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Wednesday, 26 April 2017

Defendants push for high limit on Clinical Negligence fixed fees

On 1st May the Consultation of fixed fees in Clinical Negligence ends. The Government proposes the introduction of fixed recoverable costs in cases where the value does not exceed £25,000.00. The scheme is driven by the Department of Health. Nobody has explained why the Government Department which is, in reality, the Defendant in most cases, is to decide what that Department must pay out in cases where they are found to be at fault…

I have previously written about this on LinkedIn.

The consultation suggests a number of alternatives. It is fair to say that in those cases affected by the changes, the recoverable costs will be significantly lower than those with which lawyers have become accustomed. The proposal for experts’ fees is alarming in the extreme - £1200.00 in total for reports on breach of duty and causation. I cannot imagine experts who will be willing to work for those sort of fees.

Having said all of this I suspect the fixing of recoverable costs in lower value cases is inevitable. In an era of proportionality it is becoming increasingly hard to justify costs which are many times higher than the damages. A recent example of this is the case of Rezek-Clarke v Moorfields Eye Hospital NHS Trust. The claim settled for £3250.00. The Claimant’s solicitors submitted a bill for £72320.00 which was reduced to £26,200.00. Notable deductions were the ATE insurance which went from £32,000.00 to £2120.00 and the expert fees which went from just over £18,000.00 to £7500.00.

The proposed fees remain eye wateringly low. It is hoped that the Government – if it survives the election (!) will take note of the many responses to the consultation and come up with something more workable. The alternative that is that many Solicitors will be unable to take on such cases with its inevitable impact on access to justice.

But the big worry remains that the upper limit could go as far as £250,000.00. This was the original intention of the DOH. It is being strongly promoted by the Defendant lobby –

Alongside the present consultation we will soon see the report of Lord Justice Jackson who is known to favour the imposition of fixed fees for all civil cases up to £250,000.00. So will this proposal be overruled by Jackson!

This will be a major setback for victims of medical blunders. A Clinical Negligence claim worth £250,000.00 is not a low value claim claim. A victim who might receive damages at that level has suffered a life changing injury. They may not be able to work again and/or might need care for years. It is unthinkable that the government might consider putting a further hurdle in the way of victims. In the last few years they have lost the right to legal aid in virtually all cases. They have seen the abolition of recoverable success fees and most insurance premiums both of which have to be deducted from damages. Introducing draconian cuts in recoverable costs for cases up to £250,000.00 will inevitably deter many.

Politicians need to learn the value of justice and not just the cost.

Wednesday, 23 November 2016

My final blog - because justice matters

This is the final blog that I will be posting in its current format.

My first post was on 2nd October 2011 and was all about attacks on Human Rights following the Conservative Party Conference. The blog has since covered most topics imaginable including – LASPO, Motor Insurance, the ‘Compensation Culture’, thinking before you tweet and inappropriate comments about a LinkedIn photograph. 

My Blogger stats tell me that there have been just over 167,000 reads.

As I embark on massive changes next year the time has also come to re-think the blog.

In April 2017 I am stepping down as a partner in my current firm and launching out on my own as a consultant, mainly assisting firms, small and large, in PI, Clinical Negligence and Occupational Disease work. There will be more shameless promotion of that venture nearer the day. But I am also planning to devote more time to my lifelong obsession with Access to Justice. 

After today I will be posting under the new badge – Justice Matters. The plan is that this will be wider than just a blog. A sort of one person lobbying project. In fact I hope it won’t be just a one person venture. My hope is that, in time, it will be a place for others to post articles, news, events and any other rants on this crucial topic.

The seed of the idea was planted earlier this year when Lord McNally – remember him? – suggested that we shut up about Access to Justice –

In the face of this comment it was clear that we needed more noise than ever.

I expect to be exploring topics including access to advice for benefit claimants, re-instatement of a properly funded legal aid scheme, pro bono, court and tribunal fees, human rights, litigants in person, access to assistance for victims of accidents and disease and other topics that will certainly be raised in the next few years.

I am hoping that the new Justice Matters project will start at the beginning of December.

Please let me know if you have any ideas, concerns topics, suggestions or advice.

Thursday, 17 November 2016

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 –

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.

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 –

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 –

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!

Friday, 11 November 2016

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 –

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 –

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 –

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

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?

Friday, 4 November 2016

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 14th 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 –

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 –

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 –

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.

Tuesday, 1 November 2016

Reflecting on 25 years as a litigator!

Today, I am celebrating 25 years at EAD.

I joined on 1st 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?

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…

Friday, 28 October 2016

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!

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!

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…