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Monday, 7 July 2014

Mitchell - heading back to planet earth?

I have gone on and on here about the insanity that followed the Court of Appeal decision in Mitchell v News Group Newspapers towards the end of last year. The madness was summed up by one insurance spokesman who commented that we no longer had a clue what we were doing!

Cases worth thousands of pounds were being struck out because of documents being filed a few days late. This all led to the bizarre and chaotic situation where solicitors were becoming so afraid of missing deadlines, however minor, that they had no choice but to issue application after application to extend time limits.

So there were sighs of relief on Friday as the Court of Appeal including Dyson LJ, who gave the Mitchell judgment, and Jackson LJ, he of the eponymous ‘reforms’, told us that enough was enough. The chaos was not caused by the Mitchell judgment itself. It was all a misunderstanding by judges who had been over enthusiastic in their draconian interpretation.

The Appeal judges heavily criticised the opportunism of parties who had used the judgment to their advantage. In future they can expect o be heavily penalised in costs if they refuse reasonable requests for extensions of time.

The judges laid out some guidelines for courts dealing with failure to comply with directions.

They have set out a 3 stage approach to such applications. Rather than summarise them I have set them out below for future reference. This is not quite returing us to planet earth but is certainly a very positive development. I do wonder what happens now to the claims being pursued against lawyers in relation to claims struck out due to the judicial 'misunderstanding'. I see some litigation ahead on that one!

 The full judgment is available here –

1. The seriousness of the breach

“It seems that the word “trivial” has given rise to some difficulty. For example, it has given rise to arguments as to whether a substantial delay in complying with the terms of a rule or order which has no effect on the efficient running of the litigation is or is not to be regarded as trivial. Such semantic disputes do not promote the conduct of litigation efficiently and at proportionate cost. In these circumstances, we think it would be preferable if in future the focus of the enquiry at the first stage should not be on whether the breach has been trivial. Rather, it should be on whether the breach has been serious or significant…”

“We therefore prefer simply to say that, in evaluating a breach, judges should assess its seriousness and significance. We recognise that the concepts of seriousness and significance are not hard-edged and that there are degrees of seriousness and significance, but we hope that, assisted by the guidance given in this decision and its application in individual cases over time, courts will deal with these applications in a consistent manner.”

2.The reason for the breach

“The second stage cannot be derived from the express wording of rule 3.9(1), but it is nonetheless important particularly where the breach is serious or significant. The
court should consider why the failure or default occurred: this is what the court said in Mitchell at para 41. It would be inappropriate to produce an encyclopedia of good and bad reasons for a failure to comply with rules, practice directions or court orders. Para 41 of Mitchell gives some examples, but they are no more than examples.”

3. Opportunism

“The important misunderstanding that has occurred is that, if (i) there is a non-trivial
(now serious or significant) breach and (ii) there is no good reason for the breach, the
application for relief from sanctions will automatically fail. That is not so and is not
what the court said in Mitchell: see para 37. Rule 3.9(1) requires that, in every case,the court will consider “all the circumstances of the case, so as to enable it to deal justly with the application”.

“Thus, the court must, in considering all the circumstances of the case so as to enable it
to deal with the application justly, give particular weight to these two important
factors. In doing so, it will take account of the seriousness and significance of the
breach (which has been assessed at the first stage) and any explanation (which has
been considered at the second stage). The more serious or significant the breach the
less likely it is that relief will be granted unless there is a good reason for it. Where
there is a good reason for a serious or significant breach, relief is likely to be granted.
Where the breach is not serious or significant, relief is also likely to be granted.
But it is always necessary to have regard to all the circumstances of the case.”

“We are concerned that some judges are adopting an unreasonable approach to rule

“It seems that some judges are approaching applications for relief on the basis that,
unless a default can be characterised as trivial or there is a good reason for it, they are
bound to refuse relief. This is leading to decisions which are manifestly unjust and

“Litigation cannot be conducted efficiently and at proportionate cost without (a)
fostering a culture of compliance with rules, practice directions and court orders, and
(b) cooperation between the parties and their lawyers. This applies as much to
litigation undertaken by litigants in person as it does to others. This was part of the
foundation of the Jackson report. Nor should it be overlooked that CPR rule 1.3
provides that “the parties are required to help the court to further the overriding
objective”. Parties who opportunistically and unreasonably oppose applications for
relief from sanctions take up court time and act in breach of this obligation.
We think we should make it plain that it is wholly inappropriate for litigants or their
lawyers to take advantage of mistakes made by opposing parties in the hope that relief
from sanctions will be denied and that they will obtain a windfall strike out or other
litigation advantage. In a case where (a) the failure can be seen to be neither serious
nor significant, (b) where a good reason is demonstrated, or (c) where it is otherwise
obvious that relief from sanctions is appropriate, parties should agree that relief from
sanctions be granted without the need for further costs to be expended in satellite
litigation. The parties should in any event be ready to agree limited but reasonable
extensions of time up to 28 days as envisaged by the new rule 3.8(4).”

