Mitchell 2 years on - back to reality?

I recently saw a face on the cover of a magazine. I thought it was familiar. On closer inspection it was Andrew Mitchell MP. How quickly politicians fall out of the news! For lawyers, he will of course be forever associated with the darkest months in civil litigation that some of us have ever known. In the light of the infamous Mitchell litigation and the Jackson Reforms litigators lived in fear of cases being struck out for minor procedural breaches. Many considered early retirement.

The situation created a level of uncertainty that threatened to undermine confidence in our civil justice system –

http://thestevecornforthblog.blogspot.co.uk/2014/04/collapsing-confidence-in-our-civli.html

Cases were being struck put in their entirety following delays of a few days and in one case a single day –

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

One consequence was an unnecessary hostility between opposing solicitors who risked being sued if they did not take the most trivial of points to try and knock out their opponent’s claim by default.

It was a great relief to us all that the case of Denton in 2014 brought us back to earth, at least in part. The Court of Appeal reminded judges of the need to consider all of the circumstances of the case when deciding whether to grant relief  from sanctions for relatively minor breaches. Lawyers were warned against taking opportunistic procedural points –

http://thestevecornforthblog.blogspot.co.uk/2014/07/mitchell-heading-back-to-planet-earth.html

It is fair to say that the world has calmed down a bit since then. 

So where are today? The recent case of The Police v  Abdulle is telling. The case is summarised in Gordon Exall’s blog –

https://civillitigationbrief.wordpress.com/2015/12/08/numerous-breaches-do-not-lead-to-action-being-struck-out-court-of-appeal-decision-today/

  

At first glance this seems to be a remarkable turnaround. The claimant’s solicitors were guilty of a whole series of breaches of orders. Hickinbottom J at first instance said that  – 

‘at times they appear to have failed to understand the rudimentary requirements of being a litigation solicitor, including their duties to the court and their obligation to comply with rules and orders and promptly so..’ 

 

Notwithstanding all of this the judge declined to strike out the claim. He considered all of the circumstances of the case and noted, in particular, that the case was all but ready for trial. So, in essence, they could get on with it.

The decision was upheld by the Court of Appeal. 

 

So where does this leave us? Are we back to the old days where procedural breaches mean a rap on the knuckles or a costs penalty but the action itself is safe? No I don’t think so. It is important to note that the Court of Appeal in Abdulle upheld the appeal because the decision of the judge was not one to be overturned. Lewison LJ noted that the judge had said that the matter was finely balanced and the appeal court would respect the balance that he struck. But he also said that he would have come to a different decision if he had been the judge. 

 

What is encouraging is that Hickinbottom’s J’s judgment might indicate a changing judicial approach to such breaches. It would have been unheard of 2 years ago. But it is also clear that the Appeal court would not have gone that far. 

 

So the message remains that court rules orders must be followed and grave consequences can follow if they are disregarded.

 

But I would hope that it also means that judges will look more favorably on those parties who have done all that they can to comply with orders but find themselves in difficulties due to some minor diary error or oversight.

 

Keep watching this space!

 

 

Osborne - Small Claims up to £5k and no damages for Whiplash

Many of us watched the Chancellor’s Spending Review speech because of controversial proposals such as cuts in tax credits for the low paid. He gave us a pleasing U-turn on that. Then he surprised us all with an attack on lawyers and victims of accidents. Don’t ask me what this had to do with a review of public spending.

He has announced plans to increase the small claims limit for Personal Injury Claims to £5000.00 and to ‘abolish’ the right to damages for ‘minor injuries’ caused by whiplash.

http://www.lawgazette.co.uk/news/spending-review-osborne-raises-pi-small-claims-limit-to-5k/5052389.article

What the first proposal means, in effect, is that victims of accident claims with a value of up to £5,000.00 can no longer recover any legal fees if they win. So they have to represent themselves or lose part of their damages in legal costs. The Conservatives have long been keen on this idea. They proposed it in 2013 but then abandoned it following a report by the Select Transport Committee –

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

That committee was highly critical, saying –

‘We believe that access to justice is likely to be impaired, particularly for people who do not feel confident to represent themselves in what will seem to some to be a complex and intimidating process. Insurers will use legal professionals to contest claims which will add to the problem’.

They also criticised ministers for consulting with insurers but ignoring those who represent victims –

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

There have been murmurings that this would come back onto the agenda once Cameron and Co had a majority. It seems that they now perceive a clear field to give their insurance friends all that they want.

The second proposal is rather more bizarre. It is a plan to abolish the right to damages for injuries caused by somebody’s negligence. So for the first time in UK legal history we will have a non actionable injury. Who will decide what can be claimed and what cannot? This will involve a fundamental shift in legal thinking. Will other injuries follow suit?

Mr Osborne had announced these changes to deal with the mythical 'compensation culture'. This ‘culture’ is a creation of the media and the insurance industry. It is a phrase used to alarm us all and create hostility without a shred of evidence to support it. The other reference made is to fraudulent claims. There are a very small minority of such claims. We all want to get them out of the system. In fact procedures already exist to deal with them. To abolish the right to damages at all is nothing to do with fraud.

It is an all out attack on victims for the benefit of the insurance industry. They will be the main beneficiaries of all of this. Osborne talks of a reduction in insurance costs of about £3 - £4 a month. I would not hold my breath. Insurance costs are going up anyway because he increased Insurance Premium Tax in the last budget.

