Me ranting about Grayling ranting about Judicial Review

Justice Minister, Chris Grayling has come out with his strongest attack yet, on the right to seek judicial review of government decisions.

In an outburst in which he shows no understanding of the workings of campaign groups he accuses them of pursuing cases by using ‘human shields’. That is a phrase that we associate with some of the most extreme dictators of recent years and should never appear in any discussion on people’s rights.

What he means is that a group brings an action in the name of an individual and then ‘rows in behind them’. If the case fails then there is no costs liability to the organization.

http://www.bbc.co.uk/news/uk-23494074

Does he think that such groups pursue claims for their own benefit?

I assume that he has in mind the action taken by ten disabled people to challenge the impact of the Bedroom Tax. This was supported by the leading housing charity Shelter which gave evidence –

http://www.insidehousing.co.uk/housing-groups-slam-bedroom-tax-ruling/6527950.article

Or maybe even the action taken by the Countryside Alliance in 2004 against the fox hunting ban –

http://news.bbc.co.uk/1/hi/4024421.stm

Actions taken by political leaders normally affect a significant group of citizens. A campaigning organization supports that group and brings an action on their behalf. This avoids the need for thousands of separate actions. Shelter would not gain anything from the Bedroom Tax case. The only winners would have been the disabled tenants.

Judicial Review exists as a remedy in to ensure that the executive acts within the law. It has played a huge role in protecting the ordinary citizen against political excesses. It is not popular with politicians. Former Labour Home Secretary, David Blunkett famously threatened to curb the power of judges –

http://www.telegraph.co.uk/news/uknews/1360545/Blunkett-hints-at-curbing-power-of-judges.html

Distaste for judicial scrutiny crosses political lines. This is why Judicial Review is so important. It is not a question of judges overruling parliament. Courts cannot overrule legislation - apart from limited cases involving Europe. But ministers still have to act within their powers. If those powers are abused and people’s rights are affected then they must have an unfettered remedy to seek a judicial review.

Mr. Grayling goes on to limit human rights concerns to North Korea. On the assumption that this must be an April Fool I will resist further comment.

www.eadsolicitors.co.uk

Concerning Jackson, Justice and an Eleusinian Mystery!

We are approaching the first anniversary of Lord Justice Jackson’s reforms of our civil justice system. Any reader of this blog will know that I have not been an enthusiastic supporter.

Today sees the first speech from the architect of the reforms at the Civil Justice Conference. He seems to acknowledge that the response is largely negative. But will say we will adjust in time. It is not entirely clear whether that is a prediction or an order. In view of some recent judicial decisions it is probably the latter. He says that the criticisms do not reflect a fair cross section of opinion. I have yet to meet anybody who is a fan of the ‘reforms’. 

Jackson will say that the objections really amount to no more than lawyers protecting their own interests –

 'Every stakeholder group seems to perceive the public interest as residing in a state of affairs which coincides with its own commercial interest,'

http://www.lawgazette.co.uk/5040487.article?utm_source=dispatch&utm_medium=email&utm_campaign=GAZ210314

But the objections go far wider than this. It is a genuine concern that a victim of an Accident or of Clinical Negligence stands to lose up to 25% of part of their damages under the new rules on Conditional Fee Agreements. This represents a huge windfall for the insurance industry at the expense of victims. The commercial interests of lawyers are not directly affected. It is an issue of justice and not just money.

He also predicts that the cost of litigation will reduce. The evidence so far is that costs are going through the roof. Cost budgeting itself is becoming an expensive exercise. We are seeing a deluge of satellite litigation arising from the decision in Mitchell v News Group Newspapers Ltd. Litigators are spending more time looking at their diaries through fear of the catastrophic consequences of missing a deadline by a day –

http://thestevecornforthblog.blogspot.co.uk/2013/12/litigation-trivial-pursuit.html

He comments that litigation is a process and not an Eleusinian Mystery – apologies for the link but I thought it might save you a trip to Google to find out what on earth it means. To be honest I am not much the wiser. The only real myth here relates to the existence of a compensation culture.!!

