Sunday, 17 March 2019

Educashun new's

A new low in standards last week from one of our industry’s supposedly leading education providers.

The advert for a webinar about the fine line between acceptable litigation tactics and the criminal offence of blackmail caught my eye because of an experience late last year. A young assistant at another firm on my patch told us that his client wanted three times the amount that his former employer wasn’t obliged to pay him anyway or he’d pursue his complaint to the ICO that his demand for a copy of every single document with his name on or in it which would “cause your client a significant time and financial burden in order to comply with its obligations” had not been met.

Long story short – I told the lad’s supervising partner (who sprang to his cub’s defence like a pride male lion in his prime) that there was no prospect of any apology and that all offers were withdrawn. Ex-employee actioned his threat to complain to the ICO and was told that his request was manifestly unreasonable. It was satisfying to hear that the complaint had vaunted a copy of my letter mentioning “the B word”.

So, my attention focuses on an email warning that it’s easy to overstep the mark. I don’t feel I need the webinar but I’m interested enough to read the summary – in which I learn about “The Blackmail Act”.

No, me neither.

I care enough about these things to have mailed the course provider and asked for the date of this statute. Naturally that has exposed the fact that the law is still s21 Theft Act 1968, as it was before Christmas.

The seminar presenter will no doubt ‘explain’ the error. I bet there’ll be some who still won’t get rid of the idea that there’s some new legislation on the books (chance would be a fine thing). Many others who have read the emails advertising this educational event will now have it in their heads and be citing it to others, only a few of whom may know enough to ask “WTF?!”


A few months ago my early morning reading included this little gem. There isn’t actually any error of law here but just look at the spelling, grammar and general presentation from one of the industry’s leading legal library providers.

Yes, you’ve guessed it – Mr Angry wrote to them too. Nice letter just referred to the highlighted deficiencies and invited comment.

Response? Nothing.

No “you’re right – that doesn’t meet the high standards our customers are entitled to expect of us and we’re sorry about this.”

Not even a “thanks for drawing that to our attention and we’ll investigate further”.

Absolutely nothing.

Why not? Are they too dumb to understand there’s a problem? Do they perhaps resent the fact that I’ve pointed out their inadequacy. Do they just not know what to do?

Whatever the explanation, it’s not good enough. At least the webinar providers came back to me within an hour or so to acknowledge the error and thank me for drawing attention to it.

The broader disturbing point is that the teachers seem to be incompetent. This is ultimately an ‘achievement’ of organisations who seem hell-bent on ripping standards down to the level of the only people who are prepared to work within those organisations and frankly wouldn’t have a clue what to do in the real world.

See you at the bottom. Or maybe not.

Tuesday, 5 February 2019

Out of the frying pan...

The Victims’ Commissioner, Baroness Newlove reported last month in damning terms on the performance of the Criminal Injuries Compensation Authority (CICA).

The headnote on her Twitter page @VictimsComm says that “survivors of violent and sexual crime are being retraumatized by the CICA and left alienated and frustrated”. 

That’s a terrible indictment of an organisation that was set up to fill a gap so often left by shortcomings of the criminal courts, loopholes in the civil law and the impecuniosity of many perpetrators.

The report appears to identify unnecessary demands for information and the withholding of compensation on arbitrary grounds.  It is plainly wrong, but sadly it is nothing new.

The case that always sticks in my mind is that of a young matelot stationed at Yeovilton a number of years ago.  He was violently assaulted by a nightclub doorman during a “run ashore” in Chesterfield one Saturday evening.

Yes, he drank probably more than he should have done and might otherwise not have been quite so persistent in his attempts to persuade the dinner-suited sentinels that he should be allowed the opportunity to keep the party going.

But nothing he did could justify the actions of the bouncer who pushed the rest of his patient colleagues to one side and landed a punch that laid our young serviceman out cold on the pavement.  He cracked his head on the kerb as he landed, lost consciousness and subsequently lost interest in a promising, well paid and secure career in the Navy. 

Expert evidence from a consultant psychiatrist established that the change in our client’s psychological state was probably caused by the head injury he suffered as a result of the unlawful assault that evening.