I can see a long struggle ahead to fight these plans as the government again declared war on a whole professional sector.

In the meantime I predict that this will move us a step closer to USA style contingency fees where those who succeed in their claims will give up part of their damages in legal fees. I also suspect that the level of damages will increase to mitigate the worst effects of all this.

Law - a career for the rich? (3)

I think most would agree that we should have a diverse legal profession.

This is important across all levels. We need a strong vibrant profession that is in touch with those that it represents. Those who come into the law now will be the business leaders, legal thinkers and judges of the future. In any reasonable society those in such positions need to be drawn from as broad a base of possible.

It is also very important that talented lawyers are drawn from all across society and not limited to one social group.

I have written before about major concerns that the law is becoming a career option only for the rich –

http://thestevecornforthblog.blogspot.co.uk/2012/05/law-career-for-rich.html

Lady Hale, our most senior woman judge and former academic talked in 2013 about many who aspired to a legal career they may never have. 

http://www.legalfutures.co.uk/latest-news/hale-outlines-worries-too-many-law-students-too-few-jobs

A recent report suggests that the situation is getting worse rather than better –

http://www.lawgazette.co.uk/practice/social-mobility-little-improved-at-top-of-profession/5052362.article

This study reported by the Law Society Gazette found that 75% of top judges and QCs were independently schooled. You are far more likely to become a QC if you went to Oxbridge. Some say that the onus is on law firms to take the initiative. This is clearly true and Allen Overy, mentioned in the article, do have an have excellent initiatives to provide work experience for all students –

http://www.allenovery.com/corporate-responsibility/probono-community/education/Pages/smart-start.aspx

But such initiatives can only play a limited role. 

The abolition of minimum pay for trainees has been a major disincentive for many. Why would any aspiring lawyer want to run up debts of £50k and then find there is little or no chance of a training contract which provides a sustainable wage? I was one that fortunate generation who was able to go through academic and professional training with full state support and no debt. I am one of many for whom the law would have been inaccessible today.

A fundamental question needs to be addressed. Do we want an inclusive profession? If so, then all of us need to do what we can to remove rather than create obstacles.

Easing of tuition fees, better funding and a realistic salary would be a start.

Unbundling without tears!

Until a couple of years ago no one in the world of legal services had heard of ‘unbundling’. 

The idea had first been put forward by legal futurist Richard Susskind. He suggested that this would be the way forwards for delivery of legal advice in years to come.  I first mentioned it in 2013 –

 http://thestevecornforthblog.blogspot.co.uk/2013/05/the-demise-of-legal-aid-is-anyone.html

The idea is that lawyers will no longer see a case from cradle to grave. They will be brought in by clients at key stages to advise on particular issues and to assist with the drafting of formal documents.

Richard Susskind anticipated that it would become popular with sophisticated commercial clients who only have limited need for specialist legal assistance. The almost wholesale removal of legal aid in 2013 gave the concept a whole new market. Those who could not afford to engage lawyers were left to litigate in person. So the use of unbundled legal services became a significant resource. Lawyers will offer assistance at key stages. So, for example, they might give initial advice on the law and procedure for a fixed affordable fee. The litigant will then get on with it and go back to the lawyers at various stages along the way as the need arises. Family Lawyers, in particular, have helped clients in this way.

But there has always been a lingering worry. I touched on this in 2013. At that time I wrote –

‘I think there are some dangers. If the lawyer is dipping in and out of a case at key stages then something might be missed. Cases do not always follow a predictable path and I can foresee arguments between solicitors and clients as to what exactly has been agreed.’

In other words a lawyer could perform some limited tasks but be found to have a wider duty to explore and advise on possible pitfalls. This very point has been considered by the Court of Appeal in the recent case of Minkin v Lesley Landsberg [2015] EWCA Civ 1152

Mrs Minkin had asked the Defendant solicitors to draft a consent order. The retainer was limited to that piece of work. When it all went pear shaped she sued the solicitors for failing to advise on the underlying merits of the agreement. The Court of Appeal found in favour of the lawyers. Their instructions were limited to the drafting of a consent order. This is what they did. They were under no duty to go beyond this. King LJ talked of the invaluable benefit of unbundled services to both litigants and the courts. The court found that solicitors who offer unpacked legal services should not be subject to any wider to duty to beyond what they have agreed to do. Jackson LJ agreed.

 http://www.lawgazette.co.uk/practice/appeal-decision-protects-solicitor-offering-unbundled-advice/5052236.article

This is a clear statement from the Court of Appeal that lawyers should be encouraged to offer limited and affordable chunks of work with having to worry about being sued in relation to some wider issue.

I still have some mixed feelings. The Minkin case is clearly a comfort to lawyers. There is no doubt that unbundling can help litigants negotiate the maze of court procedures. It also helps the beleaguered courts. But it is clear that there will need to be a clear agreement in writing between the lawyer and the client about what exactly is agreed. There can be no room for ambiguity because if it goes wrong we all know who will be blamed!  

I would also be concerned about drafting a document to confirm an agreement that seemed not to be in the client’s best interests. But we can’t have everything. The government has seen fit to remove full access to lawyers for those of limited means. So at least this is something. And the clear message from the Courts is that the benefits to our legal system outweigh any possible concerns.

