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.

Thursday, 18 May 2017

Late charge

Charging orders have long been an important tool in the enforcement and asset recovery kit. Procedure has “evolved” over the years.

I can remember a time when these applications were governed by the provisions of the County Court Practice (aka “The Green Book”).  The remarkable feature then was that a hearing would always be listed, as a matter of routine, to decide whether the initial order nisi should be made absolute.

In the nineties (whoops!) I led a team of people dealing with enforcement work including charging orders.  Every week we would organise attendances at hearings where the debtor did not turn up and the charging order was confirmed along with fixed costs that never covered the actual expense of being prepared to deal with whatever happened.

I wrote to the chief clerk (sic) of our favourite and most-used local court suggesting that a better system would be to require the debtor to give notice if he or she intended to oppose the making of a charging order absolute.  If they did so, we would have a hearing in the usual way.

If they didn’t give the requisite notice at least seven days before the hearing, we could simply rely on a request for the charging order to be made absolute in absence.  If the debtor then turned up, having failed to give notice, the application would be either granted or adjourned.

The suggestion was quickly accepted and implementation followed in a number of other courts and was later adopted within the CPR.  It’s basically what then happened for a number of years until last April.

Now we have a new system whereby all charging order applications have to be made to the CCMCC in Salford, following the lead of the requirement that all “money claims” be issued out of that court rather than local county courts.

Now the procedure is that after an interim order is made and served within 21 days, we wait another 28 days to see if the debtor has any objections.  If by the end of “Day 49” no objection has been filed, the court will make a final order without the need for a hearing.

So, it gets better and better… or does it?

Here’s the message that we received from the CCMCC in response to the latest enquiry last week about an overdue order:-

We are aware that there is a delay in the receipt of final charging orders after “Day 49” pursuant to the centralisation of charging orders protocol.  Currently it is taking around 33 days for you to receive a final charging order from day 49.  We apologise for this delay and are doing our upmost (sic) to address the situation to bring it back in line with the protocol.  We are working closely with the judiciary bringing extra DDJs into the business to work through the increased amount of work which has built up.”

We are not aware that there is any objection in this case.  So what is it taking nearly five weeks to do?

The answer would appear to be to “rubber stamp in the absence of any objection from the debtor the interim charging order that was made perhaps as long as three months ago or longer”.

How can such a seemingly simplified system have become so wretchedly ineffective? Why does it need to go “on the shelf” (Lord Briggs, are you there?) and wait for a judge to look at it?

Charging orders couldn’t be simpler in most cases. If the judgment is unpaid and the debtor owns the property – bingo.

Like all the other changes, including the 660% rise in court fees, this is an innovation aimed at achieving greater efficiency. Actually it’s all part of a system which is costing the user more and delivering shrinking benefits.

Meanwhile I cheer, ironically, as a notice of issue of a claim form arrives. The notice itself confesses that our proceedings were received at the CCMCC on 21 April – 4 weeks ago.

As Gladstone said, justice delayed is justice denied. 

Wednesday, 1 March 2017

Imperfect storm

Insurance costs rocket as weather turns nasty...

By our underhandwriting correspondent Polly C Hikes

The motor insurance world was rocked to its foundations today by the prospect of having to pay up on claims. Insurers have announced a steep rise in the price of ‘cover’ after an unexpected breeze threatened to bring chaos to Britain’s roads.

Seconds after a 'menacing' cloud (pictured) neared the south-west coast of Cornwall underwriters warned of the need to raise prices immediately. A spokesman for the Avaricious B******s Institute wept uncontrollably as he explained to sleeping politicians that the risk of some stronger drizzle than had been anticipated this week would force a 100% increase in the cost of the average policy.

Taking a freshly peeled onion from his pocket, Mr Bruce Fibbs blamed fraudulent weather forecasting for the crisis but reassured everyone that the industry would be able to crack down on the villains.

“Fortunately, we have a direct lying (Is this right? Ed) to Whitehall and should be able to rush through legislation – sorry, I mean lobby for early action,” he consoled, bravely. “My wife, Sheila, wails every time an injured claimant is compensated in accordance with the law.”

His colleague, Mr High Heavens, quickly agreed. “This is hugely damaging to executive salaries and shareholder dividends and it’s clear that government must act. Policyholders have enjoyed the promise of a possible reduction in costs – one fine day - for long enough now and it’s time we reneged on that again as we always do”.

A spokesman for the Hatchet Insurance Co added his voice to the protests. “The problem is all these wretched accident victims trying to take our money away from us. If they think we’re going to pay compensation for their injuries and losses, they must be deluded.”

“We’ve been running a charity for years”, he sobbed. “People don’t seem to understand that these painfully low interest rates have meant that we can no longer sit on our arses watching other peoples’ money earn us a fortune. We’ve got to the point where we don’t just need to hold on to the cash for as long as possible – we need to keep it!”

“It wouldn’t be quite so bad,” he spluttered, “if we could just be left alone to deal with these misguided people direct and settle their claims fairly - with a bunch of flowers and maybe a massage for the catastrophic cases. The problem is that some of them hire lawyers who know what the claims are truly worth and then make us pay for trying to rip-off their clients. These people are deluded if they think….” (to be continued… and continued… and continued…)

But the Minister of Injustice reacted quickly and supportively to insurers’ concerns. “It’s a no-brainer”, said Miss Trust, “and I, more than anybody, recognize that”.

