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Tuesday, 1 June 2021

Whiplash - Concerning Doris and a nasty motor accident - what a difference a week makes!

Sunday 30th May 2021

Bill and Doris are driving their Ford Fiesta along the Formby By-Pass on their way to Lady Rose nursery. This is part of their Sunday, after church, routine. They will potter around the gardens and then head to the cafĂ© for a slice of lemon cake and a free coffee using their loyalty points. This is their regular treat, and  a far cry from the years that Doris worked as a midwife. They arrive at the Hightown junction and stop at the lights waiting to turn into the car park.

Behind them is Eric in his new BMW. He is a bit worse for wear after heavy Saturday night. He hears the familiar ping from his new phone and has a quick look to see that it is a text from Sharon. He has a quick and discreet read, and smiles. He slows down a bit so he can send a quick reply. But, in the words of John Lennon – he didn’t notice that the lights had changed. He is suddenly aware of the stationary Fiesta. He brakes quickly, but not quickly enough. No free coffee for Bill and Doris today.

Doris is wearing a seat belt. She is thrown forwards and then backwards by the impact. Just like a whiplash. She immediately feels dizzy and is sick at the side of the car. Over the next few days, her neck and shoulders become painful. She assumes it will go away in time. Weeks later she is still in pain. It affects her every day. She loses sleep. She cannot get comfortable. She talks to Molly at the Ladies’ Fellowship, whose son is a lawyer. She calls Tom who advises her that she can claim compensation. He can help her with the case. She is worried about the cost, but he tells her she won’t have to pay if she gets nothing and if she wins will pay him, no more than 25% of anything she gets,

It is 8 months before she is fully recovered. In fact she still has the odd twinge but doesn't want to cause a fuss. Tom secures a payment of £3250.00 which Bill and Doris use to buy that new shed they have been saving for.

Sunday 6th June 2021

Now imagine the same scene a week later. Everything is identical. Bill and Doris, Eric, BMW, text message, John Lennon, painful injury. But everything else is quite different. Tom tells her that she will get just £840.00 for her pain and suffering. He won’t be able to help her because this is now a ‘small claim’. She cannot recover legal fees. She can do it herself using a new-fangled portal and refers her to a 64 page guide. She discusses it with Bill and they quickly decide…’Let’s not bother.’

What a difference a week makes. This is where thousands of genuine victims find themselves. Damages for whiplash injuries have been reduced to derisory levels for any accident after 31st May 2021. To add insult to injury, so to speak, a claim worth less than £5000 is a ‘small claim’ and there is no right to recover legal costs. The Ministry of Justice say that victims can access a portal. One which many lawyers have struggled to get their heads around. Most will not bother.

The excuse for all of this is that it is needed to combat fraud. This is a myth. I have written in the past about the tiny levels of dishonest claims -  

https://thestevecornforthblog.blogspot.com/2021/02/whiplash-reforms-who-benefits-answers.html

So Doris and the remaining 90% + genuine victims are punished as part of a so called war on the small number of fraudsters. Doris is a retired midwife who was out minding her own business, when the next months of her life are blighted by the carelessness of a young driver. She is compensated if she is injured on one day, she gets nothing if it happens a week later. And it is something to do with fraud. In what parallel universe do the words Doris and fraud appear in the same sentence? This is  nothing to do with batting anything, apart from the rights of genuine road users. 100% of genuinely injured road users have seen their rights taken away.

Who benefits? Insurers of course! They are already benefitting from record low claim numbers following lockdown when nobody was driving.

Victims cannot expect much support from the media who have been cheering from the side-lines.

BBC news on Monday 31st May announced that the ‘reforms’ will mean a £35 drop in motor insurance premiums, boldly proclaiming – “The new rules will enable insurers to cut premiums for millions of drivers by about £35 a year, say ministers”. I don't know a single driver who really expects this to happen. 

Again we see the word ‘fraud’ just in case anyone is tempted to feel sympathy for Doris –

https://www.bbc.co.uk/news/business-57302790

Sky News went further with this headline –

Changes to Whiplash process will “put an end to greedy opportunism”.

So Doris is now a greedy opportunist.  

