Tuesday, 11 November 2014

Cheap as chips

I’m reading tonight about the concerns of doctors and the outgoing Chair of the Motor Accidents Solicitors Society about the new “whiplash panel” to be run by the reporting organization, MedCo.

This is the new ‘independent’ panel of ‘experts’ that will properly assess the impact and effect of soft tissue injuries, including whiplash which has so long been the bane of insurers who prefer to pay up on small claims, moan about fraud and say the only solution is to scrap all small claims regardless of the merits.

The costs of setting up this ‘independent’ panel is being funded by insurers. Smell a rat yet?

James Dalton of the Association of British Insurers (“ABI”) reportedly told the MASS conference how the lack of objective testing had led to an increase in fraudulent claims.

‘Developing an IT system that randomly allocates independent and accredited medical experts to claimant lawyers is critically important in working towards the delivery of fundamental reform of the medico-legal reporting system’, Dalton explained.

That word “randomly” evokes some memories…

Like the client with the serious orthopaedic injuries who was sent to be examined by The Abominable Dr Botox.

Or the GP “with an interest in” obstetrics and gynaecology who reported on another client’s cruciate knee ligament injury?  (Crash and capture)

And don’t forget the mystery practitioner in Fun Boy Three

In They walk among us at the start of this year I posed the question of “who will (truly) be controlling the selection of “experts” appointed to the new whiplash panels the MOJ is now proposing…”

Well now you know.

What will be the criteria for membership of these panels apart from paying a fee to join? Well, the main one is likely to be the one that insurers apply to every aspect of which they have seized control.

Cheap as chips – and I mean the nastiest, tasteless fries you can find.

It’s not just the ‘economies of cost’ that the Ministry of Justice (cough) so applauds – popular with the populace – but the consequential savings in compensation that worthless reports from worthless ‘experts’ will ensure.

Insurers will invest in this system and make it a success in the misty eyes of the MOJ and their chums in the present government so that, like the costs portals, it can be extended to reporting on a wider range of injuries.

No decent lawyers, no decent medics. Anything else you want James? No claims?

Thursday, 16 October 2014

Fair weather friends

As I left court last Thursday afternoon, I was feeling genuinely sorry for my unrepresented opponent. We both were. Well, in his case it was more angry than sorry.

He should never have been there, let alone on his own, if he had anything approaching competent advice from the “business finance consultants” who decided to have a play with some statutory demands.

Now, as most commercial litigation lawyers will know, statutory demands are tricky beasts.  In the right hands they can get the job of recovering money done very quickly and effectively. In the wrong hands, they can blow up in your face, figuratively speaking.

The mature and personable tradesman who turned up as respondent to my applications to set aside two statutory demands saw it all as very straightforward.  He had done a job of work, charged what he thought was a reasonable price and had not been paid.  It was not a problem he had ever encountered before, he said.

That was too simplistic a view on any analysis where there was an argument about the price of the work done which was not agreed before the work started and was more than anybody expected because of unforeseen complications in the job.

Worse than that, because those who were not at my opponent’s side in court have so inflamed the situation, the customers had chosen to follow my advice that the contract is probably unenforceable because of non-compliance with the Consumer Contracts Regulations 2013.

The fact is, though, that in another scenario the tradesman could have had his day in front of a judge keen to listen to all that he had to say and look at all the papers and photographs he had to show, none of which either the court or I had seen at any earlier stage (despite requests).

In fact, the judge was very patient - and entirely with my blessing.  Whilst he explained at least three times the difference between the insolvency proceedings and “the normal route in the county court” these things simply do not resonate with many non-lawyers.

It certainly did not strike a chord with the respondent when the judge concluded that “this case should never have proceeded by statutory demand” and added comment about “high risk strategy”.

The real villains of the piece were absent - the professed recovery specialists who lit this particular firework. You could not make it up…

It is as clear as day from the unusually detailed and rambling narrative on the statutory demands that they were aware of the full facts of the case including, seminally, the dispute over the price.  At the heart of it all there was even an issue as to whether an invoice had ever been delivered. 

