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Friday, 12 February 2016

Medical Negligence Costs - a false economy?

APIL has published its response to the proposals for fixed fees in Clinical Negligence cases. Interestingly they emphasise the important and unsung screening work done by claimant’s legal advisers.

This is something which I have mentioned in the past. It is very easy to overlook the importance of this in weeding out the weaker cases and ensuring that only the clearest of cases are presented to the NHS. I have never seen any acknowledgment of this by the government or NHSLA.
The impression is given of aggressive ambulance chasers who are simply building up case loads to attack the beleaguered health service. In fact, in the case of my own firm an average of 60 cases is pursued for every 1000 unhappy patients

In most cases this work is done without payment. It is, of course, in our interests to select the strongest cases. In a world of no win no fee litigation – imposed by successive governments – no litigator can earn a living by taking on weaker cases. This will ultimately lead to a reduction in the number of ‘cutting edge’ cases that have historically developed the common law. But that is another topic for another day. But the reality is that the volume of cases faced by the NHS is controlled by this unpaid work done by claimant lawyers.

I have to agree with APIL that a squeeze on payments in lower value reduce lawyers’ capacity to carry out this exercise. Although I suspect that many firms will still be cautious, for the sake of their own commercial viability. Equally they do have a point that a deluge of poorly screened cases will ultimately lead to much higher costs overall.

I am not in fact against the idea of fixed costs in principle. Any arrangement that rewards speed and efficiency must be preferable to one that encourages the chalking up of as many hours as possible. But if the aim is to use this to reduce the number of claims then any economy will be false. 

This is of course based on the government’s fixation with blaming victims and their advisers.

Far more significant savings will be achieved by a focussing on the avoiding of negligence in the first place. It would also lead to huge savings if early admissions were made. How often to these cases develop into a war of attrition only to settle at the 11th hours after eye watering costs have been incurred? 

The NHS has notably, been criticised by the courts for refusing to mediate in some cases –

These fundamental changes in attitude will achieve far more than any tinkering with the costs regime.

Wednesday, 10 February 2016

Jackson on a CLAF - what is it and what will it achieve?

Lord Justice delivered two significant speeches last week whilst I was supping Tequila in Mexico. Most of the coverage has, rightly, focussed on his proposals for fixed fees in all civil cases up to £150k.

His second speech on 2nd February was headed  ‘The Case for a CLAF’. This is about a Contingent Legal Aid Fund to improve access to justice. The idea of a CLAF has been knocking around for most of my 30 odd years in the law. It raises its head whenever traditional legal aid is under threat. I first came across it when I worked in a Law Centre in the 1980s.

The simple idea is that such a fund would back ‘deserving cases’ for those who do not have the means to fund litigation. In some ways it works in a similar way to Civil Legal Aid. The Fund supports the case and is then reimbursed from costs recovered by the successful party. On top of this a slice of the damages goes into the fund. This contribution is the basis for the funding of the scheme.

In his original report, Jackson was equivocal. In his recent speech he has called for the Legal Profession to set up working parties to take the idea forwards and called upon the government to give ‘appropriate’ words of encouragement (!).

I have to start out by saying that any scheme that improves access to justice has to be considered. But there are concerns.

When the idea has been mooted over the years one objection has been that it leads to a reduction in damages. This was touched on by Jon Robins in the Law Society’s Gazette back in 2011.

At that time a client who was covered by a CFA faced no deductions. But the world has changed since then. Most firms now accept the commercial necessity of taking a cut of up to 25% damages from damages since the recoverability of success fees was abolished in 2013. I expressed major worries about this at the time. But to be honest, I have not had a single complaint from a client. If lawyers can take a piece of the cake then why not have a legal aid fund which does the same in order to avoid injustice? So perhaps this is not the concern that it was.

But there are still problems. The first concerns those cases that would be covered. I doubt that any assessment of a deserving case would include one for which a CFA is available and which lawyers are willing to take on. A CLAF certainly has no role to play in crucial areas such as welfare benefits or family work. So who will actually benefit?

It will inevitably be limited to those cases which can produce some compensation from which a slice can be taken. But they will also be those cases which cannot be backed by a CFA. So will only weaker cases be eligible? And if it only these cases, will they produce sufficient income to maintain a viable scheme?

It could be argued that the fund could cover those non personal injury cases to which QOCS doesn’t apply. But that then begs the question; who pays the adverse costs in losing cases? Jackson himself touches on this in his 2nd February speech. If QOCS is extended to other cases then they no longer need any special fund.

I am not dismissing the idea. 

Anything that offers some streams in the desert is to be welcomed. But this will not have any great impact on access to justice generally. Unless and until we have a fully funded legal aid scheme them such access will remain a waste land.

Tuesday, 12 January 2016

Spiralling cost of medical negligence claims? - 'Oh Dear!'

