£24m damages - worth every penny

Earlier this week, The Guardian reported on what could be the biggest Medical Negligence payout that has been seen in the UK. Damages could be as high as £24m.

As is so often the case, this was a tragedy which was completely avoidable.

Maisha Najeeb suffered from arterio-venous malformation (AVM). It is a condition that affects the blood vessels in the brain. It is manageable condition. Treatment involves the use of a type of glue. Dye is then injected to monitor the blood flow. Due to a catastrophic error the glue was injected into her brain instead of the dye. As a result she is now profoundly brain damaged.

Maisha was a generally healthy 10 year old who is now dependant on others for the rest of her life. The hospital admitted negligence and promised to introduce measures to avoid a similar mix up happening again.

http://www.theguardian.com/society/2014/jan/27/nhs-24m-bill-glue-injected-girls-brain-great-ormond-street

It is easy to see awards like this as some sort of lottery win. In fact the actual award could be far less. If Maisha lives to 64 then the total annual payments will reach the £24m mark. If she only lives to a much younger age then payments will stop.

But I would not be surprised to hear politicians and some newspapers bemoaning the cost of these pay outs to the beleaguered NHS. We might even here the tired references to a compensation culture and defensive medicine. The reality is that this was a blunder which has ruined the life of a bright young girl. The compensation will just about cover her medical and care needs for life – however long or short that might be.

It is almost certain that Maisha’s case was pursued with the benefit of legal aid. Children were automatically eligible in their own right until last year. If the case was starting today there would be no legal aid. The state no longer funds actions like this – even where a life is destroyed by the state’s own health service. She would have to find a lawyer willing to pursue the case on a no win no fee basis. Yes – those very no win no fee lawyers who are regularly blamed for everything except the weather –

http://thestevecornforthblog.blogspot.co.uk/2013/03/stop-talikng-about-no-win-no-fee-lawyers.html

Some of her damages could even have been eaten up in legal costs.

It is so pleasing to see some justice for Maisha. All the money in the world will not give her back her life.

This is exactly the sort of case that demonstrates the need for a justice system that gives access to all.

www.eadsolicitors.co.uk

In which the government cuts back on access to justice but splashes cash on on IT system...

We haven’t talked about legal aid for a while. That’s no great surprise as there is very little left. I have previously referred to Access to Justice as a wasteland.

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

There has been one glimmer of hope recently. But it remains doubtful whether it will be any more than that.

Earlier his month we saw the publication of the Low Commission on Legal Aid. This Report from the group led by Lord Low makes a number of recommendations. There is a call for urgent steps to be taken to ensure access to justice for the most vulnerable especially in relation to housing, debt and welfare rights. Interestingly the report suggests a £100m fund partly financed by the government and partly from other sources including a levy on pay day loan companies.

http://www.lawgazette.co.uk/practice/restore-legal-aid-for-housing-cases-commission/5039301.article

It makes the obvious, but very important point that voluntary agencies are simply not able to cope. So will this report make any difference? Sadly I am less than optimistic. In his December 2013 statement the Chancellor, George Osborne promised further cuts in public spending with the Ministry of Justice in the firing line –

http://www.bbc.co.uk/news/uk-politics-25223687

Experience shows that access to justice for ordinary people is low on the agenda for this government.

But the government does manage to find money for some rather less useful projects.

The Legal Agency recently spent £54.3m on an upgrade to its online application and billing system. The launch of this upgrade has been deferred –

http://www.thetimes.co.uk/tto/opinion/letters/article3981911.ece?CMP=OTH-gnws-standard-2014_01_21

So funds almost exactly matching the Low Commission's recommendation for the government's contribution to a Legal Aid Scheme, have just been thrown at an IT system, which doesn’t seem to be working.

Can anybody explain the logic?

www.eadsolicitors.co.uk

Four 999 Calls - no one came (Update)

My firm EAD is representing Joyce Pring, the widow of Frederick Pring – they were married for 38 years.

Last year Frederick died in the most tragic of circumstances.
 