MedCo and Deafness Claims - blessing in disguise?

I have ranted on numerous occasions here about the influence that the insurance industry has on the government. This regularly came up during the so called reforms of 2013 that devastated the rights of victims of accidents –

http://thestevecornforthblog.blogspot.co.uk/2013/03/apils-judicial-review-morning-after.html

In particular I referred to a ‘summit meeting’ which had taken place to which those representing victims had not been invited. Over the following two years, insurers seem to have become more and more confident that this government will do whatever they ask.

This is highlighted by a report in yesterday’s Litigation Futures concerning plans to extend MedCo. The report quotes the Deputy Director for Civil Justice at the MOJ as saying that the insurance industry is very concerned about Noise Induced Hearing Loss claims. He seems to say it as if that is now the starting point for further ‘reform’. Of course insurers are concerned. Claims cost them money. Of course they want to reduce the number of claims. They want to save money. But what has this got to do with the MOJ? Is there now only one side of any argument?

It seems to be taken as read that victims are a ‘problem’ and have to be brought under control.

http://www.litigationfutures.com/news/hearing-loss-claims-could-be-brought-into-medco-regime-moj-official-suggests

But what about the actual proposal?

For those who don’t know – MedCo is the system whereby victims of soft tissue injuries in motor accidents are assessed by a medical expert selected by the claimant’s representative from an approved list. So the idea would be to introduce a similar system for the assessment of whether a worker’s hearing loss is caused by noise. Far be it from me to support such a thought. But I wonder whether it is such a bad idea.

It is well known that there are some medical experts who are very popular with insurance companies in hearing loss cases. This is because they are instinctively hostile to the very idea that noise at work can damage hearing, and if it does any damage it must be minimal. So if we have a panel from which I can select an expert, then presumably I can decline to select such experts – even if they find their way onto the approved list. So in the longer term we could see the end to disproportionate arguments on causation, which experience tells me are the source of the vast majority of the cost incurred on noise induced hearing loss cases.

Or am I being naïve? What if the list is entirely made up of experts who will routinely exclude noise at work as a cause of the hearing loss? I can certainly see some interesting judicial review actions if that were the case.

I predict interesting times ahead. It is clear that the insurance industry sees victims of hearing loss as its next target, and that a compliant government will do what it can to assist.

But it might also be the case that they will need to be careful what they wish for.

Concerning three worrying cases of fake litigation

I send an annual email to all lawyers in my firm. It goes out just as we begin the process of renewing our Professional Indemnity Insurance. The wording has barely changed in over 20 years – it started life as a paper memo! This is the familiar email that invites them to report to me any circumstances that might give rise to a claim. It always has the same ending –

‘It is not the end of the world if you make a mistake. But it is a different matter altogether if you don’t tell me!’

I have always encouraged lawyers to speak to me or somebody senior if they are worrying about a file. I do it myself. It is all part of learning to work as a busy lawyer and also to sleep at night. All of which makes some recent stories both alarming and sad. These involve solicitors who have gone to staggering lengths to try and avoid being found out.

The first concerns Claire Tunstall who was suspended by the SDT earlier this year for fabricating documents in a clinical negligence case. This included medical reports, correspondence and counsel’s advice. She also made a payment to a client from her firm’s office account, pretending that it had come from the other side. The SDT found that she had suffered from a lack of support and supervision from her employers. She seems to have become ill as a result –

http://www.solicitorstribunal.org.uk/Content/documents/11289.2014.Tunstall.pdf

It is hard to imagine how someone can get into this position. The stress of maintaining such a fiction is far worse than the stress of getting it off your chest by admitting you have lost control of a case. I actually have great sympathy for her and would like to seen action against her firm who allowed this to happen.

But the plight of Ms Tunstall is overshadowed by two more recent incidents. The first is the case of Mark Davies who conducted fictitious cases for about five years. He fabricated documents, misled clients and even made payments to clients from his own money. Not surprisingly he was struck off last month. Again the question has to be … why? At what point did it become preferable to embark on a pretence that ended his career, rather than seek help.

http://www.legalfutures.co.uk/latest-news/solicitor-who-paid-clients-compensation-from-his-own-bank-account-is-struck-off

These have now been followed by third solicitor who has been referred to the SDT.

http://www.legalfutures.co.uk/latest-news/solicitor-who-conducted-fictitious-litigation-set-to-face-disciplinary-tribunal

One such incident would be unfortunate. To have three in the space of a few months is worrying. Why is it that lawyers are so afraid of admitting that something has gone wrong, that they will go to such drastic extremes? What has happened to our profession that nobody can put a foot wrong and if they do they risk their careers and health to pretend that all is well?

I think that we all have a role to play here.

Those of us in senior positions must make it clear that we are here to help and guide and not to judge or criticise. A difficult case never seems to be as bad once it has been shared with someone who isn’t worried about it!

I have no doubt that most of us do this. 

But something is going wrong and we need to do all we can to ensure that careers are not ruined through fear and panic.

Las Vegas and a (compensation) culture shock!

The blog has been quiet for a few weeks because I have been trekking around South West USA on a fact finding mission – OK holiday!

