Optional activity

Yesterday I was fortunate enough to breakfast with a couple of professional friends who, between them, must know just about as much as anybody could or hope to know about personal injury litigation in this country (and as far as Rome too!)

Inevitably, the main subject of conversation was the news from the Ministry of Injustice last week and the grotesque court fee hikes quickly implemented two days ago. We took the opportunity to develop a (darkly) humorous idea that had been floated briefly in the ether last week on the back of Lord Faulks’ noble proclamation that “litigation is very much an optional activity”.

We thought we might set up our own privately owned civil court.  Naturally, we would try to replicate all the good things about our court service - there are many - but do everything else (far) better. 

We would still charge fees to court users but they would not be anything like those so very recently imposed by our esteemed Lord Chancellor.  We think that at many levels they would probably be more in line with the radically different fee structure that we used to have…last week.

This funding scheme could not be relied upon to maintain the service partly because existing volumes probably would not generate sufficient value at that level and also because usage is always unpredictable. On the other hand, the service needs to be maintained so that it’s there when required, rather than turning into that rusty old machine in the derelict shed (see Road to ruin).

So the simple answer is that we would have a regular subscription paid by all potential users of the system.  We would make sure that everyone who might need to have recourse to our justice facility made a contribution proportionate to their income.

To reflect all these attributes we were trying to think of an appropriate name for it - maybe......er, a “tax”.

Come to think of it, we could use the same model for one or two other things that one might class as “optional activities”.

How about using that fund to support and maintain a bunch of security people that you could call upon when you need them to protect you, your loved ones and your property.

That way, you would not need to worry about whether you could find or afford the money to avoid, perhaps, being invaded by a foreign nation or getting beaten up in the street.  It would be these guys who turn up and defend you, or by their very existence discourage such events to a large degree.  We could call them....”the defence services” and “the police”.

Now, what about some medical facilities.  If we could use this fund to provide hospitals and ambulance services that would be quite useful.  Then, after you had had your head kicked in or been run over by a car you would not need to bleed to death whilst rummaging through your pockets or bag for cash or a credit card and trying to work out if you can afford to have your life saved.

We could call this – oh, I don’t know – a “health service”.

You get the idea. 

If you’re going to have any sort of facility providing benefits to all its members or potential members, then you need to commit to an investment and maintain it, irrespective of whether, in the short to medium term at least, you’re convinced of the need for it.

Whether it’s a friendship or a municipal building, you cannot expect it to be there just when you want it.  You have to accept that you will need to make an investment of time, money or whatever – often when it does not suit you – if you want it to be there when it does suit.

Some things are so important that they must not be left to chance, susceptible to the irresponsible or selfish view that “we’ll worry about that when it happens”.

When it comes to vitally important, and by no coincidence significantly expensive, facilities it is the undeniable duty of the state to take responsibility for the well-being of its citizens.

Defence, policing, healthcare.  None of these should be expected to be self-funding.

So what about justice?  Justice is a cornerstone of the democratic state.

It’s no more an optional activity than being invaded, murdered, raped or bleeding to death. For many people, legal services are a distress purchase and they need to be affordable one way or another.

Our democratically elected government has a duty to ensure this.  Aristotle, Dostoevsky and Ghandi are all credited with similar observations the essence of which is that as a society we are judged by the manner in which we treat our weakest members.

Time and again, you are failing, Mr Grayling.

Road to ruin

If I told you that the price of something – anything – next Monday will be 760% of what it costs you today, where might you think I am speaking from?

Venezuela?  Zimbabwe perhaps? Or some dark dystopia - a creation of Orwell or Kafka?

Well, if you pitched for the third option you were probably closest but for “Orwell” and “Kafka”, substitute Cameron and Grayling.  I’m talking about the UK – today – as we brace ourselves for a price rise that will be more than 2,500 times the current “record low” rate of inflation in this country.

So, what is it?  What is this precious commodity that deserves such a colossal mark-up?

Justice. 

Seriously. 