It was telling in that respect that no copy invoice was attached to the statutory demands –not the original, nor the alleged replacement said to have been produced after attempts to negotiate the price.

Well that would be enough, but why skimp on the job?  The moldy icing on this very stale cake was as follows….

First, both demands were unsigned – it is a mandatory requirement that they should be “authenticated” under the Insolvency Rules 1986 as amended in 2000.

Secondly, approximately a quarter of the sum demanded comprised interest, penalties and costs under the Late Payment of Commercial Debts (Interest) Act 1998 (“the 1998 Act”).

For anyone who is not familiar with those useful regulations, they are as the name implies relevant only to commercial debts i.e. business to business.  They have no place in a consumer contract for work done at the customer’s home.

As a matter of interest, the debt collection experts thought it warranted £350 plus VAT per demand to produce these unsigned documents and then put them in the post – not even bothering with the usual niceties of personal service.

And that’s not all.  On top of that meaty figure, there was a claim in each demand for almost as much again in “commission”.

Then we have the statutory penalties (not an alternative to recoverable costs under the 2013 Late Payment Regulations) and interest under the 1998 Act.  None of it had any place in this arena.

A month before the hearing, we wrote to these jokers and in the course of two pages we set out all the objections to their inept offerings.  We respectfully suggested that they abandon the demands and agree to pay our clients’ costs which at that point were a modest £300 plus VAT.

Their response was to acknowledge the point about the 1998 Act and say that they would abandon the claim for a few pounds of interest, but not the costs (no I don’t understand either) but otherwise insist on payment in full of the original disputed price and all of their costs.

Last week their unfortunate ‘client’ left court no nearer - in fact further away from – recovery of his unpaid bill of over £2000 and a court order to pay almost as much again for the costs of our applications, within 14 days.

He could not begin to understand how he was in that position.  These people had been recommended to him by a friend.  He pays them £30 per month retainer and when this problem arose he handed it to them – the professed “experts” – to deal with.  When it started raining, they cleared off and took the umbrella.

Today I see an article in the Solicitors Journal  reporting that courts are ‘rapidly becoming lawyer-free zones’ and (rightly) lamenting the situation. Some litigants are turning their backs, others chancing their arm and people like this poor guy turning to (seemingly) cheap muscle-heads who really don’t have a clue about the law.

It’s not just a case of another litigant in person doing his sincere best but ultimately wasting everybody’s time and his own money.  What’s really disturbing is that this man was led to that position and left there alone by the vultures who saw only an opportunity to demand exorbitant sums in costs from my clients with entirely inappropriate menaces.

Yet another example of where our civil justice system is heading - thanks to the idiot with the “Lord Chancellor” badge.

Thursday, 2 October 2014

High tide

Did a little beach-combing on my desk yesterday – part of the endless war on paper that the rest of the world generates.

I have been wondering for too long what to do with the rather forlorn response I had from the Black Horse to a letter of complaint last month. Background to that was the time and effort we wasted trying to establish the value of a prior charge on a property even after having been forced to obtain a court order for disclosure because of pleas of “confidentiality”. 

I am happy to debate with anyone who has had similar problems the standard unhelpful resistance of all financial institutions to such requests notwithstanding Section 35 of the DPA.

We have become accustomed to the type of reply, not necessarily from this bank but from any of them, that defends the indefensible and so the following came as quite a surprise:-

I accept that this is an unacceptable time delay and I offer my sincere apologies.Your comments have been noted and we will take your case as a learning example.
I am sorry for the delay your firm experienced on this occasion and I hope that we can do better in the future.”

Strewth. To be perfectly honest, I am not filled with optimism but we shall see.  If the writer had added “here is a cheque to cover your client’s wasted costs and we don’t want to write too many more of these”, then I might start to believe.

The next piece of flotsam is something I expect to see more of in the coming weeks as a new piece of litigation kicks off.

This is the three line letter whose content is quite unremarkable and which I have already had by email.  Judging by previous experience, the absence of a faxed copy is probably an oversight.

