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Monday, 27 June 2016

BREXIT and Whiplash - short reprieve?


Earlier today I was asked what impact the Brexit vote would have on my business. The obvious commercial issues came to mind such as a further downturn, another banking crisis, a hike in interest rates etc. But these are issues for all businesses as we get to grips with the earth shattering events of last week.

But what about the beleaguered Personal Injury sector?  What is the future for those us who pursue damages claims for victims of accidents, work related disease and medical negligence? We have seen enough ‘reforms’ in the last few years to last a lifetime.

In fact the Leave vote could provide a short period of respite.

It was in November last year that the Chancellor George Osborne announced plans to raise the small claims limit to £5k and to abolish the right to claim damages for Whiplash injuries –


This led to alarm across the sector. Hundreds of victims would be denied the right to recover legal costs in successful cases. Hundreds more would be deprived of any right to pursue a claim at all. Many law firms began to make plans for closure or to diversify. That was nearly 7 months ago and neither event has happened.

Mr Osborne himself is likely to have other things on his mind between now and the autumn. He has today delivered his first speech since the referendum. This was all about reassuring the markets. He talked about the need for a period of stability before  Article 50 is invoked. It is clear that no decision will be made before the Autumn of this year.  It is likely that David Cameron’s successor will call an early General Election early in 2017.

The general view seems to be that Osborne will not be Chancellor in any new government. Michael Gove is expected to have a major role in a future Tory line up. So we will then be looking for a new Justice Secretary. There is always the chance of a Labour win but that seems to a forlorn hope as they move into a period of civil war!

Now I’m not the most reliable predictor in the world. But all of this would seem to put any earth moving changes to PI work some way down the list of priorities. By the time we have had a leadership election, a  new cabinet and  Article 50 negotiations, I suspect that we will be well into 2017 before Osborne’s November 2015 pledges raise their heads – if at all.  

But we must not assume that any of this means that the threat will go away. We may have up to 12 months but the political pressure to appease the insurance industry will still be there. We must still plan and continue to campaign.

However it will give firms the opportunity to regroup and plan for what is still an uncertain future.

 

Saturday, 25 June 2016

The EU, BREXIT and Human Rights

I have not posted anything about the recent referendum. But there is one matter that has raised its head since last week’s vote. This is the mistaken belief that it has something to do with the European Court of Human Rights and the Human Rights Act 1998. I have even heard someone say that one result of the referendum is that we can now deport pesky foreigners without having to worry about the European Court.

So let’s have a brief history lesson. 

After the end of WW2 in 1945 there was a determination that this should never happen again. One initiative, driven by Winston Churchill and Eleanor Roosevelt, was the Universal Declaration of Human Rights. This identified certain rights that were common to all people. It is worth listing them as they are now taken for granted by all of us –


Article 1
Right to Equality
Article 2
Freedom from Discrimination
Article 3
Right to Life, Liberty, Personal Security
Article 4
Freedom from Slavery
Article 5
Freedom from Torture and Degrading Treatment
Article 6
Right to Recognition as a Person before the Law
Article 7
Right to Equality before the Law
Article 8
Right to Remedy by Competent Tribunal
Article 9
Freedom from Arbitrary Arrest and Exile
Article 10
Right to Fair Public Hearing
Article 11
Right to be Considered Innocent until Proven Guilty
Article 12
Freedom from Interference with Privacy, Family, Home and Correspondence
Article 13
Right to Free Movement in and out of the Country
Article 14
Right to Asylum in other Countries from Persecution
Article 15
Right to a Nationality and the Freedom to Change It
Article 16
Right to Marriage and Family
Article 17
Right to Own Property
Article 18
Freedom of Belief and Religion
Article 19
Freedom of Opinion and Information
Article 20
Right of Peaceful Assembly and Association
Article 21
Right to Participate in Government and in Free Elections
Article 22
Right to Social Security
Article 23
Right to Desirable Work and to Join Trade Unions
Article 24
Right to Rest and Leisure
Article 25
Right to Adequate Living Standard
Article 26
Right to Education
Article 27
Right to Participate in the Cultural Life of Community
Article 28
Right to a Social Order that Articulates this Document
Article 29
Community Duties Essential to Free and Full Development
Article 30
Freedom from State or Personal Interference in the above Rights      


Eleanor Roosevelt described the Declaration as her greatest achievement.



