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Monday, 11 September 2017

15 cold calls in a week

In the last week I have had 14 missed calls from mobile number 07520905031. I have rejected them all because my Truecaller app identified them as coming from an ‘Accident Claims Manager’. This morning I decided to take the 15th call. The caller asked me how I was today. I asked why they kept pestering me. He immediately hung up.

On 2nd September I received a text from 07817906405 which said –

‘FINALISED – you have 2662.85 in your name for the accident you had, for us to put in your bank Now just fill out

Two days later I received another text from 07817906203 which said –

‘Your recent accident has been signed off & funds allocated, fill out for us to put 2766.88 in your Bank Now.’

Out of curiosity I clicked the link and it took me to this –

Sadly, there was no mention of the specific sums that were waiting to go into my bank.

I have had occasional calls and texts over the years but 15 calls and 2 texts in one month smacks a bit of desperation. Just for the record I haven’t been in an accident since I fell off my bike in 1982.

I have now registered my home and mobile numbers with - I should have done a long time ago.

This kind of behaviour puts all genuine victims at risk. Ordinary people are being pushed to pursue claims – even they are for fictitious sums of money following fictitious accidents.

I have written many times that the so called compensation culture is a myth.

Claimants, Insurers and the government should be doing all they can to stop those who are trying to create one.

Tuesday, 5 September 2017

Concerning activists, squatters, an injunction and lots of running

I was reminded last week about a case in which I was involved back in the 1980s – when the world of legal practice was very different. And I was younger and fitter.

Towards the end of 1986 there had been a growing dispute between Liverpool City Council and local residents in Everton. This focussed on council plans to build what is now known as Everton Park. And a very nice park it is. This was part of the regeneration of what had become a very deprived area of the city. The problem was that the plans included the demolition of some good quality four bed roomed houses. Residents, including local church leaders formed the Langrove Street Action Group. Activists began to squat in empty houses to delay demolition. They were supported by a barrister, Mark Hedley who lived in the community – he later became Mr Justice Hedley. I was advising the group who were also supported by the housing charity Shelter.

In February 1987 I received a telephone call from Mark to advise me that demolition workers were due on site the next day. It was likely that so much damage would be done, that further opposition would be pointless. The next morning I was in Liverpool County Court on another matter when I was paged on the tannoy system to ring the office. I had a message to ring Mr Hedley (no mobile phones back then). He advised me that work had started. He said that there were grounds for an injunction based on a failure to consult residents. He had handwritten the papers. I ran to my car, drove at great speed to his house and then to my office where I had every available secretary typing up the application.

I then ran back to the car (running features a lot in this story), drove to Langrove Street to collect the two residents who were to be the Plaintiffs, drove them to a local solicitors office to swear their affidavits and then to county court office where Mark was waiting for us. These were days when you could turn up at the court office and have real people to help. I explained the urgency and told them that slates were being pulled off rooves as we spoke. Their support was remarkable. They issued the application and then went to find a judge. Within half an hour we were before Judge Bernstein who granted the order. Court staff again worked at staggering speed and within an hour of arriving at court I had the piece of paper in my hand. I left the others and ran (more running) back to the car and drove to Langrove Street. I ran across the estate waving the injunction. It was only at this point that I realised that the demolition team were big, strong and not too happy! One of them towered over me like Giant Haystacks (remember him?) and aggressively asked if I was ordering him to stop work. My knees and hands were shaking as I muttered something like – 'It’s not me it’s the judge’. Thankfully he backed off just as the TV cameras arrived. The work stopped. The damage was contained.

The dispute was finally resolved outside the courts. A change in the make up of the council meant that the decision to demolish was reversed. The court action had bought the residents essential time. The estate was eventually renovated and I was there when Glenda Jackson officially opened the new project in 1990.

This was one of those days when you remember why you became a lawyer in the first place. It was remarkable example of teamwork between local activists, lawyers and the courts. The court in particular acted swiftly and efficiently.

The law can be used effectively to secure justice for ordinary people.

It just seems so much more of a challenge these days.

Or is it?

Thursday, 17 August 2017

Insurers again - costs go through the roof

If you only ever heard the voices of insurance companies you could easily believe that lawyers who act for accidents and occupational disease are entirely responsible for the escalating costs of litigation. This is turn means that they are responsible for high insurance premiums. This in turn means that the government feels the need to ‘crack down’ on the so called compensation culture.  It also leads to a distorted view of the real world. One leading business figure in Liverpool recently commented that ‘the no win no fee culture is a stain on modern society’!

Over the last 3 – 4 years it has become increasingly difficult to secure justice for victims.

So how about a story that redresses the balance. This is a case dealt with by EAD Solicitors. The names have been changed but every other detail is real.

Mr Smith complained of noise induced hearing loss caused by his work. Initial investigations confirmed that he did have some NIHL. He had worked in noise with 2 employers. A claim was intimated against both. It was not a huge value claim. At an early stage a Part 36 offer of £5,500 was made to both Defendants, D1’s share of which is £1,481.70 and D2’s share is £3,653.10, plus there was a small element that was not recoverable because of Holtby. D2 settled within a few weeks.