As ever, the postal copy has now arrived, all half a page of it on A4.  Why go half measures and fold it into a small window envelope when you can send it in a full size A4 envelope and pay 76p postage on top of the unnecessary stationery and handling costs.

I am sure that philosophy would gain approval from some local colleagues, with whom I have regular email communication.  One of their number obviously still thinks it is better to spend money on paper and postage to manufacture two days delay for a routine (but arguably overdue and awaited) communication to reach us.

The most amusing aspect is the distance between each firm’s office, the post office, and each other’s office.  I would guess that it’s less than 100 yards whichever side of the triangle.

Perhaps the most disturbing items arrived yesterday.  These were notices that acknowledgments of service had been filed in proceedings that we recently issued and served.

Nothing wrong with that at first blush.  The slightly curious point is that we had identical notices just under a week ago.

Those came from Exeter, as we rather expected.  I remember a feeling bordering on pleasure as I signed the covering letter to the court – that this was a technology and construction claim that we did not have to send to the fun factory in Greater Manchester.

The odd thing is – and maybe I should know better – that today’s (unnecessary) notices duplicating those already received last week from Exeter appear to have come to us all the way from Salford.

Yet more easy money, at taxpayers’ expense, for the mail service that we allegedly flogged off at an undervalue.  But why is the CCMCC, that ordinarily cannot do anything less than eight days behind schedule, spending time and money unnecessarily not quite replicating the perfectly acceptable service so far provided by the Devon court?

I am wondering now if we shall receive a third set, if not from Salford then maybe Northampton (probably around Christmas) – or perhaps Staines. Don’t ask me for an ETA on that one.

Meanwhile, my email to another opponent has been acknowledged in his absence by someone who tells me it will be put on his desk for attention on his return.

‘Bless’ – as we sometimes say in Somerset.

Wednesday, 24 September 2014

What matters..

I haven’t blogged for a few weeks. Some may say that’s a good thing – I’d certainly like to think so! 

The holiday season seems to get longer each year and brings its disruptions, which we all welcome at some stage hopefully, even if we pay for it before and after.

Then there are the unwelcome distractions – the unnecessary problems that just devour time and energy – the irritations we could well do without.

For me as a litigation lawyer, many of those are down to our ravaged court service – not the individuals within it but the beleaguered and increasingly impotent sum of those wretched parts.

As just one example I’d like to share with as many people who care enough to read it the text of a letter I sent to Northampton County Court (the online and bulk claims centre) today in answer to what I would describe as a wet and evasive response to my latest complaint about their handling of one of our current cases:

“Thank you for your letter of 4 September.

The summary at your third paragraph is broadly correct.  What it omits to mention is the initial delay of a month to process our application for a simple consent order - for it was submitted at the end of May 2014.

Altogether it took eight weeks for you to deal, by a process of (wrongful) rejection, with a simple consent order for payment of a substantial sum of money – important to a commercial operation – that would generally be expected to be paid within fourteen days.

Let me observe at this point in case it does not dawn on anybody in Northampton that this sort of thing has a real impact on industry and commerce in this country.  The sort of delays that you are generating at your office, as are Salford and other courts, are depriving people of a legal remedy and enhancing the risk of business failures.  Please escalate that observation to people who might persuade others to do something about it.

After 13 July you then took nearly three weeks to acknowledge our letter complaining about rejection.  It then took another three weeks plus for the matter to be dealt with.

We have come to expect when we complain about delays at courts that the recipient will look keenly for an opportunity to say that the problem was “judicial” and not administrative.  We have seen this in the fourth paragraph with your explanation that “court staffs (sic) are not legally trained”.

We don’t accept that this was a judicial decision.  Why would a qualified district judge make so bizarre an observation as that it was not clear whether the claim had been served (after filing online, the fact of a defence having been filed, etc) if he did not have the file in front of him.  That suggests to us an administrative failure – another one.

I am not convinced the explanation is high volumes of work.  Probably more pertinent are low volumes of resource.  We have sympathy with individual people who work in your offices but this is a major problem and we cannot let it pass simply because it means decrying the efforts of those who are probably doing their best in difficult circumstances.