Our Ministry of Injustice is raising the level of fees that people will have to pay to The Court Service to begin a civil claim – and how. 

For claims worth under £10,000 there is no change to the current structure but above that figure and up to a value of £200,000 the court fee payable will be in all cases 5% of the value of the claim.  For example, a case I issued a few days ago that attracted a court fee of £610 would now cost just shy of £2,500 to get started. 

At the top of this horrifying ladder the difference is alarming.  A current fee of £1,315 rises by 660% (sic) to £10,000.

The new fee is 760% of the old one.  For brief analysis of the figures, see my blog through the link behind that grotesque statistic.

Yeah, so what’s the fuss about?  Everything (except oil) is getting more expensive and the current prices are probably nearly as old as Magna Carta.

Well, no – actually court fees have been rising steadily for many years and there were reviews of the fees order in April and August last year. Periodic (annual usually) increases have always been swallowed, with varying degrees of indigestion.  It’s always too much for one side and not enough for the other – but, hey, that’s life.  Nobody is being unrealistic.

This present move is horrifying.  Some readers may wonder why they have not heard much, or anything, about this coming and the answer there lies in the current Justice Secretary’s own personal brand of “consultation” which by now has passed into legend. 

Christopher Grayling’s track record of deceiving Parliament and the electorate or otherwise plain and simple getting things wrong is largely catalogued in my post about the Ministry of Injustice.  Even since then, he has travelled further down the same career path. 

Yet another judicial review earlier this week found that once again our Lord Chancellor had acted unlawfully.  What a fine example to our legal system, and of justice in the Western world.

But he doesn’t care.  Facing widespread and heavyweight opposition from within the legal industry, he has ploughed on and brought the implementation date of these proposals forward as quickly as possible one aim presumably being to get it done before the Law Society launches its promised judicial review of the increases.

Grayling’s sidekick, Shailesh Varma dismissed the objections last week proclaiming that these price rises would “have no impact on access to justice”. 

Those of us who have been around this industry for a while (and many who have not) said that the introduction for the first time of issue and hearing fees in the employment tribunals would create a barrier to justice for many.  We were talking there of fees to run a fairly typical unfair dismissal claim totalling £1,200.  To put that in context of your average wage earner in this country, suddenly and wrongly out on their ear with no other redress, see Fire at will. 

For those who haven’t twigged yet, in both of these contexts we are concerned here solely with the fees that a claimant has to pay to the government to use the court process.  They are nothing to do with the costs of a solicitor or barrister to help you with the process.  That is another story.

You don’t need a Masters in rocket science to appreciate the likely effect. Guess what?  Official statistics have proved that in the twelve months following the introduction employment tribunal fees, the number of claims brought has dropped by around 75% to 80%. Access denied.

It’s hard not to feel contempt for those at the MOJ who says this will have no impact.  It’s nonsense.  Of course it will.  It’s a no-brainer.

Commercial clients that I act for are up in arms over this.  Litigation is part of their daily business, factored into overheads and cash flow.  £610 may not raise an eyebrow but there will be at least a cough at £2,500 for the same value of claim.

Plenty of examples similar to this have already been cited but what of somebody like the unfortunate lady octogenarian thrown over the roof of a car from the apparent safety of a zebra crossing in the centre of Bridgwater at 9:30 one Tuesday morning?  A handful of other lawyers that I had the privilege to fight alongside in the Court of Appeal twelve years ago will recognise the event that spawned my contribution to what became the Conditional Fee Test Cases.

That innocent and badly-injured pensioner could not afford court fees.  I did what hundreds of other solicitors up and down the country have always done and would still do – funded the court fees and other disbursements, as well as taking the risk of not getting paid for the original claim, two appeals and goodness knows how many battles over the costs of the costs of the costs. 

Pay a court fee of £1,315 on a case with decent prospects worth £200,000?  Almost certainly, yes. Same case, same prospects, same value – but I need to put my hand in my pocket for £10,000.  Mmmm, not so sure.

