Will Aid

It was surprising and disappointing to read yesterday the report in the Law Society Gazette under the headline “Will Aid apologises to solicitors for Co-op offer”.

The apology follows a mass mailing campaign to thousands of members of the public promoting the provision of wills in collaboration with Co-operative Legal Services, amongst others, and containing the phrase “you don’t have to see a solicitor”.

Many solicitors are reported to be up in arms as a result.  Ben Pepperell of Pepperell Solicitors in Hull accused Will Aid of a “blatant disregard for everything we’ve done”. 

So what’s the problem?  Why shouldn’t anybody promote their – or others’ – services on the basis that they can do it at lower cost than competitors who, they suggest, are over-qualified?

That perennial challenge to balance quality and price to produce something that is perceived by a chosen market to be value for money is central to everybody’s business.  Ultimately, wherever you are in the picture, it’s a largely personal view.  

But what has prompted me and others to say that this recent move by Will Aid constitutes a slap in the face is that for years they’ve marketed their very successful campaign in collaboration with solicitors firms up and down the country.  A key if not unique selling point for the Will Aid scheme has been that the participants have their wills prepared by solicitors.

For those who aren’t familiar with the scheme it has been running since 1988 engaging a growing (presumably) number of law firms up and down the country.  The central feature is that solicitors offer to draw up a will for their client who, instead of paying money to the solicitor, then makes a donation to Will Aid.

Whilst there’s no compulsion on the client to donate a certain or even a minimum amount – anything at all – the suggested levels are £95 for a single will and £150 for a couple making mirror wills.   We’ve found that most clients are willing to donate that much and so each transaction means they make a significant payment to the charity.

It’s true that solicitors perceive a potential benefit in the exercise, even though they’re not charging for the work on that particular occasion.  It’s an opportunity to promote the business, to meet new clients who may have other work to bring to the firm and in some cases leads directly to more complex work beyond the basic scope of the scheme.

Even so, it’s an investment.  During last year’s campaign we raised over £1,500 in donations.  Broad brush, the income from those jobs if they had not been within the scheme would probably have been about double that figure.

Of course, it’s right to say that we probably wouldn’t have had at least some of those jobs but for the campaign and the terms of the scheme.  It also follows from that there is a high risk of people only wanting the service because it’s available at a discount and they are not necessarily looking for any continuing relationship or further content. 

To that extent it’s a speculative investment but it’s something that we and many other firms have done because by and large it is promoting our professional services and the wisdom of using a solicitor.

Now, with an email to, reportedly, at least 10,000 members of the public saying that “you don’t need a solicitor”, Will Aid appears to have performed a volte face.   Why?

The explanation offered by Will Aid Chair, Chris Millward, is that when the last campaign ended in November 2014 they received many further enquiries from people wanting to make a will who said that the promotion offered by their local solicitors had ended.  Step forward at that point the Co-op and others prepared to provide the service in return for a donation as well as a discounted fee.

I don’t know if there was anybody in this neck of the woods who has made enquiries of Will Aid since the end of November 2014.  We certainly haven’t been asked by the charity to consider any further work since the end of the promotion. 

Depending on volumes, we would have considered it.   We started our campaign early, during October, simply because the enquiries were around and we were happy to start fielding them.  Within reason, subject to availability and resources, I don’t have a straitjacketed view of these matters.

It’s all change now, I think.  We haven’t made a final decision, but many others have.  They have said they’re unlikely to deal with Will Aid again and that’s perfectly understandable.  The charity recognizes that, another spokesman having said yesterday:

‘We should have been more sensitive to any potential upset this would cause and the impact of this on our relationship with some of the firms that have supported us in the past.

‘We would like to apologise for this, it is a lesson learned and will form a significant part of how we evaluate future activity outside of our November campaign. We also remain absolutely committed to promoting the value of solicitors in the production of legally valid wills.’

Sadly, there is no indication that the collaboration with CRS and others will end as a result – instead a confirmation that the ‘test-marketing’ project will continue until mid-August.

We’re into the realms here of primarily price-driven services, where the quality may not matter so much as the question of how much it costs.  When it comes to wills, that’s a particularly dangerous approach.