The plain fact of the matter is that the service is not good enough.  It is far from it.  Over thirteen weeks – a quarter of a year - to seal a judgment for an agreed sum of about £30,000 in terms endorsed by both parties’ solicitors is simply atrocious.

The points I raised did not need “clarifying”. If you mean to suggest that they have been satisfactorily answered then I have to tell you - no, they haven’t. 

There is nothing here to compensate for the delay, reassure us for the future or give any indication that people within the Court Service recognize that it cannot go on.

How can that be achieved please?  A willingness to meet some wasted costs at this end, without quibbling over pennies as the Court Service invariably does when the subject is raised, would be one element of a successful response to this complaint.”

I’m not hopeful. At best I expect to receive notification that if I want to complain then….etc – as if I’d just so far hinted that we might be wondering whether or not to say something.

At the next stage some clever trousers, possibly sporting an OBE or similar, will be wheeled on to deliver a lecture about how judicial decisions are only vulnerable to appeal and we must….(yawn).

Nobody will write and say “You’re right – we’re sorry – we agree something must be done”.

But, seriously – it must. Tell them.

Speak out - it matters.

Saturday, 2 August 2014

LIP service

I fear we shall soon be seeing a lot more reports such as the one I read of an application allowed by the Court of Appeal last Tuesday.  I have not yet seen the full judgment, only a case summary, but you get the flavour of things from key phrases within the head note:- 

A judge’s belief that he was hearing the full trial of a claim...when in fact liability had already been decided...amounted to a serious procedural irregularity. 

Clearly it was a complicated case.  The claimant had been a trustee of a charity which he alleged owed him some money during his period of office.  Initially a judge had decided that the charity was liable and directed a hearing to decide for how much. 

Subsequently the former trustee issued a claim for further sums that had come to light.  The charity tried to set aside the earlier judgment but that, a counterclaim and three further defences were all struck out. 

Somehow it came before another different judge who seemingly started from scratch, considered all issues and decided that the claim failed in its entirety.  He did not know that liability had already been decided and that other judges had limited and defined the issues on quantum.

I find it bizarre that this sort of thing can happen.  Again, the finger points first at the court and what must be an inadequacy of records and management.  Shortcomings are rife now, whatever the Lord Chancellor and his friends would have you believe – see Grim fairytales. 

But would all of this have happened with professional legal representation on both sides or even either side?  I think not. 

The fact is that at the ill-fated trial, the claimant appeared in person and the defendants had a McKenzie friend assisting them. 

For those who don’t know what this means, it translates roughly to somebody who is not as bamboozled and bewildered by the court process as the person that they are permitted to assist. 

The result is a complete farce.  With the assistance of a barrister, on ‘direct access’ (i.e. cutting out a solicitor intermediary to keep the cost down), the claimant has taken it before three Lords Justice of Appeal who have set the decision aside.  Now after the expense of that trip it goes back to the original court for yet another hearing. 

Who knows how long ago it would all have been resolved with proper representation on either or both sides?

Who knows how long ago it might have settled with a bit of professional knowhow and input?

Things are only set to get worse as Pinocchio Grayling hacks away at resources and tells the world that we are “maintaining and improving”.  He is assisted of course by his chums in the insurance industry telling us that the new “clever” is dumb and there is not much law involved. 

Catastrophic and injury claims technical manager at AXA insurance, David Fisher, is reported to have told the Jaggards and Taylor-Rose Law Costs and Litigation Conference the week before last that:- 

“The more intelligent law firms are dumbing down.  Most personal injury claims are a  commodity and don’t require a great amount of law” 

I have seen at first hand some of the dumbed down work that does not require a great deal of law conducted by one of the outfits Mr Fisher had in mind when he made that remark. 

See Cleaning bills and the case where one of our “more intelligent” predecessors tried to settle the claim for first an eighth and subsequently half of the value that we subsequently recovered. 

Somehow it’s now clever to be incompetent.  The insurance industry has always treated victims and their claims as “a commodity” and will obviously continue to promote these factories full of cheap operatives who can barely spell “law” let alone apply any great amount of it. 

