Whiplash & Small Claims - this time it's for real....

In November 2015 the former Chancellor, George Osborne announced plans the abolish the right to damages for whiplash injuries and to raise the Small Claims limit in Personal Injury Claims. The effect of the latter is to remove the right of victims of accidents to recover legal costs from insurers. 

This would leave most victims without legal representation against insurers who have massive resources available to them – David v Goliath without the slingshot!

A few weeks ago it seemed that these draconian proposals were off the agenda for now –

http://thestevecornforthblog.blogspot.co.uk/2016/10/osbornes-whiplash-proposals-gone-for.html

I predicted then that the insurance industry would not leave things there. Why would it? Insurers have been given all that they’ve asked for from a very compliant Conservative Government and their friends in the media.

It is no great surprise therefore to see the plans revived with a vengeance. It was announced yesterday that the MOJ is consulting on the increase in the small claims limit and planning to cap the levels of damages for whiplash. According to ITV news the Lord Chancellor Liz Truss talked of a ‘rampant compensation culture’. There is also familiar rhetoric about clamping down on fraud and saving billions in insurance premiums.

http://www.itv.com/news/2016-11-17/government-unveils-crackdown-on-bogus-whiplash-claims/

The so called compensation culture is a mythical being created to feed these attacks. The evidence is that there has been a steady reduction in the number of claims and hardly any evidence of fraud –

http://thestevecornforthblog.blogspot.co.uk/2016/04/why-have-our-government-got-it-in-for.html

The consultation period is just a few weeks and is calculated to close immediately after the Christmas break.  This reduces the chances of an effective response and suggests that Ms Truss is intent in giving this gift to insurance companies regardless of any opposition.  The chances of all of this leading to any significant reduction in the cost of motor insurance are equally mythical –

http://thestevecornforthblog.blogspot.co.uk/2016/08/insurance-premiums-and-other-fantastic.html

These plans will have drastic consequences –

Victims will either act for themselves or be deterred from claiming at all

All injury claims will be affected, not just whiplash

Law Firms across the country will close leading to hundreds of job losses

Insurers’ profits will rise

This is a very disturbing day for us all.

Post Script

I have just read the Consultation Paper over lunch. It is worth a read. The proposals are not quite as draconian as the press reports and there are options for discussion. But I suspect the MOJ spin reflects their intentions.

What is notable is that at Page 78 of 78 pages of narrative  is the following -

'We would also welcome views from respondents on the assumption in the IA that 85% of insurers savings will be passed onto consumers' Just in case you happen to blink and miss it!

Are we seeing the demise of our civil courts?

I have written before about the problems suffered by all parties to litigation following the drastic increases in court fees in 2015 –

http://thestevecornforthblog.blogspot.co.uk/2016/10/court-fees-2-what-are-we-getting-for.html

It certainly appears that the quality of the service offered by our courts has declined in direct proportion to the increase in fees. Despite the availability of remission of fees in some cases there is no doubt that this is having a major impact. In 2013 the fee for starting an action for damages of £200k was £1250.00. This is now £10,000.00.

Lawyers who pursue actions for ordinary citizens of average means, usually pay the fees on behalf of their clients. Increases of this magnitude seriously impact the commercial viability of this service.

The effect of all of this is that it is that victims of accidents and medical negligence will find it harder and harder to pursue their disputes through the courts. Those suffering the most severe injuries are the worst affected.

It is not surprising therefore that lawyers for claimants and defendants are actively considering alternatives. Litigation Futures reported yesterday on an initiative from Liverpool based QC, Bill Braithwaite –

http://www.litigationfutures.com/news/replace-judges-neutral-facilitators-handle-major-personal-injury-cases-says-qc

Braithwaite advocates the use of ‘neutral facilitators’ to resolve disputes in major personal injury cases. He suggests that such facilitator can be given such powers as are agreed by the parties – from mediation to full decision making on all issues. This is an interesting idea but one which would require much collaboration on both sides.

This follows on from last year’s launch of the Personal Injury arbitration service –

http://www.litigationfutures.com/news/personal-injury-arbitration-service-aims-break-dam

In medical negligence cases there are proposals for a compensation scheme for victims of birth injuries –

http://thestevecornforthblog.blogspot.co.uk/2016/10/compensation-scheme-for-birth-injuries.html

Victims are never looking for litigation. They are looking for answers, for resolution and for appropriate levels of damages.

I suspect that there will be more such initiatives and referring disputes to the court will eventually become exceptional.

There are however some concerns. Will we ever see the levels of co-operation required to make them work? Only last month lawyers who help victims of medical negligence were called ‘vultures’ and ‘greedy ambulance chasers’. Lawyers who help victims of accidents are regularly accused of feeding a mythical ‘compensation culture’.  I think much bridge building will be needed if these alternatives are to succeed.

On the other hand, resorting to our civil courts will become increasingly prohibitive. So some alternative will be the only way of securing justice for those who cannot afford to pay the eye watering fees.

Will our civil courts then become a resource available only to the wealthy?

http://thestevecornforthblog.blogspot.co.uk/2012/08/how-other-half-litigates.html

The Brexit Judgment is all about the Supremacy of our elected Parliament

It seems that the whole world is commenting on yesterday’s decision of the High Court in relation to Brexit. In fact some press reporting has verged on the hysterical.