There was also a determination that co-operation in Europe was an essential pathway to peace. In 1946 Churchill spoke at the University of Zurich and spoke of the need to create a United States of Europe! (Imagine the noise in certain quarters if he said that today!).


In fact the body that came into existence was the Council of Europe which was launched in 1949. One of its first achievements was the European Convention on Human Rights in 1950. The Convention followed the basic rights contained in the Declaration. The UK was probably the main driving force behind the Council and the Convention. The European Court of Human Rights (ECHR) was created in 1959 to adjudicate on matters arising from the Convention. Until 2000 any UK citizen who complained that their rights had been breached had to go to the ECHR in Strasbourg. In 1998 the UK Government passed the Human Rights Act; a short Act which incorporated the Convention into UK Law. This came into force in 2000 and meant that UK courts had jurisdiction to hear cases. The ECHR has retained its place as the final court in Human Rights cases, but only after all local remedies have been exhausted. There is nothing in the Human Rights Act, or the Convention that says prisoners can have a Big Mac in their cell or that suspected terrorists cannot be deported!

But the most important point is this – the ECHR has nothing at all to do with the EU, the referendum or Boris Johnson. 

Some Conservative Ministers want to abolish the Act and replace it with a UK Bill of Rights. Interestingly Michael Gove, whose day job is a Justice Minister opposes this. And David Cameron, who has lost No 10 because of his part in the Remain campaign, wants it to be abolished –


Any Bill of Rights  would certainly have to protect the rights set out in the Convention so is unlikely to change much.

My fear is that some might have voted to leave the EU in the belief that it would somehow remove these rights which have had a bad press, often due to misunderstandings and hostile reporting.


In fact the Leave vote has no effect at all on our Human Rights one way or the other. 

All EU member states have signed up to the Convention,  so exit could pave the way for an extreme government to try and force us out of the Convention at some point in the future. But it is unthinkable that the UK would try to abolish the very rights that were created by our leaders. In removing these basic rights we would be aligning ourselves with some very questionable regimes!

Thursday, 16 June 2016

I'm in the money! Again!!!



I got a text last night.

It wasn’t just any text. It was giving me very exciting news. It said –

‘The best price has been won for your accident, fill out http://claimsmadeeazy.com and we can put 3928.12 in your bank Now’.

Well of course I was on it like a flash to claim my windfall! I wasn’t really. It is remarkable how such a short message can be so irritating. Sadly or thankfully, depending on your worldview, I haven’t had an accident since 1982 when I fell off my bike on my way to work. So unless the Limitation Act has been repealed, I knew it was a hoax. Presumably the very specific sum is to make it look more credible, just in case I had suffered an accident which I had forgotten about in all the excitement of the Brexit debates.

I did not explore the site in question but it promises a payment into my bank ‘Now’! On the assumption that this would involve giving my bank details the text could be even more sinister than it first appears.

Whatever way you look at it this is a major concern. It promises money for a non existent accident. It promises a fictitious sum of money and asks me to recklessly hand over my personal information.

I can only assume that there are some poor souls who fall for this. Why else would they do it? This is the sort of activity which should bring together both insurers and claimant lawyers. We all want this type of behaviour eliminated.

This is not the first time that I have ranted about misleading contacts from Claims Management Companies. A couple of years ago I received a cold call promising me the earth because I had worked in a noisy factory –


Those who represent victims of accidents, industrial disease and medical negligence have been on the receiving end of relentless attacks from the insurance sector and their friends in government. As a result many firms have closed or moved into different areas of work. I have said this many times but the fault does not lie with the massive majority of genuine victims and their lawyers.

There is a tiny percentage of motor claims that are shown to be fraudulent –


That is clearly 0.25% too many. But the real problem here lies with companies who deliberately encourage phoney claims. It would be far more effective to concentrate on the elimination of this behaviour than to focus on the easy targets – the lawyers!



Tuesday, 14 June 2016

Crossing the line between positive marketing and mockery



It is fair to say that lawyers are often guilty of being reticent over their successes. There is something uniquely British about professional modesty. We are just doing it for our clients after all. At one level there is nothing wrong with that. But at another level we should be prepared to tell the world about a job well done and a successful result. How else will that world get to know that we are the best law firm in the world? Sharing our victories should be something that we should always be willing to do.

