SARAH - work of genius or meaningless drivel???

In the late 1970s the Rock Band Thin Lizzy had a hit with a song called Sarah. It included the memorable lyrics -

‘When you begin to smile you change my style
My Sarah
When I look in your eyes I see my prize
My Sarah’

As an aging hippy I still love the track. But to many modern listeners this is sentimental, meaningless drivel. Which brings me to another SARAH, which has been in the news this week. But there is a difference. This one is definitely meaningless drivel.

SARAH is the short name for the grandly titled Social Action, Responsibility And Heroism bill which has received the royal Assent this week. The new Act says that if someone is injured due to negligence, the court has to consider the following factors –

• If the person being sued was doing something for ‘the benefit of society’ – to take account of the fact people were doing a good deed like volunteering, running an event or trip, or helping out by clearing snow.
• If they had been acting in a ‘predominantly responsible way’ – to make sure the court will give consideration to the fact that people may have taken care when organising an activity but, in spite of their best efforts, an accident has happened.
• If they were ‘intervening in an emergency’ – if they stepped in to help someone in danger but something went wrong.

https://www.gov.uk/government/news/courts-to-recognise-good-intentions-of-volunteers-and-small-busineses

SARAH has been widely derided by lawyers as one of the most pointless enactments of all time. This is because it is meaningless in practice. So let’s say that I drive into the back of somebody at traffic lights or hit a pedestrian on a zebra crossing, do my insurers avoid liability if I was acting in a way that was ‘predominantly responsible’? So if was only a little bit reckless the poor victim gets nothing. Or if I overload the shelves in our local food bank and they collpase onto soembody, do my insurers pay nothing because I was doing a good deed? Of course not.

The logical outcome could be that motor insurers will insist that all drivers do voluntary work – think of the millions that they could save. During the debate in the upper house, Lord Pannick QC brilliantly observed that it was - ‘so anodyne and pointless that the only appropriate response is a shrug of the shoulders or the raising of an eyebrow’

  

It is in fact a dangerous use of law making powers in order to make a political statement. Minister of Justice, Chris Grayling said that the provision was needed as a ‘balance to counter the health and safety culture’. 

This government is no fan of Health and Safety. Back in 2012 the Prime Minister declared himself determined to - 'kill off the health and safety culture for good'. This frightening comment disregards the many thousands of lives that have been saved since the Health and Safety Executive was launched in the 1970s. This negative attitude to safety is fed by myths promoted in the tabloid press and exploited by hostile politicians.

In response to the 2012 outburst from Mr. Cameron the HSE published – 

http://www.hse.gov.uk/myth/top10myths.htm

This highlighted a number of fictitious Health and Safety issues including – 

·  Children being banned from playing conkers unless they are wearing goggles

·  Office workers being banned from putting up Christmas decorations

·  Trapeze artists being ordered to wear hard hats

·  Pin the tail on the donkey games being deemed a health and safety risk

·  Candy floss on a stick being banned in case people trip and impale themselves

·  Hanging baskets being banned in case people bump their heads on them

·  Schoolchildren being ordered to wear clip on ties in case they are choked by traditional neckwear

·  Park benches must be replaced because they are three inches too low

·  Flip flops being banned from the workplace

·  Graduates ordered not to throw their mortar boards in the air

The truth is that Health and Safety saves lives. It may be unpopular with businesses that have to take care of their workers but what is more important? 

As for SARAH – she is now on the statute book and her name may never be heard again!

www.eadsolicitors.co.uk

Concerning Deafness, insurers and other hopeless cases

I have a friday afternoon ritual. At about 3.30, I meet with one my of colleagues. Over a coffee and a cake we carry out our screening of the new Occupational Deafness cases that have come in during the course of the week. This is not a Friday afternoon ‘easy job’. It is hard work.

Before we even look at them there has to be professionally prepared audiometry. If any of those tests are questionable the case is rejected. We then look at numerous other factors including the nature and dates of the exposure, the provision of hearing protection, limitation, the number of employers etc. Only the best cases survive the exercise. We reject about 70% of the cases that we screen.

I spoke at a conference in Liverpool last year on this very subject. From what I could tell, most experienced practitioners adopt a similar approach.

