Damages for hacking v Damages for injury

There has been much coverage in the press about the compensation paid out to celebrities by News International following the ‘hacking’ scandal. This has clearly been a disgraceful invasion of privacy and nobody can have much sympathy for Rupert Murdoch’s company for having to make these payments.

But the amount the payments raises another interesting issue. That is the comparison between compensation paid to victims of hacking and that paid to victims of accidents. The latter have been subject to vilification by politicians, the press and insurance industry who say that we have a ‘compensation culture’ which needs to be dismantled.

So let’s look at some of figures that have been reported for victims of hacking. Jude Law got £130k. In an earlier settlement his ex, Sienna Miller, accepted £100k. These are to compensate the victims for injury to feelings etc and not for financial losses.

According to the most recent Guidelines Personal Injury Damages such awards would only be received for the most catastrophic of injuries.

For example, to get an award of £130k you would have to suffer a moderate brain injury with permanent consequences including moderate to severe intellectual deficit a personality change, an effect on sight, speech and senses with a significant risk of epilepsy and no chance of working.

If you lost the sight in one eye and the other carried a serious risk of deterioration in the other eye then you might expect £100k although that is at the higher end. You might get something approaching £100k for loss of a lung with lengthy pain and suffering with permanent scarring.

Now you cannot compare the two and I for one would never begrudge the damages paid to those who endured the invasion of their privacy. But we also need to get things in perspective before dismissing other victims as just being part of a culture of looking for easy money. To get anything approaching the damages paid to these celebrities you have to have suffered a permanent, life-changing injury. Those victims need all the support that they can get rather than constant, negative publicity.

Pro Bono - have we found what we're looking for? (update)

I first wrote this last year before the full extent of the legal aid cuts was known.

Since LASPO received Royal Assent the Law Society has called upon all layers to increase the amount of Pro Bono work that they do.

 http://www.lawgazette.co.uk/news/pro-bono-no-substitute-legal-aid-wotton

 This is of course nothing to do with any U2 fan club.

In simple terms pro bono refers to  the provision of free legal services by the legal profession. Last year Michael Napier QC talked about setting aspirational hours of pro bono work. He says that his own firm Irwin Mitchell encourages its lawyers to do 14 hours of pro bono work a year.

Most lawyers I know, will probably do more than that per month. Much of the work done in preparation for public funding in a clinical negligence in the case is done at no charge. This can involve anything from the screening of new matters to initial investigation work in order to establish whether or not this is a potentially viable the case. How often do we advise potential clients in person and by telephone of the alternatives to litigation and to set them on the right path? This is often also the case in employment and criminal injuries cases. 

In addition to this and many lawyers do huge amounts of voluntary work; attending advice sessions at citizens advice bureaux and law centres. Many Courts also have a resource for free legal advice manned by volunteers.

What concerns me here is that the politicians could use up all of this talk about pro bono work as an excuse to justify cuts in public funding. The reality is that lawyers will always do their bit ; in fact they do a lot more than a bit!

This should not be seen as a replacement for a properly funded legal aid scheme giving equal access to justice to all citizens.

Of course it might be necessary for lawyers to do even more free work if this is the only alternative to a total collapse of our court system. With this in mind it is interesting to note the comments from Lady Hale of the Supreme Court indicating that these cuts are a false economy.

So I think we should expect the amount of unpaid work done by lawyers to increase but this should not deflect us from the tireless and continuing opposition to the cuts.

www.eadsolicitors.co.uk

Blunting the cutting edge

My first real job as a lawyer was at the Vauxhall Law Centre in Liverpool. In the early 80s this was in one of the most deprived areas in the UK. We took action against public and private landlords for tenants in atrocious living conditions. We took on cases that private law firms could not or would not.

 I recall one client who said she wanted advice about her husband's 'infidelity'. I listened with interest as she went on to say that the social said he could work and were stopping his infidelity benefit!

It was the Law Centre that I first experienced law at the cutting edge. Cases were taken on to develop the law as it affected some extremely vulnerable clients. These were normally backed by legal aid. One case, about disturbance allowance,  was run to trial in the High Court with a possible value to the client of a couple of hundred pounds but potentially worth millions to displaced tenants generally. This has been one of the unsung benefits of a healthy, publicly funded scheme. Our laws have developed through the use of precedent as such cases are pursued through the higher courts.

This is highly unlikely to happen much in the future.

In so many areas of law cases can only be run on a no win no fee basis as funding has been eroded. The nature of these cutting edge cases is that they are risky. How many law firms can stake their business to change the law. Some do. Most cannot. This is bound to continue as whole areas of law are excluded from legal aid.

The capacity of our laws to develop through creative ltigation has made our system the envy of many.

It does seem a shame that only the safest of cases will be pursued - and many of them will not!

What future for our common law apart from those pursued for and by the wealthy?