This is nothing to do with ‘process’. It is the wholesale wiping out of peoples’ rights. It is the first time that we have seen levels of damages fixed, not by the courts, but by government edict. The new figures have no scientific or judicial backing. They are randomly fixed to deter most claimants from taking any action.

A different kind of levelling up?

Thursday, 15 April 2021

Reflecting on a year of Zoom - back to life, back to reality...




Training has been an important of my business since I left private legal practice in 2017. I have spent many a happy hour touring the country talking about Clinical Negligence, Housing Conditions and the practice of law! The arrival of lockdown in March 2020 was a worry. Where was nearly half of my business going to come from? It even crossed my mind that I might need to go back on the tools!

Before the end of May 2020, I had never presented a remote training event. I was unsure how this thing called Zoom that my techy son had mentioned, would do the job. What about power point? What about questions? What about eye contact?  I am one of those speakers who survives on those subtle smiles of approval and is always looking out for the raised eyebrow that says a tough question is coming!

I really began using Zoom and other platforms because it was only to stay in business during the lockdowns.

How quickly it caught on. In no time at all we were all in a daily routine focused on that magic green ‘screen share’ button. Phrases like ‘you’re on mute’ and ‘turn your video on’ have become part of daily language. Jackie Weaver became an overnight star…

Getting out of bed half an hour before the starting time, having a quick shower and putting on a clean shirt (forget the rest!) has been a surprising bonus. Remember those days of an early drive to Bradford or the red eye express to Euston. But it has been tiring in another way. I did a session last year where I did a full day course on Housing Conditions. All the 12 or so attendees were on where silent and had their cameras off. So, I spent the best part of 5 hours talking to my screen! You only realise how tiring that it when you do it.

What happens now as we head back home from this surreal land of Oz? On 25th March I did my first live presentation for over a year. I was a bit nervous at first. Have we become a bit institutionalised? But it soon settled down. That feeling of talking to human beings, being interrupted, having a conversation was like a cold beer after a trek across the desert. ‘There’s no place like home’. 



In the last week, I have done a hat trick of events. Three days back-to-back – Oldham, Manchester and Liverpool City Centre. You only realise what you have missed when you find it again.

I did say during lockdown that I doubted if I would ever do a live course again. Now I am looking forward to the next. So, will the days of talking to little squares come to an end? Absolutely not. A course that I did for a firm in Brentford where staff were working at home could not have been done in any other way. Lots of business are likely to work in this way in the future. We are going to see the two-working side by side. A bit like home working. 

I will be doing real world courses where it is viable but me and Mr Zoom are likely to be friends for a long time to come.


Monday, 15 March 2021

Excessive force by police - you ain't seen nothing yet...

 


The world is still reeling from Saturday’s shocking images of women being held down by Metropolitan police officers as they attended a peaceful vigil in memory of Sarah Everard. There have been many calls for the resignation of the Chief Commissioner, Cressida Dick which misses a more significant and pressing issue.

These events provide a very disturbing backcloth to today’s debate in Parliament concerning the Police, Crime, Sentencing and Courts Bill 2021. This is a bill that threatens to massively restrict the right to lawful protest. It is one that has sneaked under the radar while we have been looking in other directions!

The Government’s own fact sheet make its intentions clear, they are to –

Widen the range of conditions that the police can impose on static protests, to match existing police powers to impose conditions on marches”

This can include powers to impose start and end times. So, if a march or event goes over its allotted time, will police be able to repeat the scenes we saw on Saturday?

The new law with give the Home Secretary wider powers to control protest. Factors that might be taken into account include noise! Who will decide what level of noise is acceptable? At what point will noise reach a level that officers can wade in as they did in Clapham?

https://www.gov.uk/government/publications/police-crime-sentencing-and-courts-bill-2021-factsheets/police-crime-sentencing-and-courts-bill-2021-protest-powers-factsheet

The definition of ‘serious harm that might be caused by an event will be extended to include – ‘serious annoyance’. Annoyance to whom? Most protests are directed towards the government of the day. Presumably they will be ‘annoyed’ by some actions. In fact, the nature of protest is that someone will disagree and therefore be unhappy.  This could cover almost all events.

