Prime time !

Reading earlier the reported prediction from LV= that car insurance premia will soon rise, even after Grayling has kicked the stuffing out of the personal injury claims industry and slashed costs for his insurer chums, reminded me of another display of efficiency and integrity I enjoyed last month.

It’s home insurance renewal time and I noticed that my current provider is now inviting a premium that adds nearly 50% to the figure at which I signed up with them three years ago, despite having had no claims and no significant change in circumstances. Odd, huh?

So, I head for the comparison websites and labour through the task of completing all the detail required by three of the top names. Amidst the results I am looking for a competitive price from a provider I am reasonably sure will not go bust. There are plenty of them offering the same cover for far less than I am invited to pay by my current insurer - and quite a few quoting less than I paid three years ago.

All good so far and one of the offers I think I will check out is from Admiral in Cardiff. I’m inclined to forgive them the ridiculous adverts on Dave that so annoy me. At least they are in a position to advertise hour upon hour, night after night.

Apparently I have to telephone them. That’s disappointing when I appear to have in front of me a “Quote” – “Platinum quote”, in fact - based on the detailed information that I have entered. Nevertheless...

My first telephone conversation is with a helpful young chap called Lee. I didn’t think it too surprising that he would want to check a few further details.

After no less than 40 minutes on the telephone, going through exactly the same stuff that I had entered on the website, I asked him how much longer it’s going to take. He thought about 10 minutes. I explained that I had never expected to have to spend so long on the telephone after all the time I had spent on the internet the day before and I had an appointment to go to.

No problem. Lee would ring me back the following day. We agreed a time. In my rush, I didn’t get a surname to accompany my "quote" reference.

When, towards the end of the following day, I hadn’t heard from Lee I telephoned Admiral again. Chloe, another chirpy young lady, couldn’t begin to tell me which “Lee” I might have spoken to yesterday because they have so many. Maybe she could help…

Sadly, she also couldn’t begin to tell me where we had got to within the proposal because there was apparently no record of anything I had talked to Lee about for nearly three quarters of an hour the previous day.

Understanding my reluctance to waste another 40 minutes of my life on the telephone, Chloe took me through all the detail again as quickly as she could and then told me that one area of cover required for portable items slightly exceeded normal criteria and she would need to refer to underwriters for approval. She would ring me back. Hmm – heard that one before somewhere..

I am guessing that after nearly a month, neither she nor Lee will be ringing back. I resolved in the meantime to have a look at some of the other prices obtained during my research the weekend before.

Following the link to the site of another reputable provider quoting slightly more, I was able to read and approve that company’s bespoke proposal form already populated with virtually all the information I had entered on the comparison website. One or two assumptions needed correcting but otherwise it was as I had already indicated – no more, no less. 

At the end of that process I had an emailed quotation (a real one) good for a month for me to accept at any time, simply by clicking and paying by my chosen method. No more telephone calls. The cover is as I requested, not limited or subject to any further enquiries.

During the long conversations with the people at Admiral I was asked which site I had used to generate my “quote” from them. In this particular case it was Compare the Market. 

I was told twice that the problem with that particular site is that they do not pass on as much information to insurers as the others and so they have to ask all these further questions. I was of course also warned that at the end of the process they might ‘quote’ me a higher price.

I never got to the end so can’t actually confirm what seems to me was inevitable.

What I did do was to look back and check the online proposal of which I saved my own static copy to satisfy myself that it had all the information that I was asked for on the telephone, including the detail within the category that reportedly exceeded criteria. All of this had been used to generate a “quote” which was of course the main reason why I then went on to contact that particular provider.

So, the bottom line appears to be that I am lured in by a price that they say that they are then going to vary for no obvious good reason and in the meantime the Meerkats get blamed – it seems unfairly. They can’t even be bothered to call me back and try to complete the dubious exercise.