On first application, he was awarded the princely sum of £6,000.  The only thing that was clear was that the award was insufficient.

So we appealed and eventually a new award was made.  This time it was zero.

Some bright spark got hold of the file and noted that the final chapter of the demise in our young man’s naval career was a spell of military correction at Colchester barracks. This was incorrectly viewed as a term of imprisonment equivalent to a sentence imposed by a criminal court and on that basis the applicant was deemed unfit to receive compensation.

When after approximately five years we finally dragged it to an appeal half-way up the country, a capable tribunal decided that the appropriate award was of a sum approximately 25 times the original award.  Result.

Even net of the substantial costs that were inevitably incurred in this unnecessarily long journey, our client was left with a sum of money sufficient to buy himself a house and give him a real start in a new career outside the Navy. It demonstrated to me, though, the terrible flaws in the system which were only overcome by a great deal of persistence and doggedness on the part of all the good guys.

This, unfortunately, is so often the face of “administrative justice”.  Anybody who has dealt with some of the ombudsman services which are so called created to provide Joe Public with affordable justice will understand the frustration.

There’s a sense that these bodies are there to draw in the unsuspecting hopefuls whose enthusiasm and will to live is then broken by what seems to be a mission only to protect the fund or those who might in theory be ordered to part with some money.

The route to redress is often limited, or virtually non-existent and where there is a chance to appeal, it’s a long and rocky road. As this latest inspection shows, things just get worse when they should get better.

For so many unfortunates who were persuaded to go it alone – that they didn’t need ‘expensive’ lawyers – it’s a journey out of the frying pan into the fire.

It isn’t good enough.  Well done to Baroness Newlove for carrying a torch.  I hope the consequences of her report are a much-needed reform of the CICA.

I hope also that it will foster a recognition that many of these organisations, which members of the public are encouraged to use on the ticket that they don’t need the assistance of a lawyer, are often traps for the unwary to be cheated and maltreated and left feeling that they wished they had never bothered.

Friday, 25 January 2019

A criminal waste of time and money..

It’s over two decades since I got to my feet in a criminal court of any description and, as a firm, we don’t deal at all with that area of work. 

So, whilst I'm pulling my hair out daily at the inadequacies of the civil court system, my understanding of the lamentable state of affairs on the other side of the fence comes from reading the depressing reports from many others (including an anonymous caped rabbit) [See footnote]

This week, however, came a chance to witness at first hand – well, via one of my team – whether or not it’s really as bad as they say it is…

Yes, it is.

What are we doing mucking about in the magistrates, first of all?  The answer is that we are running a road traffic accident claim for a cyclist who says that he was forced to leap from his (expensive) conveyance seconds before a large truck flattened the two of them.

Before he had even instructed us last year, our lad had received emails from the police assuring him that dashcam footage had been recovered from the owner of an oncoming vehicle and this showed that the incident occurred exactly as our client alleged.  We all felt good about that and the prospects of a guilty plea from the truck driver.

Sure enough, charges of driving without due care and attention, failing to stop and failing to report followed.  There was some debate about the failure to report where the police had stopped him a quarter of a mile up the road anyway.  He also had some argument about failing to stop but the boys in blue really couldn’t have been more confident about the due care.

Our client was told to ask us to get in touch with them for a copy of the dashcam footage.  We did.  We were then told to apply elsewhere – to ‘the decision makers’. Hold that thought.  Then we were told we couldn’t have it until after the prosecution was concluded.

In the meantime, remarkably it seemed, the truck driver’s insurers declined to admit liability.

A fortnight before Christmas, our client was notified that he would be required at Exeter Magistrates on Wednesday of this week for a trial, starting at 11:30.  After some deliberation, we decided that a watching brief might be a good idea.

Meanwhile, the hearing was brought forward to 10:00.  Knowing what I do from my daily interaction with the Twittersphere, I wondered if that was a good idea.

Well, just for the record, on the day there were of course half a dozen customers in the cells that needed to be dealt with before our trial.  The morning and early afternoon passed, punctuated only by brief trips to the court room to be told to come back in an hour or so. 