“It should be very much the exceptional case where a contested application for relief
from sanctions is necessary. This is for two reasons: first because compliance should
become the norm, rather than the exception as it was in the past, and secondly,
because the parties should work together to make sure that, in all but the most serious
cases, satellite litigation is avoided even where a breach has occurred.”

“Heavy costs sanctions should, therefore, be imposed on parties who
behave unreasonably in refusing to agree extensions of time or unreasonably oppose
applications for relief from sanctions. An order to pay the costs of the application
under rule 3.9 may not always be sufficient. The court can, in an appropriate case,
also record in its order that the opposition to the relief application was unreasonable
conduct to be taken into account under CPR rule 44.11 when costs are dealt with at
the end of the case. If the offending party ultimately wins, the court may make a
substantial reduction in its costs recovery on grounds of conduct under rule 44.11. If
the offending party ultimately loses, then its conduct may be a good reason to order it
to pay indemnity costs.”

Friday, 4 July 2014

Cracking Whiplash - the latest instalment

There is mixed news today for victims of motor accidents and their advisers, in the fourth report of the transport select committee on the cost of motor insurance.

It is disturbing that the committee express concern that lawyers are commissioning unnecessary medical reports to maximise their own income. This refers in particular to the obtaining of psychiatric evidence. It is not surprising that the Association of British Insurers has weighed in and alleged that unqualified individuals are assessing psychological injury. If any lawyers are sending clients to unqualified experts then they deserve all they get. But it is hard to envisage any circumstance in which this would be worthwhile. Insurers and/or the courts would be quick to reject any such unreliable evidence.

I suspect that this is a tactic by the ABI to try and get any psychiatric evidence barred in whiplash cases.

Solicitors actually have no choice here. The Solicitors’ Code of Practice has 10 Core Principles one of which is to act in the best interests of each client. If a client describes symptoms consistent with a psychological injury then the solicitor has a professional duty to investigate. If a solicitor fails to do that and it later turns out that there is such injury then they are likely to be sued by their client and possibly disciplined. This is not a matter that can be dictated by the ABI.

The committee has suggested extending the idea of accredited panels of experts beyond whiplash. Apart from very minor injuries it is hard to see how this can work. In the case of serious or complex injury there can be a range of opinion with wide disagreement between experts. It is hard to see either side in such cases wanting to commit to a single opinion. It is the job of the court to weigh the evidence in those cases. This is something which courts in this country have done for centuries.

The committee supports the proposed ban on solicitors owning medical agencies and from offering inducements to their clients. I think the first is inevitable and the MOJ seem committed to this. As far as inducements go I am far from convinced that they encourage dishonest claims. If a criminal is of a mind to cheat a few thousand pounds from the system, the inducement is the money not the iPad. But if it helps restore credibility for victims then a ban may not be a bad thing.

The committee's criticism of the insurance industry focuses on their continued practice of making offers without medical evidence. They call for these to be banned. I would suggest that this goes to the core of the problem. The likelihood of getting a settlement with no scrutiny by way of evidence, presents a huge temptation to fraudsters.

Anyone involved in these cases has to be committed to eliminating fraudulent claims. They add to the cost of insurance and undermine the credibility of the overwhelming majority of genuine victims. These proposals are an interesting contribution to that process.

But there are still concerns that there is a presumption that there is a compensation culture and also that most claims are not genuine.

The other concern is that lawyers are accused of being in it to make money for themselves. At a time when record numbers of firms are closing or quitting this area of work that is a fantasy.

The full report is available here –

Monday, 30 June 2014

Doctors and Cancer Treatment - naming, shaming and missing the point

A failure to diagnose cancer can have catastrophic consequences.

The most tragic case that I am currently handling relates to a woman in her 30s whose bladder cancer was missed despite numerous attendances at both her GP surgery and her local hospital. She died on Good Friday last year leaving 2 young children –

I commented at the time that in all of my years in practice I had rarely come across a case that made me more angry and upset. We all feel the same when we come across these avoidable tragedies. As a lawyer I want to do all I can to ensure that the family get justice. But as a society we also want to do all we can to ensure that it never happens again.

The Ministry of Health had acknowledged the problem of failed cancer diagnoses. According to the Health Secretary, Jeremy Hunt, the answer is to name and shame doctors who are at fault. There is also talk of ranking doctors and hospitals by reference to the speed of diagnosis –

This move is likely to achieve little or nothing. In fact it is likely to make matters worse. We all know what will happen. We have seen it with most ‘league tables’. Doctors will be forced to concentrate on improving their stats. So there will be a huge rise in referrals to clinics that are already under huge pressure. There will, of course, be no corresponding rise in funding. The Chair of the Commons Health Select Committee, a conservative MP says –

"I don't want to see any reduction in services. I would like to see further improvements and that will require an increase in funding."