We need to make one thing clear from the start. This is not a judgment on Brexit itself. It is a judgment on what powers the government has, to make decisions in relation to Article 50 without referring to Parliament. The Lord Chief Justice could not have made this any clearer -

'It deserves emphasis at the outset that the court in these proceedings is only dealing with a pure question of law. Nothing we say has any bearing on the question of the merits or demerits of a withdrawal by the United Kingdom from the European Union' . 

I think everybody has now heard of Article 50. This is the process that begins our exit from the EU. In very simplified terms the court decided yesterday that the process cannot be triggered by the Government. It has to be done by Parliament. It is a purely legal point. It has nothing to do with the pros and cons of Brexit.

The Government argued that it could start the process without going to Parliament because of 'Royal Prerogative'. These are words that most Law Students forget shortly after finishing their degree. They rarely raise their head in real life. Royal Prerogative describes decisions which the monarch of the day could make without having to refer back to parliament. It is a concept that goes back to the 14^th Century and the days of power struggles between the monarch and the barons.

   

Over time those powers have devolved to the government ministers. The powers are sometimes used in foreign affairs and might include the making of treaties with other nations. For those who are particularly interested there is a useful discussion in Wikipedia –

https://en.wikipedia.org/wiki/Royal_prerogative_in_the_United_Kingdom

This is important in relation to yesterday’s decision. When we entered the European Union in the 1970s Parliament enacted the European Communities Act 1972.  If we want to exit the Union that Act has to be repealed. The government’s case was that it must have been Parliament’s intention in 1972 to give any future government power, by way of royal prerogative, the power to cancel any treaties relating to our membership. This argument was very firmly rejected by the Court.

The overriding point is that Parliament is sovereign. The 1972 Act was passed by Parliament. There is nothing in that Act to say that a future government can cancel it. Only Parliament can repeal an Act that it has passed. The Lord Chief Justice said

‘The most fundamental rule of the UK’s constitution is that Parliament is sovereign and can make and unmake any law it chooses. As an aspect of the sovereignty of Parliament it has been established for hundreds of years that the Crown – i.e. the government of the day cannot by exercise of Royal Prerogative override legislation enacted by Parliament.’

The government argued that this case was different. It argued that it had the legal power to trigger Article 50 because this is all about foreign relations and therefore within the Prerogative. This again was rejected. It is self evident that laws enacted since we joined the EU have become part domestic law. So as soon as Article 50 is triggered, UK laws will be affected. This is not just about foreign affairs but will fundamentally change our laws. Those powers are for Parliament and not the government.  

The case will now go to the Supreme Court – possibly before all 11 judges. I would be very surprised if their decision is any different. There is nothing in either the 1972 Act or even the Referendum Act of 2015 that gives Mrs May and her ministers powers to cancel an Act of Parliament. Many of us have been saying this since June –

http://thestevecornforthblog.blogspot.co.uk/2016/07/brexit-and-parliament-will-it-ever.html

This is not a battle between the courts and Parliament. In fact it confirms that nobody – neither judges nor the government can override the supremacy of Parliament. In fact it is part of our historical protections. The courts will not allow any government to act beyond its powers. If it wants to change the law it can legislate and to do that it has to go through the correct process.

So where does this leave Brexit?

I cannot imagine that Parliament will try and cancel the result of the referendum. A majority of voters chose Brexit. It would certainly trigger a major constitutional crisis if that outcome was blocked altogether. Indeed many MPs who supported Remain have said that they will respect the will of the people.

What it does mean is that the process will have to be carefully examined by Parliament. Brexit minister Davis Davies has acknowledged that this would mean a new Act of Parliament –

http://www.bbc.co.uk/news/uk-politics-37863544

This might slow the formal process but it will ensure that the elected members of parliament will have the final say on the detail of the exit.

It is easy to forget that this was something that was at the heart of the Leave campaign i.e. the recovery of the supremacy of our parliament. 

The High Court has confirmed this.

Yesterday’s judgment should be welcomed by both sides of the debate itself. It is not a decision about the rights or wrongs of Brexit. It is a clear line in the sand about what powers Ministers have to disregard those elected by the people.

Reflecting on 25 years as a litigator!

Today, I am celebrating 25 years at EAD.

I joined on 1^st November 1991 following the take-over of his previous firm Ashby Cornforth & Co.

So this has got me thinking how things have changed.

Some developments have certainly been a good thing. Growing a moustache for charity rather than fashion must be positive!

In those days you had a telephone with a dial. It was attached to the wall and you were lucky to speak to a client directly unless you called after work. There were a few very early mobile phones around but you needed a trolley to carry them and they could certainly have been a murder weapon on Cluedo. 

There was a relatively new thing called a fax which some modern thinking lawyers were starting to use. 

If you needed to go to court you had to get in the car and drive there, unless you were close enough to walk. There was no such thing as a telephone hearing or any other sort of conference call for that matter. Neither was there any such thing as a costs budget, case management or Mitchell. In fact Directions were relatively sparse and the first you saw of your opponents’ evidence was when you turned up at court. The thought of experts actually having a discussion was a thing or horror.

Today you can handle a litigation caseload and hardly ever leave your desk. This makes the practice of law quicker but less sociable. You heard the gossip while waiting for your hearing; a sort of live Twitter!

