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Monday, 24 July 2017

What is the point of civil justice?

I can still remember my first legal rant. It wasn’t a blog. The internet was very much a new thing in 1999 when I wrote a letter to the New Statesman complaining about Lord Irving’s plans to abolish legal aid for Civil Proceedings. My rant was all about the price of justice v the value of justice.

Who could have predicted the downward spiral that would follow?

Last week, we received the news that our civil courts had recorded a profit of £100m. This would be encouraging if the point of justice was the generating of profit. There has been a growing attitude towards civil justice which has seen it become a commodity rather than a right. In 2015 Justice Minister Lord Faulks went as far as to say that litigation was ‘very much an optional activity’ –

I wrote at the time about a case many years earlier, in which I had instructed Faulks in a case where clients were seeking damages for their child who had been severely brain damaged at birth. What was optional about that?

The minister’s comments came in the context massive increases in court fees. Those increases are also at the heart of the profits that have been announced. Most lawyers do not need to be reminded about the level of those increases. In some cases the hike has been as much as 600%! It costs £10,000 to commence a claim for the most severely injured victims. Whilst there is a scheme for remission of fees it does not apply to everyone. In the meantime those fees deter all but the rich. In reality lawyers will pay the fees up front. But at those levels there is an obvious limit on how much can be loaned to clients. 

One can see the logic of this if the idea of the exercise is to make money.

But is that really what we want? What is the point of having a justice system if ordinary people are excluded? The current President of the Supreme Court commented in 2013 - 

Cutting the cost of legal aid deprives the very people who most need the protection of the courts of the ability to get legal advice and representation." 

In the continuing absence of legal aid, the imposition of prohibitive court fees adds insult to injury.

A civil justice system ensures that the rights of ordinary citizens are protected. That protection becomes a fantasy if those citizens are deterred by cost, especially when that cost is expected to generate a profit!

Imagine the outcry if a private business was exploiting the weak and vulnerable in order to make money!

So will see a reduction in court fees? Hands up if you’re not holding your breath.

Friday, 30 June 2017

Medical Negligence - Striking a massive imbalance

The Medical Protection Society has published proposals calling for the ‘urgent’ reform of the procedure for pursuing claims for damages for Clinical Negligence. Their plan is called – Striking the Balance. It is interesting that all of their points would heavily weight the system against victims. 

There is a briefing document available at –

Here are some of the highlights

  1. A limit on recoverable care costs based on ‘the realities’ of providing home based care.

This proposal assumes that victims and those who care for them are simply seeking to make as much money as possible. This could not be further from reality. Most victims prefer to receive care from family members if possible. In most cases this is what happens. So if a victim is unable to cook their own meals, in the vast majority of cases it is family members who pick up the burden. There is a right to claim for their time but this is already discounted. You cannot claim damages based on the 100% cost of employing a carer. Rates are already reduced by up to 30%. Many victims are so severely disabled that they require specialist care, often 24/7. I cannot imagine that the MPS are seeking to have those costs reduced.

  1. Limiting loss of earnings to national averages so that higher earners get less compensation.

This would create a ‘first’ in English Law. Damages are calculated by reference to what is needed to put a victim, as far as possible, in the position they would have been if the incident had not happened. So a person who earns £100k a year is so badly injured that they will never work again. The national average salary is £27,600.00. So where does the poor victim find the shortfall of £72,400.00? Who pays their mortgage? They are left with a life changing injury and could be forced out of their house into the bargain…

  1. An introduction of fixed costs for claims under £250,000.

As the MPS know, this is currently the subject of two separate consultations. The government has proposed a scheme for limiting the recoverable legal costs in cases worth up to £25,000.00. They did flirt with the idea of £250,000.00 but soon dropped it. Lord Justice Jackson is currently working on a report looking at the fixing of recoverable costs for all cases up to £250,000.00. He has suggested that it would be difficult to extend such a scheme to Clinical Negligence in most cases. This is because these cases are inevitably expensive to run – not least because they are so often contested until the very last minute.

  1. The introduction of an ‘ultimate’ Limitation Period of 10 years.

This is the most jaw dropping proposal, and again would mean introducing entirely new law just to save money for the MPS. At the moment the Limitation Period in most cases is 3 years. This runs from the date the victim ‘knows’ or should know that there is likely to be a claim. So if I woke up from a tonsillectomy with a leg missing it would be fairly obvious when the 3 years began to run. Sometimes an injury, say a fracture, is missed but the truth does not come out until years later. So the Limitation Act 1980 says that the clock starts ticking when the victim knows what has happened. In the case of say a child who suffers catastrophic brain injury at birth, there is effectively no deadline if they are rendered incapable of deciding for themselves whether to pursue an action. The same goes for an adult who loses all capacity to manage their lives. These victims are the most badly affected by negligence. They are, by definition, the most vulnerable members of society. Why should they lose access to any justice because somebody else does not know to bring a claim on their behalf?

