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Sunday, 29 December 2019

Clipping the wings of the Supreme Court and other Christmas tales

The Government has promised a review of the UK constitution in order to - "restore trust in our institutions and our democracy." According to the BBC this will include steps reduce the power of the Supreme Court. This would, if it wasn’t legal nonsense, be an act of revenge for the decision in September 2019 that Boris Johnson’s unlawful prorogation of Parliament was unlawful.

The BBC report quotes a Whitehall ‘source’ as saying that the plan is to ‘clip the wings’ of the Supreme Court by reinstating its – ‘more modest role - as the appellate committee of the House of Lords.’

I think another brief history lesson is called for.

The House of Lords has exercised a judicial role since, at least, 1399. This role was formalised in the Jurisdiction Act 1876 when it became the final Appellate Court and the highest court in the land. . All appeals ended there. The House had the final say. The judges were Lords of Appeal in Ordinary and were known as Law Lords, who also had the right to sit in the House itself

UK Courts follow a system of precedent. This means that courts must follow decisions of a higher court. So, the High Court is bound by the Court of Appeal. In most cases the Court of Appeal must follow its own previous decisions. The House of Lords was the only court that could overrule its own earlier decisions. 

In 2009 The Supreme Court was created by the Constitutional Reform Act 2005. The aim was to separate the judical functions from the legislative. The Law Lords became Supreme Court Judges. Their role was judicial only. They no longer sat in the House of Lords. But apart from that, there was no real change in the role of the court. It remained the final court of appeal. It was the highest court in the land, just like the House of Lords.

All of which begs the question. How does the government or anyone else propose to ‘clip its wings’? Its previous role was far from ‘modest’ as suggested by the BBC report. The judges would presumably become Law Lords again, rather than Supreme Court Judges. In all other respects it would revert to what it was for centuries. It would be supreme rather than Supreme!

It really is nonsense or something worse. 

What it really looks like is an attempt by politicians to exercise control over the judiciary, to eliminate judicial independence.

The report also mentions enhancing the role of the Lord Chancellor who has to 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 will the ‘enhanced’ role involve the removal of that oath? That would surely diminish the role.

Judicial scrutiny of the executive remains a vital constitutional safeguard. It is a safeguard that must stand above political revenge.      

Monday, 16 December 2019

Legal Aid - the arguing is over. What now?

So, the General Election frenzy is over – probably for another 5 years.

There will be many questions asked about why those who opposed the government failed so miserably. No doubt we will see many changes over the next few months. But there is one thing we can be certain about; there is not going to be any miraculous return to the halcyon days of legal aid for all. I mentioned in my last blog that Labour’s manifesto gave positive signs. But as Jonathan Freedland wrote over the weekend –

“Labour’s “radical” manifesto of 2019 achieved precisely nothing. Not one proposal will be implemented, not one pound in it will be spent. It is worthless.” 

I mentioned in my last post, that the Conservative manifesto was silent on access to justice. When legal aid was mentioned in the campaign, the ‘party line’ was the familiar mantra that we had the most expensive legal aid system in Europe! The days of arguing are now gone. We can look forward to at least 5 years of ever reducing, publicly funded access to justice. We must accept that the argument is finished or at least ‘on hold’ for the foreseeable future.

But the problem isn’t going anywhere. People will still need advice on welfare benefits, housing, debt, family problems, immigration. They can no longer expect any significant help from the state. We all have to look at alternatives.

As recently as 2014 I wrote –

‘Why should ordinary people with a genuine case have to find a lawyer who will do it for free? In what other profession would that sort of expectation exist?’

I can now tell you why. Because no one else will, and the need for help is going to grow beyond anything that we could have imagined. 

The legal profession and advice sector have no choice. We must work together to ensure that those in need are not abandoned. In fairness, Pro Bono work has been growing over the last 10 years. In 2014 it accounted for 3% of the turnover of all firms. This has enabled thousands to get legal help. But, earlier in 2019 the Master of the Rolls said that there was only so much that could be done and there was a risk that the sector would be overwhelmed –

But it has to be done.