We know that something is badly wrong when the Master of the Rolls can say -

“There now has to be a shift away from exclusively focussing on doing justice in the individual case”. 

There are some glimmers of hope. Jackson himself seems uncomfortable with some of the judicial excesses following Mitchell and says that the parties should be able to agree reasonable variations in the court’s timetable. The changes are certainly here to stay but we can hope that new editions of the rules will see a softening in the courts’ approach. 

I have to say that there were some words of comfort from Lady Hale in the recent case of Dunhill v Burgin. This was not a Mitchell type case but she did say – ‘But in this

court we have to do our best to arrive at the right result and thus to allow

all relevant arguments to be deployed before us unless this would be unfair to an

opposing party.’

We haven’t heard the word fairness very much lately so maybe some cases need to get before the Supreme Court before sense will prevail. 

www.eadsolicitors.co.uk

 

ABI v APIL - Rhetoric v Reality

The Association of British Insurers seems to have a habit of inviting confrontation.

Insurers got pretty well all they asked for from the government in relation to reductions in the amounts of legal costs recoverable by victims. An independent report from the Parliamentary Select Committee On Whiplash injuries strongly criticised the overly close relationship between insurance companies and the conservative led coalition government –

http://thestevecornforthblog.blogspot.co.uk/2013/07/mps-whiplashreport-supports-victims-is.html

Despite this, the attacks on victims go on and on. Their policy spokesman, Rob Cummings, said this week that there was a ‘whiplash epidemic’. The parliamentary committee found in fact, that the numbers of claims were reducing. This rhetoric suggests that claims are fraudulent even though the ABI could not provide the parliamentary committee with any evidence of the scale of the ‘problem’. The truth is that only a tiny percentage of claims are fraudulent and they damage all of us who are involved in civil justice. We all want to see an end to them, but this is not achieved by these blanket attacks on claimant lawyers.

Mr Cummings then showed an alarming ignorance of the impact of recent reforms on access to justice. He said that there was no evidence that justice for ‘genuinely’ injured claimants was impeded (why the constant suggestion that the genuine are somehow a minority?).

http://www.litigationfutures.com/news/stop-asking-pre-med-offers-abi-tells-claimant-solicitors

Interestingly the President of the Association of Personal Injury Lawyers (APIL) suggests the opposite. Writing in the March edition of APIL’s PI Focus magazine Matthew Stockwell talks about ‘institutionalised’ cherry picking. What he means is that the new costs regime makes it commercially unviable for lawyers to take on risky cases, especially those with a lower value. Now that a chunk of the legal costs has to come from damages lawyers can only afford to take on those which will provide some return. He warns that many ‘genuine’ claimants are now at risk of falling into a ‘justice gap’. I bet the ABI won’t complain about that.

Matthew is right. We are seeing firm after firm decide that personal injury work is no longer viable. They are either closing or selling their work to other firms. I have no doubt that this will lead to a further reduction in the numbers of cases. This is the reality and it is happening as we speak.

This time next year; we will still hear insurers banging on about a compensation culture. 

But there will certainly be fewer lawyers for them to target..

www.eadsolicitors.co.uk

Striking at the heart of injustice

Today sees the second day of action by criminal lawyers against the government’s cuts to Legal Aid and its resulting impact on Access to Justice.

Across England and Wales Solicitors and Barristers have stayed away from court hearings. there have been demonstrations outisde courts in Londion and nationwide.

Who would ever have thought that the day would come when lawyers would have to resort to this kind of action? Demonstrators include the brilliant actress Maxine Peake who is known and loved by us all as Martha Costello QC in Silk!

But in the face of a Government that does not listen and which has questionable priorities, what choice do they have. The proposed changes include huge cuts in pay. Solicitors’ will see an immediate cut of 8.75% rising to 15%. Barristers face similar cuts. Those who do this work are already among the lowest paid lawyers. Anybody who does Legal Aid work is doing so because the work is important to them. They work long and demanding hours for a relatively modest return. Most could earn far more if they decided to move into other areas of work. 