This is the real answer. Adding further pressure to the medical profession is not an answer. It might provide populist headlines but it will not save lives.

It is extremely frustrating to hear these statements from a government which has made it far more difficult for victims to pursue cases for justice. In April 2013 Legal Aid was abolished for almost all Clinical Negligence cases. So victims have to find a lawyer who will pursue a case on a no win no fee basis; which normally involves that lawyer having to bankroll the expenses of the case that can run into thousands. This is already pressurising some law firms to significantly reduce their intake of cases. Some will have to leave the market altogether. And those very lawyers are then attacked by the medial for feeding the mythical compensation culture –

The rhetoric is always that ‘times are tough’ and that ‘we are all in it together’. But these tragic cases which devastate peoples lives should be a priority – certainly as against the cost of nuclear submarines! The government needs to ensure that surgeries and clinics are properly funded. They cannot simply starve them of resources and then blame them when things go wrong.

Politicians seem more concerned about headlines. Naming and shaming will sell newspapers but at what cost?

Wednesday, 25 June 2014

Social Media and Lawyers - how is it for you?

A recent report has praised the use of Twitter by major City Law Firm, Pinsent Mason –

Now it is fairly obvious that anyone reading this has at least some knowledge of Social Media. But which is the most popular and of the most use to lawyers? 

I use the four most obvious platforms although each seems to contribute something different.

Twitter is what I have tended use the most for business and marketing. Its 140 character limit can be a bit frustrating but it can also be a great discipline to say something meaningful in just a few words – especially for lawyers! You only have to look at the response to SeƱor Suarez’ latest dental adventures to see how quickly a message can spread –

So if you want to get something across briefly and quickly then it has to be Twitter. It is certainly the most effective way of presenting and promoting blog posts!

Facebook, on the other hand is more personal and homely. You tend to know who are interacting with, at least in a social media sense. So I would expect more dialogue on Facebook; more chat about culture and sport but less about business. So, I probably use FB the least for business. By the way I bought a great fridge magnet in France last week – ‘Facebook is like a fridge – you know there is nothing in there but you still check it every 10 minutes’.

So what about LinkedIn? I have been on there for about 3 years and I do like the way it tells me that my connections potentially link me to 15,259,305 people which is approaching twice the population of Austria! I have found it very useful to join its interest groups and have probably made more direct business contacts on here than anywhere else. But isn’t very ‘friendly’ to use. I find myself looking to see who might be on there but will then see if they are on twitter or even email. And I do find it disconcerting to see that someone in the USA has endorsed me for Estate Management or Attorneys!

But the most interesting platform, at the moment, for me is Google+. To be honest I am still getting my head around it. But I find it is user friendly, lively and useful for both business and personal contacts. I am as comfortable posting holiday photos to my circles as I am looking for business contacts or posting links to this blog. This has definitely been helped by the UK Connect: Grow Your Own Network started by Donna Beckett of @beckettandco . If you haven't yet signed up I would recommend you give it a go. The sheer scale of it is a bit overwhelming at first but you soon get used to it.

So I will still instinctively go to Twitter but G+ is closing in.

I would be interested in hearing your views!

Friday, 20 June 2014

Access to Justice - LiP Service!

Yesterday I attended a meeting at Liverpool County Court with advisers, lawyers and Senior Judiciary. This was all about the growing problem of how we can best assist Litigants in Person.

When the government announced its devastating cuts to Legal Aid in 2013 many of us predicted a massive growth in the number of those bringing or defending cases without any legal representation. In a report in 2011 the Civil Justice Council said –

‘It is a reality that those who cannot afford legal services and those for whom the state will not provide legal aid comprise the larger part of the population of England and Wales. Thus for most members of the public who become involved in legal proceedings they will have to represent themselves.’ Access to Justice for Litigants in Person 2011.

What this does not say is that such litigants will often be opposed by public bodies or insurers with very deep pockets to pay expensive legal fees. And the legal process is more than just a maze. It is a minefield.

These unrepresented litigants are increasingly dependant on help from court staff who themselves have seen cuts in funding and can, in any event, only do so much. The burden is also taken on by voluntary agencies. They do a stalwart job. One advice worker in Liverpool advises hundreds of people facing debt cases virtually on her own and with diminishing resources. I have said before that Access to Advice at this level is a waste land –

The government has deprived ordinary people of the right to funded legal advice and, at the same time, squeezed the life out of those other agencies that were able to help. There are many solicitors and barristers who will advise litigants without charge. But in a climate of heavily reduced fees and record closures of law firms, there is only so much that they can do.