One thing we did take for granted was Access to Justice. There was something called a Green Form – largely due to it being a form that was green. This entitled a person of limited means to half an hour’s advice on any matter of law! You could give helpful initial advice and then extend the limit to take things further or obtain an expert report. Back then, I did hundreds of disrepair claims against local authorities. You could use the Green Form to get a surveyor’s report and then apply for full legal aid. 

Legal aid? Remember that? Who would have thought that Access to Justice would become a waste land?

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

Many accident claims were run on spec. It was a sort of unofficial conditional fee arrangement where you only got paid if you won. Politicians later realised that this could become the norm and the only way to represent victims of accidents. A Labour government removed legal aid for these cases. They created a world where we had no work on this basis and then attacked us for being ‘no win no fee lawyers’. 

It is also worth noting that relationships between lawyers and insurers were very different. We regularly spoke to each other. Every few weeks I would be visited by someone from the Municipal Mutual, Guardian Royal Exchange, Iron Trades or Sun Alliance. Over coffee and much conversation about football we would settle ten or more cases. Nobody has heard of the ABI!

So much has changed. Some for the better some for the worse. Litigation is faster, smoother and far more expensive.

Access to Justice is an endangered species and I hope that it still exists in 25 years time…

Court Fees (2) - what are we getting for the pain?

My last post looked at the effect of high court fees in cases where time limits are a problem. From comments received the follow up question is – what are court users getting for their money?

I recently appeared at a Costs and Case Management Conference. For various reasons it was the most contested CCMC that I have done since costs budgeting was introduced. The other side were contesting our budget, directions, location of trial and almost everything else imaginable. There was never any doubt that we were going to use the full 90 minutes for which the case was listed. As we trooped in before the District Judge we were told that the court’s file had been lost and had only turned up 5 minutes before we went in. Of all the cases for this to happen!

As it was, the judge, who was very apologetic, managed to get through the hearing with pragmatic help from both sides – even though we still had our arguments. But this was a difficult enough case without us having to be administrators as well as advocates.

This is just one example of the problems that litigators, and judges, have experienced since recent cuts in funding and massive increases in court fees. Earlier this year I covered a telephone hearing where the poor judge had no file at all. The parties had to explain everything which doubled the length of the hearing. In another case we were asked by the Court to reconstitute a file as it had been lost. Interestingly the correspondence was from a designated ‘Missings Team’ .  So the problem is far from unique.

I have previously mentioned a case where a hearing was adjourned in January 2016 as the judge was unwell and was not relisted until July!

http://thestevecornforthblog.blogspot.co.uk/2016/03/the-fees-go-up-and-service-comes-down.html

The list could go on. The administration of our civil courts is shambolic.

Lord Justice Gross, speaking at a conference in the Caribbean last month said –

‘But, more importantly, the reform programme is something we should be doing anyway: using the resources available to us, strategically and imaginatively, with a view to devising a user-oriented, modernised and improved justice system, while preserving the brand of trust, confidence, integrity and expertise it has historically enjoyed and continues to enjoy. The stakes are high. There is no Plan B.’

Most practitioners experience a justice system which is a long way short of one which is ‘user-oriented, modernised and improved’.

This may be an ambition or a hope but it is a million miles from reality.

I normally represent victims of accidents or medical blunders. It is inevitable therefore that this blog usually sees things from their perspective. But the outrageous hike in court fees in 2015 – up to 600% in some cases, affects all of those who use the courts.  The Claimant has to pay the fees up front. But in successful cases the Defendant will have to cough up. Even Mr Mitchell was entitled to his court fees!

http://thestevecornforthblog.blogspot.co.uk/2013/11/road-to-singapore-dont-be-late.html

What makes things worse is that the quality of service has declined in direct proportion to the increase in fees.

We have a civil justice system that is, or has been, the envy of the world. How long will this last if the current chaos is allowed to continue… 

Concerning Time Limits, HMRC Schedules and Elvis Presley

I have a recurring nightmare in which am running to the court with a pile of Claim Forms. It is one of those dreams where the harder you try the slower you run. I get to the court office just as the doors are locked and the sign comes down – ‘TOO LATE’. I turn to see chasing hordes of clients, partners, judges, ATE insurers all baying for my blood…

There is one word that can strike fear into the hearts of litigators – particularly those who act for victims of Occupation Disease. That word is Limitation.

Legal claims for damages are subject to statutory time limits. This is to prevent defendants being subject to claims going back many years where memories fade or documents are lost. Most of the time limits are found in the Limitation Act 1980 which came into force in 1981 – about 35 years ago.

In Accident Claims it is usually 3 years. So if I trip over a pavement today I have until 26^th October 2019 to start court proceedings. Easy.

In disease cases the rules are more flexible. Let’s look at cases of noise induced hearing loss. You don’t suddenly become hard of hearing overnight! The Act says that the clock begins to run when a person has sufficient knowledge - ‘.. to justify his instituting proceedings for damages against a defendant who did not dispute liability and was able to satisfy a judgment.’ So the moment somebody knows or should know that they suffer from hearing loss caused by noise then the three years begin. 

Three years seems plenty of time. But time seriously does fly in disease cases for reasons outside the poor victim’s control. 

Firstly there will inevitably be a gap between the date someone has knowledge and the date they go and see a lawyer. Despite rhetoric about a compensation culture most workers are reluctant to pursue claims, especially if they still work for the same employer.  In one case * Dame Janet Smith referred to a year’s ‘thinking time’ from say a doctor’s consultation – although I doubt if she was formulating a hard and fast rule. The reality is that you might be a year or so into your three before you see the client. 

