Plus ca change...

I was just asked briefly for some input on something that I haven't seen in years – a request for warrant of execution addressed to bailiffs in the county court.

There was some question about the recoverable costs, for reasons which will quickly become apparent to anybody who does not already twig it.  They are to be found in Table 5 at Paragraph 45.6 of the Civil Procedure Rules:- 

“Where a request is filed for the issue of a warrant of execution under CCR Order 26, Rule 1, for a sum exceeding £25 ............................ £2.25." 

As my dear old grandmother would have said, £2.25 in this context is neither use nor ornament.

What fraction of the cost of even a relatively junior unqualified member of staff, their heating, lighting, paper, postage etc etc is that intended to cover?  What is the point?

There are some other gems in this section of the rule that deals with fixed costs.  If you make an application for an attachment of earnings order, for example, then “for each attendance on the hearing of the application” fixed costs of – wait for it - £8.50 are allowed. 

I suppose it might cover your car park charges whilst you sit around at court waiting for something to happen. 

These provisions are hopelessly out of date. It’s little surprise that most of these prescribed allowances refer to orders within the County Court Rules (1981) which were supposed to be replaced by the Civil Procedure Rules 1998.

It’s another testimonial to the incompetence of our administration that after fifteen years and four times as many “updates” we still have stuff like this within our civil justice code - and this in relation to procedures that some deploy regularly and extensively.

Meanwhile the Ministry of Injustice is rushing to implement another set of half-baked rules that prescribe ridiculously low allowances for legal costs, which should sit very comfortably amid some of this pointless old rubbish.

It’s nice to know that not everything is changing.

Livin' Aviva Loca !

At around 8.00 on 8 July 2010 one of my staff was travelling to work from her home about 13 miles away when her car was hit by a Land Rover.

It was a fairly minor collision as a result of which she suffered mild shock and a whiplash injury (yes, they’re real). Liability was never in issue.

By 10.00, my employee had a call from the insurers of the Land Rover – Aviva – offering to sort the repairs and a hire car, and wanting to know if she was injured. They would contact her again later after she had been to hospital.

In the course of the telephone calls that followed, and having been to hospital for treatment after the accident, my young lady spoke to Kayleigh who told her, at the mention of getting independent advice:

“We do not recommend that you see anybody else about the claim”

At 16.00, there followed another call from Melissa who introduced herself as my employee’s case handler. She would be ringing every 3 weeks for an update and would send £200 by way of an interim payment.

Unbeknown to Melissa, this victim knew that her claim (ultimately worth over £3,500) would, if handled by lawyers through the Portal, attract an interim payment of £1,000 – 5 times the amount offered.

My lass said she wanted to seek independent advice and was firmly assured that she would be offered no more just because a solicitor was involved.

Well, she was because – unsurprisingly – she retained her employer to deal with it. The process was painful and at the end of it Aviva instructed a high profile firm of costs solicitors in Manchester to vet the claim for tens of pounds of disbursements. For the rest of the story see Portal of horrors.

We don't know, sadly, what might have been offered in final settlement if the claimant had been an ordinary punter, with no legal knowledge or assistance. The seemingly generous offer of an interim payment of only 20% of that the law prescribes coupled with the insistence that she should not seek advice doesn't inspire confidence.

What are the chances of this grubby little drama befalling a personal injury paralegal under the nose of a disbeliever like me, if it doesn’t happen all the time?

This is what they are truly like. Trust them to deal fairly and honestly with your claim if you don't have a lawyer?

I wouldn't.

Foxes and chickens

Insurance companies are now thumping out the message that if you have a claim, you should deal with them direct and no need to involve lawyers who may cost you (and them) money.

The process is known as claims capture.  Accident victims negotiate direct with insurers, trusting that the insurers will deal fairly with them.

If you’re not already laughing so much you can’t see through the tears, read on for a stunning example of how dangerous this is…

I was consulted a number of years ago by the parents of a seventeen year old girl who, nearly three years earlier, had been briefly crushed against the wall of a farmyard pen by a bull.

Thankfully she did not suffer very serious physical injury but the incident caused severe psychological trauma.  One of the results of that was that she no longer wanted anything to do with farming - very disappointing for her and her farmer parents (this did not happen on their farm, by the way).

A very experienced claims handler from the insurers of the neighbouring farmer who owned the bull dealt sympathetically and charmingly with the family.  They were offered a sum of money and presented with a document to sign.

At that point, her father came to me with a simple request to ‘look over the document and check that it was alright’.  There was quite a degree of embarrassment, because the claims handler had been so wonderful.  Added to that, the nice man had plainly stoked some fears about lawyers’ costs.

I said that £1,500 was not enough and advised the father not to sign the agreement.  Instead I gave him a conditional fee agreement and we got cracking. 

Eighteen months or so later, we emerged from a trial on quantum only having comfortably beaten an offer of settlement we made a year earlier with an order for payment of costs on a full indemnity basis as well as premium interest.

The young lady was awarded (and received) a little under £35,000.