That’s my outlook and I’m in a business an integral part of which is to take legitimate and measured risks.  There are plenty of other lawyers who recognize all of this. Present the same scenario to an innocent, injured and impecunious man or woman on the street and you know where it’s headed from that point.

 

Either it won’t happen, or it will be picked up by the monkeys who work for Peanuts who have no principles and will take the risk because they have an escape route - selling out the claimant.

It’s not just personal injury which, we know, leaves a nasty taste with many people who often don’t grasp the fact that there are deserving accident victims, by law, entitled to a remedy.

This administration just doesn’t get it. The State has a duty to provide an effective justice system.  That doesn’t just mean that it should exist – whether in the form of the badly mutilated remains of our national network of courts or the palatial Rolls Building in London.

It has to be accessible too.  That means above all else that you cannot move it behind a paywall that is impenetrable to all but large corporations and oligarchs.

Justice is an entitlement of society, not a privilege of the rich - unless we are going to wind the clock back eight hundred years. 

Some of my friends and colleagues, particularly those in what for me is the strange territory of family law, insist that “it will be alright” – even suggesting that this is “a good thing”, to use the parlance of 1066 and All That. 

Why?  Well, because we now have mediation in the sense that it has been around for a few years, everyone is familiar with it and there is in truth a well-organised industry.

Don’t get me wrong – I am a big fan of mediation.  I have trained as a mediator.  I have used those skills in professional and private life beyond the confines of helping parties to litigation to find better solutions than even our best judges could impose.

But it’s not a complete answer.  It’s a scenario where you can probably make the horse drink, but the big question is whether you can lead it to the water in the first place.  For more, see Mediation's Achilles heel.

It won’t work in all cases purely because it’s consensual.  Some parties to disputes, business or personal, are not interested in the ethics and beauty of a collaborative solution.  They just want to win.

Why then commit to a process within which you will inevitably be going to make some concessions when you are holding all the cards and the only way for your opponent to change that is by another process that he or she cannot afford.  It runs something like this (I’m the bad guy in the driving seat here)….

Decent person – “this court business is all too expensive for me but fortunately there is a practical alternative to help us reach an agreement that you should pay me at least some of the money I think I am entitled to.  Let’s go and mediate.

Me – Go boil your head.

Decent person – Oh please! I can’t afford to go to court.  Can’t we mediate?  Everybody says it’s such a good thing.

Me – “have a nice day – loser”.

(Sound of door slamming followed by tears)

Enough said.

These monstrous court fee increases are a death knell for justice.  We are not just taking about the immediate barriers to those with claims today or tomorrow but about the accelerated decline and decay of the civil justice system. 

The machine, through disuse, will fall into decline.  Maintenance engineers (yet more) will look for jobs elsewhere.  The machinery won’t be modernised. There will be nobody who remembers how to use it.

There will be just a mass of user manuals created within the course of a decade, though it will be unclear which one to consult. There might still be a crazy old boy at a desk in the corner of the shed who faintly recalls how to fire it up.  Come to think of it, that could be me or one of a handful of others I can immediately think of.

Joking aside, this is headed into the abyss.  A lot of people, lawyers and their clients, will turn their backs on the system.  The lawyers will go and do something else and those with a problem they cannot afford to ask the judges to resolve will look for other avenues to “justice”.

In some, perhaps many, situations, that highway may be called “mediation”.  In a growing number of cases it may be the Road to Ruin.

760%

The House of Lords is this evening debating the catastrophic rise in court fees proposed by our hapless Lord Chancellor.

I’ve been planning for a number of days to blog about the massive injustice of this proposal but only this evening have I examined the figures against the background of the justifiable outrage at what has been publicized as an increase of up to 622% at one level.

But it’s worse still – in case nobody else has noticed.

In December the Civil Justice Council published an analysis that included this table:

The highlight is at the £200,000 threshold and the calculation that an increase from £1515 to £10,000 amounts to £8,725. Plainly, £1,515 + £8,725 = £10,240.

So, the MOJ can’t add up – no surprise there.

But it’s worse than that because the court fee, currently, for a claim of £200,000 is only £1,315. 

