Tuesday, 26 March 2013

The Endless Winter

When, oh when, is this winter going to end? Spring is supposed to be here but if there are any green shoots to be seen they're obscured by snow in many parts of Britain. The bad weather is quite extraordinary, and scuppered something that two of my colleagues had been looking forward to on the weekend - their taking to the pitch at Chesterfield football club.

As I've previously written, Spencers is delighted to have agreed a sponsorship deal for Chesterfield FC. Last Saturday, my colleagues Rob Landman and Lee Foster were due to meet the club's chief executive, Chris Turner, on the pitch at the Proact Stadium. Rob and Lee are football fans, and walking on to the pitch at half time during Chesterfield's game against Plymouth Argyle, where they would then confirm Spencers as sponsors of the community stand in an announcement to the club's supporters, was something they were both excited about.

It wasn't to be. As Rob tells me: "The game was a victim of the weather. Heavy snow meant that it was cancelled on Saturday morning, a few hours before kick off. We felt really sorry for everyone, but especially Plymouth's players and fans. They'd come an awfully long way, and probably had no way of getting home, so bad was the weather."

Rob and Lee are now looking forward to Chesterfield's derby game against Bradford City on 13 April as their next date to take to the pitch. Here's hoping that winter has, by then, at last given way to spring.

Monday, 25 March 2013

Asbestos in Schools: the evidence

Last week I wrote about a House of Commons Education Select Committee and its consideration of evidence, on March 13, from a number of parties on the issue of asbestos in schools. I've since been able to find out more about what transpired over two sessions of evidence.

The focus of the committee's questioning centred on the extent to which parents should be concerned for the safety of their children, given the presence of asbestos in schools. The committee looked at how much more people in schools are at risk compared to personnel in other buildings, and how should asbestos be managed.

The first evidence session
Key witnesses in the first session were Michael Lees, of the Asbestos in Schools Group; Julie Winn, Chair, Joint Union Asbestos Committee; Professor Julian Peto, London School of Hygiene and Tropical Medicine, and Roger Leighton, Headteacher, The Sydney Russell School, Dagenham.

There was general agreement to the effect that long-term sampling through widespread air tests (conducted in volume and over time) are necessary to understand the scale of the problem and those schools most at risk. A central source of information on this would provide cost-benefit analysis and mean that a greater understanding will be gained with the result of asbestos being removed over a phased time period.

The evidence from Professor Peto was alarming. He told the committee that 200-300 people are dying every year, because of asbestos in schools in the 60s and 70s, and that this will only slowly reduce with 40-60 deaths still happening in 50 years time. The net effect is that thousands will die over the next 50 years directly from exposure in schools.

There was agreement about one of the biggest areas of concern: how asbestos in schools is being managed. Management is regarded as inadequate, with training and surveys not currently mandatory. There is concern that governors have little awareness, understanding or training in managing asbestos. Local authorities are supposed to have individual plans per school and yet many have one for all schools. There is the question of who is responsible in schools outside local authority control, many of which are unaware of the liability they are taking on in regard to asbestos.

Transparency and availability of data was also identified as a problem. Although Roger Leighton expressed his concern that hysteria and panic could result if schools were identified as particularly at risk, Julie Winn felt that this information should be disseminated. Indeed, she suggested that we take a lesson from the USA, where such information is widely published and readily available. There, the response has been proactive engagement rather than hysterical reaction. While I respect Mr Leighton's concerns, overall I agree with Ms Winn's views.

The second evidence session
In the second evidence session, David Laws, the Minister of State for Schools, and David Ashton, Director of Field Operations Directorate, Health and Safety Executive (HSE), provided the government's response to the issues raised in the preceding session.

Mr Laws was asked whether asbestos should come under the Department for Education's (DfE) Property Data Survey Programme. He rejected this suggestion, on the grounds that it would be intrusive and because the HSE maintain that so long as existing asbestos is managed properly it is safe. He confirmed that although the survey was commissioned before his time, the decision to exclude asbestos from the survey was deliberate. For Mr Laws, including asbestos in the Property Data Survey could actually be dangerous: he said that it would both expensive and potentially destabilising to bring it within the survey's remit.