This is but one example.  There are many.  I have even had one of my own personal injury team, involved in a minor collision, telephoned by insurers (Aviva) and told “you won’t get any more if you go to a lawyer”. 

It's like putting a fox in charge of the chickens. Don’t be a fool. You cannot trust them.

Record breakers

In a case that we recently inherited from other solicitors, we encounter a novel situation.

Our client obtained judgment in this commercial claim as long ago as October 2008. For various good reasons, including regular payment of instalments over an extended period, the court has not been involved in the case since the date of judgment.

Now some enforcement action is required.  We have obtained a file from our predecessors, prepared the paperwork to put ourselves on record and written to the court to ask that the matter be transferred to the judgment debtor’s home court for enforcement.

To our surprise we get a telephone call, followed by an email, from the court to say that there is no file!

The explanation is that the court file “would have been disposed of as no action has taken place on it since October 2008”.

As most other lawyers will know, a judgment can be enforced, without the need for any further permission of the court, for up to six years.  Often that is the minimum period for which lawyers retain documents, being the standard contractual limitation period.

We don’t know exactly when this file was destroyed. Nor, it seems, do the court staff!

It has been obliterated after little more than four years on the best analysis.  Now they don’t have anything – not even digital copies.

We have been asked to send paperwork to the court so that the staff may construct a duplicate file and post that to the defendant’s court. Good job we have the data.

There was a time, not long ago, when you could expect to find years and years of records in places like court offices.  That wasn’t necessary and it needed to change. No reason why not, with scanning and digital storage capabilities.

Looks like the Court Service had the second part of the brief but not the first. Scan it, then shred it.

So just how much of this random destruction now goes on? How long before it becomes the norm to have shredded all the papers and kept no copies in any format.

Fraudsters the world over will be rubbing their hands.

Who shot JR?

Quality means doing it right when no-one is looking.

Few if any will meet Henry Ford’s benchmark, not all of the time. Mistakes happen. That’s life. But that’s when someone has to be asked to look, somebody with the power to exercise control – quality control.

Trite statement, but Government is no paragon yet wields huge responsibility for the consequences of its action, or inaction. A true democracy requires that executive wrongdoing may be brought swiftly and effectively into the open and cured.

Being judged every few years in the polls doesn’t perform this function. Insurrection is out of the question. 

The right way - the only way – is judicial review. Lawyers know it as “JR” – and someone’s taking a shot at it.

Our government is now moving to reform significantly the process whereby the state may be challenged by its subjects in the exercise of its administrative powers by independent judiciary with the clout to curb abuse and incompetence. The thrust of it is to reduce the numbers by, for example, almost quadrupling fees, slashing already short time limits, more rigorous ‘sifting’ i.e. rejection of applications before they even reach a public hearing.

The imperative is of course that we can’t afford it. We’re skint. Justice done and seen to be done is becoming a luxury (See Fun and games)

We’re in a spot, no question. We’re battling to keep the budget under control. The argument may run that in the midst of the battlefield, you don’t turn round and start questioning the orders – you do what you’re told and fight the good fight. If you’re going to get your head blown off let it be whilst you’re fighting, not while you’re arguing about how to fight.

There’s some force in that but there are also limits. Remember that Austrian bloke who worked wonders for the German economy in the nineteen-thirties but got a little carried away with it all?

This latest attack on independent scrutiny smacks again of an administration hell-bent on silencing opposition. It’s consistent with other assaults on access to justice.

See for example Kenneth Clarke’s clumsy attacks on victims of our failing health system (now in the spotlight again) rather than fixing the problem (See Legal highs, Repeat prescription)

See also the breathtakingly bold assaults on funding for what this government regards as ‘small’ claims (See Five grand), so obviously wrong that it has sparked application by APIL and MASS for, er, judicial review.

The increasing use of secondary legislation to make rules that deserve popular, not just political, debate is alarming. It’s all the more so when the process is afforded respectability by the now standard hurried ‘consultation’ followed by adoption and extension of proposals on a nemcon basis – at least if you disregard or don’t even seek the views of those who might or do disagree.

So far, the response to the JR proposals is remarkable for the breadth and diversity of their opponents. Adam Wagner's blog has collated a number of them.

JR is crucial to the integrity of our country’s administration and management. The way in which rules are made and implemented must remain open to objective scrutiny.

And not behind closed doors.

How it works - car insurance

Own a car?  Well, hopefully you are in the majority who buy insurance.

Each year it costs you more than it did last year, despite the fact that you have had no claims, no speeding tickets and your “no claims discount” has risen.  The only way to cut the cost is to change insurer.

Bad luck – you have an accident.  Your car is damaged, somebody else’s car is damaged and it is the other guy’s fault.

If you have comprehensive cover, you will claim for the damage to your own vehicle on your own policy and leave it to your insurers to get their money back from the other side. If the car is a write off, then the insurers will pay you far less than you think it is worth in monetary terms.  Sentiment – forget that.

If it is repairable, the insurers will insist that you take it to one of their approved dealers. These people may be “approved” because they pay the insurers for the business and/or charge a discounted rate for the work they do.