It’s a self-serving, cyclical and arrogant view that cares nothing for the destruction of our legal system and everything for shareholder returns. 

We shall increasingly see the courts clogged up with nonsense such as the Court of Appeal had to unravel last Tuesday.  The problem will be further aggravated by the departure of many judges who don’t need the hassle, and can derive neither satisfaction nor pleasure from the job any more. 

It will be the same everywhere as the capable folk with a vocational outlook handover to the lunatics – until there are no more heroes.

Friday, 18 July 2014

Grim fairytales

My eye was caught this morning by a link to the recently published Annual Report and Accounts from HM Courts and Tribunal Service.

In his foreword the Chief Executive trumpets “another challenging but successful year in which our performance has been maintained or improved at the same time as we continue to reduce our costs.”

He is backed up by similar stuff from the Chairman noting that HMCTS “has continued the success (sic) of the previous two years by delivering improvements in its performance (sick) whilst lowering operating costs”.

All of this is covered on the first page by gushing delight and “sincere thanks” to each individual member of staff of the entire service from the Lord Chancellor and chums.

I really do not need to read any more of this tosh.  Who do they think they are kidding?

Earlier this week, a mercury switch on the “where’s my Uzi?” circuit board tipped violently with the arrival of post from some of our favourite courts.

This week’s top prize goes to Northampton and for those of our readers who may be confused by that reference I am talking about the Northampton that is in Northampton, not the Northampton that is in Salford (more of that below).

We are dealing with the County Court Business Centre at the moment in a case that our claimant client chose to begin by filing proceedings online.  A defence was filed in what on the face of it was a multi-track case and at that point we were called in.

Within a fairly short period of time we were able to achieve agreement with the solicitors for the defendant that more than 75% of the substantial debt was not actually in issue and that there should be judgment, by consent, for that much.  More than that, we quickly agreed a draft order which was sent to the court, with the appropriate cheque, on 23 May 2014.

We know that the cheque was not presented until 30 June.  Two days ago we had a short letter telling us that the application had been deferred saying it was not clear what the parties intended but above all posing the question “has the claim been served or not?”

Well let’s just analyse that shall we?  The claimant filed details online which means that the court office would have printed a claim form and sent it to the defendant.  Somewhere along the line, for whatever reason, the defendants sent a defence to the court as a result of which notice of allocation was issued.

We think all this points fairly strongly to a presumption that the proceedings had been served.

We waited EIGHT WEEKS for that.

In the same post came Salford’s latest bid for stardom.  Tame effort this time but still deserves a mention. Another case where we have agreed an order with the opposition (you can tell we really do our bit to relieve the pressure on resources).

We had agreed and submitted an order for stay on the terms set out in a separate schedule i.e. two pieces of paper.  We get back the now typical “Order that: 1. See attached” with a sealed copy of the schedule – but no order.

Finally, let’s not forget Staines County Court which is probably going to earn a place in its own private hall of fame.  Delegates at the APIL annual conference at the beginning of May who were still there on the afternoon of the second day may remember the horror story I told then about our current litigation in this Outer London flagship.

There is not time here to screen the full version which now comes with intermissions and ice cream.  Suffice to say that after we have filed two notices of acting, sent a number of letters including complaints and talked on the telephone to the court administrator in Kingston, this wretched office is still – without a shred of explanation – sending all communications direct to our client who has now become used to the idea of scanning and emailing them to us.

She is quite prompt to deal, unlike the court.  We are still waiting for formal notice of issue of a counterclaim that was sent, along with the defence, in mid-February.

There is a glimmer of hope where we have now had notice (via our client of course) that there will be a telephone CMC at the end of next month.  This follows notice (to our client) that all directions had been cancelled and trial date vacated but we don’t currently know the reason for that either.

It may be that our colleagues on the other side have written to say that they do not know when the counterclaim was issued, what was the date for service of the defence and cannot be clear about various consequences that flow from that.

Elsewhere in the office, it is now routine for members of our non-contentious team to explain to people who insist that they urgently need a lasting power of attorney executed and registered that it is very unlikely that they will get it done inside 14 weeks.