You don't have to search long and hard to find a very recent headline about the distress and expense of litigation generated by cheap wills:

           

'How a £90 will by Barclays lost half my house'

It’s nothing new.  Solicitors have, quite reasonably, been banging that drum for many years. Law firms will tell you that the key to provision of legal services at a much lower cost is the reduction in overhead of a key component of any professional service industry – its people.

It’s a fact of life that people who have spent their time and money acquiring knowledge and gaining experience in earlier years expect higher rewards when they’re able to apply the resultant product of their investment that we call expertise.

Those who haven’t made the investment, for whatever reason, neither expect nor command as much.   You can pay them far less. If you push it down the scale you can pay them almost nothing.  See Peanuts , Cleaning bills and other pages on this blog. 

You can’t escape the fact that if you choose the cheap service there is a high risk that ultimately it won’t be very cheerful.  Whether it’s under-settlement of a personal injury claim, defective title to your home or a botched will and a dispute that eats all of the funds in the estate you get what you (don’t) pay for. 

There aren’t many clear lines to be drawn.  It’s what the customer feels comfortable with.   Do they trust the service provider?  Do they think they’re getting what they pay for?  Is it value for money in their eyes?

Many, probably most, consumers and a lot of corporate buyers will say they just don’t know.  They’ll point to conflicting information and lack of benchmarks – not on price, but on quality. 

There is one particular benchmark that stands out in this analysis.  Bear in mind that you’re dealing with the law.  Which body of people is best trained in the law?  Which occupation is most likely to spring to somebody’s mind when you talk about a legal problem?  Who are the people who by and large sell their business primarily on the basis that they know about the law and consequently are regulated and insured in the provision of legal services? 

That’s a strong message and one that Will Aid has used to promote its campaigns for about twenty seven years.  No wonder there are some red faces now. 

The bottom line

Today I’m inspired by a sunny bank holiday morning in Somerset and a typically heart-warming post by my friend Steve Cornforth, senior partner of EAD Solicitors in Liverpool, at the end of last week. A Win for Justice reports the settlement of a claim at a value which was twenty times that of the defendants’ original offer.

I know that it’s by no means the first such scenario for Steve’s firm and I hope there will be many more happy endings. Injured folk need to be properly compensated. That’s not just my view, or the opinion of a small group of self-interested lawyers. In this country as in many others, it’s society’s view. It’s the law.

Whilst this case is exceptional it’s not rare for injury claims to conclude with settlements or awards that are many times higher in value than the sum insurers were prepared to pay. One of my more memorable cases (see Foxes and chickens) involved an offer-award ratio of similar proportions. There are many others where the gap is not so alarming, but still remarkable.

At this point you may be thinking “Big deal” and wondering ‘what’s the problem?’ Insurers have a position to protect and responsibilities to their shareholders. That’s their business. Claims handlers and their lawyers can’t be a soft touch.

So they try to minimise outlay, perhaps keeping in perspective the expense of that process (yes, I’m smiling too). If they’re wrong then the claimant will ultimately satisfy the court that he or she is entitled to more and the defendant will be ordered to pay the costs as well. Happy days.

Well, as many readers know, it doesn’t quite work like that. Even in the most successful cases there are costs reasonably incurred by the lawyer and chargeable to the client that are not recoverable from the losing party. There is the risk all along the way of something going wrong, regardless of the merits of the claim or the skills of the lawyers.

Irrecoverable costs and litigation risk are meat and drink to insurers. They go with the territory and are largely neutralized by economies of scale.

But the clue to the real issue here is in that reference to lawyers. At the end of the day it’s expert legal representation that makes the difference. Only trained professionals can tell or reassure a claimant that what they’re being offered isn’t enough – and then help them do something about it.

So, fair fight then? No, it isn’t – for these reasons.

Injured victims left without representation will be ‘mugged’, as the Law Society campaigned to warn them two years ago (Never walk alone). The insurance industry knows that is the key to reducing the expense of compensation. There are three main elements of the strategy.