Great work is being done by Universities and Colleges who run legal advice clinics. This is a great opportunity for students to experience the real world of legal advice. It has also become an important piece in the legal advice jig saw. I have long argued that this can never replace a properly funded legal aid system. But for the time being at least, we are not going to get one. You can read more about Pro Bono work at  -

In the meantime there will still be Law Centres and other agencies which provide free legal advice. Many centres are already struggling. In the absence of any public funding they are going to need help from us all. I am involved in the North West Legal Support Trust – which is part of the Access to Justice Foundation – . The trusts raise funds and provide grants. In 2020 there will be a series of Legal Walks across the UK. Imagine the difference it would make if lawyers and firms committed to walk or support an event.

Our resolution for 2020 must be – what can I or my firm do?

Wednesday, 27 November 2019

Is this a strike off too far?

I have often talked about the catastrophic consequences when a solcitor makes a mistake and then tries to cover it up.

In a very sad case, a solicitor of over 20 years’ experience, and an apparently unblemished career has been struck off for dishonesty. This was despite the fact that nobody had been misled.

Geoffrey Hart acted for a friend of his wife in connection with a Personal Injury Claim. The claim succeeded and she was due to recover £48k after costs were deducted. The client persuaded him to write to her advising different terms. This was to enable her to persuade her ‘controlling’ husband that she had received less. Mr Hart duly wrote two letters. The first advised that she would receive just £30k. The second advised that payment had been made.

The solicitor soon realised the implications of what he had done and told his firm. The letter was recalled. It was never seen by the husband or anybody else. He made to attempt to hide or to justify his actions.

The case proceeded to the SDT which heard that Mr Hart had been under considerable pressure. His wife had suffered a miscarriage in the past and he knew that they would have difficulties having children going forwards. The client had shared that she had had a similar experience. This had clouded his judgment.

The tribunal found that he had been deliberately dishonest and failed to meet the ‘high standards of the profession’. He did not contest the decision, nor did he argue that his difficulties constituted ‘exceptional circumstances’.

I have to say that this seems to be a very unfortunate outcome. He agreed to write fake letters which were sent to the client, who knew exactly what he was doing. He soon regretted his actions. He was fully open with his firm. The problem was rectified, and no damage was suffered. Notwithstanding this, his career is now finished. What else could he have done?

In fairness, he did not strongly oppose the outcome and you wonder if it would have been different if he had done.

What this does show, is that dishonesty of any sort is likely to lead to a strike off. That will be the case even if the solicitor does all they can to rectify matters and no harm is done. Whatever pressure you might feel under, you just do not go there. It is a red line that cannot be crossed. 

It is also a reminder that you should, if possible, avoid acting for a client where you have any personal connection.

Tuesday, 26 November 2019

Conservative Manifesto - whatever happened to justice?

We are well and truly into the General Election Campaign season. The major parties traditionally compete for our votes on the basis of – anything you can do; we can do better. That has certainly been the case this time around until we get to the crucial matter of our justice system and in particular, access to justice.

The Labour Party’s proposals have been modest, compared with of the rest of their manifesto, but positive. They have pledged to reinstate legal aid for early advice in key areas such as housing, debt, immigration and family law. They have also promised to develop a network of law centres –

The Conservative Party manifesto, sadly, demonstrates their contempt for our justice system. On legal aid and access to justice there is an almost deafening silence. They promise to get around to it at some point.

On Criminal Justice there is a familiar populism. They promise 20,000 more police officers and a ‘fair justice system’ that stands for the law-abiding majority.  In other words, they will be tough on crime. The problem is that they have no plan at all about how to address our criminal justice system that is in a state of collapse. Defendants, witnesses and victims are waiting years for trial dates. Cases are not adequately prepared because of a lack of resources within the CPS. Every week, courts are sitting empty due to a lack of judges –

All MPs were sent a free copy of the Secret Barrister’s – Stories of the Law and How it is Broken. Has Mr Johnson read it? If he has read it, has he not understood it? If he has understood it, does he simply not care. Hence the reference to Homer Simpson! Unless these fundamental problems are addressed, then these are empty promises. In fact, they are worse than empty, they are dangerous.