By mid-afternoon, there was talk of a possible adjournment and then at 15:00 the prosecutor announced that following discussions the two minor charges would be dropped and the driver was going to plead guilty to the due care and attention.


Well…at some point the defendant’s solicitor had caught mention of some dashcam footage and remarked that this had not been seen.  The video evidence was shown to the defendant who promptly put his hands up and explained that he simply hadn’t seen our client or his bicycle.

Having regard to the size of the vehicle he was driving, the court administered seven penalty points and a bill for nearly £1,500 in fine, costs, compensation and victim surcharge. One would think that an admission of liability in the civil claim will now follow, promptly or otherwise.

I struggle to understand how it is that a simple case like this can reach five hours after the appointed time before somebody – anybody – looks up and says, “this dashcam footage - shall we have a butcher’s at it while we’re waiting?”.

My assistant overheard the conversation after lunch when the (Romanian) defendant’s solicitor told the translator that the CPS had dashcam footage but he hadn’t yet seen it.  He had also explained to the CPS, in response to the suggestion of an adjournment, that they were paying for the translator to be there and would have to meet that expense again if the case wasn’t dealt with today.

Whatever the explanation, there is a short piece of film from 9 months ago that, once shown to the defendant, immediately proved to him that he had indeed fallen into error on that day.

This fits with what the police told our client and us from the outset.  If matters had proceeded then as we were led to believe, we would have been in a position to show that evidence to the insurers who, if they were paying the bill for representation, would probably have made known the hopelessness of the defence. 

Why is it that from the point where the file moves from police to prosecutor and then until the brink of an adjournment nobody but the prosecution representatives get to see the simple damning evidence?

Why wasn’t this brief footage simply given to the defendant himself from the outset?  He may not be able to read English but visual images need no translation? 

The result, apart from a due care conviction on a guilty plea (oh, well done indeed the CPS!) is a wasted day with attendant expenses and losses for the defendant and three witnesses.

Also, there’s the wasted cost to the public purse of a prosecuting solicitor, an interpreter and precious court resource.  You and I will pay for that.

Presumably the cost of the defence solicitor will fall to insurers who will use that and similar cases as part of the excuse for putting up our next motor premium.

Yes, I lost an assistant for a day and I gained very little for her remuneration and travel expenses but I had already accepted that that would be irrecoverable whatever the outcome.  Still, it could have been spared.

What a calamitous waste of everybody’s time and money just because there is nobody with the wit and motivation to play an incredibly easy ball.

Footnote: For anyone who doesn’t recognise it, the reference is to The Secret Barrister (@BarristerSecret

Friday, 11 January 2019

Not much COP

On the foulest of mornings at the start of last November, counsel set off from Cardiff at hideous o’clock bound for Telford and a dispute resolution hearing in a deputyship application in the Court of Protection (COP).

Don’t ask me why this event took place in Telford.  It was marginally less inconvenient for our septuagenarian client who had to travel from Gloucester.  The only thing that doesn’t call for much explanation is the fact that there was no sortie from this office in the darkness, wind and (copious) rain.

It all seemed worthwhile.  Counsel – and others involved – did an admirable job of achieving agreement on all matters except the costs which in turn all agreed to leave open for further argument.  Meanwhile, a fairly acrimonious dispute between three sisters about the welfare of their ageing mother took a big step towards conclusion.

Counsel was required to perfect, agree with our opponents and email to the court a very long draft order that same day.

After waiting (perhaps too) patiently five weeks for the court to print the order that everyone including the judge had agreed and apply a seal to it, we wrote on 14 December to ask what had happened to it.  We had a nice email telling us that it had been referred to the judge on 9 November and they had received no reply.

“However, looking at your email it was already stated that the order had been approved by the DJ…”

There followed the reassurance that the court had “moved the order to urgent tops” with the hope that they would “draw (??) and send the order out by no later than..” 21 December.

Naturally we chased again at the beginning of this week.  Then comes the explanation that, apparently, they are not allowed to “emboss” an order in Birmingham.  It has to go to London for this complex procedure to be performed.

