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Friday, 24 April 2015

Vote 4 Justice





I want to give special word of support for those lawyers who attended the Vote for Justice Rally in London yesterday.

The event was organised by the Criminal Law Solicitors’ Association (CLSA) and London Criminal Courts Solicitors’ Association. The aim was to put justice on the General Election Agenda. The focus was on the devastating cuts to legal aid funding. Speakers at the event highlighted the risk of closure faced by hundreds of law firms.

One particular change will require tendering for some areas of criminal work. Tendering will benefit a small number of large firms, and see many others going out of business.This in turn will impact on the rights of clients to choose their own lawyer. Firms employing black and minority lawyers will be particularly at risk of closure.

One key speech came from Senior Judge, Sir Alan Moses. He talked of the plight who are unable to protect themselves as they have no affordable access to a lawyer. He expressed regret at the silence most of the leading political parties in the run up to the election –

 “Who cares about the prisoner whose rights are abused and needs legal advice and assistance? Who cares about the immigrant who asserts they are a genuine refugee? Those who cannot afford access to the courts are often the unpopular minorities and there are no votes in helping them.” He also regretted that other judges had not spoken out.


This is something that I mentioned last week. The Green Party is alone in promising to re-instate the £700m cuts to the legal aid budget.


In fairness the Labour Party has promised to roll back the tendering process but this has only been a small part in a process of dismantling access to justice.


The politicians might not think that justice is of electoral importance. We can make it important by the way we cast our vote. It is not for me to say who anyone should support. But it w

It should be fairly obvious which party I will not be voting for!



Tuesday, 21 April 2015

Whiplash Claims - how much blood can insurers get from this particular stone



Many of us have spent the last few weeks watching the election campaign. So it might have been easy to miss one news item which seems to have slipped in under the radar. This is the announcement from the AA Insurance that motor insurance premiums are set to rise. And according to a report in the Daily Mirror, the cause of the increase is…yes you guessed it … fake whiplash claims!


It makes you begin to wonder how much blood insurers can get from this particular stone.

This is a saga which goes back more than two years. In 2013 we saw drastic cuts to the rights of victims of motor accidents. These included slashing the amount of legal fees recoverable from insurers, causing many victims to lose up to 25% of their compensation.


The Association of Personal Injury Lawyers (APIL) and others took judicial review proceedings at the time to try and block the cuts. Although that action failed, it was clear from the evidence that the government and the insurance industry had worked closely together on the project.

The rhetoric and the attacks have continued relentlessly. We have seen report after report on the need to clamp down on claims. Just this month, victims have lost the right to instruct their own medical experts and to use a panel of approved doctors. The fees payable to such experts have also been cut.

All of this has happened against the background of rhetoric designed to make any victim of a motor accident feel like a criminal.

Back in 2013 all of us who pay high motor insurance premiums were told that these steps would see a drop in price.

Former MOJ Minister Helen Grant explained the thinking behind the cuts –

“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.”


Most of us were sceptical that we would ever see any reduction. I must confess I thought that we might get a pre election series of cuts. Instead, we have this news of premium rises, when we all have our eyes somewhere else.  

The reality is that we were never going to see any significant drop in the cost of motor insurance. The government and insurers have very effectively squeezed the life out motor claims. You would have thought that they could have come up with a more imaginative excuse for further rises.
 



Monday, 20 April 2015

Bedroom Tax and its impending demise?



My last blog looked at what the various political parties were saying about Access to Justice as we approached the election.

Another subject which has often featured in this blog is the dreaded Bedroom Tax. This is the draconian law introduced by the coalition which results in tenants losing housing benefit if they are deemed to have too many rooms. 

It is approaching 2 years since I first highlighted the issue –


It has seen people facing the loss of their homes and, at the same time, losing the right to legal aid to help them fight evictions.


Only last month, the Guardian was reporting on the health problems caused by the tax –


So what are the parties saying about it?