Secondly you have to identify who the client worked for.  This is not easy where someone has been exposed to noise for thirty years with a whole series of employers. Each of those employers might be liable to contribute towards the damages. Many of those employers will have closed down over the years. They may or may not have insurers. So the first task is to obtain a print out from HMRC which sets out a full work history. Back in the 1980s when I first did these claims you would expect to get your print out after about a month. The current waiting time is  about 14 months. Gulp! The clock is ticking remorselessly down and there is little you can do about it. 

Thirdly, having got your print out, you need to laboriously work through this with the client. What work was done at each place of work? Where did the noise come from? What tools/machinery was used? What protection if any, was provided? What health testing was done? What regulations were in force at that particular time? Tick, tick, tick…

You need medical evidence to show that the loss is caused by noise at work. It is question of judgment in each case at what point down the line you incur this costs. But it must be done and it takes time. You will inevitable get to the three years by the time this is done.  Or the three years might have passed before you are ready!

Now the Limitation Act does give the court discretion to disapply the time limit, but no lawyer can rely on that and still sleep at night.

The reality is that at some point you begin the race to the court office – see above. And then you have to pay a massive court fee. If a claim is valued at about £20k then the fee will be £1k. Moving away from hearing loss, some serious cases such as those involving asbestos can involve a fee of £10k. In many cases this is paid just to ensure that you don’t miss the bus.

All of this begs the question – do we need a re-think? 

The world was different in 1981. Things moved more quickly. You did not need a mortgage to pay court fees. Today, you can be almost at the end of the time limit before you get your work history. Discretion is a help but nobody really wants to let the 3 years go by in the hope of getting it.

Of course one option would be a huge investment in HMRC to enable them to process requests more quickly. There are those who still believe that Elvis is alive! 

Another option would be to extend the limitation period to say 6 years in those cases which can take time to investigate – usually Disease or Clinical Negligence.

I quite like the idea of the Spanish option. Limitation is only one year but can be interrupted by sending a letter to the Defendant. So if, before the end of the three years, a Letter of Claim was sent to the Defendant this would enable them, to begin investigations. This would deal with the stale claims dilemma but would avoid the need to incur the cost of embarking on expensive litigation. Those costs are a drain of claimants, defendants and the courts. Litigation might then become a last resort – once all other options are exhausted. 

But whatever option is best, I think we need to revisit Limitation in these cases. Starting court proceedings purely to comply with time limits, under pressure is a drain on the resources of claimants, defendants and the court staff. 

We need to be thinking about this before it is too late….

*Johnson v MOD [2012] EWCA Civ 1505

Compensation Scheme for birth injuries - could this change everything?

How often have legal commentators called for steps to be taken to reduce the number of medical accidents that lead to claims for damages? The tendency has been to blame victims and their lawyers for the spiralling costs of litigation; particularly in cases where babies suffer catastrophic injuries at birth.

It is encouraging therefore to see reports in today’s press that the Ministry of Health may finally be getting the message. Details will be set out in a speech from Minister of Health, Jeremy Hunt. The government proposes to publish maternity ward league tables as part of a drive to improve performance. It remains to be seen what that, on its own, will achieve. But at least it is a step in the right direction.

Jeremy Hunt will also announce a voluntary scheme for resolution of claims for damages. The scheme will involve a panel of medical and legal experts who will review incidents and decide whether payments are appropriate and, it seems, assess how much will be paid.

https://www.theguardian.com/society/2016/oct/17/maternity-wards-in-england-to-be-rated-by-safety-record

Again this has to be welcomed. Details of the content of the speech appear in the Guardian report and there are still comments that cause concern. The speech will refer to the need to dismantle a ‘litigation culture’. I have acted for a number of families in these cases. There has not been a single occasion where ‘litigation’ was of any interest. Families want answers to questions. They want accountability and they want financial help as they care for a child who will have life long needs. 

Litigation is always a last resort as the NHS have tended to fight cases until the last minute –

http://thestevecornforthblog.blogspot.co.uk/2016/10/calling-us-vultures-will-never-stop-us.html

The speech will refer to litigation as ‘an automatic first step’. There already exists a protocol under which Trusts have 4 months, or longer if necessary, to investigate incidents. Litigation only follows when liability is denied. It is far from being a ‘first step’.  There still seems to be an underlying assumption that victim and their lawyers are looking for litigation.

So there are still negative attitudes that need to be ironed out. Describing lawyers as ‘vultures’ does not help!

On the other hand these proposals could change everything. If we begin to see a genuine will on the part of the NHS to acknowledge fault and work with families, if we see a real commitment to reducing or even eliminating negligence, if we see a desire to listen to the families of victims, then we might finally see some real progress.

I really hope that this leads to a new culture of co operation with the needs of disabled children at the centre.

Osborne's Whiplash proposals - gone for good?

I have never written a blog post as quickly as the one that appeared on 25^th November 2015. This followed the former chancellor’s announcement that he intended to increase the small claims limit to £5k and abolish altogether the right to claim damages for whiplash injuries –

http://thestevecornforthblog.blogspot.co.uk/2015/11/osborne-small-claims-up-to-5k-and-no.html

The speed and tone of that blog reflected the sense of shock and incredulity. We were being told that there was to be a non actionable injury for the first time in our legal history. George Osborne also promised a £50pa reduction in motor insurance premiums on the back of his reforms.