2016 promises to be another interesting and challenging year for lawyers who represent victims of accidents and medical blunders.

I have previously looked at the proposed increase in the small claims limit and abolition of the right to claim damages for whiplash injuries. By the way, I had completely missed the recent introduction of a right to compensation for rail delays. So you can be compensated for the inconvenience of standing on a cold platform but not for being injured by a careless driver!

I also have to say that is encouraging to see those who represent victims, coming together in order to fight these cuts –

The other change which is on the cards is the introduction of fixed fees in clinical negligence cases. The Department of Health has been attacking the cost of pursuing these cases for a while. They complained that the costs claimed by lawyers acting for victims were excessive and were a drain on limited resources. The spiralling costs of claims were blamed squarely on the shoulders of victims and those who represent them –

The point has been made that the NHS would be better served by focussing on the elimination of incidents rather than attacking victims.

Two recent cases show the shameless inconsistency of the government's approach. In both cases the NHS Litigation authority unreasonably refused an offer to mediate in relation to disputed costs. In both cases the court found against them and ordered them to pay indemnity costs – 

Litigation Futures also quote from the blog of Sir Henry Brooke, former present of the Court of Appeal (Civil) –

“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 government attacking the conduct of claimant lawyers. Then they themselves refuse to mediate and end up wasting thousands of pounds of public money.

One rule for you and one for me?

These proposed changes will dominate the legal news in coming months. A determined government with a majority, however small, will tend to get its way. But I hope that the whole legal profession, on all sides, will unite to fight the plans, and the illogical thinking behind them.

Wednesday, 6 January 2016

A new year and more political interference in the Pratice of Law

It has always been fundamental to the practice of law that a client’s interest should come before anything. 

Solicitors are subject to the SRA’s Code of conduct which requires us to act in the best interests of each client and to ensure that our independence is not compromised. The effect of this is that we should fearlessly represent their interests without interference from outsiders. In particular lawyers must be free from political interference.

This foundation stone has been significantly eroded in recent years. So we have seen government working with the insurance industry to frustrate the rights of victims of negligence – even proposing the removal of an actionable injury –

Access to Justice for ordinary citizens has been eroded to an alarming level –

Most lawyers cannot recall at time when there was greater government interference in the practice of law. 

But reports of action against Leigh Day and Co take these concerns to a new level.

Following the enquiry into alleged abuse of Iraqi detainees the government made it clear that they were unhappy with the lawyers who had represented the alleged victims. Defence Secretary Michael Fallon clearly wanted action taken. Now we hear that Leigh Day have been referred to the Solicitors Disciplinary Tribunal (SDT) by the SRA who are also investigating Public Interest Lawyers.

This certainly gives the appearance of politicians influencing the actions of the SRA. If so, this goes to the heart of the independence of our profession. Have we really reached the stage where lawyers will live in fear of challenging those in power? In the UK? In 2016? What do lawyers do? If they give way to these fears then they might breach the Code of Practice. If they fight fearlessly for their clients they might find themselves on the wrong side of disciplinary action.

I certainly hope that the SDT take on board these concerns and reject the referral.

Thursday, 10 December 2015

Mitchell 2 years on - back to reality?

I recently saw a face on the cover of a magazine. I thought it was familiar. On closer inspection it was Andrew Mitchell MP. How quickly politicians fall out of the news! For lawyers, he will of course be forever associated with the darkest months in civil litigation that some of us have ever known. In the light of the infamous Mitchell litigation and the Jackson Reforms litigators lived in fear of cases being struck out for minor procedural breaches. Many considered early retirement.

The situation created a level of uncertainty that threatened to undermine confidence in our civil justice system –

Cases were being struck put in their entirety following delays of a few days and in one case a single day –

One consequence was an unnecessary hostility between opposing solicitors who risked being sued if they did not take the most trivial of points to try and knock out their opponent’s claim by default.

It was a great relief to us all that the case of Denton in 2014 brought us back to earth, at least in part. The Court of Appeal reminded judges of the need to consider all of the circumstances of the case when deciding whether to grant relief  from sanctions for relatively minor breaches. Lawyers were warned against taking opportunistic procedural points –

It is fair to say that the world has calmed down a bit since then. 

So where are today? The recent case of The Police v  Abdulle is telling. The case is summarised in Gordon Exall’s blog –

At first glance this seems to be a remarkable turnaround. The claimant’s solicitors were guilty of a whole series of breaches of orders. Hickinbottom J at first instance said that  – 

at times they appear to have failed to understand the rudimentary requirements of being a litigation solicitor, including their duties to the court and their obligation to comply with rules and orders and promptly so..’ 


Notwithstanding all of this the judge declined to strike out the claim. He considered all of the circumstances of the case and noted, in particular, that the case was all but ready for trial. So, in essence, they could get on with it.

The decision was upheld by the Court of Appeal. 


