Concerning activists, squatters, an injunction and lots of running

I was reminded last week about a case in which I was involved back in the 1980s – when the world of legal practice was very different. And I was younger and fitter.

Towards the end of 1986 there had been a growing dispute between Liverpool City Council and local residents in Everton. This focussed on council plans to build what is now known as Everton Park. And a very nice park it is. This was part of the regeneration of what had become a very deprived area of the city. The problem was that the plans included the demolition of some good quality four bed roomed houses. Residents, including local church leaders formed the Langrove Street Action Group. Activists began to squat in empty houses to delay demolition. They were supported by a barrister, Mark Hedley who lived in the community – he later became Mr Justice Hedley. I was advising the group who were also supported by the housing charity Shelter.

In February 1987 I received a telephone call from Mark to advise me that demolition workers were due on site the next day. It was likely that so much damage would be done, that further opposition would be pointless. The next morning I was in Liverpool County Court on another matter when I was paged on the tannoy system to ring the office. I had a message to ring Mr Hedley (no mobile phones back then). He advised me that work had started. He said that there were grounds for an injunction based on a failure to consult residents. He had handwritten the papers. I ran to my car, drove at great speed to his house and then to my office where I had every available secretary typing up the application.

I then ran back to the car (running features a lot in this story), drove to Langrove Street to collect the two residents who were to be the Plaintiffs, drove them to a local solicitors office to swear their affidavits and then to county court office where Mark was waiting for us. These were days when you could turn up at the court office and have real people to help. I explained the urgency and told them that slates were being pulled off rooves as we spoke. Their support was remarkable. They issued the application and then went to find a judge. Within half an hour we were before Judge Bernstein who granted the order. Court staff again worked at staggering speed and within an hour of arriving at court I had the piece of paper in my hand. I left the others and ran (more running) back to the car and drove to Langrove Street. I ran across the estate waving the injunction. It was only at this point that I realised that the demolition team were big, strong and not too happy! One of them towered over me like Giant Haystacks (remember him?) and aggressively asked if I was ordering him to stop work. My knees and hands were shaking as I muttered something like – 'It’s not me it’s the judge’. Thankfully he backed off just as the TV cameras arrived. The work stopped. The damage was contained.

The dispute was finally resolved outside the courts. A change in the make up of the council meant that the decision to demolish was reversed. The court action had bought the residents essential time. The estate was eventually renovated and I was there when Glenda Jackson officially opened the new project in 1990.

This was one of those days when you remember why you became a lawyer in the first place. It was remarkable example of teamwork between local activists, lawyers and the courts. The court in particular acted swiftly and efficiently.

The law can be used effectively to secure justice for ordinary people.

It just seems so much more of a challenge these days.

Or is it?

Insurers again - costs go through the roof

If you only ever heard the voices of insurance companies you could easily believe that lawyers who act for accidents and occupational disease are entirely responsible for the escalating costs of litigation. This is turn means that they are responsible for high insurance premiums. This in turn means that the government feels the need to ‘crack down’ on the so called compensation culture.  It also leads to a distorted view of the real world. One leading business figure in Liverpool recently commented that ‘the no win no fee culture is a stain on modern society’!

Over the last 3 – 4 years it has become increasingly difficult to secure justice for victims.

So how about a story that redresses the balance. This is a case dealt with by EAD Solicitors. The names have been changed but every other detail is real.

Mr Smith complained of noise induced hearing loss caused by his work. Initial investigations confirmed that he did have some NIHL. He had worked in noise with 2 employers. A claim was intimated against both. It was not a huge value claim. At an early stage a Part 36 offer of £5,500 was made to both Defendants, D1’s share of which is £1,481.70 and D2’s share is £3,653.10, plus there was a small element that was not recoverable because of Holtby. D2 settled within a few weeks.

D1 argued causation and refused to settle. Court proceedings were issued. A second Part 36 Offer of £1250 was made. This was rejected. The court approved the instruction of a single joint engineer and allowed D1 to instruct their own medical expert. The engineer confirmed unprotected exposure to noise exceeded 90dB. D1 instructed a well-known ENT expert who argued that any hearing loss suffered by Mr Smith was de minimis and not therefore compensatable. He maintained that view following a joint meeting of medical experts. The matter progressed to a 2 day trial earlier this year. D1’s expert gave evidence. He made some concessions during cross examination. He then stated that he had changed his view substantially in recent months. He referred in particular to a paper that he had recently read. This took the Mr Smith’s lawyers and experts by surprise. The judge adjourned the trial for further reports from both experts.