Welfare Benefits Sting

Anyone claiming Disability Living Allowance (DLA) has their medical condition assessed by ATOS – a private company contracted to the DWP. Their refusal rate is alarming. According to a report in the Guardian complaints are made by some disabled claimants that their centres have no or little disabled access!

http://www.guardian.co.uk/society/joepublic/2011/jul/25/disability-benefits-atos-government-hiding

But a more disturbing matter is the number of wrong decisions.

According to the same Guardian report; as many as 40% of appeals succeed.

Another site has a success rate as high as 70%

http://www.benefitsandwork.co.uk/disability-living-allowance-dla/dla-appeals

What is this costing the taxpayer?

But something far more disturbing is on the horizon. When the infamous Legal Aid Sentencing and Punishment of Offenders Bill (LASPO) becomes law in 2012, it will no longer be possible to get any publicly funded legal advice for welfare benefits. Such advice is entirely removed from the scope of legal aid under the bill. This can be a very complex and technical area of law. The removal of legal aid will cover all benefit related advice and assistance including appeals to the Supreme Court!

So we have a major problem. There is the classic inequality concern – the state has the unlimited resources of its legal departments. A claimant refused DLA by an agency that has a remarkable ability to get it wrong, has no recourse to advice.

Far be it from me to suggest that there is agenda here…

So what do we do LASPO had a severe mauling in the House of Lords last week. So might there be concessions – possibly.

But the only other advice is – don’t get sick or injured for the next few years at least.

Domestic violence - Back to the future

Our legal aid system, of which we have been rightly proud, is facing the most devastating cuts in its history.

Although I am not a family lawyer the proposed restrictions in cases of domestic violence defy all logic.

Under the proposed new regime a victim of domestic violence will find it virtually impossible to get legal aid to apply to the court for protection. The victim will have to establish that there is a ‘high risk of violence’, before legal aid will be available.

Most commentators and practitioners accept that in reality this means that there will have to have been reports to the police. Statistics show that very few women report violence to the police. Speaking recently in the House of Commons Helen Goodman MP said – ‘most women experience 20 episodes of domestic violence before they reported to the police.’

Firms who specialise in family law and have recently audited files and report last caseload which numbered hundreds will be reduced to single figures once these cuts take effect.

The reason a civil remedy was brought into existence in the 1970s was to address this very problem. These provisions take us back 40 years and will seen many women trapped in abusive relationships.

Any civilised society has to have a rule of law. However if that rule of law is to be of anything but notional value, there must be an equal right of access. To deny that some of the most vulnerable members of society the support of that society to seek protection is a dangerous and retrograde step. I certainly hope that these provisions will be opposed in the Lords

National Shrine or National Shame

So St Pauls is to re-open and legal moves begin to forcibly remove the protestors.

This has led to the decision of Cannon Giles Fraser to resign. In expressing his concern about these developments he told the Guardian -

"St Paul was a tentmaker. If you looked around and you tried to recreate where Jesus would be born – for me, I could imagine Jesus being born in the camp,"

He went on to say  - 

"The church cannot answer peaceful protest with violence."

This again raises the question of the point of a Cathedral like St Pauls. It is a beautiful building which attracts many tourists who bring in healthy revenue. But it is essentially a church - a place where people remember and think about the life, works and message of Jesus Christ. He unequivocally identified with the poor and vulnerable and would have stood alonside Giles Fraser.

The BBC's religious correspondent Robert Piggot says on their website - 

'But the truth is that St Paul's is a national shrine, a theatre for the finest religious music and worship. That role was reasserted today.'

Well call it a national shrine and theatre if you like. But don't call it 'worship' and then disregard those who are campaigning for issues at the heart of the Christian message. Because it then ceases to be any more than a popular tourist venue.

How do we judge cuts?

A couple of weeks ago I raised the question of cuts to public funding and the knock on effect to Access to Justice. I was adding my voice to those arguing that this was a false economy; in both social and economic terms. One major fear concerns the capacity of the courts to cope with the inevitable increase in unrepresented parties before the courts.

This concern was shared yesterday by the country's leading judges.

Lord Hope, one of the Supreme Court judges said -

"It doesn't affect us [in the supreme court] but lower down the system it has a major effect. I well understand the huge concern about public expense but people who take these decisions must understand that narrowing legal aid has a cost implication on the system and its efficiency and quality."

Our Senior woman judge, Lady Hale added - 


"The judges, of course, worry about the extent to which denying people access to legal representation and legal advice will … change radically the role of the court in seeking to do justice. I think all the judges are worried about this."

I hope that this contribution will help the penny to drop with the MOJ and the Treasury. Restricting funding for representation will lead to a cosmetic saving in the legal aid budget. But there will be a far greater cost to the Administration of Justice alongside diluting the system for which we have been rightly proud.