In fact a key demand is for equality for all before the courts regardless of wealth –

http://www.lawgazette.co.uk/practice/criminal-lawyers-warn-of-advice-deserts-as-they-stage-walk-out/5040262.article

They warn of legal advice ‘deserts’ as firms are forced to close. This is something that I have blogged about before in relation to cut backs in legal aid –

http://thestevecornforthblog.blogspot.co.uk/2013/03/access-to-justice-waste-land.html

This is not about lawyers complaining about losing fees. It is about doing what is right.

The response from the government and the media is that cuts have to be made and that we are all ‘in it together’. But it is really a question of priority. We find the money to spend on defence. According to a report in the Telegraph last year the government is committed to spending £60bn on defence in the next 10 years of which £38.5bn is on nuclear submarines –

http://www.telegraph.co.uk/finance/newsbysector/industry/defence/9895708/Trident-spending-to-account-for-one-third-of-defence-budget-within-a-decade.html

The current spend on criminal legal aid is less than a drop in the ocean compared to that.  

We do have the money.

Martin Luther King once said –

“A nation that continues year after year to spend more money on military defence than on programs of social uplift is approaching spiritual doom.”

That is why I support the day of action.

www.eadsolicitors.co.uk

Fees for Benefits Appeals? Can we get any lower?

Many of were shocked over the weekend to read about the tragic death of Mark Wood. 

He was a 44 year old with numerous mental health problems. A few months before his death, his benefits had been drastically reduced to just £40 a week. This was because ATOS had declared him fit for work. Prior to this he had been living independently. His health deteriorated dramatically. At an inquest last week the coroner found that his death was - “caused or contributed to by Wood being markedly underweight and malnourished”. 

His BMI was incompatible with life.

In short he starved to death, in the UK in the 21^st Century.

http://www.independent.co.uk/news/uk/politics/mark-wood-sweet-and-gentle-44yearold-man-with-mental-health-problems-starved-to-death-after-benefits-cut-9161749.html

This is a particularly sad story because of the terrible outcome. But hundreds of claimants have faced hardship because of the decisions of this agency. I first blogged about this almost 2 years ago –

http://thestevecornforthblog.blogspot.co.uk/2012/07/welfare-benefits-who-gives-atos.html

But developments since then have made their plight far worse. This concerns the steps that have been taken to block any effective right of appeal. Back in 2012, I was told by a CAB advocate that the success rate at appeals for claimants who were represented was as high as 80%. In April 2013 the right to Legal Aid to pursue the appeals was removed. Most voluntary agencies including CABx simply do not have the resources to help them. This has created a virtual waste land.

There are now moves afoot to make things even worse by charging claimants who wish to pursue appeals. So somebody’s benefits can be reduced to below the poverty level but they then have to find a fee to pay to put things right. The outcome will certainly be a dramatic drop in the number of appeals. In 2013 the Government brought in similar rules for those who wished to go to Employment Tribunals. This has led to a huge reduction in the number of cases being brought. The same will happen with benefit appeals, leaving thousands facing destitution with no realistic avenue of appeal, even if they can find someone to represent them.

http://www.independent.co.uk/news/uk/politics/charge-people-making-appeals-against-decisions-to-withdraw-benefits-leaked-document-reveals-9142783.html

You begin to wonder what else can be thrown at the most vulnerable in society.

We are now on the run in to another election. The party which deserves a vote will be the one which commits to reversing these shocking cuts. We cannot afford to have another Mark Wood.

www.eadsolicitors.co.uk

The real scary Mitchell

There was a time when Mitchell referred to a scary family in Eastenders. 

Today the name brings terror to the heart of most lawyers.

I recently had a case involving a claim for Noise Induced Hearing Loss. There was a disagreement between my medical expert and the defendants’ expert as to the extent to which the loss was caused by noise. This is a very familiar scenario. The court had ordered the experts to have a discussion and prepare a joint report setting out exactly the basis of their disagreement. A deadline date was fixed for delivery of the joint report. The experts delayed, through no fault of either side’s lawyers. The date came and went. So we went off to see a judge. What would he do? Would he strike out both side’s evidence and call it a draw. In this country a draw means the claimant loses! He seemed to be very keen to strike someone out. But it was neither side’s fault so finally he extended the deadline date with great reluctance.