D1 argued causation and refused to settle. Court proceedings were issued. A second Part 36 Offer of £1250 was made. This was rejected. The court approved the instruction of a single joint engineer and allowed D1 to instruct their own medical expert. The engineer confirmed unprotected exposure to noise exceeded 90dB. D1 instructed a well-known ENT expert who argued that any hearing loss suffered by Mr Smith was de minimis and not therefore compensatable. He maintained that view following a joint meeting of medical experts. The matter progressed to a 2 day trial earlier this year. D1’s expert gave evidence. He made some concessions during cross examination. He then stated that he had changed his view substantially in recent months. He referred in particular to a paper that he had recently read. This took the Mr Smith’s lawyers and experts by surprise. The judge adjourned the trial for further reports from both experts.

Reports were duly exchanged and the trial relisted in July 2017. Shortly before the new date, D1 offered £1k plus costs. This was accepted.  This was almost 3 years after the first offer and almost 2 years after the second offer. D1 achieved a saving of just £481.70 from the first offer and just £250 from the second.

Mr Smith’s costs have been drawn at over £66k plus costs of assessment. D1’s costs are in the region of £25-£30k based on cost estimate provided at listing stage. So the insurers of D1 are shelling out the best part of £100k to save between £250 and £481.70.

I don’t think further comment is needed.

Friday, 4 August 2017

In praise of independent judges

Remember last year when the first panel of judges who heard the BREXIT case were scandalously described as – 'Enemies of the State'. I commented at the time that what the courts did, was assert the supremacy of parliament –

That whole debate emphasised the need for a strong independent judiciary.

We have seen two examples of that over the last week or so. In the celebrated Supreme Court Judgment in relation to Tribunal Fees, the judges unanimously reminded ministers of the need to understand the rule of law and in particular of the right of ordinary people to access justice. I quoted part of Lord Reed’s judgment last week but one section should be repeated over and over again –

‘Courts exist in order to ensure that the laws made by Parliament, and the common law created by the courts themselves, are applied and enforced. That role includes ensuring that the executive branch of government carries out its functions in accordance with the law.

In order for the courts to perform that role, people must in principle have unimpeded access to them..’

This is one of the most powerful statements of the role of the courts that I have ever read.

He went on to say that without such access, our entire democratic process was at risk of becoming a ‘meaningless charade’. 

Can I just say in passing that this was the heart of the judgment? The tribunal fees case was nothing to do with opening the floodgates to spurious claims as has been claimed by some unhappy commentators. Fees were unacceptable because ordinary people could not afford them –

’The fall in the number of claims has … been so sharp, so substantial and so sustained as to warrant the conclusion that a significant number of people who would otherwise have brought claims have found the fees to be unaffordable.’ (Lord Reed)

The second example is the remarkable statement by our Senior Family Judge, Mr Justice Munby in the case of X (A Child). This is the case involving a teenager who is at serious risk of taking her own life if a suitably supportive placement is not found. The problem is that no such suitable placement can be found –

“We are, even in these times of austerity, one of the richest countries in the world. Our children and young people are our future. X is part of our future. It is a disgrace to any country with pretensions to civilisation, compassion and, dare one say it, basic human decency, that a judge in 2017 should be faced with the problems thrown up by this case and should have to express himself in such terms.”
He expressed shame and embarrassment that there was no safe place for her -
‘as a citizen and as an agent of the state; embarrassment as president of the family division and, as such, head of family justice’

His comments have been reported across the media. This reminder of the needs of young people in a similar position have hopefully shocked us all into saying that this is not acceptable. Despite being the most powerful Family Judge in the land, he was unable to order a placement that did not exist. But what he has done is use that important position to shake us into action.

These two cases demonstrate why it is so crucial that he have strong independent judges. Where it rests within their power they can keep the executive in check. Where it does not rest within their power they can bring issues to the attention of the world.

I can think of some places where these judges would be in personal danger for what they have said over the last week or so.

Our judges are not enemies of the state. They are not perfect. They make mistakes. But society is in trouble without them. And it is equally in trouble if people are prevented from accessing them.

Wednesday, 26 July 2017

Supreme Court Judgment - no more words needed

I sat down to write a post about today's momentous decision from the Supreme Court on Employment Tribunal Fees. But having read the judgment of Lord Reed I need do no more than quote these words on access to justice. I hope they are still quoted by teachers of law in years to come.

'At the heart of the concept of the rule of law is the idea that society is governed by lawParliament exists primarily in order to make laws for society in this country. Democratic procedures exist primarily in order to ensure that the Parliament which makes those laws includes Members of Parliament who are chosen by the people of this country and are accountable to them.

Courts exist in order to ensure that the laws made by Parliament, and the common law created by the courts themselves, are applied and enforced. That role includes ensuring that the executive branch of government carries out its functions in accordance with the law.

In order for the courts to perform that role, people must in principle have unimpeded access to themWithout such access, laws are liable to become a dead letter, the work done by Parliament may be rendered nugatory, and the democratic election of Members of Parliament may become a meaningless charade.'
Thank you!

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.