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Wednesday, 26 February 2020

The purpose of damages - restating the obvious

"Basil: Can't we get you on Mastermind, Sybil? Next contestant Sybil Fawlty from Torquay, special subject the bleeding obvious."

According to the Encyclopaedia Britannica -

“The theory of an award of damages in a personal-injury or other tort case is that the injured party should be placed in the position he would have been in if the injury had not occurred, so far as this can be done with a monetary award.

This look like a serious case of stating the obvious, but it goes to the heart of how our legal system seeks to compensate victims of negligence. You would struggle to find a victim who would rather have the money than remove the pain and suffering. But in the absence of turning the clock back, this is the best we can do. In another sense it is the least we can do. It is the bottom line.

In the case of Medical Negligence, it is alarming that there are voices that call for this basic principle to be undermined.

In a recent article about the cost of claims Pallavi Bradshaw from the Medical Protection Society has called for a dramatic reduction in what can be recovered by loss of earnings –

“For example, the use of national average weekly earnings to calculate damages awarded, instead of a patient’s weekly earnings—to avoid higher earners receiving more from the NHS in compensation than lower earners, for a similar claim.

Where do we start? Why should innocent victims of medical blunders be penalised by having their compensation artificially reduced to save money? If someone loses earnings because of negligence that is the impact of the incident. A person does not suddenly see their mortgage reduced just because their doctor injures them.

This isn’t the first time that we have heard this argument. It appeared in an article back in 2017 ironically entitled – ‘striking the balance’. I wrote this back then –

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

Three years on, and we are still hearing the same nonsense.

The best way to reduce the cost of claims is to do everything necessary to prevent these incidents happening in the first place. It would also help if we saw cases resolved quickly.

It is not acceptable to punish innocent victims by imposing a dramatic reduction in their levels of compensation…

Monday, 24 February 2020

Concerning A History Lesson, the Courts and the Supremacy of Parliament

It is a sign of aging when legal developments that you remember are now a part of legal history. Equally lessons from history are helpful, especially in the light of ill-informed statements from politicians.

Which brings us to the famous cases of Fairchild and Barker in the 2000s. I can still remember the day I read the judgment in Fairchild v Glenhaven Funeral Services [2002] UKHL 22. It was a case that was all about causation in mesothelioma cases. Establishing causation in these cases was always problematic. This was because there were usually several different employers who had negligently exposed their workers to asbestos. It was not possible to establish which particular employer was responsible for the exposure that caused the illness to develop. This was because, in theory, a single fibre could have triggered the process resulting in the illness. That fibre could have been inhaled at any time during the victim’s working life.

Any law student knows that, to establish that a person is liable for an injury you have to show –

1.       That they owed a duty of care

2.       That the defendant breached that duty

3.       That the breach caused or materially contributed to the injury – causation. In other words ‘but for’ the breach, would the injury/illness have occurred?

How could you prove that an employer was responsible for the illness when it could have been any of them?

The House of Lords dealt with this by developing an exception to the ‘but for’ test. If they all negligently exposed the victim to the risk, then they were all liable for the injury. In the words of Lord Nicholls –

“Any other outcome would be deeply offensive to instinctive notions of what justice requires and fairness demands.” (36)

He went on –

“The present appeals are another example of such circumstances, where good policy reasons exist for departing from the usual threshold 'but for' test of causal connection. Inhalation of asbestos dust carries a risk of mesothelioma. That is one of the very risks from which an employer's duty of care is intended to protect employees. Tragically, each claimant acquired this fatal disease from wrongful exposure to asbestos dust in the course of his employment. A former employee's inability to identify which particular period of wrongful exposure brought about the onset of his disease ought not, in all justice, to preclude recovery of compensation.” (41)

This was limited to mesothelioma cases and was very positive news for victims and their families.

Then came the decision in Barker v Corus [2006] UKHL 20 – effectively a sequel to Fairchild. The argument here was about apportionment. If an employer was liable even though they might not have been responsible for the particular exposure, then surely any damages must be limited to the particular exposure for which they were responsible. The contrary argument was that if they were liable for any, they were liable for all.

The House of Lords accepted the argument that it was appropriate to apportion the damages.
Lady Hale explained –

“For as long as we have rules of causation, some negligent (or otherwise duty-breaking) defendants will escape liability. The law of tort is not (generally) there to punish people for their behaviour. It is there to make them pay for the damage they have done. These Fairchild defendants may not have caused any harm at all. They are being made liable because it is thought fair that they should make at least some contribution to redressing the harm that may have flowed from their wrongdoing. It seems to me most fair that the contribution they should make is in proportion to the contribution they have made to the risk of that harm occurring.”