There will also be stricter rules concerning organisers’ knowledge of restrictions. The fact sheet says that organisers – “cover their ears” (presumably not because of the noise!). In other words  they claim to be unaware. The new rules will introduce a new concept of constructive knowledge i.e. that they should know.

This is a very disturbing interference with our right to free speech and to assembly.

We all have a rights under the European Convention on Human Rights including -

 Article 10 freedom of expression.

 Article 11 freedom of assembly and association.

These are not absolute rights. The gov't can limit those rights if it is in the public interest and proportionate. Whether these limits on our rights are in the public interest or proportionate is highly debatable and could lead to many more disturbing scenes.

We know already that the Home Secretary described the Black Lives Matters protests as dreadful –

https://www.theguardian.com/politics/2021/feb/12/priti-patel-hits-out-at-dreadful-black-lives-matters-protests

There now appears to be a backlash to prevent protest and to put wider powers in the hands of the Police. In the light of Saturday’s events is this the sort of society we want to be part of?

We all need to speak out about this. One thing we can all do is contact our MP and encourage them to vote against the bill at all stages. You can find your MP here –

https://www.theyworkforyou.com/

Thanks to Chris Topping at https://www.jacksonlees.co.uk/broudiejacksoncanter who has contributed to this post.

 

Monday, 8 March 2021

Rutnam rakes in bumper pay day from Priti Patel

My first guest blog post! Thoughts on the Philip Rutnam settlement from my friend and Employment Law Expert, Steve Pinder of  Stephen Pinder - Employment Law Matters 

Philip Rutnam resigned from his role as the senior civil servant in the Home Office raising allegations of bullying against his boss, Secretary of State Priti Patel. He alleged that there had been a vicious and orchestrated briefing campaign against him after trying to get Ms Patel to change her behaviour. There have been wider allegations raised against Ms Patel in relation to how other staff were treated, denied by her, and a report was published some weeks ago.

My interest has involved the specific circumstances involving Mr Rutnam and what happened after he resigned. It has been reported that he pursued an unfair dismissal claim against the Government, and this must have been a constructive dismissal case. The press reports this week referred to the case being settled for £340k and payment of costs. On both sides I expect that the costs are likely to be at least equivalent to the damages paid, meaning an outlay to the public purse of nearly £700k.

An unfair dismissal case only will lead to compensation of the lesser sum of a year of earnings or the statutory maximum, currently £88519, in addition to the equivalent of a statutory redundancy payment. How then might the award be £340k by agreement, with Mr Rutnam earning around £150k each year, no doubt plus pension. Further, the Employment Tribunal does not usually award costs, and my guess is that the deal reflects certain additional factors. On costs, I expect that the Home Office agreed such generous terms simply to kill the case and avoid a hearing in public which would have likely required Ms Patel and officials to give evidence on oath.

As regards the value of the case, again there may be a premium to reflect the value of closing out a deal. I also expect that this is not only an unfair dismissal case, despite the reports. In reporting allegations against Ms Patel during employment I expect that the claim raised allegations satisfying the requirements of a protected disclosure under the Employment Rights Act, namely the whistle blowing provisions. This can involve a claim pursued against an individual such as the Home Secretary and a claim for damages for injury to feelings. Compensation is uncapped, explaining the reference to £340k.

Whistle blowing is a useful addition to an unfair dismissal claim in the right circumstances and can enhance remedy in negotiations and at Tribunal. In this case the public have ended up paying a substantial sum to cover the actions of a senior Minister, and probably double with costs. It is fine denying allegations but it is easy to use someone else’s money to back out of defending your actions in a public forum.

Steve Pinder 


Sunday, 28 February 2021

Whiplash reforms, who benefits? Answers on a postcard!!

 

Very few readers will need me to tell them that the so-called reforms of whiplash claims will come into force from 31st May 2021 and that relevant rules were published on 25th February 2021. This is the culmination of government plans to effectively wipe out such claims that date back to 2015 when former Chancellor George Osborne announced a total abolition of the right to claim damages for such injuries –

https://thestevecornforthblog.blogspot.com/2015/11/osborne-small-claims-up-to-5k-and-no.html

The tone eventually softened a bit although in many cases the effect will be the same.