It has been an equal, and far less painful surprise, to hear today, that the whole package has been shelved…for now.

http://www.legalfutures.co.uk/latest-news/government-shelves-personal-injury-reform

Whilst there is no promise that they have been abandoned they are certainly no longer imminent. According to The Times, the MOJ have confirmed that new minister, Liz Truss, is more focussed on prison reform –

http://www.thetimes.co.uk/article/osbornes-whiplash-culture-reforms-run-into-a-brick-wall-cmd25zx0l

The response from the ABI is less than enthusiastic which suggests that they feel  the reforms will be off the table for some time to come.

It is fair to say that the plans outlined by Osborne were on shaky ground from the start. The whole idea of abolishing any right to damages for whiplash was fanciful. Some injuries caused by whiplash are very serious. Where would the line be drawn? I said at the time that this would require a huge shift in legal thinking and would set an alarming precedent. Most lawyers questioned the basis on which such a measure could be introduced. Maybe the new minster felt that she was left holding a grenade with the pin removed and has got rid of the idea as quickly as possible.

The heralded reductions in motor premiums have become increasingly distant over the last few months –

 http://thestevecornforthblog.blogspot.co.uk/2016/08/insurance-premiums-and-other-fantastic.html

I don’t think that those who represent victims can relax. Insurers will not change their approach which has yielded considerable fruits over the last few years. They will keep on lobbying and those of us who care about justice for victims cannot rest for a minute.

I also echo who those voices who are calling for co operation between insurers and lawyers. By working together we can take steps to eliminate cold calling, fraud and exaggerated claims that do so much harm to genuine victims. But where the PM has called lawyers ‘vultures’ and the ABI complain about -‘ambulance-chasers laughing all the way to the bank’ this may be some time away. There is much still to do.

http://www.lawgazette.co.uk/news/insurers-lament-delay-to-whiplash-reform/5058280.article

In the words of Winstion Churchill - "We may allow ourselves a brief period of rejoicing; but let us not forget for a moment the toil and efforts that lie ahead.”

Calling us 'vultures' will never stop us fighting for victims

The Daily Mail has launched an all-out attack on law firms who represent victims of medical negligence. In a report on Saturday they described them as ‘vultures’ and ‘ambulance chasers’ who were claiming ‘grossly inflated’ fees.

These attacks are clearly designed to deter victims from seeking legal advice following blunders which can leave some patients with life changing disabilities.

http://www.dailymail.co.uk/news/article-3828634/Vulture-lawyers-bleed-NHS-418m-sickening-fees-one-year-hire-19-000-nurses.html

The ‘report’ cites a very small number of examples of cases where lawyers have submitted claims for costs against the NHS which have subsequently been reduced by the courts. This system whereby the courts assess the amount of legal costs payable by any losing defendants has always been in existence.  It is an effective way of ensuring that the loser only pays costs which are reasonably incurred.

There are however some major errors in the Daily Mail story. The headline says that lawyers ‘bleed’ the NHS for costs of pursuing claims. It then refers to the sum of £418m. On the assumption that these are costs that the NHS have actually  paid, then they represent costs that the NHS have either agreed or which have been assessed by the court as reasonable. If they are agreed or assessed as reasonable then they are the real costs that have been necessary to secure justice.

And this is where the real problem lies.

Any lawyer who acts for victims can produce case after case where the NHS have steadfastly fought cases which have then settled late in the day. This year I have been involved in three cases which were heading for a trial. All three of them settled when the trial was in sight. By this stage the costs were substantial. This was because the victim had been made to fight every inch of the way. If the NHS had held their hands up and made an early admission, then the cost to the tax payer would have been massively reduced. 

This point was powerfully made early this year by a former Court of Appeal judge. Sir Henry Brooke referred to two cases where the conduct of the NHSLA inflated the costs by huge sums.  

“If, by way of illustration, the taxpayer had to pay £50,000 in each case more than he would have had to pay if those representing the NHSLA had behaved prudently and reasonably, that would mean that £100,000 of public money went down the drain for no real purpose. Oh dear.”

http://thestevecornforthblog.blogspot.co.uk/2016/01/spiralling-cost-of-medical-negligence.html

So on the one hand we see the NHS refusing to mediate and then the next minute attacking the victims’ lawyers for allegedly inflating the costs. Oh dear.

The cost of medical negligence can be reduced. It can be reduced firstly by a focus on prevention of such incidents in the first place. It can be reduced by an early admission and apology. I have been told many times by clients that they would not have considered lawyers if they had been given a full and frank explanation at the start.  

I will continue to fight for victims as along as it is necessary. 

If carrying the ‘vulture’ label from the Daily Mail is the price I have to pay then so be it.

You don't protect the vulnerable by abolishing their rights

Whatever else has changed with the Conservative Party in recent months, they have not yet discovered any affection for lawyers. Or rather they haven’t discovered affection for those lawyers who fight for the rights of ordinary people.

In her speech to the party faithful this week, Theresa May promised to never again let -  ‘activist left-wing human rights lawyers harangue and harass the bravest of the brave the men and women of our armed forces’. She returned to a favourite Conservative Party theme – opting out of our human rights obligations. She said that the government would use this power during times of conflict so that soldiers could not be sued.