It seems, however, that the insurance industry would have us believe otherwise. According to a press release this week, Aviva allege that lawyers are actually interested in pursuing hopeless cases. They say that too many cases are submitted by ‘opportunistic personal injury lawyers’. They go on to make the remarkable assertion that lawyers need to be deterred from submitting – ‘weak cases they know are likely to fail’. They call for a clampdown on ‘spurious’ claims.

http://www.aviva.com/media/news/item/uk-aviva-calls-for-clampdown-on-spurious-industrial-deafness-claims-17459/

This is of course complete nonsense. These cases have to be pursued on a no win no fee basis. There is no other way that a victim can secure justice. For obvious reasons, lawyers will only pursue cases with at least a reasonable chance of success. Why on earth would we have any interest in running case that we ‘know are likely to fail?’ Or to put it more bluntly - why would we ever want to run cases for which we do not have a cat in hell’s chance of getting paid? This is why cases are so carefully screened. To do otherwise would be commercial suicide.

Aviva and their insurance colleagues are not trying to clamp down on ‘spurious’ claims. They are trying to get rid of all claims. They want to persuade their political allies to introduce procedures that will make it virtually impossible to pursue most cases. They did this very effectively in motor accident cases and have now moved on to another agenda. And they will go to great lengths to deter claimants.

EAD settled one claim last year after a long and very expensive battle with insurers. It was a genuine claim but was of modest value. It is fair to say that they threw the kitchen sink at this poor claimant. It became a war of attrition. Any point that could be taken was taken. The case came within an inch of trial when it finally settled for just under £4k. Two years earlier, we had put forward a proposal to settle at £4.5k. The legal costs were

eventually agreed at £69k. They were so high because the claimant had been made to fight to the end. The insurers did not even try to argue that the costs were disproportionate.

They did all of this in the hope that the claimant would give up. And presumably to send a message out that you ‘don’t mess with us’! Try telling this client that insurers acknowledge that genuine claimants deserve compensation.

This is going to be the next battle ground and it will not be long before the Minister of Justice starts to come out with similar rhetoric.

The only hope is that the election will see a different government and one which sees the value and not simply the price of justice.

www.eadsolicitors.co.uk

A very bad week for Christopher Stephen Grayling

We all have bad weeks. 

But it has been a particularly bad one for the first non lawyer Lord Chancellor for over 400 years. 

Was it only two months ago that he was proclaiming that it was a good thing that he was not a lawyer 

 http://www.lawgazette.co.uk/law/non-lawyer-lord-chancellor-is-a-benefit-grayling/5044210.fullarticle

Last night, I actually missed part of Liverpool FC’s exit from the Champions League to witness the mauling which the House of Lords gave to Mr Grayling's proposals to restrict the right to bring Judicial Review proceedings. A key proposal would remove the power of judges to decide whether to hear such applications. In effect the right to bring proceedings against the Government will be controlled by the Government. This was roundly rejected by the Lords. Those opposing the move included a number of Tory and Lib Dem peers –

http://www.theguardian.com/politics/2014/oct/27/house-of-lords-defeat-chris-grayling-judicial-review-plan

Grayling's advocate in the House, Lord Faulks QC, was increasingly ineffective in the face of relentless attacks, particularly from the masterful crossbencher, Lord Pannick. It doesn't matter how eminent a barrister you are, defending the indefensible is always a thankless task.

Further misery was heaped on Mr Grayling as he was forced to admit that he misled Parliament over the proposals. He had suggested that there was to be an exception to the rules barring applications whereby the court would retain discretion in certain circumstances. He wrote to Conservative MP, Geoffrey Cox, to confirm that he had ‘inadvertently’ said that this was the case when it fact it was not. So he was either misleading the House deliberately or had no idea what was in his Bill –

http://www.politics.co.uk/blogs/2014/12/10/grayling-s-nadir-judicial-review-bill-falls-apart-as-ministe

While we are on the subject of Judicial Review! Mr Grayling was told by the High Court this week that his appalling plans to ban books for prisoners was unlawful –

http://www.theguardian.com/commentisfree/2014/dec/08/ban-books-prisoners-ministry-of-justice-mark-haddon

It is no wonder that he remains so anxious to abolish the right to subject the Government to review by the courts. Could he be trying to avoid the honour (ahem) of being the most judicially reviewed Minister in history?

All of this makes you wonder whether Cameron’s experiment in placing a career politician at the head of the legal system was such a good idea after all.

www.eadsolicitors.co.uk

Access to Justice - its all about the money, money, money

It's not about the money, money, money
We don't need your money, money, money
We just wanna make the world dance,
Forget about the price tag

This is the first time that Jessie J has made an appearance on this blog. Or any other legal blog for that matter! When it comes to putting a value of Access to Justice her words are sadly wide of the mark. It seems that it is in fact all about the money, money, money.