I’m not sure about the adverts...... but the service is rubbish

They walk among us

Earlier today I became aware of an entertaining thread within the Law Society Gazette discussion group on LinkedIn under the title “Cuts in legal aid are in the best interest of the taxpayer: especially in criminal law”.

The author supports his proclamation with the complaint that “Criminal law Solicitors and Barristers have had it good for so long.” He implores his readers to “Stop the attack on Mr Grayling. He’s only acting in the best interest of the tax payer.”

Now, the purpose of this post is not to consider the merits of these opinions. As anyone who hasn’t yet seen it may imagine, plenty of debate followed. Broadly speaking, these opening shots generate a measure of antipathy with me but that’s of limited relevance. I’m in the Voltaire (or Evelyn Hall) school of thought.

But I am bothered about the truth behind the protagonist’s seemingly impressive credentials. Readers can see for themselves the full resume of Doctor Mustapha Tahir, “GP academic”, former lecturer, research panel member etc.

In a CV as long as your arm claiming distinctions, prizes and royal approval he notes amongst his special interests “Medical Law and Ethics” and “Medical Malpractice”.

How ironic that, according to information posted by one contributor during the debate, the learned doctor was handed a jail term last summer and is suspended by the General Medical Council.

According to the report at KentOnline, Tahir was sentenced to 15 months imprisonment for forging prescriptions for drugs to sell them abroad. The judge told him:

“You put forward an utterly dishonest defence which suggested you had been framed by one or more of your partners. This was a persistent and dishonest course of conduct.”

The LinkedIn debate continued with no direct protest from the doctor about these revelations. Instead he concentrates on encouraging what he considers to be “cerebral” contributions to discussion of the idea that Mr Grayling’s attack on the criminal legal aid is long overdue and nothing short of deserved.

So, what does it matter?

In the narrow context of the press report one observer says:

“I think it is disgusting that a GP, a person of trust abused his position in such a way…prison is the best place for him…I hope he has been permanently struck off and will never practise again..”

I agree.

In a broader context, you have to reflect first on the fact that these credentials would not have come to light but for the time and initiative of one inquisitive reader of the LinkedIn discussion.

Why, again, should it matter that a “person of trust” disappoints us in this fashion, as long as he has done his time and paid the penalty?

Surely nobody would, for example, have any desire to instruct a dishonest person with an appearance of professional integrity and published expertise, with a belief that criminal legal aid rates are luxuriously high, prepared to make money by defrauding our embattled health service, to prepare a medico-legal report?

Who could possibly have an interest in commissioning false, self-serving ‘evidence’ at a rock-bottom price?

Ah….wait a minute.

What about the botox expert retained to examine my client with the rotator cuff tear to his shoulders? (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)

Or the mystery practitioner in Fun Boy Three ?

Hmmm.

I wonder who will (truly) be controlling the selection of “experts” appointed to the new whiplash panels the MOJ is now proposing…

Frankly, my dear...

Owen Paterson’s lame performance on BBC Breakfast this morning was another display of how little his government cares about the lives of the majority of people in this country.

The man who earlier this year wailed about how the badgers had ‘moved the goalposts’ to avoid being effectively culled protested to Susanna Reid that the energy companies had let everyone down by allowing too many of their staff go and remain on leave over the festive period whilst thousands of households spent days without heat and light.

Quizzed about Government’s role in this the Environment Secretary insisted that his department had told the power companies, insurers and others that the weather was going to be bad and…so there.

Miss Reid seemed to think – as I did – that it was pertinent to ask what government can do to ensure that these agencies don’t abrogate their responsibilities and make such crises worse. The answer? Tell them that the weather is going to be bad.

Er, but you did that, you say, and it didn’t work Owen. Another lousy shot – or did someone move the target?

He’s comforting those who are still lamenting a miserable Christmas whilst he plainly overdid it by telling them they can complain to the power companies and that they should get a rebate. Fantastic.

What they should have is compensation. It should be meaningful. It should be sufficient for those affected to take a break in the New Year (after cleaning up).