Why not?  The Office of the Public Guardian staff will tell you that they have a target time of 4 weeks for dealing with registration and that they are meeting it.

What the OPG will not tell you is that they put the post in a pile for 10 weeks and do not open it so that their 4 week target period does not actually begin. One of my consultants had a client who died 5 weeks after submission of the LPA, at which point she was still waiting for an acknowledgment from the OPG.

Elsewhere a routine claim for repayment of a few hundred pounds pension to a deceased’s estate seemed to us to be taking a long time.  When our staff managed to get through to the DWP on the telephone  they were told that they are currently working on post received two months earlier and where our application had only been received 4 or 5 weeks prior to the call, they could not possibly say when it would get dealt with.

So, Lord Chancellor, Lord Chief Justice and the rest of you – don’t tell us that “services to the public are maintained to a high standard” and about the “continued drive to improve case management”.

I cannot recall at any time in recent history picking up a piece of post or other communication from a government office and thinking to myself “that was quick” or “that was easy”.  The only possible exception to that would be the speed with which some of the paperwork comes back from some of our local courts.

Ironically, that is probably because they have so much less to do nowadays whilst we wait two months for a straightforward consent order signed by two firms of solicitors to be shunted back to us with a nonsensical explanation for its rejection.

Meanwhile, the architects of this mess are entertaining the rest of the world with works of pure fiction.


Thursday, 29 May 2014

On yer bike!

If you are not convinced that we have a crisis in our health service then have a read of this…

We have recently taken instructions from a man who was involved in a road traffic accident at the beginning of March.

Our client, as affable and easy-going a 64 year old man as you could hope to meet, was knocked off his bicycle, not far from Axminster at around 5.30 on a Friday evening. His bike was wrecked. Fortunately he wasn’t.

Comparatively minor injuries to ribs and one knee but still serious enough for the ambulance crew that turned up at the scene to decide that he needed to go to hospital. Off they went, to Honiton.

When they got there, a little after 6.00 in the evening, the hospital was shut. As far as our client could see there was nobody there at all, and sadly the paramedics seemed to accept that there was no-one about to dispense urgent medical treatment. 

So, what next?

Oh – look at the time! “It’s the end of our shift,” they told him – “you’ll have to find your own way home”.

And – yes – would you believe it, they left him and his bent and twisted bike in the car park outside the hospital and disappeared off to wherever they might be headed at that time on a Friday evening... 

Admittedly our man was not bleeding to death on the steps of the (closed) hospital but he had been knocked off his bicycle by a motor car less than an hour earlier and he is only a year from retirement.

If the ambulance crew did not feel that he needed hospital attention then why bother to take him (and his bicycle) there? In any event, why didn’t they know that Honiton hospital was or would be shut?

As it was, our man went to Yeovil District Hospital the following morning, complaining of pain still in his ribs. He dared to suggest to the doctor who examined him that one or more of them might be broken and he should have an x-ray.

“Oh no – we don’t do x-rays on ribs anymore”, he was told. 

But the staff at Yeovil were reportedly shocked at how this elderly man had been dumped in the car park to fend for himself the night before. 

We are dealing with his claim now. Incidentally, he did not come to us immediately after the accident until after he had a series of telephone conversations with the car driver’s insurers. It seems they spoke to him at least a couple of times with increasing offers of immediate settlement...

So, claims capture and pre-med offers are still alive and well despite the top boys’ roasting almost a year ago – see Hey diddle diddle

Not this time then guys. Perhaps when insurers’ PFI mates have taken over the running of our hospitals and emergency services they will have more success. 

Paramedics will no doubt be trained to leave the back doors of the ambulance open and threaten to push the trolley out if the accident victim does not quickly sign a disclaimer in return for a fortnight’s rehab and a bunch of flowers.

Friday, 9 May 2014

Own goals

The stupidity of this government’s attempts to save money by denying ordinary people legal representation is starkly demonstrated in a short judgment handed down by the Court of Appeal yesterday.