I suppose I should be thankful that we are actually getting communications direct from the court at the moment.  Since this case was transferred to the Midlands Regional Hub the court office has consistently ignored the fact and reminders that we went on record at the start of proceedings (the London office got that right too) and insisted on sending notices by post to our client.

On the first occasion, in July, the notice was unseen for a period of three weeks because our client was away from home.  The upshot was that we had a week’s notice of the first hearing and yet had to go to the expense of a formal application to adjourn to the beginning of October.  That hearing was later adjourned at a week’s notice for we don’t know what reason.

It all creates unnecessary expense and worry for the children of the patient who themselves are of advancing years and prefer not to have to travel half way up and down the country at short notice.  There’s also the delay of many months before the financial affairs of the patient can be dealt with.  Even now we don’t have the essential deputyship order two months after the agreed draft was filed by email ready to print.

Far and away the greatest share of responsibility for the delay, expense and frustration rests with The Court Service.  I am sure that at Birmingham, as elsewhere, there are well-meaning and capable people – good people – who are doing their best and I intend no criticism of them for that.

I do intend criticism of the MOJ, and the government, for emasculating a service which in consequence is not providing the protection it should to the increasing numbers of our ageing population.

Friday, 26 October 2018

Oh, my Lord!

Lord Peter Hain’s maverick act in the House of Lords yesterday, if unchecked, will represent a new low point for the rule of law in this country.

Despite the existence of an interim court injunction forbidding the disclosure in the press of the identities of the parties to pending litigation, Lord Hain got to his feet under the gaze of the television cameras to declare it his “duty” to name the central figure as Philip Green.

He did so under the cloak of parliamentary privilege which ancient concept still has an important role in our democracy.  It enables those involved in making our legislation to say things in the course of debate which might otherwise expose them to claims of defamation, criminal proceedings and – most pertinent in this case – contempt of court.

It's a privilege that needs to be exercised very carefully.  His Lordship doesn’t seem to have understood that.

I don’t know, any more than the vast majority of people so far, all the circumstances of Philip Green’s lengthy and expensive efforts to suppress the Daily Telegraph’s report – still less the merits of the underlying allegations.  It may be that he has acted unlawfully and that it is, or rather will be, in the public interest for all the allegations to be known and followed as the substantive dispute is resolved in court.

It may be that there is a force for change in relation to non-disclosure agreements but whether reform is needed, it hasn’t happened yet and one man amongst hundreds has no individual power to legislate.

For the moment it is – or was – a matter for the courts.  Three senior judges doing their best, and probably getting it right, decided that Philip Green’s name should not be splashed all over the media.

What Lord Hain appears to have done is to say “to hell with that – I know better than these judges and everybody else and I am going to do what I believe is right”.

Well, let’s be absolutely clear Lord Hain, you are wrong. The proud little speech yesterday was a contempt of court.  It won’t be actionable because it happened within the Palace of Westminster.  Outside on the street it would have been a very different story.

It’s an appalling example of a senior figure abusing his rights and privileges and taking the law into his own hands. 

I hope the Committee on Standards and Privileges will see fit to act on this and suspend if not expel Lord Hain from the house.  Something like this is “one strike and out”.  He clearly doesn’t understand the extent of the trust that has been placed in him.

Stable doors and horses, some will say but if this is allowed to pass then next it will be some matter of national security with even worse consequences for our society. It’s seven years since similar actions by MP John Hemming which (rightly) drew a good deal of criticism.

In the meantime, anybody thinking of looking to enforce their legal rights through the proper channels in a civilized and law abiding fashion must now factor in the risk that some loose cannon in Parliament may sweep it all aside because he knows best.

Access to justice is increasingly a privilege of the wealthy and that’s wrong. It doesn’t follow that in front of the judges, money buys ‘justice’. They apply the law as it should be, objectively and independently. What’s needed is a return to access to justice for all, but by lawful means.

Friday, 2 February 2018

Attacking the symptoms

As I sat at the kitchen table with the day’s first mug of tea very early this morning, two things leapt out at me from my social media.