That was certainly the impression given by top MOJ Civil Servant Ursula Brennan, when she gave evidence before the Public Accounts committee this week.

She confirmed that her department was given a mandate to cut the Legal aid Budget at all costs and that they were given no time to carry out any research into the possible impact of the cuts, which virtually wiped legal aid for the most vulnerable.

http://www.lawgazette.co.uk/law/moj-chief-admits-cuts-rushed-through-without-research/5045500.article

It was clear from her responses that no thought was given to the likely consequences. The overwhelming brief was to save the money from the legal aid budget regardless of whether this might be a false economy. This is something that most campaigners have been saying for the last couple of years.

What about the cost to the Court system of a deluge of litigants in person?

What about the cost to other public bodies who have to pick up the pieces?

What about the issues of quality as legal aid lawyers are forced into a race to the bottom on fees?

As one MP asked - ‘How do you know there is not £100m of mental health costs flowing from these reforms?’

This emphasises again the contempt that the current government has for our once proud justice system. I have talked before about where their true values lie –

http://thestevecornforthblog.blogspot.co.uk/2013/06/the-value-of-justice-22-drops-in-ocean.html

Barrister Harriet Johnson tweeted this week –

  

‘Grayling: This isn't ideological; I HAVE to cut £220m from #LegalAid. We've no money. Govt: Sod it; have £15bn for some new roads.’  
  
That says it all! Money is found for some things. It is all about priorities. Access to Justice is a very low priority for our politicians.

This is something that we must force onto the agenda over the next 5 months.

www.eadsolicitors.co.uk

 

 

 

 

The Continuing Insanity of the Mitchell Litigation

If there is one word that still strikes fear into the hearts of even the most robust litigators it is the word Mitchell. Just say it in their company and your will see a total personality change. They will stare blankly ahead like rabbit in headlights. Their bottom lip will quiver and they will quickly head for the door. It is a word that they associate with missed deadlines, strike outs and sheepish letters to their indemnity insurers.

It was a name that dominated this blog for several months last year –

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

The worst excesses of that decision were eventually mitigated by the Court of Appeal in the later case of Denton but that overriding fear of missing the bus by a few days has never gone away –

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

So with all the excitement of the Mitchell case it has been easy to forget that there was real dispute taking place between Mr Mitchell, a former government Whip, and the Sun Newspaper. This, of course, was all about Plebgate – the infamous exchange between Mitchell and a Police Officer in Downing Street during which the MP allegedly called the officer a ‘fucking pleb’. The exchange made the front page of the Sun. Mr Mitchell sued them for libel. Yesterday the High Court found against him. Mitting J ruled that he probably did use the offending language. Not only has he lost a case that was brought in order to salvage his reputation, he also faces a huge legal bill. Various figures are going around of between £1.5m and £3m. He has to pay £300k on account by January.

http://www.theguardian.com/politics/2014/nov/27/andrew-mitchell-plebgate-gamble-career-fails

That estimate of the legal costs beggars belief when you think about the ‘scary’ Mitchell case – the one about missing deadlines. What happened there was that his lawyers were supposed to file a costs budget with the court by a particular date. They failed to do it and were effectively deprived of all of their costs as against the other side. But lets stand back from that for a minute.

The idea of the budgeting exercise was to control costs. The whole point of the Jackson reforms was to rein in the cost of civil litigation. A much quoted statement from the Master of the Rolls was –

‘Doing justice in each set of proceedings is to ensure that proceedings are dealt with justly and at proportionate cost.’

  

So we have a case which is about a heated conversation between a politician and a police officer that lasted a few seconds. We have seen a satellite argument go to the Court of Appeal, costing thousands of pounds, because lawyers missed a deadline to serve a budget that is supposed to part of a procedure to control costs. Now we have seen the conclusion of the main action with costs possible running into millions. 

As John Hyde of the Law Society's Gazette tweeted yesterday - 

'I wonder how often Andrew Mitchell wishes he'd just taken the Tube home that night'

Is it just me? How have we gone from ‘justly and at proportionate cost’ to this?

The famous words of DH Lawrence come to mind –

‘The world of men is dreaming, it has gone mad in its sleep, and a snake is strangling it, but it can't wake up.’

www.eadsolicitors.co.uk

Rolls Royce Justice for the Rich

The Lord Chancellor, Chris Grayling believes that London should take its place at the heart of the International Legal community.