More important it should be significant enough to make the energy companies determined to ensure that they perform far better in future.

Of course, that won’t happen. The only people who care enough to try and make it happen are the latest victims but they’ll founder in the face of procrastination and lies that flourish largely because of toothless regulators.

And that’s pretty much all they’ve got where Government has made our litigation system an increasingly hostile and unnavigable route to redress.  As in all other areas, notably crime and personal injury, it’s David versus Goliath – with the equivalent of a UN observer if you’re lucky.

But “Badger” Paterson and his chums just don’t give a damn.

Fun boy three

Earlier this week I had the pleasure of meeting a charming, alert and physically able septuagenarian and her husband involved in a road traffic accident earlier this year.

Mercifully, they were not badly hurt even though the driver of the other vehicle travelling at an estimated speed of 80 mph on a country road was far less fortunate. He will never know that liability for his actions is not disputed.

Ahead of our meeting I had the advantage of reading the mountain of letters and accompanying documents that have so far been generated by this lady’s insurers and their panel solicitors since their appearance within days of the event.

The bewildering swathes of paperwork revealed settlement with third party insurers, actual or imminent, of the more serious yet still modest claim of the husband as passenger. His wife had come to me in a quandary about the advice given to her.

She’d been packed off to see a ‘doctor’, appointed by the panel lawyers or their masters whose credentials were not evident, at a relatively local general practice which has a seemingly fresh and current website – but no mention of the practitioner concerned.

His or her report was not with the letter I saw advising a settlement figure similar to that ‘agreed’ for spouse. I wondered if this apparently generous, by comparison, figure had regard to the injuries recorded in the record of telephone instructions clearly naming her and containing clear references to her husband as the other claimant.

Because the injuries listed were his not hers.

Her great worry seemed to be the indication throughout the reams of ‘advice’ that she might be held partly responsible and the effect that might have where the police have said typically that they still haven’t completed their investigations.

No advice or help on that point. Instead, she has telephone calls from her insurers – yes, the insurers, not the solicitors – urging her to give instructions to settle without further delay.

Perhaps the explanation for this modus operandi is that the solicitors cannot afford to spend further time on it, having explained that they will receive £200 only for the first stage of the claim and £300 for the second.

Within the same tranche of documents the lawyers explain that the partner with overall responsibility for the case is charged at £275 an hour.

A selection of “case supervisors” (they’ve changed a number of times) have in common names that suggest they are all located in an overseas office to which conduct of the claim may be transferred at any time, subject to the right to ask for it to be transferred back.

Charge rate for them - £275 an hour.

Of course, the nitty gritty is dealt with by a “case handler (non-solicitor)”. Well, I say “a” – there appears to have been a succession of them too.

And their hourly rate? Er, £275.

So, how do we run a case at a combined hourly rate of £825 where the recoverable costs may be only £200?

The lengthy and consumer unfriendly terms and conditions reassure the reader (if still awake) that he or she doesn’t have to pay because their insurer will under the terms of the policy. Nice insurer.

There is of course the warning buried in those terms that whilst the policy-holder has the right to instruct other lawyers of choice, the panel lawyers are entitled to retain all papers until their charges have been paid. One infers that will be at the full indemnity rates that insurers are ‘liable’ to pay.

Funny – that figure of £825 rings a bell…oh, yes – that was the amount of the referral fee paid by the muppets who almost undersettled by 8 times the case I wrote about in Cleaning bills and Crash and capture.

There’s a clue, perhaps, for the supine and toothless regulators who appear to have neither appetite nor ability to detect and combat problems with the ‘spirit’ of circumvention of referral fee prohibitions.

None of this is enough, of course, for the interest-starved insurers. It’s made abundantly clear that the rehabilitation providers, whose input is undetectable, will be entitled whatever the ‘global’ settlement to their fees of nearly £500.

No need for an embarrassingly visible (if someone breaks ranks) rebate - see How it works – car insurance - now that we have the wonders of alternative business structures.