The fascinating trip raised a number of interesting issues surrounding the impact of culture. On the day we arrived in Las Vegas we read the tragic news of yet another college shooting. This time it was Roseburg high School in Oregon that was mourning the loss of students killed by Chris Harper Mercer who went on to kill himself. This has again raised the familiar calls for gun controls, which are likely to fall on stony ground –

http://www.theguardian.com/us-news/2015/oct/09/oregon-college-shooting-barack-obama-visit

As we were reading this news we were given a welcome to Las Vegas magazine which had a number of terrifying adverts, which actively promoted gun violence for entertainment.

There is more to these shootings than just gun control. It is this culture of gun use for fun which is most disturbing.

Another notable feature of Las Vegas is the number of Lawyer Billboards which line the freeways. They were only outnumbered by the adverts for Casinos. I have never seen so many smiling lawyers with teeth so white that they put Donny and Marie to shame (if interested you catch them at the Flamingo!). Most of them referred to damages claims and many were accompanied by dollar signs. In a city which we associate with the losing and making of money this was quite alarming. The message was that if you have been injured you can make big bucks especially if you instruct Mr Smiley-Face. The emphasis was certainly on the cash benefits.

It felt like a ‘compensation culture’. 

This has been emphasised further by the case of Jennifer Connell who has unsuccessfully sued her 12 year old nephew for injuring her during an overly enthusiastic hug. 

Thankfully, a jury took less than half an hour to throw out the claim –

http://www.washingtonpost.com/news/morning-mix/wp/2015/10/13/aunt-sues-12-year-old-nephew-who-broke-her-wrist-with-a-careless-hug/

But how did that case ever get as far as a trial? What lawyer was willing to take the case on, presumably on a contingent basis?

It is a world very different from our own. 

This puts into context the unfortunate rhetoric in the country from insurers, the media and politicians about the need to crack down on the 'compensation culture' over here.

The next time I hear this nonsense I will think of billboards with $ signs and aunties suing for damages for excessive affection.

That is a compensation culture.

We are a long long way from any similar sort of culture.

We need to be aware of this next time we hear insurers using this myth to justify high insurance premiums and to attack the rights of victims.

 

Concerning plonkers, sexism and professional dignity

I was once at a dinner at which I sat next to a former world snooker champion. He told me a story about a conversation, many years ago, between another leading player and an umpire which went something like this –

‘What would do say if called you a bent b******?’

‘I’d disqualify you immediately’.

‘What would you do if I thought you were a bent b******?’

‘I can’t stop what you think’

‘Well I think you’re a bent b******’

Which brings me nicely to two recent stories concerning how lawyers speak to each other.

Firstly there was the reprimand handed out to Richard Gregory Barca for calling an opponent ‘a complete plonker’.

http://www.lawgazette.co.uk/practice/solicitor-reprimanded-for-email-calling-opponent-a-plonker/5050611.fullarticle

To many this was a light-hearted reference to a favourite word used by Del Boy Trotter. The Solicitors’ Disciplinary Tribunal found that this ‘tipped over into unacceptable conduct’. To be honest this sort of language is completely alien in the context of most litigation that I have ever handled. Whilst you want to advocate robustly for your client it should never become a personal confrontation between the lawyers. Some of my best friends in the profession have been regular opponents. This is because you spend so much time dealing with each other that you develop a mutual respect – not in a Stockholm Syndrome sort of way! You just learn that being respectful can lead to an effective outcome for your clients.

The second story shows that being offensive does not need to involve the use of insulting words.

This is the unfortunate LinkedIn message sent by solicitor Alexander Carter-Silk to barrister Charlotte Proudman. He began by saying – ‘I appreciate this is probably horrendously politically incorrect but that is a stunning picture.’ He then went on to say - ‘You definitely win the prize for the best Linked in (sic) picture I have ever seen.’

http://www.lawgazette.co.uk/practice/firm-sorry-for-partners-misogynistic-linkedin-email/5050882.article

Now if you read any message which begins with a reference to political correctness you have a fairly good idea of what is coming next. Every time I read those words I want to curl up under my desk in embarrassment at the thought of an experienced member of my profession coming out with something like that. I am tempted to use the P word. But in fact it is more serious than that.

I can remember a time when it was almost unheard of to have a woman partner in a law firm. I can remember newly called women barristers of my age who struggled to get work because of their sex. Some even struggled to find a loo that they could use. In 2016, Liverpool Law society will have the 5^th woman President in its 189 year history, although Alison Lobb will be the 4^th in the last 10 years. So things are changing. Most of the bright young lawyers in my own firm are women.

So we are making progress. But there is still some way to go. In 2014, Lady Hale, the most senior woman judge in UK history, called for greater gender equality across our legal system –

http://www.independent.co.uk/news/uk/home-news/more-women-judges-will-improve-law-britains-only-female-supreme-court-judge-calls-for-more-diversity-9630884.html

We are moving steadily forwards. There are encouraging signs of progress. Then we hit a moment like this when an experienced solicitor drags us back a few decades. On what planet in 2016 is a professional woman measured by her photograph?– on a platform designed to enable us all to showcase professional skills and experience. It is like hitting the wrong square when you think you’re about to win a game of snakes and ladders.  

This is nothing to do with being politically correct.

It is about professional people treating each other with respect and dignity.