He suffered from COPD and heart failure for a number of years. On the 21st March 2013 he began to suffer chest pains which were getting gradually worse. Then the pain became very severe. He was also very breathless. He knew it was serious and asked his wife to call 999. She did this.

She rang the emergency services at 1:09 am. She went through a number of questions with the operator. They then waited for an ambulance to come.

Mrs. Pring called again at 01:19 am; she was re-assured that an ambulance was on its way and she was asked the same questions as before. Mr. Pring was getting worse by the minute. Still there was no ambulance. By now they were both very scared.
She called a third time at 01:38 am and went through the whole process yet again. Mrs. Pring became increasingly frustrated.

At around 01:45 am, Frederick told Joyce that he was ‘going’. Frederick then fell back onto the bed. Joyce knew that she had lost her husband.

Mrs. Pring called 999 a fourth time at 01:51 am to report that her husband was dead. Remarkably she was asked similar questions again. They asked if he was conscious and told Mrs.Pring to clear his airways. Mrs. Pring was told to move him from the bed to the floor which was impossibility. Mrs. Pring had to reiterate that her husband was dead.

At 01:57, two ambulances arrived together, then soon after an ambulance from the North West of England arrived. It was too late for paramedics to do anything.

We all associate 999 with two things. Firstly, it means that someone is in desperate need. Secondly, it means that help is on its way. Here, there was call after call after call. But no one came. It is hard to imagine a worse nightmare.

Yesterday the inquest into Frederick Pring’s death began. The recordings of the telephone calls made by Mrs. Pring to the Welsh Ambulance Service NHS Trust were played out loud in court. Mrs. Pring had to leave the court room whilst they were played as she said listening to them would of have been too distressing. The fourth and final call in particular, when she was asked to lift Fred from the bed and lay him on the floor and clear his airways, when she knew he was dead, haunts her to this day.

The inquest the coroner decided to invoke Article 2 of the European convention on Human Rights (Right to Life), ths widening the scope of the inquiry. Mrs. Pring was pleased with the coroner’s decision to do so. Mrs. Pring believes that her husband has been let down by a systemic failure and does not seek to blame any one individual in this case.

There are many lessons to be learned from this tragedy.

I also hope that politicians will begin to appreciate that cases like this are nothing to do with any compensation culture. This case is all about justice for a poor woman who is entitled to answers to questions.

UPDATE - on 20th January the Coroner for North EastWales gave a narrative verdict. He has required the Welsh Ambulance Service and the Hospital Board to respond within 56 days to concerns about prioritisation of calls and delays in handing over patients at A/E. They are required to state what action has been taken or will be taken in order to prevent future deaths and to avoid, for other families, a repeat of the harrowing events which beset Mr Pring. He said -

'The loss of even a single life to a potentially avoidable delay is unacceptable and so I intend to make reports to both the Ambulance Trust and the Health Board advising them of my concerns that unless action is taken, circumstances creating a risk of other deaths will continue to exist.'

www.eadsolicitors.co.uk

The Law - a career for everyone??

Simon Hughes MP has been an interesting addition to the Ministry of Justice team.

He was a practising barrister for about 9 years before winning the famous Bermondsey by-election in 1983.

He was critical of Government plans to curtail the right of Defendants to select their own lawyers. He has also criticised legal aid cuts that came in last year –

http://www.theguardian.com/law/2013/jun/26/simon-hughes-legal-aid

So it will be interesting to see how he gets on with Chris Grayling.

He has made his views known on very important subject; need for a diverse legal profession. Earlier this week he described the profession as being stuck in Victorian era and called for a greater representation, particularly,  from women and ethnic minority groups –

http://www.independent.co.uk/news/uk/politics/simon-hughes-legal-profession-must-do-more-to-reflect-modern-britain-9054692.html

He called on law firms to - “proactively go out and look for people from all communities in Britain to be lawyers”. 

This has been a major concern for the profession for some time. In 2012 I posted a blog about my fears that the law was becoming a career for the rich –

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

The Minister’s words are therefore encouraging. However they don’t address the real causes of the problem. We all want a profession that is as inclusive as possible. But there is little incentive for the best candidates to choose the law as a career. They have to run up eye watering levels of debt, sometimes as high as £50k. There is a dire shortage of training places for trainee solicitors or barristers. The minimum salary for trainees will shortly disappear.