The case involved litigants in person i.e. people who are unrepresented normally because they cannot afford to be.  Plainly, there were problems with the document bundles in particular, and Lady Justice Black took time out to say this:

“This case is illustrative of an increasing problem faced by this court.  More and more litigants appear in front of us in person.  Where, as here, the appellant is unrepresented, this requires all those involved in the appeal process to take on burdens that they would not normally have to bear.  The court office finds itself having to attempt to make sure that the parties to the litigation are notified of the appeal because litigants in person do not always know who should be served...... the bundles that the court requires in order to determine the appeal are often not provided by the litigant, or are incomplete, and proper papers have to be assembled by the court, not infrequently at the request of the judges allocated to hear the case when they embark on their preparation for the hearing just days before it is due to start.  The grounds of appeal that can properly be advanced have to be identified by the judge hearing the permission application and the arguments in support of them may have to be pinpointed by the court hearing the appeal.

The court has no extra resources to respond to these added challenges.......if it is to be able to deal properly with an appeal in care proceedings and to do so speedily.....then local authorities will have to expect to assist by ensuring that the court is provided with appeal bundles...... it is so frequently the case that the papers supplied by the appellant are deficient that it should be standard practice for the local authority to take steps itself, well in advance of the hearing, to consider the appellant’s proposed bundle and, if it is deficient or apparently non-existent, to contact the court to see whether it is necessary to supply alternative or supplementary bundles.

I said more about the cost to individuals and to the legal system of the absence of legal assistance in Re O-A, a private law children case decided on 04 April 2014.  Everyone involved in public and private law children cases is attempting to achieve the best possible result for the children whose welfare is at the heart of the proceedings and, without legal representatives for the parties, that task is infinitely more difficult.”

For those who aren’t involved in this sort of thing every day, let me tell you that the preparation of bundles for court hearings, particularly appeals (where routinely the history of proceedings in one or more courts below is being considered) is a vitally important task. 

It is not just a matter of throwing everything you can find in to a lever arch folder and sending it to the court.  It involves deciding what is relevant and what isn’t, grouping the documents, putting them in a logical order, dividing into sections, making sure they are technically admissible, that they are legible, that they are numbered and bound in a way that makes them secure but accessible.

They need to be agreed if possible between parties with competing interests and identical copies need to be prepared for (usually) six or more people involved in the process, so that they are all looking at the same thing and not wasting time getting there.

So here is a situation where because those who ought to be dealing with the task can’t, it falls on the publicly-funded local authority to do it.  That means more expense in that task alone.

Own goal, Mr Grayling!

Of course, the deficiencies may not come to light until very late in the day in which case there will be adjournments or hearings taking far longer than they ought to because of the unavailability or poor management of the document bundles.  More expense results.

Another own goal, Mr Grayling!!

Remember, we are only talking about bundles of documents here.  We haven’t touched upon all the other difficulties that arise by virtue of people not being represented.

Even with knowledgeable and capable parties, perhaps employed in other professions, who make a good attempt at presenting the case, there will be considerable further time spent because they are simply not aware of the procedures.  It’s DIY enthusiast (perhaps not the best term) versus skilled tradesman.
In the worst scenario, there are parties who have no clue where to start, don’t want to be there and whose only mission in life is to make that clear to everybody else involved in the process. They have no lawyer to tell them and keep telling them that it is in their best interests to do this and that and to lead them skilfully through the process.  Consequently it takes judges and other parties longer and longer to deal with these matters.

Yet another own goal, Mr Grayling!!!

And this is just the short term.  What does the longer term hold?

You can see in this short judgment extract the expectation that the government funded party will do the work, even though it is not their responsibility.  It will not be long before courts take the “government” out of that classification and extend this routine requirement to all “funded” parties.

In other words, the burden of doing all the work, regardless of which side ought to be doing it, will fall on the party who happens to be able to afford representation to run the case.

That will happen regardless of whether they can only just afford to do it, how much of a risk they are already taking in short term cash flow or in the long run.  They will be expected to pay to run the case, not just for themselves but for the other side.