The MPS seem to have learned lessons from RTA insurers. If they lobby hard enough they hope to get their way – regardless of the clear injustice that would follow to those who are least able to speak for themselves.

In fairness, the report also touches on the need for the avoidance of incidents. But the briefing document makes it clear where their main concern lies.

The cost of pursuing claims for clinical negligence is undoubtedly high. But you don’t strike a balance by passing the burden to entirely innocent victims.

Sunday, 11 June 2017

Introducing our new Justice Minister!!!

Well it has been an interesting few days. Who would have thought that the outcome of the election would have been a hung parliament and deals done with the DUP to shore up a minority Tory government?

But there was one thing that was widely predicted. This was the removal of Liz Truss as Justice Secretary. Her days were clearly numbered after a number of gaffes, not least being her failure to robustly defend the judiciary following the Brexit decision and the Daily Mail’s infamous ‘Enemies of the State’ headline. This resulted in a withering attack from the Lord Chief Justice –

This has also led to calls for any replacement to be a lawyer.

Today we hear that she has been sacked by Theresa May. It was with some excitement that many of us waited to find out about her replacement. And it is ….. David Lidington. Who?

Well he is the Honourable Member for Aylesbury, Bucks. He was Minister of State for Europe until 2016. He has been leader of the House for a year. His other claim to fame is about expenses. According to the the Telegraph he submitted claims in 2016 for cleaning, L'Oriel moisturisers, body spray and Sensodyne toothpaste!

 But above all, he is not a lawyer!

He is no fan of Human Rights and is known to favour abolition of the Human Rights Act. To be honest these come as no surprise. It is well known that Theresa May is hostile to the HRA.

But the appointment of a fourth successive non lawyer Lord Chancellor is a major disappointment. You would have thought that the disastrous experiment of Grayling, Gove and Truss would have taught the government something. Of course, it is not compulsory for the Secretary of State to have relevant qualifications. You would not expect all Health Minsters to be Doctors or Transport Ministers to be Highways Engineers. But the Justice role is different. It is not a purely political appointment. The Justice Minister carries a huge constitutional responsibility as Lord Chancellor.  

The Constitutional Reform Act 2005 requires him/her to swear the following –

"I, , do swear that in the office of Lord High Chancellor of Great Britain I will respect the rule of law, defend the independence of the judiciary and discharge my duty to ensure the provision of resources for the efficient and effective support of the courts for which I am responsible. So help me God."

Will Mr Lidington understand this? Will he ‘defend the independence’ of judges even if this means upsetting the right wing tabloid press? Will he appreciate the importance of ‘justice’ as something more than a commodity? He might surprise us (!) but this is a lost opportunity to give back some credibility to an important position, which has now seen three incumbents in two years!

Time will tell what Mr Lidington will make of the pressures from the insurance industry to press on with attacks on the rights of accident victims.

Of course, that time might be short!

Who knows who will be at the helm in October 2018?

*Thanks to my friend Mike Williamson (Williamsons Solicitors) for this link

Friday, 26 May 2017

Insurers, insurers, insurers

We have all come across seriously questionable behaviour from insurers over the last few years. 

But I have today, come across a letter that is so alarming it deserves a blog!

EAD are acting for a client who suffered an accident at work in April 2016. He suffered a nasty shoulder injury. He has not been able to return to work. He has had on-going treatment including surgery.

He is a member of a Trade Union and was referred to EAD by the union. A claim was submitted in May 2017, almost 2 full years within primary limitation.

The insurers for his employers have responded as follows –
‘We are genuinely surprised to receive an injury claim from your client at such a late stage, as typically such claims are pursued within the first few weeks of the accident itself. We are of the opinion that this claim has the hallmarks of one borne out of active marketing and may not have arisen but for this. In our experience, a material proportion of late notification injury claims might be potentially exaggerated.
As such, to fulfil our obligation to our client/insured, we are obliged to seek your client's detailed reasons for the late notification of this claim.
As you are aware, Paragraph 6.6 of the Pre-Action Protocol for Low Value Personal Injury claims, states the Claims Notification Form can be signed the claimant's representative where the claimant has authorised the legal representative to do so and written evidence can be produced on that authorisation. Please therefore forward a copy of your client's signed authority form.’
They have refused to deal with it and simply advised that proceedings should be issued forthwith.
So there we have it.

Client suffers nasty injury. Seeks help from his union. His union refers him to panel solicitors. This is then alleged to be a claim acquired by questionable means and ‘potentially exaggerated’ into the bargain.

The mind boggles.

Thursday, 25 May 2017

Who is liable if a patient leaves A/E after wrong waiting time given?