Reports were duly exchanged and the trial relisted in July 2017. Shortly before the new date, D1 offered £1k plus costs. This was accepted.  This was almost 3 years after the first offer and almost 2 years after the second offer. D1 achieved a saving of just £481.70 from the first offer and just £250 from the second.

Mr Smith’s costs have been drawn at over £66k plus costs of assessment. D1’s costs are in the region of £25-£30k based on cost estimate provided at listing stage. So the insurers of D1 are shelling out the best part of £100k to save between £250 and £481.70.

I don’t think further comment is needed.

In praise of independent judges

Remember last year when the first panel of judges who heard the BREXIT case were scandalously described as – 'Enemies of the State'. I commented at the time that what the courts did, was assert the supremacy of parliament –

http://thestevecornforthblog.blogspot.co.uk/2016/11/the-brexit-judgment-is-all-about.html

That whole debate emphasised the need for a strong independent judiciary.

We have seen two examples of that over the last week or so. In the celebrated Supreme Court Judgment in relation to Tribunal Fees, the judges unanimously reminded ministers of the need to understand the rule of law and in particular of the right of ordinary people to access justice. I quoted part of Lord Reed’s judgment last week but one section should be repeated over and over again –

‘Courts exist in order to ensure that the laws made by Parliament, and the common law created by the courts themselves, are applied and enforced. That role includes ensuring that the executive branch of government carries out its functions in accordance with the law.

In order for the courts to perform that role, people must in principle have unimpeded access to them..’

This is one of the most powerful statements of the role of the courts that I have ever read.

He went on to say that without such access, our entire democratic process was at risk of becoming a ‘meaningless charade’. 

Can I just say in passing that this was the heart of the judgment? The tribunal fees case was nothing to do with opening the floodgates to spurious claims as has been claimed by some unhappy commentators. Fees were unacceptable because ordinary people could not afford them –

’The fall in the number of claims has … been so sharp, so substantial and so sustained as to warrant the conclusion that a significant number of people who would otherwise have brought claims have found the fees to be unaffordable.’ (Lord Reed)

The second example is the remarkable statement by our Senior Family Judge, Mr Justice Munby in the case of X (A Child). This is the case involving a teenager who is at serious risk of taking her own life if a suitably supportive placement is not found. The problem is that no such suitable placement can be found –

“We are, even in these times of austerity, one of the richest countries in the world. Our children and young people are our future. X is part of our future. It is a disgrace to any country with pretensions to civilisation, compassion and, dare one say it, basic human decency, that a judge in 2017 should be faced with the problems thrown up by this case and should have to express himself in such terms.”

  

He expressed shame and embarrassment that there was no safe place for her -

  

‘as a citizen and as an agent of the state; embarrassment as president of the family division and, as such, head of family justice’

His comments have been reported across the media. This reminder of the needs of young people in a similar position have hopefully shocked us all into saying that this is not acceptable. Despite being the most powerful Family Judge in the land, he was unable to order a placement that did not exist. But what he has done is use that important position to shake us into action.

These two cases demonstrate why it is so crucial that he have strong independent judges. Where it rests within their power they can keep the executive in check. Where it does not rest within their power they can bring issues to the attention of the world.

I can think of some places where these judges would be in personal danger for what they have said over the last week or so.

Our judges are not enemies of the state. They are not perfect. They make mistakes. But society is in trouble without them. And it is equally in trouble if people are prevented from accessing them.

Supreme Court Judgment - no more words needed

I sat down to write a post about today's momentous decision from the Supreme Court on Employment Tribunal Fees. But having read the judgment of Lord Reed I need do no more than quote these words on access to justice. I hope they are still quoted by teachers of law in years to come.

'At the heart of the concept of the rule of law is the idea that society is governed by law. Parliament exists primarily in order to make laws for society in this country. Democratic procedures exist primarily in order to ensure that the Parliament which makes those laws includes Members of Parliament who are chosen by the people of this country and are accountable to them.

Courts exist in order to ensure that the laws made by Parliament, and the common law created by the courts themselves, are applied and enforced. That role includes ensuring that the executive branch of government carries out its functions in accordance with the law.

In order for the courts to perform that role, people must in principle have unimpeded access to them. Without such access, laws are liable to become a dead letter, the work done by Parliament may be rendered nugatory, and the democratic election of Members of Parliament may become a meaningless charade.'