This is not in fact as easy as it sounds. Nations do have the right to suspend their obligations during times of emergency. But this does not extend to – “torture and inhuman or degrading treatment or punishment, the prohibition of slavery and servitude, and the rule of “no punishment without law”. This is of course exactly the sort of behaviour that leads to legal actions. So will she try and remove these rights as well?  Surely we do not want to be seen as a nation that would ever tolerate torture or degrading treatment or punishment. Would anyone guilty of such behaviour be ‘the bravest of the brave’?

Lawyers who bring actions against wrongdoers are neither left wing, nor activists. They are simply doing their job to ensure that the rule of law is enforced and that perpetrators are held to account. Her speech was heavily criticised by leading QC and former UN judge Geoffrey Robertson who said - “These actions have been war crimes for centuries and Mrs May, quite disgracefully, wants to cover them up when they are committed – and it is a matter of record that they are occasionally committed – by British forces.”

http://www.independent.co.uk/news/uk/politics/theresa-may-left-wing-human-rights-lawyers-cover-up-murder-torture-civilians-armed-forces-a7346846.html

Would our Prime minister really want to guarantee the immunity of those responsible for the torture and death of Baha Mousa?  -

https://www.amnesty.org.uk/press-releases/british-forces-iraq-echr-torture-law

A spokesman for the PM later explained that Mrs May –

"always said it's right to investigate legitimate instances, but it's the industry of vexatious claims that must end". 

But you cannot investigate legitimate cases if the right not to be abused is removed.

I would be the first to criticise any lawyers who fabricated these claims. They deserve all they get. They should be ‘drummed out of the profession’, in the words of Geoffrey Robertson. But you don’t solve that problem by sweeping away the rights of the vulnerable. We already have a civil justice system for testing the validity of complaints. It is the envy of the world. It does not need help from politicians.

Genuine victims should be compensated and the guilty should be punished.

To simply abolish the right helps nobody.

To then attack the hard working lawyers – who are amongst the lowest paid in the profession just adds insult to injury.

SRA - one rule for you and one rule for me

There are increasingly heated discussions about how and where Solicitors can offer legal services to the public. To most people this seems fairly obvious. You go and see a Solicitor. But in a rapidly changing world this is could become the exception rather than the rule.

Under the present regulations a Solicitor can only provide legal services to the public via an organisation regulated by the SRA or other approved regulator. Some legal work is ‘reserved’ and some is ‘unreserved’. Reserved work can only be carried out by an authorised person such as a Solicitor. This is a surprisingly limited category of work and includes the power to conduct litigation, to appear before certain courts and the drawing up of certain documents. Almost all other legal work is unreserved which means it can be provided by anybody. So you don’t have to be a Solicitor to set up a business offering advice in say, employment law or welfare benefits. But if you are a solicitor you have to operate through a regulated body – such as a solicitors’ firm. The reason for this is that there are standards and protections that go with the solicitor brand. For example all solicitors’ firms have to carry professional indemnity insurance.  They also have to contribute to a compensation fund.

So if a client instructs a solicitor they know that if anything goes wrong there are levels in protection in place. If solicitor is negligent then the insurers have to meet any claim. If the solicitor is guilty of misconduct, including failing to take out insurance, then the compensation fund is a safety net. This has been a foundation stone of our legal services.

The SRA are planning to change all this.

In a consultation that has recently closed they plan to have two separate sets of professional rules. One will cover individual solicitors and one will cover regulated firms. The proposal is that solicitors will be allowed to provide ‘unreserved’ services through unregulated organisations. So someone can set up an HR Consultancy and will be able to employ solicitors to offer legal advice to the public even though that consultancy is not regulated. The thinking behind the plans is that solicitors are a commercial disadvantage. The cost of regulation means that some organisations can provide the same advice at much lower cost. Insurance is one of the biggest overheads in most forms.

I think this is a recipe for disaster. Firstly, it threatens to devalue the solicitor brand. If someone can see a solicitor in an unregulated firm with no insurance or other regulatory protection then the security of knowing that there are guaranteed protections will disappear. This is not something that can be defined purely by cost. 

I can also see dangers, particularly for young lawyers. The SRA say that solicitors will be subject to the rules that will apply to all of them regardless of where they work. But this will put huge pressure on some individuals. If an inexperienced solicitor is working for an unregulated organisation they can find themselves conflicted between the demands of the business and their personal professional rules. 

The Legal Ombudsman has echoed this worry in its response –

“While a solicitor retains many of their obligations, such as competence, conflict of interest, complaint handling, these are not requirements for an unregulated firm. What should a solicitor do when these obligations come into conflict?”

http://www.legalfutures.co.uk/latest-news/creating-two-tier-profession-consumer-panel-joins-opposition-sra-plan

The plans have also been criticised by the Legal Services consumer Panel and the Law Society. I recently attended a forum in Liverpool where almost all of the lawyers present were opposed to the plans.

We should all encourage moves to bring legal services into the 21st century. The more bodies provided access to legal advice the better. I am also all in favour of easing the burden of regulation. That would give compliance officers like me fewer sleepless nights! But there are also minimum standards of service and protections that have to hand in hand with instructing a solicitor. Without this we will have a two year profession offering services to a confused public.

I hope that the SRA will listen to all of these criticisms and abandon what are badly thought out and dangerous proposals.