Fixed Fees in Medical Cases and conflict at the Law Society

I talked recently about Government plans to limit the fees recoverable by those who represent victims of Medical Negligence –

http://thestevecornforthblog.blogspot.co.uk/2015/08/concerning-fixed-fees-and-more-attacks.html

This is an issue which has been simmering for a while. 

Back in 2014 the Telegraph wrote an overtly political article which was titled – Ambulance Chasers push NHS Costs Bill to £200m.

http://www.telegraph.co.uk/news/nhs/10612181/Ambulance-chasers-push-NHS-costs-bill-to-200m.html

The article blamed Claimant lawyers, alleging that they were adding to the beleaguered NHS bill. In particular they quoted the, then, CEO of the NHS Litigation Authority, Catherine Dixon – 

“They [some lawyers] are trying to maximise their profit. It seems to me that it is out of kilter with the level of damages they are seeking to recover from their clients and defence costs. I don’t think that charging significantly higher costs is appropriate, particularly against a body like the NHS which is looking after the health of the nation.”

She alleged that Law Firms frontloaded the costs by conducting ‘extensive investigations’. Anyone who has ever done one of these cases knows that you have to investigate any case before you submit a claim because advice from a medical expert is essential. The Telegraph stated that NHSLA had provided them with a list of firms whose costs had been reduced following assessment by the court.

In the light of recent rhetoric from the DOH Ms Dixon’s words are particularly alarming. This is because she is now the CEO of the Law Society. In this role she will inevitably be called upon to argue the case for lawyers to be paid fairly for the work done. This has to put her in a conflicted position. She has not merely argued the case for cutting back on the costs of those fighting for victims. She has associated herself with an undisguised political agenda which included publishing the names of particular law firms. These are firms which have done nothing wrong other than do their best for their clients within a legal costs system created by ministers.

The President of the Law Society has inevitably had to come to her defence saying that she was fully committed to ensuring that claimant lawyers were fairly rewarded. She herself has written in the Law Society’s Gazette calling for investment in NHS care as the effective way to reduce the legal bill. Some of us have been saying that for years.

 http://www.lawgazette.co.uk/analysis/comment-and-opinion/costs-and-clinical-negligence/5050646.fullarticle

The problem is she that is on record as saying what she thinks constitutes ‘fair reward’. How can she conduct robust negotiations on behalf of Law Society members? Will she openly repudiate what she said in the Telegraph Article and the tactics used by the organisation which she led.

Negotiations inevitably involve concessions. I suspect that fixed fees at some level will be introduced in medical negligence cases.

How can the Society’s CEO conduct realistic negotiations without constant reminders of what she has previously said and done.

It is a worry.

The Day the QOCS stopped

The 1^st April 2013 is a date which is ingrained in the memories of most litigation lawyers, especially those of us who act for victims of accidents, industrial diseases or medical negligence. It was the day that changed the world.

Almost all of these cases are dealt with on a no win no fee basis, so the claimant’s lawyers do not get paid if they do not win. Following implementation of the Jackson Report it was no longer possible to recover insurance premiums or success fees from defendants in successful cases, apart from a very limited exception in medical negligence cases. Recovery of these additional liabilities had been the foundation stone of the steps taken by the Labour Government in 2001 to remove Legal Aid for Personal injury work.

To mitigate the effect of this, the government introduced Qualified One Way Costs Shifting (QOCS). This meant that, in most cases, if a claimant lost a case they would not have to pay the other side’s legal costs. This in turn meant that there was no longer any need to take out insurance to cover those costs. So a claimant of limited means could pursue a claim with the comfort of knowing that they would not face a huge legal bill at the end if they failed.

The protection can be lost if there is evidence of fundamental dishonesty. It can also be lost in cases in relation to offers to settle under Part 36. I don’t propose to go into those detailed rules today. Kerry Underwood has written an excellent summary here –

https://kerryunderwood.wordpress.com/2013/05/17/qualified-one-way-costs-shifting-qocs/

The theory behind all this is to enable claimants to seek justice and sleep at night.

Sadly the theory and the reality are different. A claimant can be ordered to pay all of the other side’s costs if a claim is struck out because it shows no reasonable grounds for bringing the claim.

This is demonstrated by the tragic case of Wall v British Canoe Union. Mr. Wall was killed in a canoeing accident in January 2012. He was 49 years old. To make matters worse the accident was witnessed by his 16 year old daughter. The action was brought against the defendants as publishers of English White Water – The BCU Guidebook. The allegations were that the publication failed to give adequate warnings of the dangers at the particular waterway at which Mr Wall had his accident. Earlier this year Judge Lopez in the Birmingham County Court struck out the claim on the grounds that Mrs Wall had no reasonable grounds to pursue the claim. . It was found that the publishers owed no duty of care to readers of their guide. There was an insufficient relationship of proximity. The judgment is an interesting summary of the law of negligence and Gordon Exall has published a summary here –

https://civillitigationbrief.wordpress.com/2015/08/18/qocs-striking-out-and-the-liability-to-pay-in-full-a-county-court-decision/

So the unfortunate Mrs Wall, having lost her husband, also lost her claim. But the tragedy does not end there. She was also ordered to pay all of the Defendants’ legal costs. This is because the judge decided that she had no reasonable grounds to bring the claim. So she could now lose everything.