First, I saw a post by a client and friend of a lovely photograph which heralded the news that her husband had finally lost his long battle.  I can be sure that she will have nothing but admiration and thanks for the neurosurgeons and others at one of our region’s leading hospitals who tried so hard over many months to cure him.

I reflected also upon my own personal (and thankfully non-critical) experience of the NHS and the wonderful people I have met.

Almost the next thing I saw, ironically, was the headline on a BBC news page:

              “Curb rising NHS negligence pay-outs..”.

The backdrop to the story hasn’t changed.  It’s the fact that the NHS is having to part with eye-watering amounts of money to compensate the victims of clinical negligence.

That's compensate - not punish, not criticise. 

It has been on the agenda for years.  In the past these outcries have led with an attack on the victims and their lawyers.  The apparent desire has been to silence the critics, rather than examining the problem.  See for example Sick, The bitterest pill, and Legal highs.

There are signs that what I have previously described as the culture of cock-up, cover-up and clam-up has improved.  Notably, there has been widespread recognition that the dysfunctional National Health Service Litigation Authority (NHSLA) was a massive part of the problem. 

I have not had any personal experience of it myself, but there are reports of softening in the attritional approach to claims resolution.

The degree of transparency is always difficult to judge but there’s no denying that the service has issues. The main one is that it is starved of money at one end and haemorrhaging it at the other.

You may as well fill a sack with a hole in the bottom.  What somebody needs to do is fix the hole.

Remember, remember – every single payment is the product of a proven or admitted mistake.

Of course, we are always focused on the cost of it.  For too long, commentators – and influencers – have obsessed with the price of it and in particular the legal costs.  One hopes that the culture of defend, deny and delay has been so comprehensively exposed as to demonstrate why that’s the fault of neither victims nor their lawyers.

Now it seems that the message is simply one of affordability.  The article quotes the letter as saying:-

“We fully accept that there must be reasonable compensation for patients harmed through clinical negligence but this needs to be balanced against society’s ability to pay.”

This is chilling from the point of view of victims and those of us who think we live in a society that should give priority to the needs of its vulnerable members.

Compensation for personal injuries, whether as a result of clinical negligence or otherwise, is not as many people seem to believe some sort of bingo win.

It’s right that there’s an element of injury awards or settlements that compensates for pain, suffering and loss of amenity (PSLA) – and why not – but many people would be surprised what it is that really makes up some of the bigger awards about which we hear and read.

The reality is that those cases in which millions of pounds are awarded or voluntarily paid are built on the need of the innocent victim for many years of medical and nursing care, special accommodation etc necessary just for them to live the rest of their terribly impaired life.

What do the economists here propose that we do with the children and others who have been horribly brain-damaged or rendered tetraplegic, often at birth? 

Smile sympathetically and tell them, or their carers, that we are dreadfully sorry but really, we can’t afford to do anything to help them?

How lawless and helpless are we going to become in this country?

What is so ridiculous here is that the problem should be soluble.  As the wailers proclaim, we are spending money paying for cock-ups that should be spent preventing them.

That could change, just by re-directing the spending.  Invest in a proper service and it will be self-funding.  Arguably, this is just (yes, I know) a matter of cash flow.

Before that, though, it’s still a matter of culture. As anyone who has spent any time looking at this objectively knows, that headline should have read:-

                                           “Curb rising NHS negligence”

We have to attack the problem, not the symptoms.

Friday, 8 September 2017

Balancing act

It’s good to see the autumn parliamentary term kick off with the government being put on the rack about the estimated £32 million in refunds that it owes to all the individuals who were unlawfully charged fees to pursue Employment Tribunal claims over the last four and a quarter years.

Seven judges of the Supreme Court delivered their unanimous judgment in UNISON v The Lord Chancellor six weeks ago.  It left the government with no option but to concede that the fees taken since Spring 2013 must be returned.

Since then all we have seen or heard have been vague mutterings about working out how and when this is going to happen.  Quite right that Shadow Justice Minister Richard Burgon should this week demand to know what’s going on. Good on the Shadow Minister also to invite an apology from the Minister of State for Courts and Justice.