All this is paid for by Joe Public who is repeatedly conned – sorry, reassured – into believing that it’s a better service at lower cost.

My lady just wishes it was all over. The horrific crash that occurred a few months ago is nothing compared with the nightmare she’s found herself in at the hands of this trio – insurers, panel lawyers and ‘rehab providers’. Fun boy three.

The lunatics have taken over the asylum.

Fit for purpose

A recent report from the National Audit Office kicks off the perennial debate about how much of the NHS budget has to be allocated to payment of compensation and costs arising from clinical negligence claims.

We've looked at this in past years when Kenneth Clarke was in charge of the anti-lawyer rhetoric – boosting it with some, at best clumsy, distortion of the actual figures.  See Repeat prescription and Legal highs.

The explanation and the very important message doesn’t change.  It’s perfectly simple.  Stop making mistakes and we’ll save money as well as a great deal of heartache.

Within any litigation portfolio will be an element of costs generated by failed claims, but it is the thin end of the wedge.  In the main we are talking about the cost of successful claims – proceedings that our courts, applying the law of this country, consider justified and worthy of compensation awards.

The people applying the law are ultimately the judges we appoint to decide cases on the principles that our society has adopted and the lawyers within the industry who in many situations settle cases with the benefit of understanding what the court will probably decide if they don’t.

There are two ways to save money. One is not to foul up in the first place.  The other is not to play brinkmanship after you do.

Plenty will say it shouldn’t be like this.  What do they think has to change?  As ever the same ‘culprits’ will be brought under the spotlight and given a kicking.

It isn’t the rapacious ‘fat cat’ lawyers on conditional fee agreements who make the rules for their own benefit and exploit them to milk the service – as politicians and insurers would have everybody believe.

Awards are made and deals done according to the law of the country.

If we can’t or won’t improve the standards of performance within our health service, then another way of reducing claims and cost is to drop the bar - lower standards.

Instead of an objective evaluation of what could and should be achieved or avoided, we replace that with some sort of quota system.  The population of this country agree, for example, that one in five, ten or however many serious birth defects, is an acceptable fail rate.

Then when somebody makes a claim, all the health service has to do is to point to the statistics, say ‘we’re within quota’ and that’s it!

'Awfully sorry it happened to your child but, you know, we can’t get it right all the time.  It’s just tough. It’s better here than in some other places in the world.'

Is that where we’re going?  Is that what this country wants?

If so, we should get on and implement something along these lines so that all those who think it is a better state of affairs than compensating innocent victims can have their way and stop whining about the costs.  Those of us who think it isn't good enough can see exactly how the land lies and make some life decisions (like move to another country with higher standards and aspirations).

If our government is going to do something to this effect, then it needs to do it by democratic process and parliamentary debate.

It shouldn’t be done by emasculating the lawyers, whether though another assault on evil no win, no fee “ambulance-chasers”, or draconian rules drawn up by committees steered by liability insurers and their legal champions to block access to justice - to seemingly preserve standards but put them beyond reach.

Perhaps there is hope yet that we can retain some dignity and continue to lead the way here as elsewhere.  Amongst the comments on the latest statistics, the words of the Public Committee Chair, Margaret Hodge, give us some cause for optimism:-

‘The department needs to buck up and take responsibility for this.  It needs to review its monitoring and reporting process to ensure that all relevant bodies can work effectively together to deliver maternity services that are value for money and fit for purpose’.

That ‘value for money’ bothers me slightly, not that I think we should be oblivious to the cost.   But if we spent as much as we do cleaning up on making sure that we are properly managing competent people who have an understanding of the true value of human life, that would be money well spent.

Then we’d have something fit for purpose.

Cracking the whip

We are all, or should be, fascinated by the resurgence of interest and activity in the now infamous Plebgate saga.