When I first read the judgment, I just thought that she must have been badly advised to have brought this case in the first place. But on reflection the judgment is disturbing. Here is an honest victim who has lost her husband and whose children have lost a father. The whole idea of QOCS is to enable such victims to bring their claims without the fear of costs and without the need for insurance. It was certainly not a spurious claim. The judgment runs to 38 pages. There were real arguments about the extent of a duty of care to readers of the guide.

Was it really the intention of the rules on QOCS, to deter victims from bringing such claims for fear of losing their homes? Where does this leave the development of the common law? Imagine where we would be if Mrs Donohue had been too scared to sue Mr Stevenson. Our legal system, which has been copied across the world, has been build on the basis of groundbreaking cases that have pushed the boundaries.

This is likely to grind to a halt following decisions like this.

That is not to criticise the judge who acknowledges that he is required to apply the law.

What we need is a revision of these rules on QOCS which were hastily introduced and help nobody.

Concerning fixed fees and more attacks on vicitms of medical blunders

The government is now consulting on the introduction of fixed recoverable fees in all Clinical Negligence cases with a value up to £250k. That will catch some very substantial cases involving severe disability.

It is no surprise that the move is justified on the basis of criticism of those law firms who represent victims. In a report mentioned by Litigation Futures the Department of Health says –

“in the experience of the [NHSLA], significant costs are often incurred by claimant lawyers in the pre-litigation and pre-notification period and are not subject to costs budgeting requirements. There is also evidence of claimant solicitors attempting to claim costs well in excess of the current guideline hourly rates, and considerably higher than the NHSLA pays its defence solicitors.”

http://www.litigationfutures.com/news/government-targets-100m-savings-fixed-fees-clin-neg-cases-250k

I have mentioned before that it is inappropriate for the organization which represents the NHS to try and control the level of legal costs which they have to pay. They are clearly conflicted. Remember they are only paying anything in cases where liability is proven or admitted. A case involving awards up to £250k means life changing injuries.

http://thestevecornforthblog.blogspot.co.uk/2015/07/medical-negligence-criminal-legal-aid.html

Now I need to say that I am not particularly worried by the likelihood of fixed fees in straightforward cases.  I have long suspected that they were inevitable especially as costs budgeting seems to have been a shambolic and expensive experiment. Fixed fees are now widely used in commercial litigation and transactions. Payment by the hour is perceived as a reward for dragging cases out, particularly those which are not complex. But many cases up to £250k will be very complex.

What is clear, is that this is an attempt to reduce the number of genuine claims and the amounts payable to victims. If the NHS does not have to pay full legal costs in those cases where they are clearly at fault, it is the victims who will have to pick up any shortfall.

The NHSLA need to review their own conduct. I have started court proceedings in two cases, in  the last month, where the NHS failed to respond to a letter of claim within the four months set out in the pre action protocol. In both cases they have subsequently admitted liability. The legal costs are now much higher then they would have been. Why is that the victim’s fault?

It is also reported today that the NHSLA routinely fail to make interim payments to victims –

http://www.clinicalnegligencelaw.co.uk/2014/06/13/is-the-nhsla-failing-to-make-interim-payments/

Many cases are aggressively contested and then settled late in the day for modest damages and huge legal costs. If these cases were resolved at an early stage there would be massive savings.

We have seen a developing pattern over the last few years where victims, and their representatives, are attacked as a prelude to the introduction of measures designed to shrink access to justice. I suspect that some form of fixed fees is inevitable across all civil litigation. But this has to be based on sensible and commercial discussions and not inflammatory rhetoric.

Litigation on planet Zarg!

The recent and brilliant judgment of Peter Smith J in Emerald Supplies Ltd v British Airways is a hilarious if disturbing read. It is certainly an insight into a world of litigation that most of us will never see.

The judgment itself is brief and deals with the judge’s reluctant decision to recuse himself –

http://www.bailii.org/ew/cases/EWHC/Ch/2015/2201.html

It is part of the well publicised litigation involving thousands of claimants and BA who are represented by giant law firm Slaughter and May. The case concerns allegations relating to the conduct of BA and damages run to billions.

Peter Smith J was handed the responsibility of managing this huge and complex litigation. For reasons which are not apparent BA and their lawyers did not take to him and did all that they could to have him removed. At an early stage the lawyers for BA suggested that he did not have sufficient experience to deal with a case involving competition law, notwithstanding that he was an allocated judge in the Competition Appeals Tribunal – although he had not actually sat on a case.

‘But presumably if the Lord Chancellor thinks I am competent to sit there, that really ought to be enough, even for Slaughter and May, but apparently it isn't.’

But the powerful defendants and their lawyers were not deterred. 

By an unfortunate coincidence the learned judge flew to Florence with Mrs Peter Smith J. Yes you’ve guessed – it was a BA flight. And guess what? They lost his luggage on the return flight. In fact they lost all of the passengers’ luggage! The judge was rightly concerned –

‘The situation is that I do not know how a plane departs with all of the passengers' luggage left behind, unless that is a deliberate decision.’

He had hoped this was a matter that could be resolved. He was wrong.

‘A simple dispute as to the luggage cannot possibly be grounds for recusal. However BA and its solicitors have simply escalated the problem almost immediately.’

They demanded that he remove himself from the case himself as he would now be biased.

‘Well, Slaughter and May wrote to me on Monday, requiring me to confirm immediately that I would recuse myself, failing which they would make an urgent application to the Court of Appeal.’