This last contention is flawed. At a meeting with Mr Laws in January, representatives of Asbestos in Schools explained that expensive and intrusive asbestos surveys are not necessary, not least because asbestos fibres are airborne and so do not necessitate the drilling of holes in walls and other such activity. All that is required is collation of the data that is already held by schools and local authorities. This data would become part of the audit on the DfE Asset Management Software system along with all the other data from school buildings. 

The European perspective
Interestingly, March 13 also saw a vote by the European Parliament. A large majority (558 votes in favour - 51 against) voted in favour of the resolution on 'Asbestos related occupational health risks and prospects for abolishing all asbestos'.

Key points are as follows:
  • The EU should devise models for monitoring asbestos fibres in the air in the workplace
  • The EU should develop models for monitoring existing asbestos in private and public buildings
  • The EU should conduct an impact assessment and cost benefit analysis of the possibility of establishing action plans for the safe removal of asbestos from public buildings and buildings providing services which require regular public access by 2028; competent government ministers should coordinate the action
  • Member States should develop public asbestos registers

These recommendations seem eminently sensible to me - not least if they could be implemented as soon as possible.

Meantime, the sterling work of all involved in highlighting the continuing dangers posed by asbestos in schools is to be applauded. It is to be hoped that the government takes due stock of it, to the extent that a full inquiry is initiated in the very near future.

Thursday, 14 March 2013

Will the government please listen about asbestos in schools?

Yesterday a House of Commons Education Select Committee heard evidence from a number of parties on the issue of asbestos in schools.

Asbestos in schools may not occupy the front pages, but it is a vexed and fraught issue which demands greater media scrutiny. Consider, for example, that 16 teachers died from mesothelioma in England in 2011 alone. Over the 10 years between 2002 and 2011, well over 100 former teachers have died from mesothelioma.

The statistics, which come from a letter from Glen Watson, Director General for Office for National Statistics, to Lord Wigley, dated February 2013 (following a House of Lords question), make for worrying reading. If a teacher was killed every month in the classroom from violence there would be public outrage, urgent calls for action and, no doubt, an inquiry, but asbestos is perennially ignored.

Sterling work by Michael Lees

Yesterday Michael Lees was among those who reminded MPs of the terrible dangers of asbestos. Mr Lees' wife Gina, who was a teacher, died 12 years ago from a lung disease which a coroner blamed on exposure to asbestos in classrooms. Since his wife's tragic death Mr Lees has campaigned tirelessly to highlight the widespread problem of asbestos in schools, undertaking detailed research, giving lectures and writing admirably on the subject in the national and local press and in professional publications.

Mr Lees, who is one of the founder members of the Asbestos in Schools Group (AiS), has also emphasised what should be obvious, but which sadly is often neglected: that asbestos in schools is by definition in a volatile environment, and as such cannot but pose a risk. The government's policy of 'managing' that risk by doing nothing, as, in effect, enshrined in the Control of Asbestos Regulations 2012, is seriously flawed.

I heartily commend Mr Lees' efforts, and join him in calling for the Department for Education (DfE) to stop delegating responsibility to individual local authorities and schools and for it to oversee the development of a nationwide programme to protect teachers and children from the dangers of asbestos.

Time to extend the Property Data survey

It is vital that the current nationwide survey into the state of England's schools (the DfE's Property Data Survey Programme) is extended to identify the scale of the problem of asbestos in our 23,000 educational premises and then to prioritise those schools that most need action. Indeed, it beggars belief that asbestos is not specifically included in the survey.

Parents and all those who are rightfully concerned about asbestos in schools are entitled to openness and transparency about the problem. In an ideal world, we would be able to eradicate asbestos from our schools once and for all, but in reality we must prioritise funding towards those schools where teachers and children are most at risk. We can only prioritise action and expenditure if the scale of the problem is fully understood.

