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Monday, 17 October 2016

Compensation Scheme for birth injuries - could this change everything?

How often have legal commentators called for steps to be taken to reduce the number of medical accidents that lead to claims for damages? The tendency has been to blame victims and their lawyers for the spiralling costs of litigation; particularly in cases where babies suffer catastrophic injuries at birth.

It is encouraging therefore to see reports in today’s press that the Ministry of Health may finally be getting the message. Details will be set out in a speech from Minister of Health, Jeremy Hunt. The government proposes to publish maternity ward league tables as part of a drive to improve performance. It remains to be seen what that, on its own, will achieve. But at least it is a step in the right direction.

Jeremy Hunt will also announce a voluntary scheme for resolution of claims for damages. The scheme will involve a panel of medical and legal experts who will review incidents and decide whether payments are appropriate and, it seems, assess how much will be paid.

Again this has to be welcomed. Details of the content of the speech appear in the Guardian report and there are still comments that cause concern. The speech will refer to the need to dismantle a ‘litigation culture’. I have acted for a number of families in these cases. There has not been a single occasion where ‘litigation’ was of any interest. Families want answers to questions. They want accountability and they want financial help as they care for a child who will have life long needs. 

Litigation is always a last resort as the NHS have tended to fight cases until the last minute –

The speech will refer to litigation as ‘an automatic first step’. There already exists a protocol under which Trusts have 4 months, or longer if necessary, to investigate incidents. Litigation only follows when liability is denied. It is far from being a ‘first step’.  There still seems to be an underlying assumption that victim and their lawyers are looking for litigation.

So there are still negative attitudes that need to be ironed out. Describing lawyers as ‘vultures’ does not help!

On the other hand these proposals could change everything. If we begin to see a genuine will on the part of the NHS to acknowledge fault and work with families, if we see a real commitment to reducing or even eliminating negligence, if we see a desire to listen to the families of victims, then we might finally see some real progress.

I really hope that this leads to a new culture of co operation with the needs of disabled children at the centre.

Thursday, 13 October 2016

Osborne's Whiplash proposals - gone for good?

I have never written a blog post as quickly as the one that appeared on 25th November 2015. This followed the former chancellor’s announcement that he intended to increase the small claims limit to £5k and abolish altogether the right to claim damages for whiplash injuries –

The speed and tone of that blog reflected the sense of shock and incredulity. We were being told that there was to be a non actionable injury for the first time in our legal history. George Osborne also promised a £50pa reduction in motor insurance premiums on the back of his reforms.

It has been an equal, and far less painful surprise, to hear today, that the whole package has been shelved…for now.

Whilst there is no promise that they have been abandoned they are certainly no longer imminent. According to The Times, the MOJ have confirmed that new minister, Liz Truss, is more focussed on prison reform –

The response from the ABI is less than enthusiastic which suggests that they feel  the reforms will be off the table for some time to come.

It is fair to say that the plans outlined by Osborne were on shaky ground from the start. The whole idea of abolishing any right to damages for whiplash was fanciful. Some injuries caused by whiplash are very serious. Where would the line be drawn? I said at the time that this would require a huge shift in legal thinking and would set an alarming precedent. Most lawyers questioned the basis on which such a measure could be introduced. Maybe the new minster felt that she was left holding a grenade with the pin removed and has got rid of the idea as quickly as possible.

The heralded reductions in motor premiums have become increasingly distant over the last few months –

I don’t think that those who represent victims can relax. Insurers will not change their approach which has yielded considerable fruits over the last few years. They will keep on lobbying and those of us who care about justice for victims cannot rest for a minute.

I also echo who those voices who are calling for co operation between insurers and lawyers. By working together we can take steps to eliminate cold calling, fraud and exaggerated claims that do so much harm to genuine victims. But where the PM has called lawyers ‘vultures’ and the ABI complain about -ambulance-chasers laughing all the way to the bank’ this may be some time away. There is much still to do.

In the words of Winstion Churchill - "We may allow ourselves a brief period of rejoicing; but let us not forget for a moment the toil and efforts that lie ahead.

Monday, 10 October 2016

Calling us 'vultures' will never stop us fighting for victims

The Daily Mail has launched an all-out attack on law firms who represent victims of medical negligence. In a report on Saturday they described them as ‘vultures’ and ‘ambulance chasers’ who were claiming ‘grossly inflated’ fees.