For those who don’t know, there will be a two-pronged attack on the rights of victims –

1.       Damages will be subject to a tariff that will see the levels of compensation reduced dramatically. So, for an injury with pain and suffering lasting about 6 months the award is reduced from about £3500 to £495 with a possible increase to £520 if there is a psychological injury. The maximum award for an injury lasting up to 2 years will be £4345.*

2.       The Small Claims limit for RTA cases rises to £5k. This means in effect that no victim will recover legal fees for an injury below that figure. So, you can see that the combined effect is that almost all victims of whiplash injuries will be left on their own to pursue claims without legal help.

There are some limited exceptions and the new rules only apply to accidents after 31st May 2021. Anyone who has suffered injury after 31st May 2018 (earlier in the case of children and some people under a disability) will be able to recover full damages. But subject to that modest comfort the effect of this will be to reduce the number of claims that are made.

https://www.legislation.gov.uk/ukdsi/2021/9780348220612?view=plain

There has been much rhetoric from government and the insurance industry about the reasons for the cuts.

The most common is that it is to reduce fraud. Anyone involved in these cases agrees that fraud needs to be eliminated and does untold damage. In fact, most observers agree that the percentage of claims that are fraudulent is exceptionally low. A report by the Association of Personal injury Lawyers (APIL) in 2013 noted that 93% of Road Traffic Cases were genuine. It is generally agreed that the number of claims being brought has declined since then –

https://www.apil.org.uk/files/parliamentary-room/APILwrittenevidence-TransportCommitteewhiplashinquiry.pdf

In a 2020 report the Association of British Insurers talked of a relentless pursuit of insurance cheats to protect honest customers

https://www.abi.org.uk/news/news-articles/2020/09/detected-insurance-fraud/

The problem with these reforms is that they have very little impact on fraud. The reality is that an entirely honest victim i.e. one of the 93%+ is going to see their rights removed. These are the very ‘honest customers’ referred to by the ABI.

It is not hard to see who will benefit most from all of this.

Former Court of Appeal Judge, Stephen Sedley QC writing in the London Review of Books this month says -

“Whiplash injuries, dependent largely on subjective accounts of symptoms became a justified cause of concern. But the government’s response has been to use the problem as an opportunity to raise the small claims limit, pushing large numbers of people with genuine claims into a situation where they would not be able to recover any legal costs if they won. They either have to muddle through on their own and very possibly lose a sound case or be prepared to give their lawyers first call on their damages. The principal beneficiary, SB suggests, has been the insurance industry” **

In my 2015 blog I called it – “an all-out attack on victims for the benefit of the insurance industry.

The benefits to insurers are obvious. They pay out less at a time when claims are reducing. How often have we heard the promise that all of this will lead to a drop in motor insurance premiums? Do any drivers seriously expect this to happen?

These changes are going to happen. But the fight must go on. We are stuck with the present Government for a few years yet but when they are eventually removed this must be a reviewed by whoever replaces them. The problem is of course that many consumers will continue to accept the rhetoric until it affects them.

*there can be a modest increase of up to 20% where an injury is exceptionally severe. Why is any exceptionally severe injury subject a tariff set by politicians?

*London Review of Books Vol 43 No 5 4th March 2021 – “Mischief Wrought” a review of Fake Law by the Secret Barrister

Tuesday, 2 February 2021

Stansted 15 - A prosecution that should never have been brought

 


In 2019 I was at the Greenbelt Festival near Kettering, a small festival that focusses on faith, arts, music and activism. I was drawn to a session featuring the case of the Stansted 15 at which the speaker was fellow Solicitor, Melanie Strickland. I have to say that I became more and more angry as she spoke.

The story began as a familiar account of peaceful action. In March 2017 a controversial flight was due to leave Stansted to deport a group of people to destinations in West Africa. The protestors broke into the airport. They blocked the plane and effectively prevented its departure. They locked themselves together using tripods and builders foam. They were subsequently charged with aggravated trespass, a relatively minor offence often used in similar cases. Things then became dramatically more serious a few months later when the charges were changed to ‘endangering safety at an aerodrome’ under the Aviation and Maritime Security Act 1990. This changed everything. That offence carried a maximum sentence of life in prison. It is used in the fight against terrorism.

