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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.