No, Lord McNally I will not shut up about Access to Justice

The Con-Dem coalition already feels like something from the distant past. One name that we will always associate with the attacks on Access to Justice is Lord McNally. As many Liberal Democrats try to distance themselves from the excesses of their years in power, he has robustly defended the cuts which he engineered. In a speech last week he also criticised lawyers, saying –

‘A plea to all the lawyers – those coming up and those already there. You have got to accept that bandying about access to justice, it’s really quite fraudulent. To govern is to choose. Is £1.6bn access to justice? Or is it £2.4bn?’

Leaving aside the obvious insult, his final sentence is very telling. His definition of access to justice is limited to varying sums of money. Access to Justice is neither £1.6bn not £2.bn. It is not a commodity it is in fact the foundation stone of a justice system. Why have rights if ordinary people cannot rely on them? 

This cheapening of justice is nothing new. Back in 2015 the former Justice Minister Lord Faulks QC described litigation as  - ‘very much an optional activity’.

http://thestevecornforthblog.blogspot.co.uk/2015/03/the-difference-between-access-to.html

So seeking compensation for a catastrophic injury is the same as collecting stamps or going out to a nice restaurant.  Losing the right to pursue or defend their rights can have a devastating effect on a person’s life.

The other problem with McNally’s comment is that he focuses on lawyers as if they are the only ones who are affected – lawyers, as ever, are the easy target!  In fact there are hundreds of voluntary agencies who have lost funding and can longer help the most vulnerable. Back in 2013 I wrote this –

‘Advice on welfare benefits is removed entirely from the scope of legal aid. The Liverpool Citizens’ Advice Bureaux have been among the leading providers of advice in this field. In the last few years they have been able to assist 2500 people in debt cases and 6270 people with welfare rights issues. That is a total of 8770 people is the direst of need. After 1^st April they will be able to advise…. None. Of course their dedicated workers do not want to let people down and many will continue help clients on a voluntary basis. But the reality is that thousands of our most vulnerable are going to be deprived of professional advice and assistance.’

Earlier this year the Head of the Supreme Court, Lord Neuberger warned that shrinking of legal aid contributed to threat to Access to Justice –

http://www.lawgazette.co.uk/law/access-to-justice-very-much-at-risk-neuberger/5054029.fullarticle

I for one have no intention of shutting up about this matter. It goes to the heart of a justice system. 

People rights cannot be reduced to simple mathematics or dismissed as optional activities.

Lawyers do not complain out of self interest.

They complain because they tend to be concerned about justice which is what brought many of us into the profession in the first place.

Insurance Premiums and other fantastic tales

One recurring theme of this blog has been the relentless attacks on victims of motor accidents by the insurance industry and their friends in government. The constant justification for this has been that car insurance premiums are too high and that so called ‘reforms’ will benefit all of us.

Former MOJ Minister Helen Grant nailed her colours to the mast back in 2013 –

“These proposals were advanced in a consultation exercise which closed on 4 January (2013) and, together with wider civil law reforms, are intended to make lawyers’ costs proportionate, and create an environment where insurers can pass on savings to their customers through lower premiums.”

It is fair to say that there has been some scepticism surrounding these claims. Back in 2013 we saw huge cuts in the amounts of legal costs recoverable by victims. Even then a representative from LVI said -  ‘premiums have already come down and we might see about 3% but - “I’m not hopeful of much more” ‘ 

I said back then that we might have a long wait before we saw any significant reduction –

http://thestevecornforthblog.blogspot.co.uk/2013/03/motor-insurerers-real-world-and-fantasy.html

In August 2013 we saw the report of the Parliamentary Committee on Whiplash Claims. This mentioned the familiar question of reductions in premiums –

‘We recommend that the Government explain how it will monitor whether or not motor insurers honour their commitment to ensure that any cost reductions resulting from proposed legal reforms are passed through to consumers in the form of lower premiums.’

Into 2014 the ABI were still going on about a ‘whiplash epidemic’, despite growing evidence that the number of claims was dropping. In other words – don’t expect any drop in premiums while there is still this mythical epidemic!

http://thestevecornforthblog.blogspot.co.uk/2014/03/abi-v-apil-rhetoric-v-reality.html

In April 2015 we were warned that motor premiums were going up! And they were going up because of dodgy whiplash claims. This announcement was made in the run up to the General Election when we all had our minds on other things –

http://thestevecornforthblog.blogspot.co.uk/2015/04/whiplash-claims-how-much-blood-can.html

Then in November 2015 the former Chancellor George Osborne announced further attacks including the proposed abolition of the right to seek damages for whiplash at all –

http://thestevecornforthblog.blogspot.co.uk/2015/11/osborne-small-claims-up-to-5k-and-no.html

Part of his reasoning was that this would see a reduction in motor premiums. He even put a figure on the saving that we could all expect. He said premiums would come down by about £3-£4 a month. Did he know that he would not be around long enough to justify his claims!

So where does that leave us today? 

We have over 3 years of attacks; cuts and rhetoric that makes victims look like criminals. Surely we must start to see some savings.

In fact it is the opposite.

The Times has recently reported that premiums have in fact gone up by a fifth in the last 12 months. The report, covered by Legal Futures, went on –

“It suggests that the overall cost to the insurance industry of these claims has dropped from more than £4.1bn in 2013 to £3.6bn last year. Motor insurance prices, however, have actually risen over the past 12 months.”

http://www.legalfutures.co.uk/latest-news/finally-insurers-get-neck-not-passing-whiplash-savings

So has the penny finally dropped? 