This outcome was a major setback for victims. In many cases, it was only possible to identify very limited periods of employment. There was a strong reaction which led the, then, Prime Minister Tony Blair to tell the TUC –

"I regret that judgment. I’m looking at the moment to see the best opportunity for us to change it. If we can change it, we will".

The judgment was indeed changed by s1 Compensation Act 2006 which took us back to where we were after Fairchild. An employer who negligently exposed a worker to asbestos was liable in respect of the whole of the damage. There was a joint and several liability.

So why revisit all of this now? Because it is a classic example of the sovereignty of Parliament.  The highest Court on the land passed a judgment. Parliament overturned that judgment.

Our new Attorney General, Suella Braverman, recently wrote a blog where the called for restrictions of the power of the courts –

“repatriated powers from the EU will mean precious little if our courts continue to act as political decision-maker, pronouncing on what the law ought to be and supplanting Parliament.”

The Barker case demonstrates just how misconceived she is. The courts can never ‘supplant’ parliament. The courts interpret the law. In the case of Fairchild, the courts effectively created a new doctrine in order to achieve fairness. But it was Parliament that stepped in to correct matters after Barker. This is how it is and how it should be. There is no need for any populist measures to restrict the courts.

Parliament was and remains supreme.

Lesson over.

Friday, 14 February 2020

Introducing our New Attorney General and some alarming misunderstandings

It seems unusual to be writing about a Cabinet Reshuffle without talking about a new Justice Secretary. We seem to have had a new one every few months, but Robert Buckland QC has survived so far. But we do have a new Attorney General following the sacking of Geoffrey Cox. It is Suella Braverman, a relatively unknown barrister who has been an MP since 2015.

We learn a lot about her from a blog that she posted on Conservative Home on 27th January 2020 –

In this blog she says –

“…our Parliament must retrieve power ceded to another place – the courts”

She maintains this theme throughout –

“repatriated powers from the EU will mean precious little if our courts continue to act as political decision-maker, pronouncing on what the law ought to be and supplanting Parliament.”

“Questions that fell hitherto exclusively within the prerogative of elected Ministers have yielded to judicial activism”

Two examples that she cites are the Brexit related judgments relating to Article 50 and the Prorogation of Parliament*. These examples show an alarming lack of understanding of the difference between the Legislature and the Executive. The ‘Article 50 case’ was all about who had the power to invoke Article 50 in relation to the UK’s exit from the EU – Parliament or the Secretary of State. The Supreme Court held, by an 8 -3 majority that it was a matter for Parliament. So this was the opposite of what the new Attorney General is saying. The Courts affirmed the Supremacy of Parliament when it came to withdrawing from treaties.

The same thing applies in relation to prorogation. In her judgment, delivered on behalf of all 11 Supreme Court Judges, Lady Hale said – “It prevented Parliament from carrying out its constitutional role for five out of a possible eight weeks between the end of the summer recess and exit day on the 31st October.” In other words, the concern of the court was that the Prime Minister had interfered with the business of Parliament.

These are not cases where the courts have overruled Parliament. On the contrary, in both cases, the supremacy of Parliament was affirmed in the light of attempts by Ministers to disregard it.

Her use of the words 'judicial activism' are misleading. Courts do not go looking for cases. Disputes are brought before the courts who then adjuducate. No Court in the land will pass judgnent unless somebdy asks them to. You would think that Senior Judges were going round the country hunting down cases to frustrate ministers.

It has to be remembered that these decisions came at a time when there was a minority government. Ministers found their hands tied because they could not get a majority for their actions. They attempted to by pass Parliament and failed. The Prime Minister, with his huge majority, can now get Parliament to agree to almost anything. This may cause some fear and dismay to opponents, but the courts cannot and will  not interfere.

This is what makes the proposed attacks on the courts disturbing. They are unnecessary so long as the government acts lawfully and with the full support of Parliament. There is no power there for the courts to grab even it that was its agenda. The December election result changed everything. So why are these noises being made. It does feel a bit like revenge. The new Attorney General was formerly Chair of the ERG. We all know the PM’s enthusiasm for Brexit.

I do not believe for one minute that Suella Braverman does not understand the difference between Parliament and Ministers. That separation is first year Law Student material. This feels more like an appointment by the PM to get one back on the judges who had the cheek to declare that his unlawful prorogation was….unlawful. The Conservative Home blog reads a bit like a job application.

*Miller v Secretary of State for Exiting the European Union [2017] UKSC 5
Miller v The Prime Minister [2019] UKSC 41

Thursday, 13 February 2020

The importance of litigating and sleeping - but not at the same time!