Here’s an extract from the current list of fees published in August last:

Note that the top of the bracket for the £1,315 fee is £200,000 – dead.

Under the new scheme, the fee will be 5% i.e. £10,000.

So, in fact, the increase is 660% and the new fee an excruciating 760% of the current figure.

Patriot games

My blog is littered with tales of inefficiency and incompetence within the Court Service and government offices.[1]   My colleagues in the litigation industry won’t be surprised to know that we don’t catalogue every event. We haven’t the time!

Today I have something special to relate – special because of its intensity, much to the misfortune of one particular client.  There’s also a ray of sunshine from the Dorset coast...

Other litigators will have noticed that whilst many court offices now take far too many days or weeks (or months – Staines!) to process fairly simple correspondence and applications, increasingly they seem to find time to invent ridiculous objections.

I have in mind a number times that we’ve had people at the Salford centre of excellence, aka the County Court Money Claims Centre send back requests for judgment because they reckon the interest we calculated from issue until judgment is incorrect.  When, as it often is, it’s a matter of a few pound or pennies involved and the perceived error is potentially to the advantage of the defendant, it is hard to understand why they worry.

We’ve tried helpful things like stating in the covering letter that (as the particulars of claim already made clear) there is a claim for contractual interest at a different rate from that more often claimed under the County Courts Act 1984 – so don’t bother trying to reconcile two different figures.

That doesn’t work – but then that’s the theme.

Anyway, we now have an entertaining case where one poor client is the victim of a series of cock-pus by government agencies, starting of course with one of our West Country courts.

Almost a year after we obtained a judgment, and for sound but complex reasons that matter not here, we made application for a charging order to secure the judgment against the male defendant’s interest in the property solely owned by him.

The application came back to us more than a week later – by post of course – no email, no phone call.

There were two reasons for rejection the first of which was that the date of the judgment was wrong.  Was it wrong when we submitted the application?  No.

What appears to have happened is that on arrival of the application at the court office, somebody noticed that they had put the wrong date on the judgment a year ago.  So they amended that and then decided to send our application back to us because the date that we had cited was now incorrect.

Let’s not think to make a neat manuscript amendment and apply the court seal, eh?  Let’s not bother asking solicitors to send an amended page by email.  No – slap it back in the post and waste another week or so.

Just for good measure of course there’s a second reason for rejection.  This was that the amount of the judgment debt didn’t match the figure in the charging order application.

Perhaps there’s a clue in the standard wording that appears within the practice form after the monetary amount – “which includes further interest payable on the judgment debt”.

So we waste a week and some more costs but after making our displeasure known, we get an interim charging order against the first defendant.  Since he’s the sole owner, we didn’t bother with the second defendant, his estranged wife.

Before serving copies of our order we head for the Land Registry to get it protected by an entry on the registered title.  It’s all standard procedure and our forms automatically draw in the name of the client as the applicant for the benefit of an entry on the title. It’s carefully checked, nevertheless.

It’s all done in the usual quick time and official copies are made available to us through the electronic portal. The only snag is that the ex-wife, second defendant, is recorded as having the benefit of our charging order!

That’s also fixed now and we are moving on but it seems to be more often the case that you can’t stop off at the office of any government service now without serious risk of a screw-up with consequent delay and added (irrecoverable) expense.

My patriotic view on this (see attached image) is that we’ve starved our infrastructure and run it down more than enough. Another five years of this approach and we’ll be back to the ducking stool and the toss of a coin as the only available means of dispute resolution.

It’s time for some resuscitation.

Not all the patients are in a coma, I’m pleased to report.  The spirit of competence and enthusiasm seems not (yet) to have died out in Weymouth.

Years ago when forum-shopping was allowed, I took to issuing every claim I could – large numbers – out of Weymouth County Court because they were so efficient, so friendly and so helpful.

I remember going to see the chief clerk (as they then were called) to warn him that we were going to triple the volume of business we put through his office.  I wanted to be sure that this wouldn’t cause a problem.