The judge felt he had no alternative but to remove himself from the case and said so in robust terms!

‘In my view, this was a renewed attempt by BA to get me off the case and they have succeeded.’

So there we have it. If you don’t like your judge you lose his luggage!

Imagine if any of us tried that.

Most of us are more concerned about how our clients can access justice; or how we may might fight their corner and still earn a living. This is how the wealthy and powerful litigate –

http://thestevecornforthblog.blogspot.co.uk/2014/11/rolls-royce-justice-for-rich.html

This is a world unknown to any lawyer I have ever known.

This is in fact litigation on planet Zarg.

Tax The Lawyers for being Lawyers!

Moves are clearly afoot to transfer to burden of securing access to justice from the State to the Legal Profession.

This has been a live issue for a few years –

http://thestevecornforthblog.blogspot.co.uk/2014/11/who-needs-legal-aid-when-lawyers-do-it.html

It also featured in Michael Gove’s first speech as Lord Chancellor in which he made no secret of his view that it was our responsibility –

http://thestevecornforthblog.blogspot.co.uk/2015/06/the-word-of-gove-new-lord-chancellor.html

This has been followed by a report from think tank ResPublica which takes the argument 'where no one has gone before'. They are calling for a compulsory pro bono ‘tax’ on practising lawyers requiring them to ensure that at least 10% of their work is done for no pay – with an exception for the beleaguered legal aid lawyers who only face a 5% tax.

http://www.legalfutures.co.uk/latest-news/think-tank-calls-for-compulsory-pro-bono-and-oaths-for-newly-qualified-lawyers

The first problem with this proposal is that is completely ignores the work already done by the profession. In my blog from last year I referred to research by the Law Society which showed that Pro Bono work accounted for about 3% of turnover of all firms - £601m. This is rarely reported by the media.

The ResPublica Report then goes on to insult the entire profession by saying –

“A mandatory pro-bono obligation regulated by the professional bodies could help inculcate an understanding across the profession that the law is not just a business but also and most importantly a vocation.”

Now there may be some lawyers working in the City who have that attitude but I do not know any solicitor who not did go into the profession with an awareness of the need to secure justice for all. That is why many lawyers chose legal aid work, human and civil rights work or represent victims of accidents at work or medical negligence. Having regard to the relentless attacks of the last few years, nobody would choose that work simply as a means of getting rich.

But there is another more serious objection. Why should the legal profession pay an additional 10% tax by way of unpaid work? Tell me any other ‘vocational’ profession where that would even be considered. Lawyers pay tax like everyone else. How many journalists, doctors, teachers or politicians would consider sacrificing 10% of their income just for the privilege of working? The whole idea is misconceived as it is rooted in the myth of the ‘fat cat’ lawyers. More firms have gone bust in the last 5 years than in my previous 30 years as a solicitor. 

How dare this remote think tank in Wesminster question the vocation of those lawyers who cannot new accept criminal work as the new legal aid rates would be a road to oblivion?

It may be that ResPublica are directing their attacks at those wealthy commercial and banking lawyers who do earn huge salaries. But this assumes that all lawyers have the same skills and experience. A high flying solicitor who is a genius at mergers and acquisitions will have no experience of defending those threatened with homelessness of appealing against benefit sanctions. That is specialist and demanding work – not ‘cast off’ work that can be dome almost as a hobby.

Of course the real agenda here is that access to justice is in crisis. I have previously called it a waste land. Mr Gove acknowledged this in his speech. We all know that the answer to this is a properly funded legal aid scheme guaranteeing all citizens access to our justice system. The government has no intention of considering this and so they turn to the easy targets – the lawyers!

That approach is now getting a bit long in the tooth and I suspect that the public will begin to see it for what it is.

The Budget - Legal aid, Motor Insurance and more bad news for students!

It seems that everyone is talking about the Conservatives’ first budget since 1996. There has been praise and criticism. The main headline grabber has been the National Living Wage – a renamed version of the minimum wage. It may not be pitched at a level that a person could actually live on, but it is an improvement and to that extent should be welcomed.

What does this budget have to say about legal matters? How does it affect lawyers, those who lawyers represent and those who aspire to be lawyers? To be honest there was not a lot but some things are worthy of comment.

Mr Osborne promised to spend more on the protection of victims of domestic violence. £3.2 million will be spent on refuges. These centres have experienced a funding crisis and this investment will clearly be welcome –

http://www.thirdsector.co.uk/george-osborne-announces-extra-funding-domestic-violence-refuges-armed-forces-charities-summer-budget/policy-and-politics/article/1355284

But the Chancellor seems to have no intention of making it easier for victims to gain access to justice. There is some legal aid available although this is not widely known or publicised. In order to get legal aid, victims have to gather evidence which is often time consuming or even prohibitive. By coincidence, one very disturbing rule was changed this week. This was the rule that said that you cannot get or continue to have legal aid if the incident of violence took place more than two years ago. This created the bizarre scenario where victims could get legal aid and then lose it once the two year mark was reached. That can no longer happen and this has been welcomed –

http://www.familylaw.co.uk/news_and_comment/domestic-abuse-legal-aid-changes-welcome-but-the-system-has-a-long-way-to-go-says-resolution#.VZ5fQVIrx8E

But if the Government really want to protect victims, they should reinstate a properly funded legal aid scheme allowing them free access to protection from the courts.