I have said before, that I would probably have not been able to qualify as a solicitor if I was starting now. Many of my colleagues say the same.

So what is the government doing to resolve these problems? Mr. Hughes’ statement hardly fills one with enthusiasm - “It may be there’s an additional bit of financial help you need to give to encourage people from poor backgrounds to come into the legal profession at the bottom end”. An additional 'bit' of financial help is like offering someone shelter in your tent to hide from an avalanche.

I do not know a single lawyer who is not committed to a diverse profession. But rhetoric like this contributes nothing to the debate.  We need a real commitment to deal with student debt, an issue on which the Lib Dems have not covered themselves in glory. We also need to see regulators reviewing their decision on salaries, so the brightest students are not drawn to other professions.

And a re-think of the relentless attacks on the profession – particularly on those who represent ordinary people – would also play its part.

www.eadsolicitors.co.uk

I'm in the money ... a rant!

It seems that I am entitled to claim damages for noise induced hearing loss and could well look forward to getting a cheque for up to £10k! Well that will certainly come in handy after an expensive Christmas and New Year break.

Last night I was sitting down to my tea and watching the end of Pointless when the phone went. These annoying cold calls always seem to come at the same time. But this caller was not trying to sell me a mortgage. She introduced herself as Carly from the Hearing Loss Good News Centre or something like that. She certainly had good news for me. I could be in the money. I had come up on their ‘register’ as someone who had worked in a noisy environment in the past and might be entitled to pursue a legal claim. I was a little surprised as I have never worked in noise in my life. I did see Led Zeppelin in 1971 and had a ringing in my ears for an hour or so, but that’s about it.

I asked her why they thought I was entitled and where they had got my details from. I was told that my name had come up on ‘the register’. Register? I went on to ask the usual questions about cold calling, MOJ Registration, referral fee bans. The response to all of these questions was that my name had come up on the register and they were calling to advise me of my rights. Clearly Carly had reached the limits of her script and I decided to end the call watch the end of Pointless, which seemed appropriate.

So for any of us who do industrial disease work the word is out. No longer do we have to worry about causation, breach of duty, limitation and those other irritations. If a client’s name is on the register then that’s the end of the matter. Even if there has never been any noise exposure. No wonder the government has kept the magic register a secret!

Joking aside, this deserves a serious rant. How often are claimant lawyers described as ambulance chasing money grabbers who are responsible for high insurance premiums and the parlous state of the NHS? We have seen fees slashed access to justice virtually eliminated and the depressing news of closures almost on a weekly basis. Isn’t the real problem with companies like this that seem to ignore all regulation? I was cold called and given incorrect, dishonest, information by a young caller who knew nothing at all about hearing loss.

To add insult to injury I later heard a radio advert promising damages of ‘up to £10k’. I have settled many hearing loss cases with damages far higher than that. Where does that arbitrary figure come from? Will 2014 be the year when lawyers who buy claims from these companies are themselves sued for under-settlement?

The government and regulators would serve the public better by doing more to eliminate this type of behaviour rather than attacking the obvious and easy targets – the lawyers.

Here endeth the first rant of the year!

www.eadsolicitors.co.uk

Merry Christmas and the back of 2013!!

I have to confess to being an instinctive optimist. The glass tends to be half full. A lifetime as an Everton fan has occasionally led to blind, irrational optimism – but not this season! 

But even I have struggled to find positives from the year gone by.

Here are just some of the changes that we have seen –

1. Removal of the right of accident victims to recover success fees from Defendants meaning that they will see a reduction of up to 25% in their damages,
2. Drastic reductions in recoverable legal costs making it uneconomical to take on certain cases without reducing quality,
3. Abolition of legal aid for huge areas of work creating an access to justice  waste land - http://thestevecornforthblog.blogspot.co.uk/2013/03/access-to-justice-waste-land.html
4. Eye watering cuts to the fees payable to criminal lawyers who are already amongst the lowest paid in the profession - http://www.lawgazette.co.uk/practice/criminal-bar-names-6-january-as-strike-day/5039058.article
5. The introduction of fees in Employment Tribunals resulting in a 50% reduction in cases - http://www.theguardian.com/money/2013/dec/23/employment-tribunal-claims-introduction-fees
6. The chilling decision in Mitchell v NGN which will see hundreds of claims struck out and an unmanageable drain of Professional Indemnity Insurance.

