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.”