Lawyers acting for parties who find themselves having to prepare half of the opposition’s case will have to charge more.  Many of their clients will then say they cannot afford it, and quite possibly that they are not prepared to fund it as a matter of principle.  What will that generate? 

Yet more litigants in person.

And another own goal.  It’s becoming a landslide, Mr Grayling!!!!

The cynical amongst us will of course say that this represents another deliberate smashing of the altar with the long term plan that the adversarial system, where the parties before the court set the pace and have their say, will become unworkable.

But that is another, more sinister, story…

Wednesday, 30 April 2014

Normal service

There are so many examples of what follows day to day that we are in danger of thinking that it has become the norm. This is one of too many at the moment though.

We have sent what should be a fairly routine case for issue at that high-tech hub in Salford, the County Court Money Claims Centre. Client is trying to recover a debt from a limited company, failing that from one or other or both of the husband and wife directors who have guaranteed their company’s liabilities.

As in so many cases, we ignored our programmed reminders to chase the court for a notice of issue.  We have not quite yet conceded defeat and amended the software programme but more often than not now we give it another couple of days because of the grudging acceptance that it takes over a week for this centre of excellence to even get the details of new matters loaded “on the system”.

In this case we had a telephone call last week to tell us that we would need to make an application.  Why?

The explanation was that we are trying to issue against the company at the same address as the guarantor defendants.   It is a residential address. Yeeees...

We are not given any explanation by reference to rule or practice direction.  We are just told that we will have to supply a different address or make an application.

Following discussion with a deputy district judge, the staff member tells us that we ought to know the rules.  The advice from the DDJ is to consult amongst other things “The Green Book”.

What – you mean the County Court Practice that was rendered largely if not entirely obsolete about 15 years ago?

Perhaps he had in mind the HM Treasury guidance for public sector bodies on how to appraise proposals before committing funds to a policy, programme or project.

Or more likely Government guidance on vaccination against preventable infectious diseases in the UK. 

Either would be more apt in context.

So we are still not given chapter and verse as to why the court office sees fit to ring us up and tell us that we have the wrong address for service on the company.  We have helpfully drawn attention to the fact that this is the registered office address, whatever else they might think.

They check that now and yes it is all fine...

Well what a waste of time that was (again).  And now we have notices of issue confirming that the proceedings were indeed commenced one day last week.

Only trouble is that all three notices of issue have gaping blanks for the date of posting, the date of service and the date by which the defendant has to respond.

Another letter, and another long wait, another string of telephone calls where somebody has to speak to a resident judge who will perhaps suggest that we should instinctively understand and accept responsibility for them getting it all wrong.

Fantastic.  You couldn’t make it up. 

Wednesday, 9 April 2014

Promises, promises...

I noticed this evening a headline from the Law Society Gazette proclaiming - on the basis of a report from a motor insurance price index that car insurance premia are at a 5 year low.

We can expect this to be hailed as a success story and justification for the assaults on the rights and capabilities of accident victims to pursue claims for compensation. 

It won't just be the historic attacks that are justified but those to come. Insurers will point to this as a trend and say there is more good work to be done.

Hang on...

Let me say first that I'm suspicious of the statistics and propaganda to date but frankly there is traditionally so much spin from the liability insurers that it's a huge chore to analyse it. Meanwhile, most of us want to look to the future for all good reasons.

It's far more important in that context that the industry and the market is not sucked into some sugary sweet belief that the future is all rosy now and we can trust the ABI to keep steering us to insurance Nirvana.

At a conference in Chelsea just over a fortnight ago - see yesterday's post - I met and listened to David Williams of AXA on this very subject. Whether or not he realises it (we've clashed many times on Twitter) I recognize him and the company he represents as having a good deal more integrity than most players on the Dark Side.

I heard the view he expressed two weeks ago about the likelihood of current levels of premia being short-lived. Those comments were recalled in a brief exchange we had later.

Here it is...

I don't doubt that David Williams and AXA have their fingers on the pulse and if he is willing to say, in the face of sceptical accusations that it's all short-lived, that it is - then I find it difficult to believe otherwise.

So - look out for the ABI hype on the back of today's story and reflect. Better still, spread the word.