Characteristically he shrugged, smiled and said “if we need to, we’ll bring in more staff”.  And they did. And it worked.

Sentimentally, I felt glad to see an email from Weymouth at the beginning of the week raising a query on another charging order application.  They said that they didn’t have our fee account number.  They did, as it happens, but the email enabled us to make that clear within the space of 10 minutes and the interim charging order was made later that day.

There is hope yet – provided that it’s all change at the Ministry of Injustice in three months time…

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[1] What matters.., Grim fairytales etc etc

Ministry of Injustice

As January draws to a close, it’s looking like the start of another annus horribilis for the Injustice Secretary aka The Lord Chancellor – although with any luck the curtain will come down at the latest by May.

The legal world eagerly awaits the decision of the Administrative Court in yet another judicial review of this hapless creature.  The Law Society has led a challenge to the government’s legal aid crime duty contract tender process claiming that it “creates a serious risk of market failure” that would cause major damage to the professions involved “leaving huge swathes of the country with no legal representation”.

In other news this week, we hear and read how Grayling’s incompetent ministry has managed to lose discs containing information from highly sensitive police enquiries, including those concerning the deaths of Mark Duggan and Azelle Rodney. Shadow Justice Secretary, Sadiq Khan, has branded the episode “an appalling lapse in security”.

There was something of a surprise where the politician who became branded as an “attack dog” replaced that other popular figure, his predecessor, Kenneth Clarke in 2012 having regard to his record and (lack of) credentials.

He had reportedly claimed expenses for a flat in Pimlico for eight years during the last decade, despite the fact that his constituency home was only 17 miles out of Town and he owned two other properties in Wimbledon.  The man who had previously accused labour ministers of “sleaze” had his pied-a-terre tarted up in 2005 at a cost to the public purse of more than £5,000.

In February 2010 he was responsible, as Shadow Home Secretary for claims that crime had risen sharply in the UK but the then chairman of the UK statistics authority disagreed.  He said that Grayling’s figures were “likely to mislead the public and likely to damage public trust in official statistics” as the way in which figures were calculated had been changed some years before.

Home Secretary Alan Johnson said that his counterpart’s use of the statistics was “dodgy” and insisted that crime had actually reduced significantly during the period.

It was in April the same year that Grayling had to apologise for his clumsy remarks about gay couples in B&Bs.  Little wonder that when Cameron arrived in Downing Street he appointed somebody – anybody (Theresa May) – else to the position of acting Home Secretary.

With all this background of buffoonery, you’d have thought that our hero needed to tick all the usual boxes on the CV to make the appointment to the venerable office of Lord Chancellor. 

Despite the fact that he has no legal knowledge or experience – as he amply demonstrates week in, week out – Grayling became the first non-lawyer to serve as the Lord High Chancellor of Great Britain for approximately 440 years.The last non-lawyer LC was the Earl of Shaftesbury in 1672-3.

If the Injustice Secretary loses the pending judicial review of his criminal legal aid reforms it will be nothing new. Challenged on the same subject last year by the London Criminal Courts Solicitors’ Association and the Criminal Law Solicitors’ Association he was told by the High Court that he had “acted unlawfully” by failing to disclose the existence of two key reports.

In October 2014 his decision to force successful mesothelioma sufferers to part with up to 25% of their compensation drew the conclusion that “no reasonable Lord Chancellor faced with the duty imposed on him by s48 of the Legal Aid Sentencing and Punishment of Offenders Act [the lamentable LASPO] would have considered that the exercise in fact carried out fulfilled that duty.”

Ominously, the court added that it was “not a case in which the procedural failure was minor or technical in nature.”

Weeks later his prison book ban was ruled unlawful amid further controversy about his presentation of the arguments. Commenting on Grayling’s claims about the money prisoners would be allowed to spend on books, Mr Justice Collins said “this, I am bound to say, was somewhat misleading”.

Pesky judicial review. The honourable member’s response has been to try and remove this obstacle to his dishonest and undemocratic methods by reforming the system. But it was to be a thin Christmas for the LC as he had to admit to misleading the House of Commons.

