence - the latest attack on victims' rights

It seems that, every few months, the NHS and other medical bodies launch an attack on the rights of victims of medical negligence. Today, we hear that the NHS Federation has written to the latest Justice Secretary, David Gauke in order to try and reduce the levels of compensation to which victims are entitled.

The letter contains the remarkable statement –

"We fully accept that there must be reasonable compensation for patients harmed through clinical negligence, but this needs to be balanced against society's ability to pay.

So on the one hand, there is an acknowledgment that compensation must be reasonable and on the other hand a call for such payments to be reduced in line with government spending priorities. Once again we see the fingers pointed at victims, as if it is somehow their fault that payments for negligence continue to rise. This has been a developing pattern over the last few months.

In June 2017 the Medical Protection Society which represents many GPs called for a limit on the amount of loss of earnings that a victim can recover. They argued that such awards should not be calculated on the basis of real losses but a national average. This, of course, completely undermines the purpose of compensation., which is to put the victim back in the position they would have been in, but for the negligence. The victim’s liabilities will not be reduced in the same way. So a teacher with a mortgage who never works again recovers less than they were earning. Their mortgage payments will not be dropped. So they are at risk of losing their house through no fault of their own.

The same goes for damages for care. These can lead to an awards that looks like a lottery win. I make no excuse for re-posting a blog that I did in 2015 which demonstrated how one victim, on the basis of the support that he had received following a successful claim, had published his first book of poetry –

That is the heart of the matter. Victims who are injured through medical blunders are entitled, in any rational and caring society, to be compensated in full. I am not the first to say that the best way to reduce claims is to have an NHS free from the pressures that go with massive under-funding.

Focussing on reducing incidents will not only save public money, it will also mean that victims will not have to resort to stressful litigation to secure justice. It is still the case that many cases are fought by the medical profession to the very last minute before liability is admitted. Such a war of attrition damages everybody. I would certainly support any moves to reduce the cost of pursuing claims, but this must never be at the cost of undermining justice.

Wednesday, 10 January 2018

More Legal Careers on the line - who is really to blame?

We are less than two weeks into a new year, and we have already had reports of young lawyers getting into major difficulties. Both are reported in Legal Futures  . The first follows a familiar pattern. The solicitor in question had failed to obtain adequate After the Event Insurance. This meant that, when a matter was discontinued, the client or the firm would have been responsible for the other side’s costs. She tried to cover up the error by created forged insurance schedules in the hope that the insurers would not ask any questions. She then fabricated attendance notes to try and support the cover up.

It is no great surprise then that she has been struck off the roll for dishonesty.

This is becoming alarmingly repetitive. Yet again, a career is brought to a tragic end because concealment seems preferable to honesty. I am beginning to sound like a broken record but the message for solicitors is clear – not only is honesty the better option, it is the only option. The discomfort of a confession is far less painful than the end of your career.

But the sheer number of such cases does raise an equally disturbing issue. Why are these lawyers so afraid to admit a mistake? Is there such a culture of fear across the legal profession?

This is partly demonstrated in the second report.

Another young lawyer was found to have lied to a client and her employer about the progress of a matter. The Solicitors Disciplinary Tribunal found that one cause of her conduct was her firm’s attitude towards billing targets. She was a clinical negligence lawyer who acted for victims.  Those cases can be complex, drawn out and heavily dependent on expert evidence. The solicitor was under heavy pressure from the firm to meet a billing target. She had received a letter from the firm requiring her to record 137 hours in 19 days to make a supposed deficit. The letter went on –

“Please therefore by return of email let me know your plans on how you are going to resolve that deficit before the deadline. I am assuming that you will be working each and every weekend and long hours during the week to ensure that the required target is reached.’

The lawyer in question was suffering from mental health issues. She later misled her employers, a client and backdated letters. The tribunal criticised the firm for placing her undue pressure. Her health issues made her more vulnerable to a negative reaction to the letter. The firm should have been alerted to the warning signs of her illness. The firm carried a significant portion of the blame and had not supported its employee. She was suspended for two years – but such suspension was itself suspended for three years.

Anyone who has managed a law firm is aware of the need to ensure that cases are turned over quickly and efficiently. Managers are likely to be under similar pressures – from partners, banks, creditors… There are many ways in which this can be addressed. Supervision and support are crucial. If a solicitor is falling behind a target there might be any number of reasons – too many cases, an unrealistic target, illness (as in this case), lack of support. There can never be any excuse for managers to bully their lawyers in order to improve performance. Members of a team need to know that there is someone that they can speak to if they are struggling. That someone is not there to judge but to guide and support.

Many of these cases that we are seeing involve a young lawyers desperately trying, and failing, to sort out a crisis on their own. Why are they working in such isolation in the first place?

I think that the agenda is shifting here. I used to emphasise the importance of lawyers not being afraid to speak up if there is an issue. The message is now well and truly one for managers. Can my lawyers speak to me without being ‘terrified’ of the reaction? What support do I offer?

Aggressive treatment of staff is always counterproductive.

We are likely to see more cases where firms find themselves under scrutiny. Most firms do care for their staff. Clearly others do not. And this has to change.


Steve Cornforth is a solicitor who owns the Steve Cornforth Consultancy providing Management Support, Compliance Advice and Training for Lawyers and Law Firms.


Tuesday, 9 January 2018

Welcome to Hogwarts - our new Justice Secretary

One thing which can always be predicted in any Cabinet Reshuffle is that we will have a new Justice Secretary/Lord Chancellor. It is like the first day of every year at Hogwarts when Dumbledore introduces the new Defence Against Dark Arts Teacher. The belief is that the job was jinxed by Lord Voldemort. Could there be a link??

But, for better for worse, we now have details of the latest bearer of the chalice. It is David Gauke, MP for South West Hertfordshire. The most sensational feature of his appointment is that he is a Lawyer, the first since Ken Clarke in 2012. This should at least mean that he will have an understanding of the role of the Lord Chancellor in defending the independence of the judiciary – particularly in the face of attacks from the Daily Mail –

He might even have some insight into the practice of law, albeit from a limited perspective.

Mr Gauke trained at City firm, Richards Butler and qualified in 1997. He then moved the Macfarlanes and was there from 1999 until he entered Parliament in 2005.  He first stood for election in 2001. So working in the law has never been a major part of his career path. But at least he has some knowledge of the legal world.

His voting record is not encouraging when we come to Access to Justice. According to They Work for You - 'David Gauke generally voted for restricting the scope of legal aid' -

He has generally voted against laws to promote equality and human rights, supported the bedroom tax, reductions in welfare spending and mass surveillance. In 2014 he defended the growth in the number of food banks, saying that they did a valuable job and that he was proud that the government signposted people to them –

So, we cannot expect a champion of the rights or ordinary people.

Will he last until a new Hogwarts year? Will the government last that long?

As things stand we should probably assume both. I foresee many battles ahead and do not hold out any great hope for huge changes in broadening access to justice this side of a General Election. 

But let us at least hope that he will take his constitutional role more seriously than some of his predecessors.