I have done it in this blog on numerous occasions –


There, I just did it again.

But is there a difference between celebration of a win and tasteless gloating? The latter would appear to be the case with tweets from Baker Small, a solicitors’ firm who recently acted for a local authority who successfully fought parents at a tribunal hearing in relating to special needs provision –


The comments went beyond a positive report about the case to mocking the losing families. The tweets included this –

“Some great tweets received today from people who just see a one-sided argument … just shared them with my cat…” and “Great ABA Trib win this week … interesting to see how parents continue to persist with it. Funny thing is parents think they won ;)”

The firm has rightly apologised and withdrawn the comments.

Social media is now playing a massive role in marketing strategies. And rightly so. My LinkedIn connections apparently give me access to business contacts that would populate a small country! This means we have to carefully plan what we say. What message do we wish to convey about our business? Do we want the world to know that we are good at what we do? Or do we want the world to think that we are heartless monsters who mock the parents of children with disabilities? It is remarkable how much damage can be caused by 140 characters. And how much good can come from a careful and concise statement.

The rule has to be – think first tweet later. Think about who will read what you write. Think about what it says about who you are as well as what you have done!


UPDATE

Since I wrote this post a number of council’s have announced that they are cancelling or reviewing their contract with the firm in question –


          It may well be that they did a good job in the first place. But the impact of the thoughtless tweets has now massively outweighed any benefits.

Those 140 characters can be a powerful tool. But they can also be like recklessly pulling the pin from a hand grenade.

Wednesday, 4 May 2016

A justice minister flies the flag for fantasyland






I sat through a series of traffic jams today on a drive from Liverpool to Leeds that took three hours. I saw the aftermath of three accidents. I'm sure that some injured parties will be bringing claims. And from what I saw they will be genuine.

I am not attending the APIL Conference this year although I have been a Member and Fellow for many years. They are probably the most effective lobby for those who represent victims of accidents and famously took out a judicial review action to oppose the cuts imposed by the coalition government in 2013 –


APIL and its members fight for justice for genuine victims.

One person who is at the Conference is Lord Faulks – a justice minister. He is a QC who once worked for claimants in clinical negligence cases. I once instructed him! He is the one who has described litigation as an optional exercise and suggested that those who provided welfare rights advice earned £200 an hour –


Lord Faulks has spoken at the APIL conference today and confirmed that the government is determined to raise the small claims limit – thus excluding most victims of recoverable legal costs. He has also confirmed that the right to compensation to any damages for whiplash is to be abolished altogether. This bizarre idea came from George Osborne last November and will take our legal system into new territory by excluding a physical injury from damages –


Faulks has repeated the same old justification today –

‘It is not right that people who try to cheat the system should get away with it and, in doing so, force up the price of motor insurance for other motorists,’


So again, we have a leading politician shamelessly giving the impression that all victims of whiplash are criminals. In fact, only 0.25% of motor accident claims are fraudulent. Now that is 0.25% too many. But it is certainly not a basis to attack the remaining 99.75% of claimants.

He admitted that he did not know what has happened to any savings to the insurance industry since the 2013 cuts. He seems to be alone in his belief that drivers will one day reap the benefits by way of a reduction in premiums. The reality is that an increase is far more likely. This is partly to increase the profits of insurers and partly due to the increase in IPT announced by the chancellor last year –


This speech would be laughable if the issues were not so serious. Does Lord Faulks seriously expect a room of experienced lawyers to buy this nonsense?

What is clear is that a clear and coordinated campaign is going to be needed to protect victims from these increasingly damaging proposals.



Tuesday, 19 April 2016

Why have our Government got it in for honest motorists and other victims?



If you believed all you heard from the insurance industry and its friends in Government, it would easy to think that anybody who claims compensation is a crook. Time and time again we have seen attacks on the rights of accident victims which are justified on the basis of need to ‘crack down’ on fraud.

In November last year, George Osborne came out with his infamous proposals to raise the small claims limit to £5k, thus depriving most accident victims of the right to recover legal costs. He also pledged to abolish the right to claim any damages for whiplash injuries –


He declared that this was necessary in order to crack down on the fraud and claims culture in motor insurance. So the problem of fraudulent claims is so widespread that the rights of all victims have to be compromised. 

