Secret Justice?

It seems that many of the cornerstones of our democracy are under threat.

Yesterday there was talk of government departments having access to our email accounts.

Today it is all about secret justice. In many ways this is even more alarming. These proposals would lead to a wave of secret courts i.e. those where we do not get to see or hear what is happening. Effectively the government would be able to dictate what evidence should be kept from us.

Open and independent justice has always been an important part of our legal system. A system of which we have been rightly proud and which has influenced systems across the world. Anybody coming before our courts has always been entitled to fairness,  justice and independent legal representation. How can evidence be challenged if the parties and legal representatives cannot see it?

Under these proposals evidence could be kept back even from somebody’s own chosen lawyer. The evidence would be considered by a select group known as Special Advocates who are themselves concerned that the proposals are unfair.

These extreme measures exist in terrorism related cases but the proposed changes would give ministers the right to use them in any case where they decide it is necessary. It should not be for the state to decide how justice is done and seen to be done.

The All Party Human Rights Committee has rightly expressed concerns, describing them as unnecessary and potentially damaging. Their Chair, Dr. Hywel Francis said - “Closed Material Procedures are inherently unfair and the Government has failed to show that extending their use might in some instances contribute to greater fairness.”

http://www.liberty-human-rights.org.uk/media/press/2012/liberty-welcomes-prestigious-committee-s-damning-verdict.php

Deputy PM Nick Clegg has expressed concern – which is what we would expect from a Lib Dem Politician. But will they break rank?

This is something which should concern all of us and will need to be closely scrutinised.

www.eadsolicitors.co.uk

Fighting for your rights

Tweeting for spooks

It was just last week that I warned of the dangers of tweeting first and thinking later. Well the stakes might be even higher if the government has its way over extending internet surveillance.

Plans are afoot to introduce legislation with which will greatly increase the state’s powers to monitor our emails, tweets, Facebook postings, texts and pretty well anything we do online.

This is, of course, all under steps to protect us from terrorists. But it is not to be limited to suspects. It will be access to everything that we do. Under the present law a warrant is required to access the content of say emails. We are being assured that the new rules will only permit access to times, dates and addresses but it seems fanciful to suggest that this will not also involve the monitoring of content.

This is a huge invasion of our privacy and one does wonder what difference it will possibly make in enabling us to sleep safely in our beds. If the authorities suspect somebody then they can get a warrant. So why is this enhanced power to intrude needed? Despite re-assurances, do I trust a government to protect my data when ministers are seen placing confidential documents in a dustbin?

http://www.information-age.com/channels/security-and-continuity/news/1670668/letwin-broke-law-by-dumping-documents-says-ico.thtml

The plans could well fall foul of Article 8 of the Human Rights Act 1998 – the right to privacy. Now this can be overridden – ‘in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.’

Now if you imagine how many emails are sent each day in the UK – millions? billions?  – then how much of what we do and say will have anything to do with national security? As the Guardian’s James Bell said yesterday it is like looking for a tiny needle in a much bigger haystack –

http://www.guardian.co.uk/commentisfree/2012/apr/02/surveillance-state-coalition-email-social-media?INTCMP=ILCNETTXT3487

Politicians and the media dislike the Human Rights Act but the rights that it protects are yours and mine.

www.eadsolicitors.co.uk

Fighting for your rights.

Legal Aid - expensive savings!

I posted last year on the false economy of the governments proposed cuts to Legal Aid. 

Since then, the bill has taken a hammering in the House of Lords with a record eleven defeats. Despite this the politicians remain determined to drive home the cuts. But there may be some concessions made and so it is still important to understand the issues – particularly where removal of legal aid will not produce savings and might even increase the cost to the taxpayer.

One example is in relation to Medical Negligence cases. Many victims need to resort to state benefits, especially those who are disabled or unable to work as a result of the negligence. Once a case is successfully pursued those benefits are repaid to the Treasury by the negligent party – for example the insurers of a GP who fails to diagnose a serious illness. The payments are made to the Compensation Recovery Unit (CRU) which is part of the DWP. One outcome, presumably desired, of the removal of legal aid is that there will be a big reduction in claims. The knock on effect of this is that there will be a corresponding reduction in the amounts received by the CRU. So instead of the insurer meeting the cost of care, past and present, the burden will fall on the NHS. As far as I am aware no one has produced a report to say what the losses to the CRU will actually be.