First, get hold of the victim from the outset and try to deal direct. Tell them they don’t need a lawyer, tell them they’ll get no more money by using a lawyer, tell them it will only delay matters and cost them money in the long run. It’s called ‘claims capture’. See Livin’ Aviva loca for an example of it (almost) happening to one of my own personal injury lawyers!

Secondly, if they can’t get the innocent claimant on their own, then insurers will try to steer the victim to a firm of lawyers who, frankly, aren’t up to the job because their business model doesn’t enable them to deploy staff who know what they’re doing or to exercise proper supervision. (See Fun boy three and many others).

Thirdly, insurers run a wider campaign to destroy the independent firms trying to deliver best service to deserving claimants. From the relentless black propaganda about whiplash injuries (Hey diddle diddle) to the slashing of recoverable costs, the war is aimed at removing from the battlefield the champions of the innocent.

Many people I talk to about the mythical ‘compensation culture’ display some degree of reticence about pursuing a claim, whether it’s a current issue for them or a hypothetical situation. Insurers have succeeded (funded by the premia that potential claimants pay) in stigmatizing the concept of compensation for loss and injury caused by negligent third parties.

It’s like paying a club membership fee but being told constantly by the management of the club that it’s not the place to go. They still want you to pay the fee, of course, and they’ll keep promising to reduce it…

And for those mutinous, stubborn victims who want a lawyer with integrity and ability to help them on this perilous journey, the choice is narrowing – again because of insurers’ long-term campaign to eliminate their guides. Good claimant lawyers are leaving the market because it’s no longer financially viable. They won’t be replaced.

The insurance industry have made great strides, with enormous help from a supportive government over the last few years, in progressively reducing the amount of costs that successful claimants are entitled to recover from the insurers of the person responsible. Portals and fixed costs – with the rules ever changing – are all about putting up barriers to justice.

The outgoing Lord Chancellor gave them a considerable bonus just before he left office with an eye-watering rise in court fees of up to 660% at some levels. Mr Grayling and his colleagues said it would have no impact on access to justice – on the “optional activity” of litigation as Lord Faulks described it. Incredible.

Back here on this planet, I can immediately think of one case where my decision to help a potentially deserving claimant will be hugely influenced by the fact that the court issue fee is likely to be £10,000 rather than around £1500 as it would have been less than three months ago.

Insurers complain constantly of “disproportionate costs” with the happy result that a supine government removed recoverability of success fees (the lawyers’ reward for the risk of no payment at all) and continued through costs budgeting to limit the amounts that a winning party can recover from the wrongdoer.

The important thing to remember about costs budgeting, and generally costs-shifting between parties, is that it doesn’t limit the amount either side may spend on the litigation. It’s their choice, in theory, to throw as much as they like at any particular case regardless of where the bill lands at the end of the day.

Theory is one thing. The reality is that whilst injured victims and their lawyers depend case by case on success to fund access to justice, insurers always have a war chest to fight a claim regardless of whether it seems proportionate. If funds run low, they’ll increase the cost of insurance.

And then they’ll complain loudly that it’s the fault of ‘compensation culture’ and ‘fat cat lawyers’.

Here is the ugly disparity between the two camps. Deserving claimants, or more likely their lawyers, have to face a significant risk that any individual case may fail. The ‘easy’ ones no longer generate anything beyond the cost (if you’re lucky) of running them. That risk has been hugely augmented over the last two or three years.

Defendants, or rather their insurers, can always afford to fight and will justify what they do by reference to policy and points of principle. Together they maintain a campaign which is aimed not at the merits of an individual case but at the weakening and destruction of those with the capability to run them. They do not care in the slightest that an innocent victim may not receive the support they need and to which the law says they are entitled.

Cases like the one just reported demonstrate over and again that whilst the law of this country says you may and should have a remedy, the barriers rise and multiply. Innocent victims need brave and talented lawyers but the numbers are in decline. So is the law. (Road to ruin)

A client who has recently signed a CFA with us came from the ABS to which he had been steered by his own insurers having formed a view about their ability and, more important, their true loyalties. He wrote of “a system obsessed with bottom-line profit at the expense of absolutely everybody”.

Couldn’t put it better myself.

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..