Back in 2014 the ABI said –

‘We are actively working with the insurance industry and the government to eliminate fraudulent and exaggerated claims and make the system more efficient for genuine claimants.’


Those ‘genuine’ claimants are, as ever, the ones who suffer most from these attacks.

In fact there is no evidence of widespread fraud. The Association of Personal Injury Lawyers (APIL) have today used the insurers own figures to illustrate this. According to their President, Jonathan Wheeler – 

“A proper analysis of the insurance industry’s own figures shows that only 0.25 per cent of motor claims are actually proven to be fraudulent. That includes policy-holders over-egging their own claims, or making false declarations when they apply for insurance. Only a fraction of those will be whiplash claims – we don’t know how many for certain, because there are no industry figures on this Yet the government claims that removing the right to compensation for some whiplash claims will fight fraud and reduce car insurance premiums.”


An epidemic of fraudulent claims is as much a myth as the so called compensation culture. The overwhelming majority of claimants are genuine. Like this victim who desribed her experience in a very powerful this week – 


We all want to see an end to dishonest claims. There are already systems in place to achieve this. We have seen a very recently example. This is the case of the claimant who alleged that he was unable to play football whilst tweeting about his achievements in the beautiful game –


He has been found out and dealt with appropriately. We have a criminal justice system to deal with dishonesty.

To attack the rights of all victims is unnecessary, illogical and will not ultimately result in any great drop in insurance premiums.

Friday, 18 March 2016

Sanctions - Express Relief is best!



Apparently it is therapeutic to revisit earlier traumas.

It is hard to believe that it is only two and a half years since the Mitchell litigation changed the world. Who can forget those immortal words of the Lord Dyson, Master of the Rolls –

“There now has to be a shift away from exclusively focussing on doing justice in the individual case”. 

We then had the Civil Litigation equivalent of the Reign of Terror. There was the alarming case of Romano where a case was struck out due to a delay of one day advising the court of the outcome of a stay on proceedings. Then there was the action struck out following a delay of 45 minutes. Litigators could be seen wandering wide eyed as they worried about what minor oversight might bring an end to a promising career. As Rod Evans from FOIL famously put it – ‘We haven’t got a clue what we are doing.’


Then we began to come to earth with Denton in 2015. Dyson made it clear that some judges had been a bit over enthusiastic. The Court of Appeal simplified the test for relief from sanctions –

  1. Is the breach serious or significant?
  2. what is the reason for the breach?

Most importantly there was a third factor –


“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”.

Collective sighs of relief could be heard across the nation.

So where are we now? We may be back on planet earth but there is no room for complacency. The way we litigate has still changed.

Some recent cases are helpful –

In O’Connor v Pennine Acute Hospitals [2015] EWCA Civ 1244 the Defendant was refused permission to bring in a new expert on the first day of a trial, which would have led to an adjournment. I think we would all agree with that one. 

More recent cases are clear reminders of the need to stay focussed, particularly in relation to the need to apply promptly for relief.

In Gentry v Miller an application to set judgment aside was refused due to delay in making the application. This was case where there was a delay of several months. Interestingly there was a potential allegation of fraud which did not get the insurers off the hook.


Oak v Cash and Carry looks worrying at first. Indeed it has been reported by some as a finding that the Defence was struck out due to a two day delay in filing a Listing Questionnaire. In fact there was a breach of an unless order. But even that might not have been fatal to the Defence if they had applied promptly. Jackson LJ observed –

If the defendant had made an immediate application for relief at the same time as filing its PTC, or very soon after, I would have been strongly inclined to grant relief from the sanction of striking out. To debar a party from defending a £200,000 claim because it was somewhat late in filing a PTC is not in my view required by rule 3.9

And



So if you miss a deadline you must act immediately. 

There is a strong temptation to put the troublesome file to one side in the forlorn hope that the problem will go away. In fact it will get much worse. I would always advise that the file be passed to a colleague right away. Those of us who supervise should repeat this message - 'It is not necessarily the end of the world if you make a mistake - but it might be if you don't tell us!'.

Since Denton the Courts do have a more realistic understanding of the real world of litigation. They may grant relief. 

So long as you ask for it without delay!!