For anyone who doesn’t recall, former government chief whip Andrew Mitchell MP was reported by The Sun newspaper to have been extremely rude to officers of the law who required that he dismount from his bicycle on leaving Downing Street one day last September.  Mr Mitchell has always denied the allegation that he called the police “plebs” and accordingly began a libel action against News Group Newspapers Limited publisher of The Sun. 

The proceedings have taken on a significance of their own because of actions, not by the police, but by judges. 

One of the new rules introduced in the course of the Jackson reforms, most of which were implemented on April 1 (yes, if only) was the requirement for parties to higher-value multitrack litigation to file and exchange costs budgets at an early stage of the proceedings. 

The process is one of the most important ‘reforms’ aimed at controlling the amount of costs that litigants are able to recover from an opponent, irrespective of how much they might independently be liable to and entirely willing to pay their own lawyers.

To give the provision real teeth, somebody came up with the idea of a swingeing sanction that if you don’t file your budget on time then even if you win the litigation, you are not allowed to recover from the losing party anything but fees paid to the court at various stages of the litigation. 

In other words, the winner can’t pursue a claim at the end for the costs of his solicitors, barrister(s), expert witness(es) or other expenses of litigating the case.

The lawyers amongst us don’t need any explanation beyond that to start shuddering but for others let’s put it in context.  One estimate I have heard, gauged by reference to the interim costs order made in favour of Peter Cruddas after winning his libel action against The Sunday Times earlier this year, is of a minimum of £500,000. 

So, Andrew Mitchell’s solicitors failed to file the cost budget in time and Master Victoria McCloud refused their application for relief from sanctions.  An initial appeal was dismissed, the High Court Judge having no difficulty in upholding Master McCloud’s decision.

Little wonder when you read one or two extracts from her judgment, notably:-

          ‘It is a helpful illustration in this case to consider that, in order to find time in my diary to list this application for relief within any reasonable time, there being objections from Mr Mitchell’s side to a long wait, I needed to vacate a half day in my list which had been pre-allocated to deal with claims of persons affected by asbestos-related diseases.  There is an expedited list for such claims for because life expectancies are often very short.  The impact, therefore, of the admitted breaches in this case was that the claims of those litigants which could have been listed in my diary were not listed, and in their place we have an argument about non-compliance with rules in this defamation claim.’

She went on to explain that it is quite simply ‘the right of other litigants  to have a fair crack of the whip where judicial and court resources are very limited, and the right not to be delayed while the courts dispose of matters which ought not to arise in the first place if rules are compiled with’.

Master McCloud made it clear that she wasn’t saying that prejudice of this nature was a pre-requisite to enforcement of the rules but it is a compelling illustration of the practical need for litigants not to waste valuable time and resources by failing to comply with the rules.

All that said, this irresistibly noble approach doesn’t address the fact that this is an incredibly harsh sanction, irrespective of where the pain is felt.

Because, whilst Mr Mitchell may win his case and otherwise have the prospect of recovering from a company well able to pay costs in excess of half a million pounds, the current effect of this decision is that he will in no circumstances get no more than about £2,000 towards his costs.

Little wonder that there is a second appeal pending and booked in to the Court of Appeal for next month before a bench that will be presided over by  Master of the Rolls, Lord Dyson, himself.

On the one hand you have a man who has been vilified – he is entitled to say quite incorrectly – running an appeal because he says he has again been harshly treated notwithstanding an undeniable breach of the rules.

From another perspective you have the first hearing of an appeal against one of the most draconian sanctions that has ever appeared within the rules governing civil procedure in English law.  

Some may say that Mr Mitchell is appealing, but then again that he is anything but. Seriously, there is a risk that (quite possibly very unjustly) this man enjoys no sympathy inside or outside the court.  That is a worry, in case it in any way influences the decision on the appeal.

It is a concern because this sanction is utterly disproportionate.  I don’t say that as a lawyer who is fearful of being in the same position – though naturally I am.  I say it as an ordinary citizen who sees this penalty as a sledgehammer to crack a nut.