Another increase in cost will be to the NHS itself and to the courts. Under the current system cases are screened by experienced lawyers. Only those which have merit are pursued. So the lawyers advising victims are able to filter out those cases which have no real prospect of winning. The NHS never, in fact, sees those cases. Once Legal Aid is removed, those who feel that there has been negligence will take their cases directly to the NHS and from there to the courts. Both bodies will face the burden of dealing with many more cases. It is estimated that a court hearing without lawyers takes about twice as long as one where they are involved.

Are we likely to see an increase in staff numbers or judges? It might be necessary, and if that happens where is the saving? Again, I have not seen any report of what the cost might be.

I hope that MPs will now begin to ask these questions.

In the meantime solicitors will continue to fight for the rights of victims however difficult that might become.

www.eadsolicitors.co.uk

No Win No Fee Lawyers - and other myths

Listening to politicians and some parts of the media you would think that there was a new breed of solicitor called a ‘No Win No Fee Lawyer’. You would also think that they were responsible for most of what is wrong with the world.

The reality could not be further from the truth. Until about the year 2000 most claims for compensation were pursued with the benefit of legal aid for those who did not have the means to pay their lawyers privately. That system actually worked quite well. Most claims succeeded so the taxpayer was rarely called upon to foot the bill. This was normally paid by the offending party.

In 1995 the Conservatives introduced the conditional fee agreement (CFA) to assist those who were not entitled to legal aid but still did not have the means to fund expensive litigation. These were the first no win no fee agreements. Lawyers could charge an uplift to reflect the risk of not being paid – the success fee. There was also an insurance policy to cover the other side’s costs if a claim did not succeed. These ‘additional liabilities’ were payable by the successful claimant out of damages subject to a maximum of 25%.

Then in 2000 the Labour Government extended the scope of CFAs as they were keen to abolish legal aid for almost all compensation claims. To meet the criticism that it was unfair that victims had to suffer a reduction for the additional liabilities, they changed the regulations so that the losing party had to pay them – thus massively increasing the amounts insurers had to pay to successful claimants. Legal Aid has since largely disappeared for damages claims.

So a CFA or no win no fee agreement is the only way that someone other than the wealthy can pursue a claim. There is no such thing as a no win no fee lawyer. If a person has a good case but is of modest means there is no other way of funding the case under the scheme created by successive governments. All lawyers are required to discuss this option with clients.

This also dispels the myth that CFAs encourage spurious cases. Why would a lawyer pursue a case with no realistic prospects of success when he would never be paid for it? The reality is that solicitors carefully assess the merits of a case. If there is a reasonable chance of winning the solicitor will take on the case. If there isn’t then it won’t be taken on. So in fact only those cases with merit are pursued. How this somehow gets us to a mythological compensation culture beggars belief.

So please do not be deterred from asking your lawyer to run your case on a no win no fee basis. For the vast majority it is in fact the only  realistic option.

www.eadsolicitors.co.uk

5 Tips for dealing with lawyers!

It never ceases to alarm and surprise me that many people are still a bit afraid of instructing lawyers. Of course, I have been one for thirty years so I would say that. But believe me; it is not as scary as you might think. Most lawyers I know are human!

They just want to do the best job they can for their clients.

So here are 5 tips to make your experience of instructing a solicitor run smoothly –