Unveiling a new criminal offence of being injured or killed by somebody else’s negligence, she warned that this would not become law until next week. Furthermore, there would be a consultation on the new measures later in the year.

“It’s desperately important that the rights and misfortunes of ordinary individuals are not seen to be more important than corporate profits and political favour”, she cautioned wisely. 

Tuesday, 25 October 2016

Fundamental dishonesty

It is said increasingly that we are living in a post-truth age, particularly with reference to modern politics.  Fairness and fact are usurped by false rumour and appeals to emotions.

Many solicitors dealing with personal injury claims will tell you that the insurance industry is a far from shining example of this murky culture.  We say you can’t trust them.

They have convinced recent past governments, and much of the population, that injured people pursuing claims for compensation are largely if not entirely fraudsters and that these claims, and the costs associated with them, are responsible for relentless rises in motor insurance costs.

The headline claims are untrue.  This has more to do with the impact on profits and capital reserves of depressed interest rates over a long period of time.  See Smokescreen for more on this.

Recently we’ve had yet further headlines about the rising cost of policy premia, the average expected to hit £700, despite all the so called curbs on costs that the industry duped a supine government to implement.  Still insurers insist that whiplash isn’t real and inflate their statistics for “fraud” by the inclusion of routinely abandoned claims. 

The more audacious the yarn, the bigger the impact – see Make the lie big.  It all seems to be one way traffic.  No wonder.  The Association of British Insurers (“ABI”) is a well organised and vocal body representing huge and powerful corporations.  It goes without saying they are well funded – with our money.  We pay them to mislead us - and then pay them more.

We are hearing now about the reported successes of insurers in defeating claims for what is known as fundamental dishonesty.  This was another deterrent introduced a little over three years ago whereby the penalties for false claims and exaggeration were increased substantially.

It’s quite right of course that people who pursue fraudulent claims should face the consequences but the latest rules have created a climate where ordinary decent people pursuing genuine claims for compensation to which they are entitled as a matter of law are terrified of the risks.

Leading defendant law firms now boast about the number of cases they have seen off by alleging fundamental dishonesty and we know that a large section of the population would not now be inclined to pursue a claim following an accident because of the stigma and fears of this so called “compensation culture”.

Insurers portray themselves as the white knights on the battlefield, protecting the premium-paying public from these abuses.  They tell the world that it would be fine to change the rules so that all these expensive claimant lawyers will drop out of the equation.  Genuine victims, they say, have nothing to fear and can trust insurers to deal fairly with them and seek that they receive that to which they are entitled by law.

Believe that?

If so, you may want to do something about those long, furry ears.

For an example of how fair and virtuous liability insurers can be, see the report that we posted on our website earlier this month in the case of McLachlan v South Somerset District Council.  It’s a heart-warming tale of justice being done, despite the skulduggery of the Dark Side. 

The success or failure of public liability claims often depends on whether or not there have been similar accidents in the past which alerted the defendant to a need for action.  You will see in the website report one of the highlights of the trial which was the judge’s question “How many people have to injure themselves before you realise there is a design issue?”

So, you don’t have to be any sort of expert in this field to understand that if the knowledge and existence of previous and similar claims can be suppressed and concealed, it’s going to be far more difficult for the claimant to succeed.

In this case, the District Council’s insurers lied to us repeatedly about the history of this car park.  They did so in correspondence, in answer to pointed questions and despite at one stage information from us that we already knew of at least one claim.

We were told in a letter of 28 June 2014 from insurers that:

        “All other users of the car park negotiated the area without incident”.

We asked them:-
“Are you referring to a particular space in time and group of users or the world at large at any time during which the kerbs have been in place?”.
Claims handler Charlotte wrote to tell us on 18 July 2014:-
“We can confirm that we are saying there were no other incidents prior to your client’s accident”.
We were at that stage already on to the fact that the “walking wounded” often limped to the nearest source of assistance, the Octagon Theatre – see the headline to the report. 

Ironically, the defendant council as owner and control of the Theatre where – according to the manager who gave evidence at the trial – so many victims reported, produced no records of any such matters during the course of the proceedings. False disclosure statements, anyone?

We made that point to them in a letter dated 6 February 2015.  We were subsequently told, again, on 1 July 2015:-
“We note your comments, we can confirm that our insured are not aware of any other similar incidents or complaints in relation to this matter”.
In fact there had been at least eight prior incidents. The complaint by one victim, who was injured approximately five years before our client fell, was presented by then Somerset County Councillor Cathy Bakewell MBE.  In answer to correspondence from the Head of Engineering and Property at the District Council, she wrote:-
“Might the council consider highlighting the edges of the kerbs in order to make them stand out more, especially in the evening? Whilst there is lighting in the car park, it does not illuminate the kerbs. Might it be possible for the council to consider some additional lighting to assist pedestrians to avoid tripping over the kerbs?”
The trial judge said, “It is difficult to think of a starker picture and I find it mind-boggling that the defendant did nothing”.

But the key point of this piece is to highlight the seemingly fearless – yet at times inept – attempt to conceal the truth, with deliberate false statements about the history of the matter that was crucial to success or failure of a meritorious claim.

Injury claimants who tell lies in support of their fraudulent claims face the real prospect of going to prison.

Solicitors who connive at such claims face the risk of being struck-off, losing their livelihood and perhaps joining their clients behind bars.

What happens to insurance companies and their employees who tell lies in support of their case?

Nothing.  They can pick up the next file and do it all over again.