These attacks are clearly designed to deter victims from seeking legal advice following blunders which can leave some patients with life changing disabilities.

The ‘report’ cites a very small number of examples of cases where lawyers have submitted claims for costs against the NHS which have subsequently been reduced by the courts. This system whereby the courts assess the amount of legal costs payable by any losing defendants has always been in existence.  It is an effective way of ensuring that the loser only pays costs which are reasonably incurred.

There are however some major errors in the Daily Mail story. The headline says that lawyers ‘bleed’ the NHS for costs of pursuing claims. It then refers to the sum of £418m. On the assumption that these are costs that the NHS have actually  paid, then they represent costs that the NHS have either agreed or which have been assessed by the court as reasonable. If they are agreed or assessed as reasonable then they are the real costs that have been necessary to secure justice.

And this is where the real problem lies.

Any lawyer who acts for victims can produce case after case where the NHS have steadfastly fought cases which have then settled late in the day. This year I have been involved in three cases which were heading for a trial. All three of them settled when the trial was in sight. By this stage the costs were substantial. This was because the victim had been made to fight every inch of the way. If the NHS had held their hands up and made an early admission, then the cost to the tax payer would have been massively reduced. 

This point was powerfully made early this year by a former Court of Appeal judge. Sir Henry Brooke referred to two cases where the conduct of the NHSLA inflated the costs by huge sums.  

“If, by way of illustration, the taxpayer had to pay £50,000 in each case more than he would have had to pay if those representing the NHSLA had behaved prudently and reasonably, that would mean that £100,000 of public money went down the drain for no real purpose. Oh dear.”

So on the one hand we see the NHS refusing to mediate and then the next minute attacking the victims’ lawyers for allegedly inflating the costs. Oh dear.

The cost of medical negligence can be reduced. It can be reduced firstly by a focus on prevention of such incidents in the first place. It can be reduced by an early admission and apology. I have been told many times by clients that they would not have considered lawyers if they had been given a full and frank explanation at the start.  

I will continue to fight for victims as along as it is necessary. 

If carrying the ‘vulture’ label from the Daily Mail is the price I have to pay then so be it.

Friday, 7 October 2016

You don't protect the vulnerable by abolishing their rights

Whatever else has changed with the Conservative Party in recent months, they have not yet discovered any affection for lawyers. Or rather they haven’t discovered affection for those lawyers who fight for the rights of ordinary people.

In her speech to the party faithful this week, Theresa May promised to never again let -  ‘activist left-wing human rights lawyers harangue and harass the bravest of the brave the men and women of our armed forces’. She returned to a favourite Conservative Party theme – opting out of our human rights obligations. She said that the government would use this power during times of conflict so that soldiers could not be sued.

This is not in fact as easy as it sounds. Nations do have the right to suspend their obligations during times of emergency. But this does not extend to – “torture and inhuman or degrading treatment or punishment, the prohibition of slavery and servitude, and the rule of “no punishment without law”. This is of course exactly the sort of behaviour that leads to legal actions. So will she try and remove these rights as well?  Surely we do not want to be seen as a nation that would ever tolerate torture or degrading treatment or punishment. Would anyone guilty of such behaviour be ‘the bravest of the brave’?

Lawyers who bring actions against wrongdoers are neither left wing, nor activists. They are simply doing their job to ensure that the rule of law is enforced and that perpetrators are held to account. Her speech was heavily criticised by leading QC and former UN judge Geoffrey Robertson who said - “These actions have been war crimes for centuries and Mrs May, quite disgracefully, wants to cover them up when they are committed – and it is a matter of record that they are occasionally committed – by British forces.”

Would our Prime minister really want to guarantee the immunity of those responsible for the torture and death of Baha Mousa?  -

A spokesman for the PM later explained that Mrs May –

"always said it's right to investigate legitimate instances, but it's the industry of vexatious claims that must end". 

But you cannot investigate legitimate cases if the right not to be abused is removed.

I would be the first to criticise any lawyers who fabricated these claims. They deserve all they get. They should be ‘drummed out of the profession’, in the words of Geoffrey Robertson. But you don’t solve that problem by sweeping away the rights of the vulnerable. We already have a civil justice system for testing the validity of complaints. It is the envy of the world. It does not need help from politicians.

Genuine victims should be compensated and the guilty should be punished.