What about Civil Justice. We are going to have a Democracy Commission!! This will look at ‘updating’ the Human Rights Act. This has been a familiar refrain from the Conservative since the Act came into force. Unless they want to take us out of the European Convention on Human Rights, they cannot change it.

There is also the anticipated reaction to the unanimous Supreme Court decision that the PM acted unlawfully when he prorogued parliament. The manifesto promises to ensure that judicial review is not used to conduct politics or create unnecessary delay. This is another way of saying that they will do all they can to ensure that the law is not used to prevent them from doing what they like, when they like!

For those who are interested the whole manifesto is here- 

And that, as they say is that. The law will become even more broken – possibly beyond repair.

But they will get Brexit done…honest…

Monday, 11 November 2019

The latest round of nonsense about the Human Rights Act

There are many areas of our legal system which are crying out for reform. For starters, there is the almost total collapse of Criminal Justice with hundreds of courts sitting empty due to a shortage of funding. Defendants, witnesses and victims are waiting years for cases to be concluded. The Government’s answer is to pile on even more cases with no additional resources –

Then there is the increasing scandal of Access to Justice being systematically eroded by cuts in legal aid funding with important areas like Housing Law being described by the Law Society as 'catastrophic’ legal advice deserts.

As we approach the December election, what does the Government have to say about this? Nothing. But they have dragged up one of their favourite subjects – The Human Rights Act. Today they have pledged to ‘amend’ the Human Acts 1998 to prevent ‘frivolous’ prosecutions of members of the armed forces. They could not be more inaccurate if they tried.

The Human Rights Act 1998 is relatively short. Its purpose was to bring into English Law, the rights enshrined in the European Convention on Human Rights. The UK was the first country to ratify the Convention, in 1951. For those who like history here is a brief lesson –

It did not create any new rights. It gave our courts jurisdiction to hear cases arising from the Convention.

You can’t take away rights contained in the Convention without amending the whole thing. You can’t do that unilaterally! All that you can do is opt out of it altogether. This would isolate us from every nation in Europe apart from Belarus –

In short, it is nothing to do with the Human Rights Act.

The Government say they want to change the Act to prevent prosecutions of soldiers. The decision to prosecute is made by the Crown Prosecution Service. If they think that there are reasonable grounds to bring criminal proceedings, then that is a mater for them. Is the government saying that a member of the armed forces who commits a crime, thought by the CPS to justify prosecution, should be immune?

The reality is that no change in our law is required. There are enough checks and balances to ensure that there are no ‘frivolous’ prosecutions.

This is an unfortunate gimmick to earn tabloid headlines.

There is no attempt at all to address the real problems that are dragging out system into the ground.

Wednesday, 18 September 2019

Concerning a mistake, contempt of court and other errors

I have previously talked about tragic cases where lawyers, often young and inexperienced, have found themselves in difficulties when something goes wrong. In the worst cases, we have seen careers brought to an end as a result of desperate attempts to hide the error. Most recently I covered the case where deadlines had been missed by a few days and where the matter might well have been capable of resolution –

This case and others raised the importance of openness. I have said repeatedly that honesty is always the best option. My mantra has been that mistakes are not the end of the world but trying to cover up the mistakes, can be.

It was with some horror that I read the unfortunate case of paralegal, Nasrullah Mursalin. He made a mistake. He lodged a bundle of documents in an immigration case. He wrongly included papers relating to family proceedings concerning children. In the absence of permission from the Family Court this was contempt of court.  It was a genuine error. He thought he was complying with a directions order. The immigration tribunal referred him to the family court.

It came before HHJ Judge Moradifar who said –

“This breach is so serious that in my judgment it can only attract a custodial sentence.”

He was given a 6-month suspended prison sentence for a genuine misunderstanding. So much for my advice! This could well have ended any hope of a career at the bar.

Thankfully the sentence has been quashed by the Court of Appeal. The appeal judges acknowledged that it was wrong to file the sensitive documents but also that there had been no significant consequences. Baker LJ noted that the judge had not actually seen the documents in question. There was a failure to set out the details of the contempt and there was a clear suggestion that his employers were at fault. There had been procedural failings in relation to the issue of contempt that were arguably as serious as those in relation to the documents.