It is encouraging that the Labour Party in its manifesto commits to its abolition. The Green Party has a similar commitment. Plaid Cymru has long ago pledged to get rid of it. Scotland was liberated from the impact of the tax in 2014 –


So what about the coalition partners who gave us the Bedroom Tax in the first place? The Lib Dems voted down efforts to abolish it last year. But in their manifesto they promise reforms. These include a promise that tenants will not lose benefits until they have been offered suitable alternative accomodation. They also build in protection for those who need an extra room for medical reasons. It is isn't quite to complete abolition that some of us would like but is better than the status quo.

We know what the Conservatives think of it. It is their brain child and will remain in place if they form the next government. Interestingly UKIP unequivocally opposes it.

So, unless we have a Conservative majority on 7th May, the days of this particular injustice seem to be numbered.

Fingers crossed!



Monday, 13 April 2015

What are the parties saying about Access to Justice?



So we are now just over three weeks away from the General Election.

All of us who are concerned with the erosion of access to justice under coalition have been counting the days for the last five years. So what have the parties been saying about it and what changes, if any, would a change of government bring?

A Conservative government has promised further and deeper cuts to public services so we can rule out any hope of any return to legal aid or reversal of the cuts which have taken place. Indeed, Justice Minister, Chris Grayling has shown nothing short of contempt for the rights of ordinary people. The most recent example of this has been the shocking increases in court fees by up to 600% in some cases. We also saw the introduction of fees in Employment Tribunals which has led to a shameful reduction of 80% in the number of claims. At least with the tories we know where we are and we know where we are going!

But what about the opposition? Labour has published a document which talks about ‘safer communities’. However, whilst policing and domestic violence are very important topics, the report is silent on more fundamental justice issues. It is available here –


Labour has now said that the Tribunal Fees would be abolished which is big step in the right direction.


The only party, as far as I can see that has committed to a re-instatement of legal aid is the Green Party. Their Policy Statement of Responsibility and Rights includes the following –

‘Access to justice should not depend on a person's financial situation. Where a person would not otherwise be able to access it, the state should, through a comprehensive system of legal aid, enable access to appropriate legal advice and/or representation.’


In fairness you do have to go searching for it. But it is a clear statement of intent. Now we all know that the Green Party will not form the next government. But it seems likely that nobody will win a clear majority on 7th May so minor parties could well have some influence. But whether this particular commitment would carry weight remains to be seen.

The overall picture is one of disappointing silence. There do not seem to be many votes in access to justice.

But there has been one hopeful sign from Labour today. Their candidate for the safe seat of Holborn and St Pancras is none other than Sir Keir Starmer QC, the former Director of Public Prosecutions and well know barrister. In an interview with the Independent he says that access to justice is in crisis. He calls for a full review and says that access to justice – ‘must be a yardstick against which we measure success’.


At this stage he is only a candidate. But he is very likely to win. Such is his profile and status that he is unlikely to remain on the back benches for any length of time. He will inevitably have a significant on justice policy going forwards.

It may be clutching at straws, but this could be the most significant development to date. 

I will continue to watch this rather large space!






Sunday, 29 March 2015

Sleeping rough with CEOs, a bishop and a star!

I went to Goodison Park, home of Everton FC on Thursday night. That is something that I have done hundreds of times. But this was different from anything that I have done before.

This was CEO Sleepout UK - Liverpool . About 50 of us from the worlds of business, church and sport gathered to spend one night sleeping rough to raise awareness of and raise funds for homeless people in the Merseyside area. The night began like many other networking events. We registered at the welcome desk and then sheepishly looked around for someone to speak to. Except that the conversation came easily as we all had one thing in common. How were we feeling about the night of cold and discomfort, and what possessed us to sign up for it?