The application of the sanction is surely correct but the sanction itself is wrong.  I don’t immediately understand how anybody but the Rules Committee can deal with that fundamental problem.

It may save some people embarrassment if meanwhile Mr Mitchell is no longer seen as an out-and-out bad guy, or even if The Sun should happen to settle his claim in the face of a mounting impression that the police have misbehaved themselves - although that would do nothing to fix the mess that Grayling and other zealots have created.

Watch this space.

De minimis

Most lawyers are familiar with the maxim de minimis non curat lex and the principle that courts should not focus on trivia when applying the law.

Our present government, with its many-pronged attack on accessibility to the law, mainly by removing means of funding, has brought a new and sinister significance to the Latin phrase that translates literally as the law does not care about little things.

As law centres close, barristers chambers and solicitors firms go bust, we wait for the next civil litigation costs announcement from the Ministry of Justice following the Prime Minister’s shuffle earlier this week.

Helen Grant has left after thirteen months as Djanogly’s successor, headed for the Department of Culture, Media and Sport  (work that one out) and is replaced by Shailesh Vara who, unlike our esteemed Lord Chancellor, is a lawyer.  Formerly a solicitor with CMS Cameron McKenna, Mr Vara practised in London and Hong Kong.

Is he to face the challenge of presenting the government’s response to what is no doubt perceived as the extremely unhelpful report from the House of Commons Transport Select Committee as part of Grayling’s attack on - sorry enquiry into - the “compensation culture” which as one of its products has us branded “the whiplash capital of Europe”?

Regular readers and avid followers of the debate will recall that the committee chaired by Louise Ellman MP made some thoroughly uppity findings about the unreliability of information promulgated by insurers and the government as well as their unhealthy collusion to the exclusion of claimant representatives.

For a reminder of the select committee’s key findings, and extracts from an revealing roasting of the top boys fielded by the insurance industry, see Hey diddle diddle.

The so called “whiplash epidemic” was confidently regarded by liability insurers and their chums in Whitehall as the cast-iron excuse to crank up the financial limit of the small claims track to at least £5,000.  This is a level at which, everybody within the industry knows, a very substantial number of personal injury claims – the vast majority of them genuine – would become litigation within which recovery of legal representatives’ costs is virtually impossible.

Naturally, this suits liability insurers because they save not only on costs but also on damages where they are dealing with unrepresented, uninformed people.  I considered that landscape in some detail in an article last month – Crash and Capture - reproduced at the link with the kind permission of Solicitors Journal. 

The transport committee report was not well received in the summer.  It’s been left to gather some dust, probably in the hope that people will forget key findings that there isn’t a whiplash crisis and that in fact an increase in the small claims track limit for personal injury cases would probably lead to more fraudulent claims and a resurgence of the claims management companies that the government has been working so hard to stamp out in recent years.

The latest signs are worrying for the claimant lobby. Yesterday we were hearing and reading a lot of publicity about raising the age for learner drivers, all ‘in the interests of saving many lives’.  There is also a mention about savings in insurance premia for society generally.

Undoubtedly what the government is primarily concerned with here is a saving for insurers in operating costs.  Whether or not that leads to any saving in premia is a moot question – the Transport Committee did not seem convinced and we have yet to see any explanation from government of how it will monitor cost reduction.

The truth is the government is not interested as long as the insurance industry can maintain a swell of popular support from those who want the cheapest now, don’t notice the plight of innocent victims and above all fail to recognize that they could be next.

As long as a portion of our largely shamed financial industry continues to generate revenue for the Treasury, and there is no silly talk about ending agreements to fund claims against uninsured drivers or to continue cover to householders in flood risk areas, then this administration seems likely to stand by.

Can we guess what view a former City and Hong Kong lawyer, acknowledged rising star of his party – a former assistant whip indeed - will take of Five grand in the overall scheme of things?

Is he about to show us that the law does still care about little things – and people?