The sentence was set aside and the order made against Mr Mursalin was to be removed from the record.

This is clearly a correct decision which brings us back to the real world. The case again highlights the responsibilities on managers to ensure that young workers are not exposed to this type of incident. Where was the supervision? Where was the support? Why did nobody with full knowledge of the rules not check what was being filed?

If anything, this reinforces the view that legal businesses must cultivate an environment on openness which can support their staff and also avoid incidents like this occurring in the first place.

Monday, 9 September 2019

My top 5 Legal Blogs 2019

Back in 2014 I posted about my top 5 legal blogs.

We are now in 2019 and it is fair to say that the world has changed. 

At that that time we were just getting used to LASPO. Most people had not heard of #Brexit. We still had, what seemed to be, a functioning criminal justice system. As far as we knew the law was breaking but not yet broken…quite. There are also many more blogs than there used to be. Many firms now produce their own very high quality blogs. Since I finished full time legal practice I have developed a greater interests in previously unfamiliar areas of law such as criminal justice. 

Now seems a good time to stand back and look at the best blogs for lawyers in 2019.

1.      Civil Litigation Brief

Yes – 5 years after my original past, Gordon’s regular Civil Litigation update still rules the charts. It has grown into an essential point of reference for all civil litigators. Most recently we have – Proving Things 161 – Documents Being Destroyed and Experts who were of very Limited Assistance. 

The fact that this singe topic has reached that number says all you need to know about the breadth of topics that he covers. One very useful feature is ‘search this site’ which enables you to research a particular topic and also to have a nose into what others are looking for!

From Gordon’s tweets we can see some wonderful searches –

"do opposing solicitors talk to one another"

"i've been committed to prison for contempt of court in london, where am i likely to be sent?"

This blog is a daily ritual alongside toast, coffee and Naga Munchetty

2.      Nearly Legal

Solicitor, Giles Peaker’s blog about all things housing has become an equally important resource. I began life in a Law Centre and housing law was never seen as the most fashionable work, even though it affected many of the most vulnerable in society. There has been a mini explosion of firms who now want to get into Housing Disrepair work as an alternative to whiplash. They think it will be an easy source of income because of the favourable rules on costs recovery. Anyone who has done the work knows that it is a potential minefield. Giles’ wisdom and experience is an important guide for those who are serious about the work. 

His work on the Homes (Fitness for Human Habitation) Act 2018 has been invaluable –

He covers all areas of Housing Law with intellectual depth and clarity of writing that this blog should be the main reference for any lawyers who advise tenants.

3.    Secret Barrister

Most lawyers should now have read the ‘book’, which has topped best selling lists and informed the world of the scandalous demise of our criminal justice system. The blog is an equally important read.

Recent posts have included – Don’t fall for Boris Johnson’s Criminal Justice Con Tricks –

SB has also written the important, A Letter to My Younger Pupil Self –

with great words of wisdom for those who are starting out on life at bar. Trainee solicitors should also read…

It is not a daily post but every one is a gem.

4.    Costs Barrister

The whole area of legal costs has grown massively over the last few years. This began with the infamous costs wars of the early noughties. The pace of change has not eased! Solicitors are now having to get to grips with the possibility of clients claiming back success fees following Herbert v HH Law, the growing dominance of fixed costs and the shambles of QOCS – the topic which is covered in this recent post –

Andrew Hogan has long been a leading authority on costs issues and this blog is a must.

5.      Legal Cheek

Another blog which is still right up there 5 years on.

It is an antidote to the perception that the law is dull! It is aimed at those who are new (ish) to the profession. It covers important issues such as today’s post about trainee retention at a city firm –

But you are just as likely to come across a witty cartoon, quirky news and most memorably a post on photos of dogs dressed as lawyers!

I said in 2014 that I did not think that blogs would overtake the classic law books. But the quality and range of available blogs will soon call that into question…

Tuesday, 27 August 2019

Inquests, Legal Aid and time for change - now!