The problem has recently been summed up by the Lord Chief Justice, Lord Thomas –

“…lawyers should not forget that in the present day litigation seems almost out of reach for those on modest incomes and many SMEs”.’

Lord Thomas hopes that a move towards fixed legal fees might improve the situation. Alongside this there is the move towards unbundled legal services whereby legal advice and help is provided at key stages throughout a case at a fixed charge –

I’m afraid that I do not share his optimism. For those on lowest incomes, including some who are very vulnerable even a fixed fee is way beyond their reach.

What we need is a firm commitment from politicians to a reinstatement of properly funded legal assistance to those in greatest need. 

There is no point in having a justice system if people do not have access to that system regardless of wealth. This needs to be brought to the top of the agenda as we move towards a 2015 election.

Thursday, 5 June 2014

Workplace Accidents - extending the 'compensation culture'.

The Insurance Industry, the media and certain politicians have brought into existence a very effective myth – The Compensation Culture. We are led to believe that this ‘culture’ is out of control and is responsible for many of society’s ills, including high insurance premiums. These two words have become so widely used that many people now take for granted –

  1. That it exists,
  2. That it needs to be stopped,
  3. That it is largely the fault of lawyers.

But it is indeed a myth.

The Master of the Rolls, one of the country’s senior judges, acknowledged this in a speech in March 2013. He referred to ‘media created myths’ He went on to say –

‘All of this may also require a substantive educative effort on the part of government, the courts and the legal profession to counteract the media-created perception that we are in the grips of a compensation culture.’

The government has showed little appetite for dispelling the myth. In fact they have been happy to promote it in order to help their insurance company friends.

The myth has been effectively used to attack victims of motor accidents. 

Now it seems that it is to be extended to those who have accidents at work or who suffer work related illnesses. The Telegraph has recently reported claims by AXA that businesses are victims of – ‘fraudulent injury compensation claims by an employee’. They cite one example! 

The reality is that a tiny minority of those who suffer from work related accidents or illnesses, actually pursue compensation claims. One government report says that 85% of those injured at work are not compensated. Recent changes in the law have made it much harder for victims to pursue cases against their employers. Many simply don’t want to do it for fear of losing their jobs.

This is a worrying development. There is no such thing as a compensation culture. It is a fiction. The insurers have used it with great effect to attack victims of car accidents. Now, it seems, they have their sights fixed on a new group of victims.

There is a clear risk that we could indeed revert to Victorian days when it was virtually impossible to obtain justice for a work related injury. The development of Health and Safety Regulations, alongside the right to claim against careless employers has saved thousands of lives in industry over the last fifty odd years. This cannot be allowed to change.

Wednesday, 28 May 2014

Seven Penalty Points can bar you from the Bench!

I have a confession to make! There have been two occasions during my driving career when I have hovered on 9 penalty points. Until they dropped off my licence; I was the most careful driver imaginable, much to the annoyance of the lines of traffic that often gathered behind me.

On one occasion I picked up 6 points in one trip. I was heading to a meeting in Burnley in very poor weather. I did not notice the speed camera that caught me doing 35 mph in the 30 mph zone. Much to my annoyance and to the amusement of my friends, I was caught by the same cameras as I headed in the opposite direction on my way home.

I am now safely on 3 points and hope to stay there.

Little did I know when I was happily driving through Burnley that I was jeopardising any potential judicial career. On the way into the town I was a fit and proper person to be a judge. By the time I left I wasn’t.

This was the unfortunate experience of Welsh Solicitor Graham Jones who was refused a Full Time job as a District Judge because he had 7 points on his licence! He was described as an outstanding candidate and would have got the job but for the points. He took Judicial Review proceedings against the JAC which have been dismissed. Leveson LJ said –

“In my judgment, the JAC is entitled to take the view that public confidence in the standards of the judiciary would not be maintained if persons who are appointed to judicial office have committed motoring offences resulting in penalty points at the level identified in the guideline within four years of their appointment.”

Apparently he is still a fit and proper person to continue to sit as a Deputy DJ and has been encourage to apply again, when the points have gone from his licence. If I was him I would tell them where to put their advice. Is it just me or does this just show a complete disengagement from the real world. If he is a good and competent judge why should be debarred from a judicial career because he might have missed a speed camera. And why should he be any more or less acceptable once the points have gone.

The confessions I just made will no doubt bar me for ever. I haven’t even mentioned the two fines I picked up during an epic drive through Queensland last year.  And I was so looking forward to spending the rest of my days striking out claims where lawyers made marginal errors!

The lesson is this. If you have any ambitions to be a judge drive carefully. Or at the very least choose the option of a speed awareness course – it could be a decision that saves your career.