To simply abolish the right helps nobody.

To then attack the hard working lawyers – who are amongst the lowest paid in the profession just adds insult to injury.

Wednesday, 28 September 2016

SRA - one rule for you and one rule for me

There are increasingly heated discussions about how and where Solicitors can offer legal services to the public. To most people this seems fairly obvious. You go and see a Solicitor. But in a rapidly changing world this is could become the exception rather than the rule.

Under the present regulations a Solicitor can only provide legal services to the public via an organisation regulated by the SRA or other approved regulator. Some legal work is ‘reserved’ and some is ‘unreserved’. Reserved work can only be carried out by an authorised person such as a Solicitor. This is a surprisingly limited category of work and includes the power to conduct litigation, to appear before certain courts and the drawing up of certain documents. Almost all other legal work is unreserved which means it can be provided by anybody. So you don’t have to be a Solicitor to set up a business offering advice in say, employment law or welfare benefits. But if you are a solicitor you have to operate through a regulated body – such as a solicitors’ firm. The reason for this is that there are standards and protections that go with the solicitor brand. For example all solicitors’ firms have to carry professional indemnity insurance.  They also have to contribute to a compensation fund.

So if a client instructs a solicitor they know that if anything goes wrong there are levels in protection in place. If solicitor is negligent then the insurers have to meet any claim. If the solicitor is guilty of misconduct, including failing to take out insurance, then the compensation fund is a safety net. This has been a foundation stone of our legal services.

The SRA are planning to change all this.

In a consultation that has recently closed they plan to have two separate sets of professional rules. One will cover individual solicitors and one will cover regulated firms. The proposal is that solicitors will be allowed to provide ‘unreserved’ services through unregulated organisations. So someone can set up an HR Consultancy and will be able to employ solicitors to offer legal advice to the public even though that consultancy is not regulated. The thinking behind the plans is that solicitors are a commercial disadvantage. The cost of regulation means that some organisations can provide the same advice at much lower cost. Insurance is one of the biggest overheads in most forms.

I think this is a recipe for disaster. Firstly, it threatens to devalue the solicitor brand. If someone can see a solicitor in an unregulated firm with no insurance or other regulatory protection then the security of knowing that there are guaranteed protections will disappear. This is not something that can be defined purely by cost. 

I can also see dangers, particularly for young lawyers. The SRA say that solicitors will be subject to the rules that will apply to all of them regardless of where they work. But this will put huge pressure on some individuals. If an inexperienced solicitor is working for an unregulated organisation they can find themselves conflicted between the demands of the business and their personal professional rules. 

The Legal Ombudsman has echoed this worry in its response –

“While a solicitor retains many of their obligations, such as competence, conflict of interest, complaint handling, these are not requirements for an unregulated firm. What should a solicitor do when these obligations come into conflict?”

The plans have also been criticised by the Legal Services consumer Panel and the Law Society. I recently attended a forum in Liverpool where almost all of the lawyers present were opposed to the plans.

We should all encourage moves to bring legal services into the 21st century. The more bodies provided access to legal advice the better. I am also all in favour of easing the burden of regulation. That would give compliance officers like me fewer sleepless nights! But there are also minimum standards of service and protections that have to hand in hand with instructing a solicitor. Without this we will have a two year profession offering services to a confused public.

I hope that the SRA will listen to all of these criticisms and abandon what are badly thought out and dangerous proposals.

Thursday, 22 September 2016

No, Lord McNally I will not shut up about Access to Justice

The Con-Dem coalition already feels like something from the distant past. One name that we will always associate with the attacks on Access to Justice is Lord McNally. As many Liberal Democrats try to distance themselves from the excesses of their years in power, he has robustly defended the cuts which he engineered. In a speech last week he also criticised lawyers, saying –

‘A plea to all the lawyers – those coming up and those already there. You have got to accept that bandying about access to justice, it’s really quite fraudulent. To govern is to choose. Is £1.6bn access to justice? Or is it £2.4bn?’

Leaving aside the obvious insult, his final sentence is very telling. His definition of access to justice is limited to varying sums of money. Access to Justice is neither £1.6bn not £ It is not a commodity it is in fact the foundation stone of a justice system. Why have rights if ordinary people cannot rely on them? 