Osborne referred briefly to the need for further regulation of claims management companies. This is hardly new ground. They are already regulated and in some cases payment of referral fees has been banned. It is also true that many companies flout the rules. Cold calling is still widely prevalent. I have been the subject of one such call!

http://thestevecornforthblog.blogspot.co.uk/2014/01/im-in-money-rant.html

So anything that stops this kind of behaviour is welcome. What is more worrying is the link between compensation claims and high insurance premiums. This rhetoric has been around for years along with the myth that there is a compensation culture. All of the attacks on victims of motor accidents in recent years have been linked to the need to reduce premiums. It is a huge irony therefore, that in the same budget speech the chancellor has announced a massive increase in insurance premium tax which will of course be paid for by motorists!

http://www.legalfutures.co.uk/latest-news/osborne-cmcs-face-fundamental-review-and-fees-cap

The worst news from this budget, however, is for those unfortunate students who plan to pursue a legal career. They already face a huge, uphill struggle with eye watering debt and few job opportunities –

http://thestevecornforthblog.blogspot.co.uk/2014/01/the-law-career-for-everyone.html

So it is a huge disappointment to hear that maintenance grants are to be abolished and replaced by even more loans. The average debt on qualification is about £50k. That figure is bound to rise and will certainly deter many. This will lead to a narrowing of the profession to those who can afford to pay. At a time when most observers agree that more diversity is needed, this is very bad news. Of course that particular nightmare is not limited to law students –

  

http://www.independent.co.uk/news/uk/politics/emergency-budget-2015-live-10-reasons-why-george-osbornes-budget-is-a-disaster-if-youre-under-25-10375894.html

So that is the lawyer’s view. It was a budget with one or two crumbs. But there is little to cheer about for those who are concerned about justice or might, one day, plan to make this their career choice.

Medical Negligence, Criminal Legal Aid - a government at war?

It has only taken a few weeks for the new Conservative Government to launch a full on war against the Legal Profession. 

We are all familiar with the shameful cut in fees for Criminal Legal Aid work which has seen action taken by firms across the country that are refusing to work at the new rates. I am not proposing to comment at length on that as it is not my area of work, save to say that these are some of the most dedicated lawyers around. They work long and often unsociable hours for a return that appears designed to grind them into the ground. Those lawyers deserve our credit and support.

In the meantime the expected attack on Clinical Negligence work has begun.

Earlier this week the Health Minister, Bun Gummer, announced an intention to cap fees paid to those who act for victims in cases where damages are less than £100k.

http://www.litigationfutures.com/news/health-minister-announces-plan-cap-medical-negligence-fees

Why has this statement come from a Health Minister? The Department responsible for standard of treatment is seeking to control the fees payable to those who represent victims of their negligence. Is the Minister of Justice too busy battling with everyone else?

The speech is alarming to say the least. He talks about ‘unscrupulous’ behaviour from lawyers who run up huge costs. This suggests that anyone who has the effrontery to fight for their client is somehow unscrupulous. How dare they! If the NHS made early admissions then the costs would be lower. If they force a victim to fight every inch of the way then they should not complain about having to pay if the case succeeds or settles at the last minute.

He says that the fees should represent a percentage of the compensation. So a victim who is dragged through contested litigation to trial and gets an award of say £50k will only recover a percentage of that amount in legal costs. The Trial itself would cost more than that. It is his government that has increased court fees which would eat up 5% of a £100k claim. Are we taling about all costs including these court fees and expert fees? This sounds like back of an envelope rhetoric but that has not stopped this government in the past.

Mr Gummer then relies on the familiar phrase – ‘hard working taxpayers’. In my experience most victims of clinical negligence are hard working tax payers. Those victims will end up seeing further deductions from their damages if they cannot recover their legal costs in full, from the negligent medical practitioners.

If he wishes to save money for the NHS the focus should be on reducing the number incidents that occur such as queues of ambulances backed up outside hospitals. Or there could be a new streamlined process that will secure justice more quickly and efficiently. But that requires positive contribution from all sides rather than throwing insults victims’ lawyers.

Finally the Ministry of Health promise consultation with ‘stakeholders’. Will that include those who represent victims and who he says are unscrupulous? This is disturbingly reminiscent of the discussions between the government and insurers of road Traffic claims from which Claimant lawyers were excluded.

http://thestevecornforthblog.blogspot.co.uk/2013/03/apils-judicial-review-morning-after.html

There are systems in place to ensure that costs are not unreasonably incurred in complex cases. Even though the budgeting experiment seems doomed in Clinical Negligence cases, the costs are still subject to assessment by the court. I would fully support the comments of Deborah  Evans of APIL - 

'As a defendant, the NHS Litigation Authority has the right to ask the court for justification of what it has to pay when it loses a case. The fees reflect the fact that clinical negligence cases are complicated and require a great deal of skill and investment of time and resources just to establish whether there is a valid claim,'
 

http://www.solicitorsjournal.com/news/personal-injury/medical-negligence/23149/cap-nhs-litigation-claims-not-answer-better-care-argue

I suspect that this will ultimately lead to fixed fees. Provided those fees are reasonable they are probably inevitable in time and should hold ne fears for those who work efficiently.