Repeat prescription

"The current rate of increase in the number of claims for compensation for clinical negligence and referrals to the regulatory bodies is unmatched in the company's 126 year history', wails the annual report of the Medical Defence Union.

The plan to tackle this sort of statistic, which actually represents ruined lives of people who put their trust in an expert?

Well, apparently it's to lobby ministers to cut the cost of damages awards.

This comes hard on the heels of our Supreme Court beginning to consider how we will implement one of the recommendations of the Jackson report that awards be increased by 10% across the board to balance the forthcoming bar on recovery of success fees.

No doubt encouraged by the success of liability insurers it seems the MDU now wants a piece of the action. Presumably they’ll be heading round to Downing Street for beer and sandwiches - or rather tea and cakes.

Head of Claims at the MDU, Jill Harding, denies that clinicians are to blame, explaining that "the increase in claim numbers is not, we believe, driven by deteriorating standards of care'.

Rather, "it seems likely that the continuing availability of no-win, no-fee arrangements to fund cases is a factor'.

Look, it's very simple. There's no fee unless there's a win, and there's only a win if there’s a cock-up.

Yet again we see an unhealthy preoccupation with - rather than eradicating errors - trying to silence and sabotage the victims and their solicitors.

And if you think that's bad, get this. In the same report the head of claims boasts that “the MDU continues to rebut 70% of medical claims notified to us"

Well, give yourselves a big pat on the back, won't you?

See also: http://legalchap.blogspot.co.uk/2012/06/legal-highs.html

Rule Britannia

It wasn’t looking great two or three weeks ago.

Summer floods, a result of seemingly endless rain and the economy still in a coma after five years. Then came the humiliation of the Leveson enquiry and further disgrace for London’s institutions with the antics of the repulsive Bob the Banker and friends.

As the world’s media readied itself the MoD fought in the courts with the ‘not on my flat roof’ brigade, G4S appeared about to screw up security and the doubts continued about the worth of our investment in this event.

Painful memories have slipped away during the last fortnight as we’ve witnessed something truly spectacular right from the opening ceremony. It has been a feast worthy of Sebastian Coe’s description of what “brings together the people of the world in harmony and in friendship and peace to celebrate what is best about mankind.”

Sport transcends all boundaries. London 2012 has been another big win. So much has been so good.

Team GB takes bronze in the overall medals table with a haul of 65 including 29 golds, the best performance ever and way beyond hopes and expectations.

All this happened (primarily) within an enviable environment amidst exemplary organization and management. Unless I’ve missed something, it’s been smooth and slick from start to finish.

Lord Coe promised “In the next two weeks we will show all that has made London one of the greatest cities in the world, the only city to have welcomed the games three times. Each time we have done it the world faced turbulence and trouble and each time the games have been a triumph.”

Well, it did and they were and we have. We owe thanks to all those involved for putting the “Great" back into Britain. I feel proud again.

Fire at will

The government has now unveiled its proposals for fees in the Employment Tribunals, to be charged with effect from the second half of 2013.

It's an understandable, and on the face of it right, move to reduce the cost to the taxpayer of the tribunal service in two ways.

First, fees received will help to defray the cost of providing the service. Secondly, and more important, those fees will act as a deterrent to claims so that tribunals 'are used as the option of last resort to resolve employment disputes'.

There will be different levels of fees but those of greatest interest will apply to unfair dismissal, discrimination and similar claims. The government proposes a charge at issue of £250 and a hearing fee of £950, so total of £1200 in all cases.

So what is the likely impact of that? Let's take an example.

Someone in their late-20s with a salary of a little under £20,000 per annum is quite likely to be taking home somewhere in the region of £1200 per month after deductions. They may have worked for a little over five years before they are dismissed- they say, unfairly.

If successful in a claim, they can expect to recover approximately £2500 for basic award and loss of employment protection. Three months loss of net earnings on top of that would be unremarkable giving such a claim a total value in round figures of £6000.

Regardless of worth, many unfair dismissal claims can be of sufficient complexity, certainly to the employee in the street, to demand the assistance of a lawyer and outrageous though it may seem to some, lawyers also need to be paid.

It is reasonable to suppose that the jobless client will only want to instruct a representative who is prepared to work on speculative terms. Under the present regulations that apply to contingency fee arrangements, or damages based agreements, the maximum that can be charged for fees and VAT is set at 35% of compensation. One presumes that the fees payable to the tribunal fall to be classed as disbursements which fall outside the cap.

In my example a little over £2000 could be charged, inclusive of VAT, for the lawyer's costs. The "successful" claimant would also pay their tribunal fees of £1200 out of the balance. After discharge of one or two further reasonable expenses, they might be left with a net result of just over two months net pay.

The question for them at the outset is whether they want to gamble a month’s income (at a time when they have no income) on the prospect of recovering two months' worth. It's hardly an attractive proposition, before one begins to consider the emotional cost and investment of time required to run such a claim even with professional assistance.

And how does it look for the lawyer?

In this example, he or she may reach the happy point of being able to invoice £1750 plus VAT. All of that will have been at risk of the claim failing completely, of success on liability but a reduced award and in all cases inability to recover the compensation awarded from the respondent.