The lack of availability of legal aid for Inquests is in the news again. We have already had the controversy of the refusal of legal aid for the family of Molly Russell whose death was thought to be linked to Social Media. This decision was eventually reversed by the Legal Aid Agency after wide criticism –

In August 2019 there was a further outcry when families of the Manchester Bombing victims faced a similar struggle –

Now the families of victims of the 1974 Guildford Bombings have been refused Legal Aid for representation at fresh inquests. This incident led to one of our most shameful miscarriages of justice when the Guildford Four and the Maguire Seven were wrongly convicted and spent up to 16 years in prison. In the meantime, the families of the victims still wait to find out the truth.

To most people this is a case where the availability of legal aid should be beyond debate. The public bodies involved will have full representation paid for by the state. As things stand, the families will have none – unless they can pay for it, or their lawyers continue to act for nothing. 

This is due to the very restrictive rules on legal aid for inquests. There is no entitlement as such. Funding is available in ‘exceptional circumstances’. There must be a wider public interest, not in the inquest itself but in the family being represented. These are going to be long and complex inquests with significant and expensive legal representation by some of our top QCs. It is clearly in the wider public interests that the families of those who lost their lives have the same representation as the police and the MOD. Why should they be left to fend for themselves?

In this case the Coroner himself has written to Legal Aid Agency but there is no guarantee that this will make a difference. The time has surely come for a change in the rules. The charity, INQUEST has longed campaigned for a right to full, non means tested legal aid for families at inquests involving deaths that are ‘state related.’ They say on their website –

‘Without funded representation, families are denied their voice and meaningful participation in the processes of investigation, learning and accountability. This inequality of arms is an unacceptable curtailing of justice, undermining the preventative potential of inquests, to interrogate the facts and ensure harmful practices are brought to light. Inquests following state related deaths are intended to seek the truth, to expose unsafe practices and abuses of state power. But the reality faced by most families is of multiple expert legal teams defending the interests and reputations of state and corporate bodies - fighting to shut down or narrow lines of enquiry, with a primary focus on damage limitation.

There is a call to action on their site which invites readers to sign a petition. That is one small action that we can all take. This should not be controversial. Why should those who suffer most, be the only ones excluded from the process.

Sunday, 18 August 2019

Justice on the verge of collapse - (let's pile some more on top)

Anyone who has read this blog knows that I do not pretend to be an expert in criminal law. I did spend a couple of years at the start of my legal life, hanging around Liverpool Magistrates Court. It was a terrifying experience – and that was just the magistrates and some of the older lawyers who seemed to know everything, and everyone compared to me! I also spent some time sitting behind impressive barristers in the glorious setting of St Georges Hall in Liverpool*. But that is the extent of my life of crime.

But as someone who was worked as a lawyer for over 30 years, I do care about justice. I also spend far too much time on twitter…

On Friday I read several tweets about shortages of courts and the impact that this was having on our criminal justice system. Here are just some –

There are several causes. One explanation is that there are simply not enough judges available. There are part time judges; practicing lawyers who can sit as judges when needed. But this would cost the Ministry of Justice (MOJ) money – something that they do not have. This, however just scratches the surface of the collapsing criminal justice system. This was brought to the attention of the world by the Secret Barrister’s now Classic book. If you haven’t read this, stop what are doing and get hold of a copy…now!

We seem to be witnessing a systematic dismantling of our criminal justice system which is starved of resources at all levels. Defendants wait months, even years to be brought to trial. Victims wait just as long. Nervous witnesses wait just as long. Hard working, underpaid lawyers are sent home…

Our political leaders are doing something. The Home Secretary, Priti Patel has promised that criminals will feel terror at the thought of offending. We are promised more police officers, greater use of stop and search and as a result many more prosecutions. That is music to the ears of many of her fans. But it is empty rhetoric. The system is already on the verge of chaos. The answer is not to pile more and more on top.

Where is the pledge to invest in the courts system?

Where is the pledge to invest in the CPS?

Where is the pledge to invest in a proper legal aid scheme enabling all these extra defendants to be represented?

Sadly, none of these are vote winners.

