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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


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!!

Thursday, 17 March 2016

The Fees go up and the Service comes down! - a rant

I received a letter from the HMCTS the other day. It gave very helpful advice about a further impending rise in court fees. The fee for a General application will soon go up from £155 to £255 – 60%. The fee for a Consent Order will go from £50 to £100 – 100%. The letter was unable to say when these eye watering increases will happen – ‘further information about the date when these increases will take effect will be provided..’ 

So presumably every law firm in the country will soon get a second letter!

In 2015 we saw fees for Issuing Proceedings rise, in some cases, by 600%.

In his speech about fixed fees on  28th January, Jackson LJ talked of  ‘a justice system which is exorbitantly expensive’ and said – ‘High litigation costs inhibit access to justice’ and ‘If costs prevent access to justice this undermines the rule of law.’ It is hard to disagree with those comments. It is a shame that the MOJ are not listening. Such huge and apparently random increases in fees will inevitably impact on Access to Justice. Some claimants can apply for exemption in fees but many thousands are not eligible.

But there is another problem. The quality of the service from the courts seems to decline in direct proportion to the levels of increase.

Just this week I did a CMC by telephone. After a long wait the District Judge was very apologetic. He had no file. He had no idea what the case was about and asked us to explain. This was a hearing that was listed months ago. Imagine the Mitchell/Denton implications if I had announced that I couldn’t find my file and didn’t know anything about the case.

Earlier this year I did a CCMC. The court in question sent out meticulous directions about what had to be in the bundle for the hearing. Many of the documents were already on the court file. So I spent several hours doing work once done by the court office. The Directions and budgets were eventually agreed but the court in question refused to allow it to be dealt with by telephone. So it was a choice between briefing counsel and driving 120 miles for a hearing that lasted 10 minutes. 

In another case one of my colleagues had a Clinical Negligence case listed for a CCMC in a London  County Court. It was due to be heard in January this year. It was vacated because the judge was ill. It has been relisted for July!

I suspect that since the Jackson reforms were introduced the cost of Civil Litigation has gone up not down – even if we disregard the satellite litigation.

I suspect that fixed fees for most litigation are inevitable. And firms who work quickly and efficiently should have no fears. But they will not reduce the overall costs of litigation whilst the government is intent on milking it for all it is worth.

Thursday, 18 February 2016

NHS Catalogue of Blunders - these are not the fault of victims

I have written many times about the conduct of the NHS Litigation Authority, who regularly attack the victims of medical negligence and their lawyers.

Back in August 2015 I wrote the following in relation to plans to limit the legal costs recoverable by successful Claimants –

‘What is clear, is that this is an attempt to reduce the number of genuine claims and the amounts payable to victims. If the NHS does not have to pay full legal costs in those cases where they are clearly at fault, it is the victims who will have to pick up any shortfall.’

These attacks are designed to blame victims and their lawyers for allegedly draining the sparse resources of the NHS. Anyone who deals with such cases on a regular basis knows where the real problem lies. There are too many avoidable accidents. If there was a major drive on reducing these incidents then dramatic savings would be made.

But it is always easier to blame the lawyers.

All of this is highlighted by today’s disturbing report on what are ironically called ‘never events’. These are the very worst blunders which should never happen. The report talks of a poor man who had a testicle removed instead of a cyst. It mentions feeding tubes being fed into lungs rather than stomachs. Interestingly I am handling a tragic case where the opposite happened. A ventilation tube was mistakenly inserted into the oesophagus rather than the lungs of a young heart attack victim. She suffered massive brain damage and died within days. The list is frightening.

The NHS says that these events are rare. Thankfully that is right. But they still should not happen. And they only represent the very worst blunders, the sort that should never happen in any circumstances.   There are many more mistakes that are not so bad as to be included in this report.

In none of these cases are the victims to blame.

Lives can be changed forever. Those who represent victims work tirelessly to secure justice for them. Instead of blaming them for the ‘costs’ to the health service let’s hear the Department of Health work just as tirelessly to ensure that these incidents do not happen again.

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 Jackson 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.