How much work will the lawyer have done? There’s no tariff here where the work necessary to take a claim to a successful outcome varies and may require the skills of representatives with different levels of experience and charge.

There are employment law “consultants”, operating nationally, who market themselves on the strength of their ability to provide a high standard of representation at comparatively low hourly rates of around £130. Not having to pay for practising certificates, compensation fund contributions or for professional indemnity insurance helps, of course.

In my example, if these providers were to generate a reasonable return, they would need to run the entire case within a maximum of around 13 hours.

Assume the hearing takes a day (and many are longer) - that means six hours in tribunal. Travel on the day may occupy another two hours, often more.

Only five hours are left to take initial instructions, evaluate the case, advise, draft the ET1, deal with disclosure of documents, draft witness statements, deal with and attend any interim hearings, correspond with claimant, tribunal and opposition throughout the case and prepare for the hearing.

By and large, it just can't be done - not by them or by solicitors charging maybe half as much again. We don't even get to the question of winners paying for losers - an essential feature of speculative fee-based litigation.

The key ingredients that is missing here is, quite simply, costs shifting. Loser pays.

I'm one of many who believe that's a noble and just proposition. It seems that our government doesn't. The concept is under constant attack within our civil justice system, mainly at the behest of large insurers, and consistent with that there remains steadfast resistance to a costs shifting regime within employment tribunals.

The consultation document reminds us that costs may be awarded where a party has conducted their case unreasonably. Contrary to the belief of many, including employment law practitioners, tribunals do make awards of costs (I secured my fourth last month) but they are rare. The consultation document tells us that such awards are made in only 1% of cases.

Within the present proposals is the suggestion that tribunals will have a discretion to direct that the fees of a successful claimant should be paid by the respondent. There is no mention of the wider term "costs" and there is emphasis on the discretion in relation to fees.

Experience suggests that the combined outcome will be that whilst the recovery of the fees paid, even by a successful claimant, is far from certain the existence of a discretion to make that much of an award will render unreasonable conduct costs orders even rarer than they are now.

As with the proposed increase in the small claims track limit for personal injury cases and Sir Rupert Jackson's take on proportionality[1] the result is a significant barrier to claims, regardless of the merits. The rewards for the lawyers who might take the risk of not being paid, let alone the funding of disbursements for their unemployed client, is too uncertain and too small to sustain a business model based on conditional or contingency fees.

For the successful claimant, the outcomes even after inadequate remuneration of their champions may not justify the financial risk and general heartache of pursuing their rightful entitlement to a significant sum of money and repairing a piece of their life.

The government points to the need to resolve disputes by other means. This translates to the expectation that within the short period of time (3 months) limited for commencement of an unfair dismissal claim, claimants will persuade the employer who sacked them illegally to mediate and to offer an acceptable alternative to litigation[2].

Let's not think for the moment about how that alternative might be facilitated.[3] Instead just consider the likelihood that the employer who has had the courage to unfairly dismiss is likely to volunteer payment of a number of thousands of pounds in the face of a risk that otherwise they may have to pay, er, nothing in the way of a penalty for fighting the claim against a financially and emotionally weak opponent.

It simply won't happen and so this is, again, a denial of justice to all but those whose pockets are deep.

From a broader perspective, the effect is to ditch any incentive to resolve disputes with integrity, in a manner consistent with principles of natural justice and in particular the requirement to listen to the other side.

We’re back to the conclusion that what matters more to the MoJ and this government, in the name of economy, is the stifling of claims and the silencing of complainants[4]. The truths and values for which this country has been admired and followed globally are to be further eroded.

[1] See Solicitors Journal 10 July 2012
[2] See http://legalchap.blogspot.co.uk/2012/03/mediations-achilles-heel.html
[3] See http://legalchap.blogspot.co.uk/2012/01/back-to-reality-testing-testing.html
[4] See http://legalchap.blogspot.co.uk/2012/06/legal-highs.html

Panel games

We needed to send a written reply, this morning, to one of the offices of a leading national law firm.

We looked for an e-mail address but there was none on the letter we received – by post, inevitably, in the case of this particular firm.

Curious thing is, there is no postal address either.

And no fax number.

Plainly these guys think that the rest of the world should take the trouble of finding their contact details.

Actually, there was one potentially helpful piece of information at the end of the letter - a direct dial number, with the name of the correspondent.  We gave him a call.

Voicemail message informed us that he is on holiday...until 26 June. Yes, that’s a week ago.

So, this is how things should be done?

Some of the less co-operative legal expenses insurers (BTE) will tell you that one of the reasons for refusing to instruct anybody but their “panel lawyers” is that these are approved and audited legal suppliers delivering a superior service.

Hmmm.

Dr Botox - The Epilogue

A few weeks ago I wrote about the remarkable case of my claimant client with moderately serious orthopaedic injuries directed by insurers to the distant and grubby premises of their “expert witness” – a botox injector, who eventually confessed that he hadn’t a clue.[1]

The case has settled now after a few more exchanges of correspondence but not until after client received further strange telephone calls from a withheld number – a nameless somebody wanting to arrange another medical examination, this time even further away in Gloucestershire.