The world we can look forward to in 2014 will be very different from anything we have known before.

The only real comfort is that there is not much more that can be thrown at the profession. It is a bit like the scene at the end of Rocky where he is up against the ropes and having the living daylights beaten out of him. Not only does he survive but gets through four more movies!

The worst has been thrown at us and some, in fact most, of us are still here. It may be hard but those lawyers who are imaginative and robust will survive and even thrive again in time.

In the meantime let’s all enjoy Christmas. I’m looking forward to nice books/DVDs –

Fifty Shades of Grayling

LASPO Go Home (DVD)

The Empire Strikes Out

Tender Mercies

E-QWOCS The Movie

Have a great Christmas and New Year

www.eadsolicitors.co.uk

Litigation - a trivial pursuit?

It is less than a month since the Court of Appeal decision in the Mitchell case changed, forever, the way civil litigation is pursued on this country.

This is the case where the Solicitors acting for Andrew Mitchell MP effectively lost any right to recover fees for the work done by them in connection with his defamation claim against The Sun. This was because they filed a budget at court 6 days late. The fees are likely to exceed £500k. It remains to be seen whether they will stay in business.

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

The upshot of the appeal is that any missed deadline is likely to lead to severe sanctions. 

It used to be that a delay of a day or two would be permitted because we live and work in a real world where these things happen. Not anymore. The Court of Appeal did say that ‘trivial’ breaches might be forgiven but did not give any helpful definition.

Since that decision lawyers have been assessing the likely damage. One case has already come before the court and it is fair to say that the situation is bleak as we have predicted.

Romano v k Papers (Blackburn) Ltd was a routine claim for noise induced hearing loss at work. The court had ‘stayed’ the court action until February 2013 to enable the parties to try and agree settlement. Sadly the claimant’s Solicitors went out of business. New Solicitors acting for their administrators asked the court for more time. They were granted and extension to 17^th June 2013 but the order stated that after that date the claim would be struck out. The new solicitor reviewed the file on 18^th June and noticed to his horror that the date had passed. He immediately applied to have the case reinstated. Surely in all the circumstances a delay of just one day was ‘trivial’. Sadly not.

The case came before HHJ Gore who upheld the decision to strike out the claim in its entirety. The delay of just one day was not trivial. Who was prejudiced? The court administration, which had to find space in the diary for the hearing. The judge also dismissed submissions that the claimant was deprived of a fair trial under Article 6 of the European Convention on Human rights. The reason given was that the claimant could sue his lawyers.

http://civillitigationbrief.wordpress.com/2013/11/29/decision-of-the-county-court-folowing-mitchell-romano-v-k-papers-blackburn-ltd/

So this is the new world in which we now find ourselves. A minor error can now have massive consequences which are totally disproportionate. The whole idea of a civil justice system is surely to resolve disputes in a way that is fair and ‘just’. Now it has to be one which does not inconvenience the court’s diary managers. The most chilling statement is the one that dismisses complaints of injustice by redirecting the claim to the lawyers. Most victims, especially in the more serious cases, want something more than just money. They want the person responsible to be held to account, they want answers to questions.  In short they want ‘justice’.

Solicitors firms have recently been through their insurance renewal process. This has been one of the toughest in history and a significant number of firms face closure because they either, could not get insurance, or could not afford massively increased premiums. I predict that many more will struggle next time around if the most trivial of diary mistakes or oversights put further pressure on the insurance market.

Very few of our senior judges have ever had to face any of these stark realities.

So we could end up with the terrifying scenario of firms going out of business and staff losing jobs due to the tiniest of errors.

Lawyers can no longer afford to be human.

www.eadsolicitors.co.uk