These were his encouraging words ahead of next year’s Global Law Summit –

http://www.lawgazette.co.uk/law/grayling-make-london-heart-of-legal-community/5045319.article

For those who are interested this is a major event with high level speakers including Cherie Booth QC , Aung San Suu Kyi and erm Boris Johnson. It is two day event – tickets on the door - £1750.00.

http://globallawsummit.com/registration/

Grayling spoke of our long and proud legal tradition. And in one small sense, he is right. As a country we do seem to have plenty of money to spend encouraging the rich and powerful to litigate here. We have the Rolls Building which is certainly a top of the range facility for the highest level commercial disputes –

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

The cost of building that beautiful court would have funded access to legal aid for thousands of people.

We cannot claim to be at the heart of any Legal Community whilst substantial numbers of our citizens have no access to our justice system. Just this week we have seen a shocking report from the National Audit Office that there has been a doubling of cases involving children where neither party has legal representation. This is causing injustice, delay and increased public expense as cases take far longer.

http://www.theguardian.com/law/2014/nov/20/legal-aid-family-law-cases

This report made the very reasonable comment that – ‘… the MoJ had failed to think through the impact the changes would have on the wider system…’ We have been trying to tell them that for the last 4 years.

We have also seen attacks on the rights of accident victims to recover their full legal costs alongside a full blown media campaign to demonise those victims.

When it comes to providing a Rolls Royce service for those who have endless funds to spend, we are right there at the top. When it comes to providing ordinary people with a means of protecting their rights, most people find the door well and truly shut in their faces. Until that door is opened we cannot claim to be at the heart of any justice system worth the name.

www.eadsolicitors.co.uk

Is a surgeon negligent because he's having a bad day at the office?

How about a nice tricky legal question to start the week?

I have to confess that I am not at my best on Mondays. I wouldn’t say that I am in the Boomtown Rats league but it is not normally my favourite day! So let’s say I bump my car on the way home. And let’s say it isn’t clear whether or not it was my fault. Could the other driver say it must be my fault? Could he say that everyone knows I’m not at my best on Mondays, so that that must be taken into account?

In other words; to what extent can external factors influence a decision as to whether I have or haven’t been negligent? The answer might appear obvious but that very problem has exercised the Court of Appeal in a recent Medical Negligence case.

Mrs Laughton underwent a left hip replacement operation on 30^th July 2007. The surgeon was Mr Shalaby. The operation was not a success. She needed a further operation about 18 months later. It was necessary for the second surgeon to re-attach the gluteus medius muscle to the trochanter bone. Mrs Laughton’s case was that Mr Shalaby had negligently failed to do this at the time of the original surgery.

The case went to trial and experts for each side had differing opinions. The expert for Mrs Laughton said that it was self evident that Mr Shalaby had not re-attached the muscle and therefore he was negligent. The expert for Mr Shalaby said that the muscle could have come away after the surgery, that this was a known complication and did not in itself indicate negligence. The judge preferred the evidence of the latter. He decided that there no negligence and Mrs Laughton lost. She appealed to the Court of Appeal.

 

At the appeal hearing an attempt was made to rely on extraneous factors. The surgeon had been made subject to conditions by the GMC. This was due to complaints about the standard of his surgery in other cases. He had also, allegedly assaulted a bus driver and been suspended from practice. It was suggested that all of those factors would have put him under stress and more likely to make a mistake.

This was dismissed by the Court of Appeal. Mr Shalaby should been open about these matters. But they made no difference to any assessment of the standard of surgery offered to this particular patient on this particular day. There was no evidence of any similar problems in other hip replacement operations carried out by Mr Shalaby.

Lord Justice Longmore said -

‘The fact that a doctor is under stress does not of itself mean that he is more likely than not to have been negligent on a particular occasion.’

Those who are interested can see the full decision here –

http://www.bailii.org/ew/cases/EWCA/Civ/2014/1450.html

This is a significant decision. It means that in a Medical Negligence case the court has to focus on the incident itself and cannot take into account unrelated factors in the absence of evidence of negligence. That doesn’t mean that the court will never consider other factors. If Mr Shalaby had a habit of failing to attach the gluteus muscle then that might be used against him. But a claimant cannot rely on unrelated factors to try and swing the pendulum their way.

All of which means that if I bump into your car tonight, you can’t say it’s my fault just because it’s Monday!

www.eadsolicitors.co.uk