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Wednesday, 20 August 2014

The Bitter Sweet Story of a massive damages award



It is almost 15 years to the day since I settled what was at that time, the biggest case that I had ever handled.

John – not his real name – was born in good health. He then developed jaundice, which is not uncommon in young babies. In severe cases treatment is necessary either by phototherapy, using lights, or a full blood transfusion. So long as the condition is treated promptly there are rarely any major problems. John was born over a holiday period. The hospital staff, with the best of intentions, wanted to get the new young family home. He was discharged without being checked by a paediatrician. This was a catastrophic decision.

His condition deteriorated. By the time he was admitted to a local children’s’ hospital it was too late. He had suffered major and permanent brain damage.

This is a very oversimplified account of the medical issues but the outcome was that he had no use of his limbs, no speech and would need care from his family for the rest of his life. However, he was otherwise, as bright as the rest of us – if not more so.

Liability was disputed at first. However it seemed such a blatant case that, for the only time in my life, I applied to the High Court for summary judgment. This is a quick procedure to bring cases to a conclusion where there is no realistic argument. Surprisingly the NHS agreed and the case eventually settled for just under £2.5m which back then was a sizeable award.

There are still those who criticise victims and families for pursuing compensation claims for medical blunders. They are accused of draining the NHS and depriving other patients of the care they need. Others think of awards like this as if they were lottery wins. This could not be further from the truth. Compensation is needed to provide for the care and support necessary to give the victim a reasonable quality of life.

The reason I mention this story is that I am still in touch with the family. I have had a limited role over the years, assisting with occasional matters arising from the various trusts. So I have been able to see how the award has worked for John and his family. I met his mum recently. She told me that he has managed to get a University Degree. She said that he is now planning on working abroad for a year. Despite massive obstacles he is working toward a successful career. Now this is a tribute to John’s own determination and intelligence alongside the support from his family. But it is also a result of what has been achieved by a fair award of compensation for his injury which has provided the framework for him to develop.

We all wish that tragedies like this did not happen.

But those who go on and on about a compensation culture should, now and then, consider the real lives behind the stories.




Wednesday, 13 August 2014

Are we in a Post Legal Aid world?



I remember getting hot under the collar last year when I heard someone in the voluntary sector say that we were now in a ‘post welfare’ state. He was saying that we can no longer assume that the state will provide for those in greatest need and the burden will fall on charitable organisations. I disagreed with him but am beginning to wonder whether he has a point, certainly as far as legal services are concerned.

Should we now talk about a post legal aid world? That is almost certainly the case as far as civil and family work is concerned. It is now almost impossible to get legal aid for any claim involving damages. The last surviving area of work – Clinical Negligence - was removed last year, apart from a very narrow group of those who suffer a brain injury at or very shortly after birth. For most other work it has gone. 

The situation is worse for those in private family disputes. This problem has been highlighted by the President of the Family Division, Sir James Munby. In a recent decision he has said that there are cases where it is simply essential for there to be legal or representation or expert evidence. In a case involving the need for an interpreter and legal assistance he has said that the Court Service could be required to pick up the bill in the absence of legal aid –

"HMCTS will also have to pay the cost of providing the father with an interpreter in court. If the father is still unable to obtain representation, I will have to consider whether the cost of that should also be borne by HMCTS. That, however, is a matter for a future day."


This could leave us in the bizarre situation where the government refuses assistance via legal aid but ends up paying the cost anyway through the courts. This certainly makes it clear, beyond doubt that the need had not gone away. When the most senior Family Judge is making comments like this, no further comment is needed. But this would surely only ever happen in a small number of extreme cases.

The devastating cuts to legal aid funding are indefensible. But nobody expects it to be re-instated. I have not heard anything from the opposition to suggest any change at all.

So should we now be looking towards a new world?

Will we see a new generation of free legal advice centres, funded by charities, philanthropists, churches etc? I will argue to the death that it is the job of the state to ensure that everyone has access to justice regardless of means. This is sound politics. But in the meantime I suspect that the world has changed for good. So do we now need to look at other alternatives to ensure that people get the help that they need?


Discuss!

Wednesday, 6 August 2014

Blaming injury victims is becoming an industry



It seems that if you repeat a statement often enough, people will eventually grow to accept it as fact. This is certainly the case with the so called compensation culture. 

It has even been used today in relation to scandalous delays dealing with claims from injured armed forces veterans. One explanation for the delays on behalf of the government has been an alleged - "rising claiming culture" –


I’m not sure whether this statement is meant to suggest that war veterans are submitting claims that are not genuine!

The phrase is now in such common usage that any victim who seeks compensation is marked as being a part of this culture and therefore to be frowned upon. It is apparently of no relevance whether the injury is genuine or serious.

I have said many times that the ‘compensation culture’ is a myth which has been created by politicians and insurers and which has, for some reason, been promoted by the media.

This has been highlighted by a recent YouGov Poll reported in the Law Gazette last week. This revealed that only 25% of people who suffer from personal injuries actually go on to claim compensation. Various reasons are given for this reluctance ranging from those who believe that a condition or injury is not serious enough to those who object in principle to making claims. That is hardly the basis of a ‘culture’ and the report suggests that there has in fact been a reduction in claims.


The reality is that the majority of victims do not claim compensation. This is not a statement that you will ever hear from the government or the media. You will hear the opposite. You will hear that there is a culture that has to be eliminated. You will hear that this ‘culture’ is the fault of lawyers who spend their days chasing ambulances. In fact most lawyers are simply trying to do the best for victims in an increasingly hostile environment –



Yesterday I had a meeting with the mother and financial adviser of a lad that I acted for 15 years ago. He suffered a severe brain injury shortly after he was born, due to the negligence of a local hospital. We recovered several million pounds for him. He will shortly complete his degree and is considering working abroad. This has been achieved by his own intelligence and determination alongside the funds that were recovered for him all those years ago.Would somebody like to tell him or his family that he is part of a compensation culture?





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
3.9(1)”

“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
disproportionate.”

“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.”




www.eadsolicitors.co.uk


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!