They will be cheaper than your preferred garage, first, because the insurer puts more business their way and, secondly, because they will compromise on the repair. Where possible, approved manufacturers parts will be replaced by cheaper alternatives and luxuries like door safety bars can be dispensed with.

These approved repairers will be directed by insurers to buy their paint and other parts from specified suppliers.  Those providers then pay what is euphemistically called a “rebate” to insurers – millions of pounds a year (See Above the law).

If you need a hire car rather than a courtesy car, you will go to the company of insurers’ choice, even if that is not convenient to you.  You will get what you are given.  Why? Because the insurers have hammered the rates down so that the hire car companies need to look for savings wherever they can.  They are probably also paying a “rebate” (See Business as usual).

Did I mention that you were injured?  Oh, well you will have had a call by now from somebody who seems to know all about your business.  How can that be?

The chances are that you won’t have been told that insurers have passed your personal details to a claims management company (“CMC”).  They don’t make a big fuss about it because, guess what, the insurers just pocketed hundreds of pounds by selling your claim.

The CMC then adds its margin and sells your claim to a “panel solicitor” who is prepared to pay for it. Often the solicitor may have at this stage an outlay of £800, and they haven’t started work yet.  The value of the claim may not be a great deal more than that so how are they going to process it without running a loss, let alone making any profit?

The answer is that they give it to unqualified staff pushing buttons on software that does a very ordinary job within set parameters.  They are not going to take risks like issuing proceedings and insurers on the other side know that (see Peanuts).

The claim will settle for less than it is truly worth so that nobody in the process needs to waste more time working for the same reward of a pitiful fixed cost,  most of which has already been eaten up by the backhander that your own insurance company secretly trousered when selling your claim.

In many cases the referral elsewhere may have been entirely open because you bought from your insurer when you took out the policy (though you might not have realised it) what is called before the event insurance (“BTE”) supposedly to cover you for the cost of claiming your uninsured losses.

In many cases the costs of the solicitors appointed by the insurers aren’t covered by the policy at all.  What happens is that the preferred solicitors pay insurers a fee (surprise!) for the case and then they run it on a conditional fee arrangement in exactly the same way as we or any other independent would.

Technically, insurers will say that they cover any adverse costs i.e. the risk that the claim fails and the other side want their legal bill paid.  In reality this almost never happens.

So, you might wonder why you pay £20 or £30 when you take out the policy for this BTE cover?  The answer is it’s to help pay the insurers’ administrative costs in making sure that they pick up another referral fee when they email a copy of your claim form to their panel solicitor.

And that’s how it works.  The insurance company takes what a large number of lawyers would consider to be bribes, according to the Bribery Act 2010 from everybody involved (see Bribery - every step of the way).

Next year your premium will rise again, just like executive salaries and shareholder returns. Insurers will blame victims and lawyers for claiming compensation and the costs incurred whilst claims managers argue black is white to put off the day when they have to take out the cheque book.

This is why the Office of Fair Trading has described the insurance industry as “dysfunctional”.

Who's your friend?

Earlier this month we posted a news report of the Court of Appeal’s decision to direct an enquiry by the Criminal Cases Review Commission into the fairness of a criminal trial in light of revelations about social media links between a juror and the (convicted) defendant.

It had emerged that she and the juror in questions shared 22 mutual ‘friends’ on Facebook. There were said to be a number of other ‘small town links’ which at least gave an appearance of bias. See Jury trial in the Facebook era.

It’s the social media element which is of particular interest – to our senior judges and to the rest of us. We’ve seemingly navigated the choppy waters of tweeting in or from court and the obvious potential problems with that but do we now face a new dilemma?

There is no suggestion that the two women in this case were friends – in the real or virtual sense – or even acquaintances. The issue arises from the fact that they shared a number of mutual Facebook connections.

Where the two of them were not directly connected did either know that they shared these indirect links? No reason why they should unless perhaps they had trawled Find Friends for suggestions that would of course be based to a large extent on numbers of mutual acquaintances.

It’ll be noticeable that my terminology changes, as it does between social media platforms. On LinkedIn we have connections. On Twitter we follow and are followed.

“Friend” happens to be the Facebook handle. What does it mean to you? How does it compare with the definition of those with whom you choose to meet “in real life” and talk to socially on a regular basis?

I have friends, who are also “friends”, with many hundreds of Facebook friends. Often one wonders if they mean any more than a comrade in battle during the course of a Massive Multi-Media Role Playing Game.

What’s clear already is that being a friend of someone on Facebook is not necessarily an indication of affinity, though the two may co-exist. Being a friend of a friend of a friend may mean nothing.

Would knowledge of the tenuous link change that? Do those of us on LinkedIn draw any conclusions about any aspect of a person unknown to us from the company they keep, or the company their company keeps? Possibly.

If any such influences seem possible then it must follow that perceptions of potential influences are likely and the CCRC will surely conclude that guidance is needed. Perhaps that will mean that our courts again have to catch up – learn how to scrape the data that is freely available or have the means to access for these purposes. Another human rights issue.

Who’s your friend?