The very thought of both sides being penalised is almost too bizarre to be believed. But Litigation Futures report a case where a judge has done just that. In Porbanderwalla v Drawbridge Ltd both sides failed to file a costs budget. There was genuine uncertainly as to whether this was required, as the court’s notice was silent. Notwithstanding this the District Judge penalised both sides by limiting their recoverable costs to court fees only.

Not surprisingly both sides were as one when they appealed and the appeal judge set the order aside. Talk about bringing the justice system into disrepute!

http://www.litigationfutures.com/news/judge-overturns-mitchell-sanction-case-parties-file-budgets

And then there is the ‘well intentioned incompetence’ on the part of the court office. I have come across this twice in the last week. Last Friday I filed a Directions Questionnaire with a costs budget. The order from the court required it to be filed by 4.00 on 16^th February – when I would have been in the middle of my Sunday Lunch. Now the rules deal with that and the date is interpreted to be the Monday.  But imagine if I made a similar diary error and missed something by a day. I would be off to my indemnity insurers.

In the second case a colleague issued a protective claim due to Limitation Issues and marked her covering letter to the court very clearly - SOLICITOR SERVICE. As you will have guessed the court served it anyway causing no end of stress in relation to service of additional documents within 14 days. Again this can be resolved by the court’s correcting its own error. But it would be catastrophic if the mistake was on our side.

The truth is that these things happen in the real world and the sooner the Judiciary and the Rules Committee realizes this, better for us all. This policy may well have worked in Singapore. I have no idea how many cases are handled over there.

But it is not working here. We are becoming diary managers not lawyers.

Please bring us back to planet earth.

 www.eadsolicitors.co.uk

Mitchell - A Glimmer of Sanity?

It is a few months since the Court of Appeal judgement in the case of Mitchell changed the face of Civil Justice in this country –

http://thestevecornforthblog.blogspot.co.uk/2013/12/litigation-trivial-pursuit.html

Since that judgement the courts have been swamped with applications. This was predicted by most commentators. The whole focus has moved from the merits of an individual case to an obsessive fear of missing deadlines or getting the wording wrong on documents.

In my earlier blog I mentioned the case of Romano v k Papers (Blackburn) Ltd where HHJ Gore struck out a claim where a deadline had been missed by one day  in particularly difficult circumstances.  

One recent case has highlighted attempts to take matters to even more ridiculous lengths. In the commercial case of Lakatamia Shipping Co Ltd v Nobu Su & Ors there was a delay by Defendants, of just 45 minutes in dealing with disclosure of documents. The claimants took the point and argued that the case should be struck out. The High Court found in favour of the defendants. The delay was trivial. Interestingly Hamblen J. found that there was no prejudice caused by the delay. This could be a some small encouragement as there was no hint of prejudice in the Romano case. In that case the prejudice was suffered by the court administration which had to find time to deal with the application for relief. Presumably the court faced similar issues in the Lakatamia case.

In another recent case - The Bank of Ireland & Anor v Philip Pank Partnership [2014] EWHC 284, Mr Justice Stuart-Smith has commented that there a risk in some cases that 

‘ …Such a conclusion would, in my judgment, serve only to bring the rules of procedure and the law generally into disrepute.’

http://www.litigationfutures.com/news/high-court-judges-grant-relief-inadequate-statement-truth-near-miss-compliance-unless-order

I would suggest the damage to our civil justice system has already been done. The world changed when the Master of the Rolls said in Mitchell –

“There now has to be a shift away from exclusively focussing on doing justice in the individual case”.

There is a real risk that our civil courts are becoming more concerned about dates and forms than about Justice. Indeed we should then stop calling it a civil justice system.

Is it too much to hope for that this decision in Lakatamia suggests a glimmer of sanity? 

Maybe things will begin to settle down. But is certainly a long way back to the real world. In the meantime the courts will be dealing with more and more satellite hearings and the cost of litigation will go through the roof.

www.eadsolicitors.co.uk