Thank you!

www.stevecornforth.com

What is the point of civil justice?

I can still remember my first legal rant. It wasn’t a blog. The internet was very much a new thing in 1999 when I wrote a letter to the New Statesman complaining about Lord Irving’s plans to abolish legal aid for Civil Proceedings. My rant was all about the price of justice v the value of justice.

Who could have predicted the downward spiral that would follow?

Last week, we received the news that our civil courts had recorded a profit of £100m. This would be encouraging if the point of justice was the generating of profit. There has been a growing attitude towards civil justice which has seen it become a commodity rather than a right. In 2015 Justice Minister Lord Faulks went as far as to say that litigation was ‘very much an optional activity’ –

http://www.litigationfutures.com/news/litigation-much-optional-activity-says-justice-minister-defence-court-fee-rises

I wrote at the time about a case many years earlier, in which I had instructed Faulks in a case where clients were seeking damages for their child who had been severely brain damaged at birth. What was optional about that?

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

The minister’s comments came in the context massive increases in court fees. Those increases are also at the heart of the profits that have been announced. Most lawyers do not need to be reminded about the level of those increases. In some cases the hike has been as much as 600%! It costs £10,000 to commence a claim for the most severely injured victims. Whilst there is a scheme for remission of fees it does not apply to everyone. In the meantime those fees deter all but the rich. In reality lawyers will pay the fees up front. But at those levels there is an obvious limit on how much can be loaned to clients. 

One can see the logic of this if the idea of the exercise is to make money.

But is that really what we want? What is the point of having a justice system if ordinary people are excluded? The current President of the Supreme Court commented in 2013 - 

“Cutting the cost of legal aid deprives the very people who most need the protection of the courts of the ability to get legal advice and representation." 

In the continuing absence of legal aid, the imposition of prohibitive court fees adds insult to injury.

A civil justice system ensures that the rights of ordinary citizens are protected. That protection becomes a fantasy if those citizens are deterred by cost, especially when that cost is expected to generate a profit!

Imagine the outcry if a private business was exploiting the weak and vulnerable in order to make money!

So will see a reduction in court fees? Hands up if you’re not holding your breath.

www.stevecornforth.com

Medical Negligence - Striking a massive imbalance

The Medical Protection Society has published proposals calling for the ‘urgent’ reform of the procedure for pursuing claims for damages for Clinical Negligence. Their plan is called – Striking the Balance. It is interesting that all of their points would heavily weight the system against victims. 

There is a briefing document available at –

https://www.medicalprotection.org/docs/default-source/sab-docs/6092-striking-a-balance-briefing-doc_v2.pdf

Here are some of the highlights

1. A limit on recoverable care costs based on ‘the realities’ of providing home based care.

This proposal assumes that victims and those who care for them are simply seeking to make as much money as possible. This could not be further from reality. Most victims prefer to receive care from family members if possible. In most cases this is what happens. So if a victim is unable to cook their own meals, in the vast majority of cases it is family members who pick up the burden. There is a right to claim for their time but this is already discounted. You cannot claim damages based on the 100% cost of employing a carer. Rates are already reduced by up to 30%. Many victims are so severely disabled that they require specialist care, often 24/7. I cannot imagine that the MPS are seeking to have those costs reduced.

2. Limiting loss of earnings to national averages so that higher earners get less compensation.

This would create a ‘first’ in English Law. Damages are calculated by reference to what is needed to put a victim, as far as possible, in the position they would have been if the incident had not happened. So a person who earns £100k a year is so badly injured that they will never work again. The national average salary is £27,600.00. So where does the poor victim find the shortfall of £72,400.00? Who pays their mortgage? They are left with a life changing injury and could be forced out of their house into the bargain…

3. An introduction of fixed costs for claims under £250,000.

As the MPS know, this is currently the subject of two separate consultations. The government has proposed a scheme for limiting the recoverable legal costs in cases worth up to £25,000.00. They did flirt with the idea of £250,000.00 but soon dropped it. Lord Justice Jackson is currently working on a report looking at the fixing of recoverable costs for all cases up to £250,000.00. He has suggested that it would be difficult to extend such a scheme to Clinical Negligence in most cases. This is because these cases are inevitably expensive to run – not least because they are so often contested until the very last minute.