1. Make it clear what outcome you are expecting. It is your case. In many situations this is obvious. ‘I want to buy a house’, is fairly self explanatory. But that might not always be the case. I have acted for victims of medical negligence who are more interested in an explanation or apology than in the amount of any compensation. Others might seek disciplinary action against those at fault. Not all outcomes are necessarily viable. So say what you are looking for. Make sure the solicitor understands this and ask them to clarify it in a letter. So from day one you will be working together towards an agreed goal.
2. Be clear about what the cost will be. All Solicitors are under a duty to explain this, so never be afraid to ask. In particular you should ask what funding options exist. You should be told anyway but nobody will mind if you want to be sure. Although Legal Aid will shortly disappear from many types of case, it is still available in many cases too. There are many no win no win options which, despite their bad press, can ease many concerns about legal fees.
3. Don’t be afraid to ask how long it will all take. Some matters are quicker than others. A house purchase can be done and dusted in a month or so. A Medical Negligence or Industrial Disease case can take years. So it is best to know that from the start and to set realistic expectations.
4. Establish the lines of communication. In other words find out who to speak to if you have a concern or simply want an update. There may times when your solicitor is away from the office or tied up in a meeting. They might even be on holiday! But someone should always be available to help. Never be afraid to ask on day one, who that will be. If you call and need to speak to the solicitor who is unavailable ask for a telephone appointment so there is an agreed time when you will receive a call. Or send an email. This is a very quick and safe means of communication and most lawyers these days know how to switch on a computer!
5. Ask what you can do. You and your lawyers should be a team. You may have documents or, names of witnesses. Any information that you get you should pass on. Never tell yourself it is unimportant. If you think it is significant then it probably is.

So if you have a legal problem, don’t be afraid of the lawyers.

They are often as nervous as you as they want to impress and do a good job.

www.eadsolicitors.co.uk

Think before you tweet!

The student who posted offensive tweets following the collapse of Bolton Wanderers footballer Fabrice Muamba has lost his appeal against a 56 day prison sentence –

http://www.guardian.co.uk/football/2012/mar/30/fabrice-muamba-twitter-loses-appeal

This emphasises again the need for great care in the use of Social Media. From the comfort of his living room Mr Stacey presumably felt that it was safe to post whatever he liked without considering the impact it would have.

Earlier this year a footballer got into trouble for posting a homophobic tweet –

http://www.guardian.co.uk/football/2012/jan/11/oxford-homophobic-tweet-gareth-thomas

And there was also the case of the barrister who was disciplined after insulting opponents using twitter.

We live in an age where social media seems to take over our lives. And there have been many benefits. I tweet on a regular basis.

But these cases demonstrate that posting on these sites does not place anybody above or outside of the law. Employees could lose their jobs or employers could find themselves sued simply because they decided to tweet first and think later.

Whenever you post something just stop and think –

Who is going to read this?

What effect will it have on them?

How might it rebound on me?

And then weigh up whether it is really worth it.

www.eadsolicitors.co.uk

Great news for asbestos victims

Asbestos is not a modern discovery. There is mention of a fire proof fibre as far back as the 5^th Century BC and possible references to illnesses of the lung from about the same time. But it is fair to say that it was in the 20^th Century that its use on an industrial basis really took off. Apparently a snow scene in the Wizard of Oz used white asbestos!

The real tragedy is that it is only now that we are seeing the real cost. Asbestos is known to cause serious lung disease including lung cancer and mesothelioma. The latter is almost always terminal.

There is normally a gap of 30 – 40 years between the exposure to asbestos and the appearance of symptoms of mesothelioma. This presents a logistical nightmare for victims and their advisers. And it was the subject of a major decision of the Supreme Court earlier this week.

This has become known as the ‘trigger litigation’. In essence the insurers for companies who were guilty of negligent exposure of their workers to asbestos were seeking to avoid having to pay compensation. Their argument was that the liability to pay was not theirs because the ‘trigger’ for the insurance liability was not the time of exposure but the start of symptoms which is usually many years later. This was a potential cause of massive injustice. By the time a victim suffers symptoms say 40 years after exposure many companies have long since disappeared. If there was no insurer around to deal with it then there was no compensation.

On 28^th March the Supreme Court decided that the ‘trigger’ is the time of inhalation of the asbestos and not the later date.

http://www.guardian.co.uk/business/2012/mar/28/asbestos-court-ruling-insurers-bill

This is a massive relief to thousands of sufferers. It is tragic that many died before being able to benefit from this decision but at least their families will now be able to claim. This is a significant decision from the Supreme Court who, not for the first time, have decided in favour of those blighted by the asbestos scandal.

If you or a family member have been affected by asbestos EAD Solicitors have a specialist team of lawyers who have pursued successful claims for victims and who will fight for maximum compensation.

www.eadsolicitors.co.uk