Anyone who had read this blog over the last few years will know that I have ranted more about Access to Justice than anything else. And the broken record will show no sign of stopping soon. But there is something else that is almost of equal importance. This is the increasing issue of well being for lawyers.

I presented a training course in London in January which was all about Risk Management in Personal Injury work. I decided to subtitle it – 'How to Pursue Personal Injury Claims and sleep soundly at night'. I think one driver for me is that I can look back on nearly 40 years in practice which included nights of wasted worry. Why wasted? Because I am still here, the world is still turning and many of the ‘disasters’ are now anecdotes! In one sense this is something that affects all busy professionals. A colleague once ran a work-related stress case for a lawyer. One of their complaints was that they woke up at 6.00am thinking about files. Welcome to our world.

But, for some, it goes beyond the rough and tumble of work. It can be catastrophic. This week, we have had the sad story of Catherine Sandbach, one which is all too familiar. She has been struck off for dishonesty after admitting that she misled clients about the progress of matters, including referencing court proceedings which had not been issued. In mitigation she said that she was suffering from stress. She had a large case load and was expected to deal with matters beyond her experience –

This adds to other recent stories where lawyers have faked or backdated documents or lied about actions being progressed. In one of these a Directions Questionnaire was filed 2 days late and the case handler backdated the letter to the court. The frustrating thing about many of these cases are that they concern errors that are quite capable of being resolved. The consequences of concealment or cover up are usually out of all proportion to the original mistake.

In 2018 I posted my 5 point plan to help lawyers sleep at night. I posted it again in 2019. And I make no apology for repeating it in 2020 –

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!

But this isn’t enough. In fact, it is meaningless if businesses do not promote openness.
Partners, Managers, Supervisors, must all adopt this statement –

‘No person in my organisation will ever be afraid to tell me that they are worried about work’

Maybe we should all stay back after work and write that line 100 times!

Monday, 3 February 2020

Still ranting after all these years

This is the year that I celebrate (?) 40 years as a Solicitor. It was on 1st April 1980 that the Master of the Rolls, Lord Denning put his autograph on my admission certificate and declared that I was a fit and proper person. I’m sure that many of my friends would disagree with that view! The Jam were at Number 1 in the Charts with Going Underground which you must admit is quite cool.

After a bit of a false start with a local firm I started my first real job I the Vauxhall Law Centre a few weeks later. Due to a masterstroke of timing this was the day after my wife had delivered our first baby! So, I don’t remember a lot about the first few days. The Law Centre was in an old school building in Sylvester Street just off Scotland Road. The locals were proud to show me that Priscilla White (Cilla!) lived in the house at the top off the road.

At that time the Legal Officer of the National Council For Civil Liberties was a a young solicitor called Harriet Harman. The Journal of Social Welfare Law was edited by Prof. Brenda Hogget (Hale) of Manchester University! I relied heavily on a local young barrister called Mark Hedley - now retired High Court Judge Sir Mark...

I didn’t really have any idea what Access to Justice meant. I went there because it was a good job and, for a newbie, paid relatively well. For the first few months there were two of us, but funding pressures meant that I was soon on my own. The emphasis back then was on housing, housing and more housing. That part of Liverpool had some of the worst conditions in Europe. Shortly before my arrival, the Law Centre had taken the case of Irwin v Liverpool City Council to the House of Lords. This established the landlords’ duty to repair common parts which was included in the Housing Act 1985. 

At least once a week I was at the County Court seeking emergency injunctions against the Local Authority. This led inevitably to a collision with Liverpool City Council who partly funded the project. Some local councillors objected to their paying us to sue them and tried to close the centre. At that time the Law Centre was managed by Liverpool Law Society which was years ahead of its time in promoting justice for all. I remember attending a meeting with councillors. I was a very green solicitor flanked by Tony Ensor (later HHJ Ensor) and David Thomas (later the Financial Ombudsman)!! I felt invincible and we won that particular day, although were limited to a single lawyer.

By this time, I was, and remain, an Access to Justice zealot. But it should be said that for all that we fought and campaigned, it was a comparatively easy ride. We normally managed to secure legal aid in most cases. The joint income from this and from the local authority meant that during my time, we mainly focussed on justice rather than survival.

It is now a different world. The needs haven’t gone away but centres are closing everywhere. Legal Aid has largely disappeared for some work and where it survives its availability is not publicised. Charitable work to raise funds for law and advice centres has never been more important. Pro bono (aka free work) is becoming more and more important. This includes the legal walks and the excellent Pro Bono Publico initiative from the bar –

I have no plans to retire any time soon. But even when that day comes I will not shut up about this topic!