It was an interesting group! There were leaders of major businesses who are influential across the city and there was the CEO of a small Mental Health Charity. There was a Bishop, vicars and other church workers who were putting into action the words of their founder – ‘when I was a stranger you welcomed me.’ And there were those from Everton FC including former player, Gareth Farrelly representing the sport which dominates our City. I should say a special word here for the small group of stalwarts wearing red scarves. Spending a night at Goodison was, for them, a major sacrifice under any circumstances.

So the time came to settle down for the night. I found a cosy spot between two rows of seats in the Park End. I was with my old school mate Bill Addy, now a significant local business figure, and the aforesaid Mr Farrelly. It seemed  a bit surreal to be sleeping next to someone who I had once cheered from these very seats! I had come well prepared with a good sleeping bag and plenty of sensible clothes. It was surprising the cold was barely noticeable. In fact I woke up at about 3.00am and had to take off some layers because I was so hot. But the hard ground meant a stiff back and hips for a couple of days. We were all awake by 5.30 and relieved that the night was done. Experiences were varied. Some slept soundly all night. Some did not sleep for a single minute. I was somewhere in between.

The local church of St Lukes put on bacon butties and I was at home by 7.00.

It was a real experience of what it is like to sleep rough. A lot of money was raised by sponsorship. But one thought has haunted me since Thursday. I put my high tech sleeping bag in my posh car before enjoying my buttie and heading for home comforts. Real homeless people do not have that choice. They live like this, night after night after night. Any event which highlights this can only ever be a start.

This also reinforced my growing obsession with Access to Justice.

Every day there are people whose homes are at risk because benefits are sanctioned, or because they are declared fit for work or because of the bedroom tax. Their right to contest these things has been eroded beyond recognition. There is little point in members of a society having any rights, if they have no access to the means of securing them.

This event has emphasised more than ever, the need to support those most in need.

But also to ensure that the state provides the means to defend them.


Wednesday, 18 March 2015

A true experience of anger, frustration and despair!



I went to Manchester yesterday. I know! Someone has to..

I was due to attend a meeting at 5.00pm. I left Liverpool at 3.40 which allows for the heavy traffic leaving Liverpool and going into Manchester. It was a very straightforward drive along the M62 and I was heading into the centre of Manchester in good spirits and  with a good 20 minutes to spare.

This was when it all began to go wrong. I had booked a parking space at the office of the law firm that was hosting the meeting. This was right in the heart of the city not far from the Town Hall. Without warning, it seemed that every street was suddenly undergoing major road works or was closed. My navigation system was on the verge of a nervous breakdown. Every road that we took was blocked. It was as if the City of Manchester was taking revenge for all the bad things that I have ever said about it. Finally, by pure luck I found myself heading for the road where the firm’s car park was located. Guess what? It was closed.

I managed to pull over at a parking meter. My 20 minutes to spare was now 5 minutes late. I needed £4.50 for meter. I had a £5 note. We have sent people to the moon but nobody has invented a parking meter that takes £5 notes. A sign on the meter invited me to ‘pay by mobile’. So I followed the instructions. There was the normal intro about how important I was and how we would surely be friends for life. I set up a pin number, I put in my card number. Then it asked for the last 2 digits of my expiry date which I typed in. My new best friend told me that it was an error and to please try again. So I put it in again more carefully and got the same message. So I did it a third time in the style of an imbecile who needed to check both digits 5 times before pushing the button. I waited with growing anxiety – ‘Error. Transaction aborted. Goodbye’. Some friend you are. P*** Off!!

So I abandoned that idea and ran into a nearby bar clutching my fiver. The young barmaid must never have seen anyone so desperate for a pint! She looked a bit crestfallen when I asked her for 5 one pound coins. I ran back to the meter and finally got my ticket. By now, a diligent traffic warden was approaching so it was a good job I persevered.

I now ran to the meeting – 15 minutes late. I was rehearsing my apologies by way of a shortened version of this story. When I got to the boardroom 2 people were there looking sheepish. Due to a number of 'no shows' the meeting was…………CANCELLED!!! My anger and frustration had built to such a level that I said – ‘Oh dear. Never mind hey..’ in true English Lawyer style.