Those representing claimants have been banging their heads against the wall trying to get this message across. The cuts have all been about maximizing the profits of the insurance industry. No serious commentator has ever expected any benefits to be passed on to drivers.

It is a shame that it has taken this long. But let’s hope that the government will now stick to its word. 

The ‘reforms’ were built on a lie. 

There was never any real chance that we would all get cheaper insurance. The government should now say enough is enough. Now is the time to roll back the cuts.

Will it happen?

Justice for victims. A game of snakes and ladders?

Litigation is becoming more and more like a game of snakes and ladders!

Earlier in the week I posted an article on EAD’s website about the Third Party (Rights  Against Insurers) Act 2010 that finally came into force on 1^st August 2016. That Act makes it possible to lodge claims directly against the insurance companies of defunct companies –

http://www.eadsolicitors.co.uk/news/claimants-finally-get-the-right-to-claim-against-insurance-companies-directly/

Although it will be a few years before victims see the full benefit of the act it is certainly a positive development and rare piece of good news. 

So this was one of those ladders that don’t take you very far but at least keep you moving forwards. That is always the moment when you hit that scary snake that takes you right back to where you started. The ‘snake’ in this case it is the proposal by Companies House to destroy of the records of dissolved companies after 6 years rather than 20 years.

http://www.litigationfutures.com/news/pi-lawyers-join-fight-stop-companies-house-deleting-records-six-years-dissolution  

This does not sound particularly earth shattering. But it could change everything for victims of work related diseases. Such diseases take time to develop. I once acted for a man who had developed mesothelioma caused by asbestos exposure. He had first been exposed in the 1940s when working on the construction of railway engines. Asbestos related illnesses take many years to develop and it is a rare case that does not go back to the 1980s.

Workers who suffer from noise induced hearing loss have normally been exposed to high levels noise over a long period of time, often with a number of different employers. The same goes for vibration white finger, asthma etc. An essential part of the work is to build up a work history.  A search will be lodged with HMRC to obtain details and dates of employment. These searches themselves take over a year but that is a rant for another day! But you still need to carry out company searches to identify the status of employers, their correct title and, in many cases, insurance details.

To limit the search to 6 years will remove one of the most important resources available to victims and their advisers. There is no logic to this or any justification. Why should the families who have lost loved ones because of exposure to asbestos at work be deprived of justice. And that is what the result of this will be.

This is a shocking proposal which should be opposed by anyone and everyone!

If you think we're out of the woods today - you're in for a big surprise!

The Court of Appeal has just handed out a salutary reminder to anyone who thought that the horrors of Mitchell were a thing of the past.

The very mention of the name Mitchell can strike fear into the heart of most litigators. This was the decision that saw actions being struck out for the most minor breaches of directions orders. The nightmare lasted for several months until we had the more sensible approach in Denton v TH White which was designed to calm things down a bit. It is fair to say that, overall, this has been achieved  –

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

The good news continued with the decision in The Police v Abdulle where the conduct of lawyers was criticised to the point where the judge doubted that they understood ‘the rudimentary requirements of being a litigation solicitor’. The solicitors were guilty of breaching a whole series of court orders but were let off the hook because the failings of the lawyers had not actually prevented the timing of a trial. I did express surprise, at the time, and warned that this did not necessarily mean that we could safely revert to the old days when procedural breaches were broadly tolerated –

http://thestevecornforthblog.blogspot.co.uk/2015/12/mitchell-2-years-on-back-to-reality.html

I warned that there could be no room for complacency. 

This has been borne out with a vengeance in the alarming case of Jamadar v Bradford Teaching Hospitals –

http://www.litigationfutures.com/news/failure-serve-costs-budget-limits-claimants-recovery-court-fees-3m-quantum-dispute

What started all of this off was the failure of Andrew Mitchell’s lawyers to serve a costs budget in time during his libel claim against the S*n. Under the Civil Practice Rules the consequence of such a breach is that the lawyer’s fees are limited to court fees only. So in effect the lawyers do not get paid for their hard work, and they also have to cover all other expenses. The Jamadar case involved allegations of Clinical Negligence and the value of the claim was about £3m. Liability was denied. The case was allocated to the multi track meaning that costs budgets were required. The NHS then admitted liability and judgment was entered for the claimant. The claimant’s solicitors decided that they did not need to file a budget. The Defendants lodged their budget and reminders were sent to the claimant's lawyers.

The matter proceeded to a Case Management Conference at which the solicitors costs were capped at court fees only. The judge also allowed 5 experts for each side and allowed for a 5 day trial to assess damages.  So the catastrophic outcome for the solicitors is that they are effectively funding the case to trial - for nothing! This would put many firms out of business. The decision has been upheld this week by the Court of Appeal with a judgment from Jackson LJ himself.

So the lesson is clear. We are not out of the woods, certainly as far as budgeting goes. You have to wonder what possessed the claimant’s solicitors to decide that no budget was required. But on the other hand it seems that this was a mistake on their part rather than a simple failure to comply. But the outcome is the same.

And the message is clear.

Any lawyer dealing with multi track cases must read and understand the rules on costs budgets. Read and digest this message from Gordon Exall –

https://civillitigationbrief.wordpress.com/2016/07/26/failing-to-file-a-cost-budget-and-refusal-to-grant-relief-from-sanctions-a-harsh-lesson/

One failure to comply could turn a high earning case into the end of the world as we know it..