This seemed a massively disproportionate charge. In 2018 they were convicted but avoided prison. But they still faced the stigma of a serious conviction. They knew they were breaking the law. They expected some consequence as the price to pay. But there was never a moment when any lives were in danger. Melanie Strickland was at risk of losing her legal career –

https://www.lawgazette.co.uk/news/stansted-15-solicitor-avoids-jail-but-could-still-face-sra-probe/5069173.article

You can see a video of her talk here (it is quite long but worth the watch) –

https://www.youtube.com/watch?v=4DZDvcn3QKY&feature=youtu.be

The video cuts off before Q and A and so you don’t see me standing and saying that as a lawyer of nearly 40 years, I was embarrassed that our beleaguered criminal justice system had found the resources to waste on such an extreme prosecution!

After nearly four years of having this hanging over them the Stansted 15 had their convictions quashed by the Court of Appeal last week –

https://ukhumanrightsblog.com/2021/01/29/no-case-to-answer-stansted-15-convictions-quashed-by-court-of-appeal/

The Lord Chief Justice, Lord Burnett commented –

“Taking the Crown’s case at its highest, and considering all relevant potential consequences, it could not be established to the criminal standard that the actions of the appellants created disruption to the services of Stansted airport which was likely to endanger its safe operation or the safety of persons there.”

The Court of Appeal found that they should not have been prosecuted under these provisions and that there was no case to answer. The appeal judges ruled that there was no justification for the use of an offence ‘which aims at conduct of a different nature’.

It is good news that the Stansted 15 have justice, although this is a prosecution that should never have been brought in the first place.

Thursday, 21 January 2021

Reviewing without due care and attention

I used to be a fan of review sites. I would rarely book a holiday without first checking what previous users had to say about it. I began to have my doubts when we had a particularly unpleasant short stay at an apartment in Greece a few years ago. Think cockroaches, damp, unpleasant staff etc. What was alarming was that there were very contrasting reviews. Some had an experience as unpleasant as ours. Others seemed to have gone in search of paradise and found it! I did begin to wonder whether there was some other agenda sitting behind the favourable reviews.

The well-known Trip Adviser site has had to address addressed this issue although their problem is more about fake positive reviews –

https://www.bbc.co.uk/news/business-49605457

In an increasingly competitive legal market, it is no surprise that law firms have seen the importance of online reviews. When I was involved in the management of my former firm, I would regularly look at sites like Trust Pilot and Social Media to see how we were perceived! Anything negative was acted on immediately! This type of consumer research can be useful. But it can also be dangerous…and expensive.

The recent case of Summerfield Brown Ltd v Weymouth  [2021] EWHC 85 (QB) (https://www.bailii.org/ew/cases/EWHC/QB/2021/85.html) is an important example!

https://www.lawgazette.co.uk/news/disgruntled-client-ordered-to-pay-25000-damages-for-libellous-review/5107081.article

It started out harmlessly enough. The solicitors gave the client some brief advice and charged a fixed fee of £200. We have all done that. The client then went to Trust Pilot and said - ‘A total waste of money another scam solicitor’. He appears never to have complained about the service or provided any reason for his criticism. This had a negative impact on the firm’s business. They sued for libel.

The client defended the claim on the basis that –

1.     It was ‘honest opinion’. Isn’t that the whole point of a review? But Master Cook held that this defence is not available where there is an allegation of fraud. The use of the words ‘scam solicitor’ suggested that the solicitors were dishonest.

2.       He argued that it was in the public interest, but he had demanded the return of his £200 in return for removal of the review. Master Cook found that -  “that this demand wholly undermines the defence of public interest

3.      Finally he argued truth. The Master noted – “there is evidence that it is a responsible firm of solicitors with no published SRA decisions against it and thus it is inconceivable the Claimant could be a scam firm or trading fraudulently and have such an unblemished record.

The honest opinion defence was struck out and summary judgment was entered in relation to public interest and truth. The client was ordered to pay damages of £25k. Trust Pilot, who were not a party, were ordered to remove the defamatory post.

This decision is possibly of limited effect because of the use of the word ‘scam’ and the attempt to get money for the post’s removal.

Equally, it highlights the damage that can be done by a negative review and that they can, in some cases, amount to libel.

www.stevecornforth.com