The real terror is that a person accused of an offence, and a victim of crime will wait years and in many cases find themselves lost in the system that cannot cope.

*thanks to my friend Phil Longfoot for the beautiful photo of the old No1 court.

Monday, 5 August 2019

Legal Aid, Hashem Abedi and understandable anger

There is much anger in the media today about the news that Hashem Abedi, brother of Manchester bomber, Salman Abedi will have the benefit of legal aid to defend criminal proceedings brought against him. The Daily Mirror complains that he will have public funds to cover his legal costs whereas the families of victims have struggled to get legal aid for representation at the inquests.

The anger is, on this occasion, entirely understandable although the basis of the argument itself is flawed.

We have two different types of legal aid in play here. Mr. Abedi is entitled to state funded support because he is being prosecuted by the state. The Government’s Guidelines for Criminal Legal Aid say that the more serious the charge or possible consequences, the more likely it is that a Defendant will be granted legal aid. It is inevitable that he will face a trial in the Crown Court. Cases before that court are deemed to satisfy that test of seriousness. There is no real argument against Mr Abedi having legal aid for his defence. It is an entitlement for those facing action by the state. It is not deserved or earned by merit. It is there to ensure that those who might be imprisoned by the state are properly represented.

This is very different from Civil Legal Aid to enable families to be represented at an inquest. There is no automatic entitlement. Funding can only be granted in exceptional circumstances. Those circumstances are as follows –

‘In the context of an inquest, the most likely wider public benefits are the identification of dangerous practices, systematic failings or other findings that identify significant risks to the life, health or safety of other persons.'

I recently discussed this in relation to the case of Molly Russell whose family were, initially, refused legal aid despite the major concerns about the role of Social Media in her death.

The Manchester bombing inquests are clearly of major public interest. What greater example of an event that involved significant risks to life, health or safety? Of course, the families should be granted legal aid. This was an atrocity of such magnitude that no expense should be spared to ensure that the families have answers to the questions, and so that we can be re-assured that no stone will be left unturned. We want to know what can be done to ensure that this never happens again. It should be an automatic entitlement to state funding, that does not depend on the finances of the families –

The argument is not – ‘they don’t get legal aid so why should he?'

Both should be equally entitled to legal aid for different but extremely important reasons.

Monday, 29 July 2019

Introducing this year's Justice Secretary!

Almost all the Harry Potter books feature an introduction to the new Professor of Defence Against the Dark Arts. This is usually because the previous incumbent has come to a nasty end in the previous book.

All of which brings me to the latest Secretary of State for Justice, a position which is renewed with similar regularity, possibly for similar reasons. Our latest Lord Chancellor is Robert Buckland QC, who was previously, Solicitor General and then Minister of State. Firstly, it is encouraging that for the second appointment in a row we have a lawyer in the most important legal role in government! Long gone are the days of Liz Truss, who failed to speak out in defence of the judiciary following the infamous ‘Enemies of the People’. Going back even further there was that other guy; the one who gave a ferry contract to a company with no ferries.

In Robert Buckland we have a lawyer who was previously a working barrister and who spent time on the bench as a Recorder from 2009. When did we last have a Lord Chancellor who has served as a judge?  He should understand the real world of law and justice.

Indeed, he has received a major testimonial from none other than @BarristerSecret who tweeted –

‘Gosh. A sensible appointment. I’m a little lost for words.’

He also worked under David Gauke. I think that most of us would agree that he did a reasonably good job within the huge financial restrictions imposed on the MOJ. His work on prison reform was encouraging. Mr Buckland will hopefully bring some continuity to a role where it has been sadly lacking for many years. He has also previously served on the Joint Committee on Human Rights.

On the downside, he has voted against laws to promote equality and human rights –

He also supported the massive cuts to Legal Aid –

But then, he is a Conservative Minister, so we world hardly expect him to have risen through the ranks if had had not toed the line. Whilst his party remains in government, these attitudes will go with the territory.

But, on balance, he is as good as we might expect this side of a General Election.

At a time when the world of politics has never been in greater turmoil, he brings to the table an experienced pair of hands who knows far more about the real world of law, than many of his predecessors.