I don't normally report on specific cases. But the recent Court of Appeal decision in Darnley v Croydon Health Services NHS Trust raises interesting questions about information given by hospital staff in relation to waiting times in A/E
On 17th May 2010 Mr Darnley was the victim of an assault and received a head injury. He was taken by a friend to the A/E Department at May Day Hospital in Croydon. The Receptionist took down his personal details. She also noted that he had had a head injury of about 1.5 hours duration. He reported that he was in severe pain.
The receptionist told him that it would be 4 – 5 hours before he was seen. This was wrong. He would in fact have been seen by a triage nurse within 30 minutes.
Mr Darnley waited for about 19 minutes and then decided to leave the hospital and to take some paracetamol , at home. He did not tell hospital staff that he was leaving. A few minutes later a triage nurse called him but he was no longer there. By 9.42 he had deteriorated and an ambulance was called. He was returned to the May Day. A CT scan revealed a extradural haematoma. He was transferred to St Georges Hospital, London for surgery. He suffered permanent brain damage resulting in severe neurological injury and significant disability.
The case against the hospital was there had been negligent delay in assessing him and also that he had been given wrong information about waiting time.
Guidelines published by NICE in 2007 said –
" All patients presenting to an emergency department with a head injury should be assessed by a trained member of staff within a maximum of 15 minutes of arrival at hospital. Part of this assessment should establish whether they are high risk or low risk for clinically important brain injury and/or cervical spine injury, using the guidance on patient selection and urgency for imaging (head and neck cervical spine)."
So it was, understandably, argued that failure to assess him within 15 minutes was negligent. However, it was agreed between the experts that 15 minutes to triage might not always be achievable and that this depended how busy the A/E Department was. They agreed that the department was probably very busy on this particular evening which was a Monday. They agreed that Mr Darnley should have been seen within 30 minutes at the latest. A triage nurse tried to see him within this timescale but he had left. This argument was rejected by the trial judge.
The judge also rejected the claimant’s argument that the receptionist had negligently provided inaccurate information in relation to waiting times. If the claimant had known that he would be seen within 30 minutes he would have stayed. The judge held that there was no duty on the reception staff to provide information about waiting times. It was not ‘fair, just and reasonable’ to impose such a duty. The provision of information by receptionists was a courtesy offered to patients but this was ultimately a matter of clinical judgment. The imposition of a duty of care in these circumstances might lead to a policy of evasive answers.
Even if there was a duty, the provision of inaccurate information did not cause the claimant’s injury. It was caused by his decision to leave.
The claimant appealed.
The Court of Appeal rejected his appeal by a majority of 2 -1. In relation to the duty to triage within 15 minutes Jackson LJ approved the following observation from the trial judge –
"What I am prepared to find is that it seems to me to be extremely unlikely that the triage nurses were not fully engaged that night. The alleged breach of duty is a failure to meet a tight target of 15 minutes by a factor of 4 minutes. I am not prepared to find that this amounts to a breach of a clinical duty of care. It is right that there must be a longstop, or the target becomes meaningless. The consensus of opinion amongst the experts is that the longstop position is 30 minutes. That seems entirely appropriate."
In relation to the provision of wrong information Jackson LJ said –
‘In the present case the gravamen of the claimant's complaint is not failure to inform. It is the giving of incorrect information by the receptionist. I have come to the conclusion that this is not an actionable misstatement. The receptionist took down the claimant's details and, correctly, told him to wait in the waiting area. When she added that he would have to wait for up to 4 or 5 hours, she was not assuming responsibility to the claimant in the sense of accepting responsibility for the catastrophic consequences which he might suffer if he simply walked out of the hospital. Foreseeability alone is not sufficient to give rise to a duty of care.
Nor do I think that it is fair, just and reasonable to impose upon the receptionist (or the defendant acting by the receptionist) a duty not to provide inaccurate information about waiting times. This would add a new layer of responsibility to clerical staff and a new head of liability for NHS health trusts.’
Even if there was a duty to provide accurate information about waiting times, the claim would fail because he had been told to wait and left the building without telling anyone.
At one level it does appear harsh that the severely disabled claimant receives no damages, despite being given wrong information about waiting times. Indeed McCoombe LJ giving the dissenting judgment observed -
'Here the hospital told this claimant that he would receive attention in anything up to four or five hours. That was incomplete and inaccurate information and, in my judgment, imparted negligently. The risks from head injuries were well known within the hospital. Equally, the foreseeability of patients at A & E leaving before being seen (as found by the judge) should equally have been known. It seems to me, therefore, that the reality of the triage system should have been imparted to this claimant in view of his presentation on arrival. The failure to do so was, in my view, on the facts of this case a breach of duty by the hospital.'
So the point is finely balanced. But the position as things stand is that a claim cannot be successfully pursued on the basis of incorrect information provided by non medical hospital staff - particularly where a patient decides not to wait.