Now, I’m sure that some people love Manchester. Their two famous football teams have many fans although to be honest they mostly live in Surrey. But if you ever hear me suggest driving there again you have permission to chain me to a mast and detain me until the madness passes.

So why am I telling you this tale? Partly to get it off my chest. Partly because some might find it amusing in places and most legal blogs are gloomy these days.
 
But there is in fact a serious message.

What I went through last night gives a small insight into the frustrations of anybody trying to work for the legal rights of those in need. 





It seems that all roads are being blocked by the MOJ, insurers, the media, regulators etc. 
 




It doesn’t seem to matter which way you turn, someone is there to try and block the way.

Sometimes it is tempting to give up. But we will be here long after Mr Grayling has gone (hopefully that will not be too long anyway). If we can celebrate 800 years of Magna Carta we will not get rid of the rights of ordinary people this easily!

End of rant.






Monday, 16 March 2015

When is a Disease not a Disease?



When is a disease not a disease? 

When it might cost insurers money – appears to be the answer in view of the arguments put forward in the case of Dalton v British Telecom which was decided in the High Court last week.


This was not simply an academic argument. Claims for damages for Noise Induced Hearing Loss (NIHL) are the most common Occupational Disease claims. Under rules which were in force until April 2013, insurers had to pay a ‘success fee’ where a case was funded by under a Conditional Fee agreement. This involves percentage uplift to the claimant’s lawyers’ fees. In a disease case the uplift was 67.5%. in an injury case it was 25%. So in the Dalton case, and others, insurers sought to argue that hearing loss is an injury and not a ‘disease’, thus reducing the amount they had to pay. Although those rules have now gone, there are still hundreds of claims being pursued under them i.e. which started before April 2013.

Their argument was that Hearing Loss is not a ‘disease’ as such but an injury caused by some external factor i.e. noise.

In all of my 30 odd years as a solicitor this has never been argued by anybody. In fact the consensus in relation to NIHL claims goes back a lot longer than that.

In a very detailed judgment, Mr. Justice Phillips firmly rejected the insurers’ argument. 

The key point is that hearing loss is caused by exposure over a period of time rather than a single incident. The judge noted that – “...the term ‘disease’ has been used in legislation relating to employers’ liability claims and insurance since 1906 ….to cover conditions (including injuries) which have arisen by process rather than by accident.”

He then noted the 1985 Prescribed Disease Regulations which specifically referred to Occupational Deafness as – “the disease numbered A10 in part one of schedule 1 to the Regulations." 

The judge also noted that the Protocol for Occupational Disease claims that was published in 2003 defined a disease a follows –

‘..any illness physical or psychological, any disorder, ailment, affliction, compliant, malady or derangement other than a physical or psychological injury caused by an accident or other similar single event.’

Then there were negotiations including insurers, which resulted in the fixed ‘success fees’ which were at the heart of this case. Those discussions led to data which formed the basis of a report in 2004 entitled Calculating Reasonable Success Fees in Employers Liability Disease Claims. The report included NIHL as the third largest category of disease.

The judge found that NIHL was, by any sensible reckoning,  a disease – ‘NIHL is not merely an occupational disease, but it is the paradigm case of such a disease.’
 
The judge went on to criticise the conduct of the insurers who appeared to be going back on what they had agreed in 2005. He described their arguments as ‘an opportunistic attempt to avoid part of the overall bargain..’

It is comforting to lawyers and victims of disease claims that this argument has been so decisively rejected. It shows again the lengths to which insurers will go to avoid or minimise their liability. This is an attitude which has underpinned many attacks on victims over the last few years.

The insurers could still appeal but the hope is that they will see this hopeless argument for what it was and let us all get on with the job of securing proper compensation for victims.