Monday, 15 July 2019

The discount rate, fair compensation and a predictable ABI response

I have written before about the discount rate. It is an extremely important part of our system of compensation for injured people, despite its rather understated name. In short it is a principle that tries to ensure that victims are not over or under compensated. The rate is what an award of damages is assumed to earn over a long period of time.

The idea of compensation is to put the victim in the position they would have been in, but for the incident.

For example; Alan, who is 45, has an accident at work. He is so badly injured that he will never work again. He earns £20k a year and would have worked to 65. He has lost 20 years earnings at £20k. But if he wins his case, he does not simply get 20 x £20k - £400k. Because that would not be fair on the insurers who pay the damages. Alan would be receiving money now that he would not otherwise have earned for many years. If he was to put that money on deposit, it would earn interest and he could end up with a lot more that £400k in 20 years’ time. So, the number of years that he actually receives is calculated by reference to what his money might be worth at that time. This can be even more important for victims who require high levels of care for life.

For many years, the assumption was that the money would earn 2.5% per annum. A victim is assumed to place the money in sensible, safe investments. This significantly reduced the amount of any lump sum that the insurers pay out. The £400k would be discounted to less than £350k. So it is important, for all concerned that we get this right. Whilst the rate was 2.5% there was a huge risk that money would run out, at a time when real interest rates were nothing like that amount.

In 2017 the government dropped the rate to -0.75%. This was a huge relief for victims and led to far more realistic awards of damages. It also led to a predictable outcry from the insurance industry who were having to pay out more money. Their powerful lobby led the government to promise a review of the rate. We have all waited with eager anticipation for today’s news of what the new rate is. Any significant increase, in the current economic climate, would have taken us back to the bad old days. I have pessimistically been predicting an increase to 1%, particularly in the light of the present government’s affection for their insurer friends. It was a pleasant surprise therefore to see that the new rate is -0.25%. It could have been better, but we expected far worse! I am never slow to criticise this government, but they have got this one, at the lower end, of just right.

The reaction from the ABI was swift and predictable. Their director General, Huw Evans says –

“This is a bad outcome for insurance customers and taxpayers that will add costs rather than save customers money. A negative rate maintains the fiction that a claimant and their representatives will knowingly choose to invest their damages in a way that would guarantee losing them money. This will remain the lowest Discount Rate in the Western world, leaving England and Wales an international outlier at a time when we need to boost our attraction to international capital.”

Note that he claims to complain on behalf of insurance customers and taxpayers and not his members’ shareholders. Most citizens would agree that a modern system of justice must ensure that people who need care for life do not need to worry that their money might run out. He then, rather bizarrely, seeks to compare the rate with that of other countries. Why would the assumed rate of interest earned on damages in this country have anything to do with other countries? I don’t expect the volume to be turned down any time soon. Equally I doubt if we are going to see another review unless a new PM has a rush of blood to the head. Mind you....

I do hope that this rate now stays at the same level for a very long time so that victims and their representatives can plan for the future with some level of certainty.

Friday, 5 July 2019

Everton, Lawyers and knowing your history!!

Outside the Evertton Boardroom at the Liver Building

It is truth, universally acknowledged, that I am an Everton FC fan and proudly bitter.
This was of course the background to my recent ‘walk of shame’ for charity where I raised £1000 for wearing a shirt of a certain other local team. No, I am not posting a photograph. There is no shortage of them around! –

I recently visited Everton’s new HQ in the iconic Liver Building. I was discussing the development of links between the club and the local legal profession. In fact, those links go back almost to the birth of the Football League.

William Cuff was a Solicitor who was a Director at Everton from 1894 and was closely involved in the club’s development for almost 50 years. One of his claims to fame was introduction of shirt numbers. It was in the 1933 FA Cup Final that numbers were first used although they did not become obligatory until some years later. He was also President of the Football League in the 30s and 40s. His obituary from 1949 was posted recently by the Everton Heritage Society –

His firm Cuff Roberts continued a long association with Everton. In later years Keith Tamlin of what became Cuff Roberts North Kirk served as a Director until 2004.