Grayling was forced to confess that during the debate at the beginning of December he had “inadvertently” suggested that judges would have discretion in exceptional cases. In a letter to a fellow Conservative MP who voted against the government he wanted to “take this opportunity to clarify that that is not the case. No such exceptional circumstances provision exists in this clause”.

Lord Pannick, who inspired the revolt by the Lord Chancellor’s party colleagues, had last year also described the ridiculous Social Action Responsibility and Heroism Bill (SARAH) as “a statement of the legally obvious”. You’d be forgiven for thinking that parliamentary time and resource was plentiful.

This weekend saw the National Association of Probation Officers reacting to proposed reforms of the system as too hasty, complaining that there had been no pilot scheme and – gosh – no consultation. A NAPO representative branded it “a political stitch-up”.

We’ve seen plenty of that in the world of personal injury litigation and the cozy huddles with the insurance industry producing draconian changes to costs, fees and procedure all aimed at reducing costs to insurers. These are justified by the perennial claims by the industry that costs – to Joe Public – will come down as a result.

Well what do you know? Again this weekend, after many of the ‘reforms’ urged on government by the liability insurers and the ABI, the news that insurance premia are set to rise by up to 10% this year. Surprise!

Perhaps the latest wheeze from the Ministry of Injustice will provide further help to its insurer friends as civil court fees are to increase again but this time by a colossal proportion. Commentators point in one example to an increase from a figure of £1315 to £8185 – which represents an eye-watering 622% hike.

There’s little doubt that this will kill off business in the county courts in much the same way as the employment tribunals have seen a decrease of near 80% in claims over the last 18 months since the introduction of fees that were not just a novelty but vastly disproportionate to the value of the majority of claims.

Little wonder that a survey last month revealed that 82% of lawyers would be more likely to vote Conservative in May if Grayling were given the boot.

The overwhelming explanation for this is not self-interest but a deep sense of responsibility for our justice system, a kingpin of the democratic state and for centuries the envy of the civilized world. It’s in stark contrast to the outlook of the person who, bewilderingly, sits at the helm.

The stupefying hubris of the man is demonstrated by reaction to defeat. Change the rules – get rid of them even. If he remains in office, his next high-profile victim will be the Human Rights Act. Be afraid.

It’s reminiscent of the recent initiative from the English Spelling Society to dumb the language down to make it easier for people to get things right. If what I see regularly (often from court offices) is any clue, we’re wasting our time worrying about the odd silent aitch here and there.

Sure, often we could do with more lateral thinking in solving problems but where we’re talking about our rule of law, if not our language, standards need to be maintained.

Raise the game, don’t lower the bar. These are not transient values.

Money is not more important than the rule of law but this Justice Secretary doesn’t get that. MOJ private secretary Ursula Brennan confessed to the Public Accounts Committee in December that pressure from the government to cut costs made it “not possible to do research” – because “the government was explicit it needed to make these changes swiftly”.

It’s only access to justice after all and we needed to save £300 million. Remind me – how much is the national deficit?

Perhaps the crowning glory (so far) for the Ministry of Injustice came this weekend (yes, yet another) with the revelation that it is publishing ‘guidance’ to defendants to criminal prosecutions who have learning difficulties in ‘easy read’ terms that “if you say you did not do the crime you may have to go back to court on a different day to show the court you did not do the crime.”

So, now he’s actually reversed the burden of proof. Guilty until and unless you prove yourself innocent. Good luck with that, on your own, without legal representation. If you need an interpreter, you’re really sunk.

Solicitor Hilary Meredith was quoted last month as describing Grayling as “the most inept justice secretary in living memory”. Far beyond, I’d say.

Grayling’s answer to his critics? Well, he claims it’s an advantage not to have any legal background. He says it means he isn’t “cup-tied” in any way, whatever that is supposed to mean. He thinks that knowing nothing about the law somehow helps him to be a better Lord Chancellor.

Of course it does..

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?

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.