Tuesday, 23 May 2017

Fixed costs - is Jackson shifting?

We began 2017 expecting the legal news to be dominated by whiplash ‘reforms’ and small claims. The announcement of a snap election brought all of that to a halt, although it seems highly likely that the proposed changes will be back with a vengeance in the near future.

This has shifted the focus of debate to Fixed Recoverable Costs – always a controversial topic.  At the beginning of May, the Consultation on FRC in Clinical Negligence Cases ended. I have previously summarised the proposals –

It is encouraging that the plan is limited to cases up to £25k although there is likely to be heavy lobbying from defendants to have that cap raised –

But the discussion is not limited to Clinical Negligence. As we speak, Jackson LJ is working on his report on FRC for all cases up to £250k. This review is expected by the end of July 2017. He has previously made no secret of his preference for FRC to be introduced across the board –

More recently he has appeared to abandon thoughts of a cap as high as £250k. Some are suggesting £125k but he himself has not said anything. At last week’s APIL Conference he acknowledged the difficulties of fixing clinical negligence costs in contested cases worth more than £25k. There is also talk of imminent news about fixed costs in hearing loss cases –

I have to say that I don’t think FRC are necessarily a bad thing in appropriate cases.

Payment based solely on hourly rates can present problems. An experienced and able lawyer might turn a task around in one hour. Another might need 3 hours to do the same job. But the second gets paid more. There is a temptation to feel we are somehow short changing ourselves if we do not rack up enough hours for doing something that was not particularly onerous. Of course the contrary and entirely reasonable argument is that some tasks are so complex that they will require work far and above what might be recoverable on a fixed fee basis. But if the fees are calculated on the basis of the swings and the roundabouts then this should not be a major worry.

I understand that most commercial clients have been demanding fixed fees for years.

What is most important is selecting the right cases. Cases worth over £250k are rarely straightforward. If they are to be introduced then a low start surely makes sense – such as the £25k figure proposed in Clinical Negligence.

Whether we love them or hate them (marmite anyone?), I think that there is now an inevitable tide which will see FRC introduced for most straightforward cases in the next couple of years. Firms should be planning ahead with this in mind. We should be lobbying for fees to be realistic and for the most complex and high value cases to be excluded.

Thursday, 27 April 2017

Looking back at years of injustice for the bereaved

On Friday 28th April I will hang up my billing shoes. My fee earning days will be done as I move on to a new phase as a practice management consultant and trainer.

At times like, this you look back over the years and reflect on significant moments.

I can still remember a day in the 1980s when I came across a moment of injustice which still angers me to this day. I was instructed by the parents of a young student who had been tragically killed in a car accident. He was a passenger in a car driven by his friend and which crashed into a wall. No other cars were involved and his friend, who survived, was clearly at fault. At one level it was a clear cut case on liability.  

The injustice arose when we discussed the likely award of damages. The parents were clearly devastated. The son was 18 years and a few weeks old. I had to advise them that they were not entitled to any damages for their bereavement. That was my earliest encounter with the scandal that is the law of bereavement damages in England and Wales, which can lead to major injustice. And this injustice has never been properly resolved in all of my years in practice.

The entitlement to damages for bereavement dates from the Fatal Accidents Act 1976. It is a statutory entitlement to a fixed sum – currently £12,800.00. If that sounds shockingly low, there is worse to come. 

The only persons entitled to an award are a surviving spouse/civil partner or the parents of a child under 18 and they can only receive a single award – i.e £12,800 between them. do they share the pain of loss 50/50? This was why the parents in my case were not entitled to anything for their obvious bereavement; because he was marginally over 18. Nobody has ever properly explained to my why this arbitrary fact somehow lessened their bereavement.  Children who lose a parent, apparently do not suffer any bereavement that can entitle them to any damages. Siblings have no chance. 

There is no immediate sign of this changing.

The limiting of the award to an arbitrary figure has always been illogical and unfair. 

I once acted for the father of four young girls who lost his wife due to the admitted negligence of her local hospital. He was a devoted husband and father. I have rarely come across such a level of grief. He could barely discuss the case without dissolving into tears. He was suffering from a very high degree of pain and upset that surely deserved realistic compensation.

The time has come for all of this to change.

The Association of Personal Injury Lawyers is currently heading a major campaign on this very topic –

In Scotland, loved ones are treated with far more dignity. A broad range of relatives can claim - spouses/civil partners, parents/children, siblings, grandparents/grandchildren. Damages are assessed on a realistic basis having regard to such matters as the level of grief and sorrow suffered. Most importantly, there is no statutory cap.

Why victims south of the border cannot be treated with equal sympathy beggars belief.

We will see many promises from politicians over the next few weeks. 

A promise to ensure justice for those who suffer bereavement would be very welcome and is long long overdue…

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