Dominic Raab’s curious response is:-

We admit we got the balance wrong and took immediate steps to address this.  Of course I am happy to say sorry to anyone who was impacted by this and that is why we are putting in place measures to ensure people are compensated.”

He added that these plans are to be published “shortly”.

Well, you are right – you did get the balance wrong. “Immediate steps to address this”?  That seems to have passed me by.

What I saw was four years of many people in this profession and industry telling your government, as they had done before the fees were introduced, that it was unfair and would amount to a denial of access to justice for meritorious claims.

See Fire at will and Access denied for example.

After the new fees began to bite and the effects were as foretold, proving undoubtedly that the balance was wrong, your government took no steps to address it – other than to dismiss criticisms and fight the judicial review proceedings brought by Unison.  The Supreme Court judgment was the culmination of two applications in the High Court followed by an unsuccessful expedition to the Court of Appeal.

The truth is that the government has ignored and defied the entirely justifiable criticisms levelled at it throughout a period of approximately five years including the “consultation” (in now typical format) and taken no steps to correct its error.

Even now, this shameless administration is stalling, maintaining its clutch on individual sums of hundreds of pounds which represents significant amounts as far as each of the claimants is concerned.

It’s repugnant.

The whole episode of grotesque behaviour by our democratic government is only – and briefly so far – eclipsed by the dazzling splendour of Lord Reed’s judgment, in particular at paragraphs 67 to 69:-

67.      It may be helpful to begin by explaining briefly the importance of the rule of law, and the role of access to the courts in maintaining the rule of law. It may also be helpful to explain why the idea that bringing a claim before a court or a tribunal is a purely private activity, and the related idea that such claims provide no broader social benefit, are demonstrably untenable.

68.          At the heart of the concept of the rule of law is the idea that society is governed by law. Parliament 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 them. Without 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. That is why the courts do not merely provide a public service like any other.

69.          Access to the courts is not, therefore, of value only to the particular individuals involved. That is most obviously true of cases which establish principles of general importance. When, for example, Mrs Donoghue won her appeal to the House of Lords (Donoghue v Stevenson [1932] AC 562), the decision established that producers of consumer goods are under a duty to take care for the health and safety of the consumers of those goods: one of the most important developments in the law of this country in the 20th century. To say that it was of no value to anyone other than Mrs Donoghue and the lawyers and judges involved in the case would be absurd”.

We have reached a worrying position where the executive needs to be reminded of the purpose of a democracy and then reminded of its duty to comply with the findings of the senior judiciary.

Of course, many are saying – with some force – that there is more to come.

Lord Reed also said, with the approval of all his colleagues, that:-

People and businesses need to know, on the one hand, that they will be able to enforce their rights if they have to do so, and, on the other hand, that if they fail to meet their obligations, there is likely to be a remedy against them.  It is that knowledge which underpins everyday economic and social relations”.  [My emphasis].

This observation, and the general tenor of the judgment, exposes again the complete absurdity of the suggestion from Lord Faulks, two and a half years ago, that litigation is an Optional activity.

This was his Lordship’s justification for the hurried introduction of the huge increase in civil court fees (county and high courts) which saw the price of bringing a claim at some levels rise to 760% of what it was.

There’s no doubt that these fees represent a denial of access to justice.  Nobody can say that the levels were so wrong beforehand.  It’s all part of the government’s policy of turning courts into profit centres – if it possibly can.

QED, yet again, the ill-fated attempt by the former Lord Chancellor (sic) to hike probate court fees by, at the top end of the scale, a factor of 129!

The parliamentary commission that laid the stinger in the tracks of that juggernaut observed that Miss Trust’s planned changes “Seemed to have the hallmarks of taxes rather than fees”.

That’s exactly what it is – all of it.

That particular robbery was thwarted in its planning stages. Thanks to the heroic efforts of Unison, the ET heist has been stopped and – hopefully – the ill-gotten gains will be returned to the victims.

It’s now high time justice was done in relation to the rest of the court fee system. Time to get the balance right.