Our man is reasonably sanguine but others would be justifiably anxious to know who has what information about them and what they are doing with it.

Insurers do what they like, of course, as the widespread sale of policyholders' data to claims farmers has demonstrated. I wonder incidentally when we can expect to see action by the Information Commissioner’s Office which has been levying substantial penalties on local councils and NHS trusts recently.[2]

The key point here seems to be that resistance crumbled after we latched onto the fact that insurers were actively steering this perfectly genuine and deserving claimant to an ‘expert’ who probably had no more qualification for the job than that he would say whatever insurers wanted him to say in return for not very much money.

Had any report from this guy seen the light of day it would not have been challenged at latest until trial by most ‘self-representing’ victims, or those using the monkeys that the insurance industry wants to force upon claimants one way or another.

As it is, insurers paid almost twice the five-figure sum they previously offered.

QED.

---

[1] http://legalchap.blogspot.co.uk/2012/05/abominable-dr-botox.html

[2] http://www.ico.gov.uk/news/latest_news/2012.aspx

Someday is now

Something of a guest post for mid-week, this apparently hit the web about three months ago but doesn’t seem to have gained much profile (sadly).

It’s reportedly a quote from the Principal of a secondary educational establishment in New Zealand who in turn was relating comment from a judge who deals regularly with young offenders:

“Always we hear the cry from teenagers ‘What can we do, where can we go?’

My answer is, “Go home, mow the lawn, wash the windows, learn to cook, build a raft, get a job, visit the sick, study your lessons, and after you’ve finished, read a book.”

“Your town does not owe you recreational facilities and your parents do not owe you fun. The world does not owe you a living, you owe the world something. You owe it your time, energy and talent so that no one will be at war, in poverty or sick and lonely again.”

“In other words, grow up, stop being a cry baby, get out of your dream world and develop a backbone, not a wishbone. Start behaving like a responsible person. You are important and you are needed. It’s too late to sit around and wait for somebody to do something someday. Someday is now and that somebody is you”

As the rain lashes down here on this midsummer evening, the antipodes look ever more attractive.

Legal highs

I just caught up with an article published last week spotlighting the rising cost of compensation paid to NHS patients whose illnesses were misdiagnosed, from £56m in the previous year to £98m. 

A Department of Health spokesman was quoted as saying: "Unsafe care will not be tolerated in a modern NHS. The vast majority of the millions of people seen by the NHS every year do get good quality, safe and effective care. However, if patients do not receive the treatment they should and mistakes are made, it is right that they are entitled to seek compensation.” 

Wow. Are you sure about that? 

It’s a reminder that the annual report of the NHS Litigation Authority is due soon. It will be interesting to see what Kenneth Clarke has to say about it. 

Some will no doubt remember the minister’s breathtaking ‘double-counting’ gaff last March when he announced on the Today programme that “In 2008-2009 the National Health Service did pay out £312 million worth of damages. It paid far more out to lawyers in fees - £456 million.” 

Of course it transpired that £456m was the total expense, £312m of which was compensation and the rest costs, including £40m paid to defence lawyers employed to try and escape responsibility for the cock-ups. 

The disparity between costs incurred by claimant lawyers and NHS lawyers is now perennially blamed on success fees. Too little attention is paid perhaps to the cost for claimants of expert evidence (which the NHS has in-house) and the ease with which defence lawyers paid at reduced rates for guaranteed flow of work may do nothing but delay to ‘earn’ their fees. 

One expects Mr Clarke to blame the expense of clinical negligence – which rose to £863m last year – on “compensation culture” and “fat cat lawyers”. 

Within last year’s total, in excess of £600m was paid in compensation – not costs. In a no win, no fee environment, costs only have to be paid in successful cases – those claims by people who deserve to be compensated, but had to fight (with professional help) to get it. 

This is not an expense generated by lawyers, claims farmers or greedy claimants, Mr Clarke. 

This is the cost of incompetence, Mr Clarke. 

So what’s your answer? 

Improve the service? Learn from the mistakes? Arrest the needless wreckage of lives and lost opportunities to stay alive? 

No. 

Your answer is to kneecap the claimant lawyers – stop them exposing the shortcomings. We’re not just tiresome – we also cost money when we succeed. 

Who allowed that? Well, it was Parliament that makes the law and the courts that uphold it. 

Why did Parliament make that law? That would be to relieve the taxpayer of the perceived burden of legal aid for injured people to pursue redress to which our society’s law deems them entitled. 

Mr Clarke’s response to all this is not to solve the root cause (wastage, mismanagement, incompetence etc in the Health Service) but to stop the infringement of legal rights being exposed. Cover it up. Warp the stats. 

Injured innocents can go without a remedy. Many more can fall victim as standards of essential healthcare decline still further. 

Don’t (or didn’t - when we could afford it) we spend billions valiantly (sic) crusading against regimes that deny their citizens justice whilst using the wealth and influence of the state to wage war on the more powerful and influential opponents of tyranny and champions of what is true and just? 

What sort of regime do we now have here?