So where does this leave us? Are we back to the old days where procedural breaches mean a rap on the knuckles or a costs penalty but the action itself is safe? No I don’t think so. It is important to note that the Court of Appeal in Abdulle upheld the appeal because the decision of the judge was not one to be overturned. Lewison LJ noted that the judge had said that the matter was finely balanced and the appeal court would respect the balance that he struck. But he also said that he would have come to a different decision if he had been the judge. 


What is encouraging is that Hickinbottom’s J’s judgment might indicate a changing judicial approach to such breaches. It would have been unheard of 2 years ago. But it is also clear that the Appeal court would not have gone that far. 


So the message remains that court rules orders must be followed and grave consequences can follow if they are disregarded.


But I would hope that it also means that judges will look more favorably on those parties who have done all that they can to comply with orders but find themselves in difficulties due to some minor diary error or oversight.


Keep watching this space!



Wednesday, 25 November 2015

Osborne - Small Claims up to £5k and no damages for Whiplash

Many of us watched the Chancellor’s Spending Review speech because of controversial proposals such as cuts in tax credits for the low paid. He gave us a pleasing U-turn on that. Then he surprised us all with an attack on lawyers and victims of accidents. Don’t ask me what this had to do with a review of public spending.

He has announced plans to increase the small claims limit for Personal Injury Claims to £5000.00 and to ‘abolish’ the right to damages for ‘minor injuries’ caused by whiplash.

What the first proposal means, in effect, is that victims of accident claims with a value of up to £5,000.00 can no longer recover any legal fees if they win. So they have to represent themselves or lose part of their damages in legal costs. The Conservatives have long been keen on this idea. They proposed it in 2013 but then abandoned it following a report by the Select Transport Committee –

That committee was highly critical, saying –

‘We believe that access to justice is likely to be impaired, particularly for people who do not feel confident to represent themselves in what will seem to some to be a complex and intimidating process. Insurers will use legal professionals to contest claims which will add to the problem’.

They also criticised ministers for consulting with insurers but ignoring those who represent victims –

There have been murmurings that this would come back onto the agenda once Cameron and Co had a majority. It seems that they now perceive a clear field to give their insurance friends all that they want.

The second proposal is rather more bizarre. It is a plan to abolish the right to damages for injuries caused by somebody’s negligence. So for the first time in UK legal history we will have a non actionable injury. Who will decide what can be claimed and what cannot? This will involve a fundamental shift in legal thinking. Will other injuries follow suit?

Mr Osborne had announced these changes to deal with the mythical 'compensation culture'. This ‘culture’ is a creation of the media and the insurance industry. It is a phrase used to alarm us all and create hostility without a shred of evidence to support it. The other reference made is to fraudulent claims. There are a very small minority of such claims. We all want to get them out of the system. In fact procedures already exist to deal with them. To abolish the right to damages at all is nothing to do with fraud.

It is an all out attack on victims for the benefit of the insurance industry. They will be the main beneficiaries of all of this. Osborne talks of a reduction in insurance costs of about £3 - £4 a month. I would not hold my breath. Insurance costs are going up anyway because he increased Insurance Premium Tax in the last budget.

I can see a long struggle ahead to fight these plans as the government again declared war on a whole professional sector.

In the meantime I predict that this will move us a step closer to USA style contingency fees where those who succeed in their claims will give up part of their damages in legal fees. I also suspect that the level of damages will increase to mitigate the worst effects of all this.

Law - a career for the rich? (3)

I think most would agree that we should have a diverse legal profession.

This is important across all levels. We need a strong vibrant profession that is in touch with those that it represents. Those who come into the law now will be the business leaders, legal thinkers and judges of the future. In any reasonable society those in such positions need to be drawn from as broad a base of possible.

It is also very important that talented lawyers are drawn from all across society and not limited to one social group.

I have written before about major concerns that the law is becoming a career option only for the rich –

Lady Hale, our most senior woman judge and former academic talked in 2013 about many who aspired to a legal career they may never have. 

A recent report suggests that the situation is getting worse rather than better –

This study reported by the Law Society Gazette found that 75% of top judges and QCs were independently schooled. You are far more likely to become a QC if you went to Oxbridge. Some say that the onus is on law firms to take the initiative. This is clearly true and Allen Overy, mentioned in the article, do have an have excellent initiatives to provide work experience for all students –

But such initiatives can only play a limited role. 

The abolition of minimum pay for trainees has been a major disincentive for many. Why would any aspiring lawyer want to run up debts of £50k and then find there is little or no chance of a training contract which provides a sustainable wage? I was one that fortunate generation who was able to go through academic and professional training with full state support and no debt. I am one of many for whom the law would have been inaccessible today.

A fundamental question needs to be addressed. Do we want an inclusive profession? If so, then all of us need to do what we can to remove rather than create obstacles.

Easing of tuition fees, better funding and a realistic salary would be a start.