The links between Everton and local lawyers is not all about history. Former player Gareth Farrelly is now a qualified Solicitor and works for Liverpool firm, Bermans as a commercial litigator. I met Gareth a few years ago when we were both taking part in a sleepover at Goodison Park to raise money for Homelessness charities. As we unrolled our sleeping bags in the Park End, I was able to tell him that we were sleeping at the exact place where I was sitting when he scored his famous goal in 2008 that kept us in the Premier League.

On a different level, it is unusual not to bump into a fellow a lawyer on any given match day at Goodison. I have many ‘red’ friends who would disagree, but the Peoples’ club is in many respects also the Lawyers Club!

There is no shortage of Hospitality opportunities at Goodison where the various lounges are undergoing extensive renovation –

Friday, 28 June 2019

Medical Negligence - let's talk about victims not winners

The first time I secured a settlement in a brain injury case was in the late 1990s.  It was a claim for a child who suffered from cerebral palsy following medical negligence in the first few days of his life. He was left with catastrophic injuries. He has no speech and no independent movement but is otherwise as intelligent as anybody. We secured a settlement of just over £2m. As is often the case, I kept in touch with the family for many years. I was so proud when he got his University degree. He is now an adult who lives independently, with lots of support. This was secured as a result of the compensation that he received. It enabled him to live in suitable accommodation, to have the 24/7 care that he needs and to make use of high-quality communication technology. He was appropriately compensated for the avoidable injury that he suffered. Both he and his family would have traded every penny for a healthy life.

High awards of damages sometimes look like lottery wins. They are often treated as such by the media. Reports of settlements like this regularly use words like ‘win’ and ‘payout’. Earlier this year, The S*n reported that a group of patients had won £46.9m over cancer blunders –

In a very recent report, we were told of a boy who was severely disabled after medical negligence. The headline reads –

‘Boy left severely disabled by medical blunder wins £2.1 million pay-out from NHS’

None of these victims have won anything. They and their families are left with a lifetime of struggle through no fault of their own. If they can establish that the injuries were caused by the negligence of medical practitioners, then they are entitled to damages. A small proportion is for the injury itself. The vast majority is to cover their needs for life.

Hasn’t the time come to stop calling them ‘winners’? This creates a hostility towards claimants who are perceived as draining money from the NHS. There is an even greater hostility towards the lawyers who fight for justice on their behalf. Since the removal of legal aid for most cases, the only way that cases can be brought is where those lawyers agree not to be paid if a case fails. The media still insists on calling them 'no win no fee lawyers'  as a form of insult.

Let’s start referring to claimants as victims of negligence. Then we might see a move away from talk of reducing damages and legal costs, towards talk of avoiding such incidents in the first place.

Monday, 24 June 2019

Why does this keep happening?

Why does this keep happening?

We read today about yet another fee earner whose career in in tatters because they have tried to cover up mistakes –

In this case there were three cases where deadlines had been missed by a few days. Rather than admit the mistake the non-qualified case handler dishonestly back dated documents to mislead the court and the other side. In each of these cases the problem was probably capable of resolution with a bit of experienced help. If he had admitted the first error the others might well have been avoided.

Last year a young solicitor was struck off after backdating 23 letters and misleading a client about the progress of a claim –

And then there was the experienced solicitor wo actually gave a false letter to an SRA investigator –

One common factor is that the attempts to cover up have been discovered without great difficulty. They have usually been followed by an eventual admission of wrongdoing.

I cannot accept that we have suddenly become a profession of the dishonest. The lawyers in these cases are not cynical fraudsters. They are almost always acting at a time of stress and panic. They are almost always acting alone as a situation rolls out of control. This does not justify dishonesty. But it does raise a serious question for all managers of law firms. Why do lawyers think it is better to risk their career than admit a mistake? What is the ethos in firms that creates such a sense of fear? What support are we giving to our staff? Are we reminding staff that it is not usually the end of the world if we miss a deadline? But it might be the end of a career if they try to lie their way out of it?
In March 2018 I set out my 5 point plan to help lawyers to sleep at night –

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.

      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!