This cheapening of justice is nothing new. Back in 2015 the former Justice Minister Lord Faulks QC described litigation as  - ‘very much an optional activity’.

So seeking compensation for a catastrophic injury is the same as collecting stamps or going out to a nice restaurant.  Losing the right to pursue or defend their rights can have a devastating effect on a person’s life.

The other problem with McNally’s comment is that he focuses on lawyers as if they are the only ones who are affected – lawyers, as ever, are the easy target!  In fact there are hundreds of voluntary agencies who have lost funding and can longer help the most vulnerable. Back in 2013 I wrote this –

‘Advice on welfare benefits is removed entirely from the scope of legal aid. The Liverpool Citizens’ Advice Bureaux have been among the leading providers of advice in this field. In the last few years they have been able to assist 2500 people in debt cases and 6270 people with welfare rights issues. That is a total of 8770 people is the direst of need. After 1st April they will be able to advise…. None. Of course their dedicated workers do not want to let people down and many will continue help clients on a voluntary basis. But the reality is that thousands of our most vulnerable are going to be deprived of professional advice and assistance.’

Earlier this year the Head of the Supreme Court, Lord Neuberger warned that shrinking of legal aid contributed to threat to Access to Justice –

I for one have no intention of shutting up about this matter. It goes to the heart of a justice system. 

People rights cannot be reduced to simple mathematics or dismissed as optional activities.

Lawyers do not complain out of self interest.

They complain because they tend to be concerned about justice which is what brought many of us into the profession in the first place.

Wednesday, 31 August 2016

Insurance Premiums and other fantastic tales

One recurring theme of this blog has been the relentless attacks on victims of motor accidents by the insurance industry and their friends in government. The constant justification for this has been that car insurance premiums are too high and that so called ‘reforms’ will benefit all of us.

Former MOJ Minister Helen Grant nailed her colours to the mast back in 2013 –

“These proposals were advanced in a consultation exercise which closed on 4 January (2013) and, together with wider civil law reforms, are intended to make lawyers’ costs proportionate, and create an environment where insurers can pass on savings to their customers through lower premiums.”

It is fair to say that there has been some scepticism surrounding these claims. Back in 2013 we saw huge cuts in the amounts of legal costs recoverable by victims. Even then a representative from LVI said -  ‘premiums have already come down and we might see about 3% but - “I’m not hopeful of much more” ‘ 

I said back then that we might have a long wait before we saw any significant reduction –

In August 2013 we saw the report of the Parliamentary Committee on Whiplash Claims. This mentioned the familiar question of reductions in premiums –

We recommend that the Government explain how it will monitor whether or not motor insurers honour their commitment to ensure that any cost reductions resulting from proposed legal reforms are passed through to consumers in the form of lower premiums.’

Into 2014 the ABI were still going on about a ‘whiplash epidemic’, despite growing evidence that the number of claims was dropping. In other words – don’t expect any drop in premiums while there is still this mythical epidemic!

In April 2015 we were warned that motor premiums were going up! And they were going up because of dodgy whiplash claims. This announcement was made in the run up to the General Election when we all had our minds on other things –

Then in November 2015 the former Chancellor George Osborne announced further attacks including the proposed abolition of the right to seek damages for whiplash at all –

Part of his reasoning was that this would see a reduction in motor premiums. He even put a figure on the saving that we could all expect. He said premiums would come down by about £3-£4 a month. Did he know that he would not be around long enough to justify his claims!

So where does that leave us today? 

We have over 3 years of attacks; cuts and rhetoric that makes victims look like criminals. Surely we must start to see some savings.

In fact it is the opposite.

The Times has recently reported that premiums have in fact gone up by a fifth in the last 12 months. The report, covered by Legal Futures, went on –

“It suggests that the overall cost to the insurance industry of these claims has dropped from more than £4.1bn in 2013 to £3.6bn last year. Motor insurance prices, however, have actually risen over the past 12 months.”

So has the penny finally dropped? 

Those representing claimants have been banging their heads against the wall trying to get this message across. The cuts have all been about maximizing the profits of the insurance industry. No serious commentator has ever expected any benefits to be passed on to drivers.

It is a shame that it has taken this long. But let’s hope that the government will now stick to its word. 

The ‘reforms’ were built on a lie. 

There was never any real chance that we would all get cheaper insurance. The government should now say enough is enough. Now is the time to roll back the cuts.

Will it happen?