4. The introduction of an ‘ultimate’ Limitation Period of 10 years.

This is the most jaw dropping proposal, and again would mean introducing entirely new law just to save money for the MPS. At the moment the Limitation Period in most cases is 3 years. This runs from the date the victim ‘knows’ or should know that there is likely to be a claim. So if I woke up from a tonsillectomy with a leg missing it would be fairly obvious when the 3 years began to run. Sometimes an injury, say a fracture, is missed but the truth does not come out until years later. So the Limitation Act 1980 says that the clock starts ticking when the victim knows what has happened. In the case of say a child who suffers catastrophic brain injury at birth, there is effectively no deadline if they are rendered incapable of deciding for themselves whether to pursue an action. The same goes for an adult who loses all capacity to manage their lives. These victims are the most badly affected by negligence. They are, by definition, the most vulnerable members of society. Why should they lose access to any justice because somebody else does not know to bring a claim on their behalf?

The full report can be seen at  - https://www.medicalprotection.org/docs/default-source/sab-docs/5892-striking-a-balance-policy-paper-web.pdf

The MPS seem to have learned lessons from RTA insurers. If they lobby hard enough they hope to get their way – regardless of the clear injustice that would follow to those who are least able to speak for themselves.

In fairness, the report also touches on the need for the avoidance of incidents. But the briefing document makes it clear where their main concern lies.

The cost of pursuing claims for clinical negligence is undoubtedly high. But you don’t strike a balance by passing the burden to entirely innocent victims.

Introducing our new Justice Minister!!!

Well it has been an interesting few days. Who would have thought that the outcome of the election would have been a hung parliament and deals done with the DUP to shore up a minority Tory government?

But there was one thing that was widely predicted. This was the removal of Liz Truss as Justice Secretary. Her days were clearly numbered after a number of gaffes, not least being her failure to robustly defend the judiciary following the Brexit decision and the Daily Mail’s infamous ‘Enemies of the State’ headline. This resulted in a withering attack from the Lord Chief Justice –

https://www.theguardian.com/politics/2017/mar/22/lord-chief-justice-castigates-liz-truss-for-failing-to-defend-judges

This has also led to calls for any replacement to be a lawyer.

Today we hear that she has been sacked by Theresa May. It was with some excitement that many of us waited to find out about her replacement. And it is ….. David Lidington. Who?

Well he is the Honourable Member for Aylesbury, Bucks. He was Minister of State for Europe until 2016. He has been leader of the House for a year. His other claim to fame is about expenses. According to the the Telegraph he submitted claims in 2016 for cleaning, L'Oriel moisturisers, body spray and Sensodyne toothpaste!

http://www.telegraph.co.uk/news/newstopics/mps-expenses/5364110/MPs-expenses-David-Lidington-is-Mr-Clean-but-you-pay-for-his-soap.html *

 But above all, he is not a lawyer!

https://www.lawgazette.co.uk/news/david-lidington-another-non-lawyer-is-new-lord-chancellor/5061488.article

He is no fan of Human Rights and is known to favour abolition of the Human Rights Act. To be honest these come as no surprise. It is well known that Theresa May is hostile to the HRA.

But the appointment of a fourth successive non lawyer Lord Chancellor is a major disappointment. You would have thought that the disastrous experiment of Grayling, Gove and Truss would have taught the government something. Of course, it is not compulsory for the Secretary of State to have relevant qualifications. You would not expect all Health Minsters to be Doctors or Transport Ministers to be Highways Engineers. But the Justice role is different. It is not a purely political appointment. The Justice Minister carries a huge constitutional responsibility as Lord Chancellor.  

The Constitutional Reform Act 2005 requires him/her to swear the following –

"I, , do swear that in the office of Lord High Chancellor of Great Britain I will respect the rule of law, defend the independence of the judiciary and discharge my duty to ensure the provision of resources for the efficient and effective support of the courts for which I am responsible. So help me God."

Will Mr Lidington understand this? Will he ‘defend the independence’ of judges even if this means upsetting the right wing tabloid press? Will he appreciate the importance of ‘justice’ as something more than a commodity? He might surprise us (!) but this is a lost opportunity to give back some credibility to an important position, which has now seen three incumbents in two years!

Time will tell what Mr Lidington will make of the pressures from the insurance industry to press on with attacks on the rights of accident victims.

Of course, that time might be short!

Who knows who will be at the helm in October 2018?

www.stevecornforth.com

*Thanks to my friend Mike Williamson (Williamsons Solicitors) for this link