I would also suggest that a single body be created to take responsibility for the issue of asbestos in schools. Currently, as so often when it comes to reform, there is a piecemeal rather than a holistic approach to the problem. Regular school inspections should be undertaken, with a comprehensive database of findings made publically available online, with a detailed, clearly articulated plan for the phased removal of asbestos. Future Schools Capital Allocations should also include provision for the removal of asbestos from the schools most at risk.

We can only hope that the Select Committee took careful note of the representations made by Michael Lees and others who took the trouble to give evidence yesterday. Asbestos in schools has for too long been ignored and deserves due recognition as the serious problem that it is. It cannot be right that teachers and our children are exposed to such unnecessary risks.

Wednesday, 13 March 2013

What price Chesterfield FC one day playing in the Premier League?

The odds are probably long. Chesterfield football club may have been in existence, in one form or another, since 1866, but in that time the Derbyshire team have not once played in the top flight. And yet, look at Swansea City. Under Michael Laudrup, Swansea play some of the best football in Britain, and are set for the Europa League next season after their League Cup success. Just ten years ago Swansea narrowly avoided relegation to the Football Conference. Who's to say that Chesterfield won't follow in Swansea's footsteps?

Giving something back

Time will tell, but in the short term I'm delighted to announce that Spencers Solicitors is now one of Chesterfield’s sponsors. Hats off to my colleagues, Rob Landman and Lee Foster, who have worked tirelessly to bring about what I think is a great step for the firm.

Chesterfield is the site of our principal office, and it's where we've been, in one guise or another, for the past 35 years. Getting involved with the town's football club gives us a chance to get to know the local people all the better, and to put something back, not least because of the sterling community work undertaken by the club. To that end, we've sponsored the Community Stand - the hub of Chesterfield's community work.

We've agreed sponsorship for a three year term. On 23 March, before Chesterfield's home game against Plymouth Argyle, Rob and Lee will take to the pitch at half time to meet the club's chief executive Chris Turner, who will announce the deal.

Hope springs eternal

As football fans, we're all very excited about linking up with a professional club. Regular readers of my blog will know that I'm a Chelsea fan, but as much as I looked out for The Blues' result against Manchester United last weekend I also kept an eye out for how The Spireites fared. They did well, with a solid 2-0 home win over Bristol Rovers. Currently occupying a mid-table position, with 50 points, a good run of form may yet see manager Paul Cook's team reach the play-offs. Indeed, as he put it: "It's mathematically possible to go up with nine games to go, why can't I believe? I believe every day."

Chesterfield's most notable recent successes came in the 1990s. Back then, they won the Division Three play-off final at Wembley in 1995; two years later, they reached the FA Cup semi-finals. In doing so they became the first club outside the top two divisions to reach this stage of the competition since Plymouth Argyle's famous 1984 cup run, beating Premier League Nottingham Forest along the way before eventually losing a semi-final replay to Middlesbrough.  This was a case so near, and yet so far: a thrilling first semi-final ended 3-3, before The Spireites lost the replay 3-0.

More recently, Chesterfield won the 2010-11 Football League Two title, to add to two previous triumphs in the old Fourth Division. The club was also the Johnstone's Paint Trophy winner in 2011-12.

In finalising the sponsorship deal I also visited the club. Its ground, the Proact Stadium, is impressive, as are the facilities overall. The Proact Stadium has a capacity of 10,400, and the club kindly offered Spencers the use of it for a game once the real business of the football season is over. I'm not sure who we'll play, but I'm sure we'll take up this excellent offer. Meantime, wouldn't it be wonderful to see the stadium full to the rafters, with fans enjoying promotion success?

This may not come this year, but hope springs eternal among football supporters and I will join all those who pray that Chesterfield win the majority of their nine remaining games and secure a play-off place. But if not, there is always next season - and the next, and the next, and the next again, until one day, who knows, top flight football becomes a reality. And if you don't believe me, just ask the fans of Swansea City. In football, dreams can still come true.

Tuesday, 5 March 2013

From DBAs to Turin

What do you think of DBAs?

If you're not a PI law practitioner, you might be forgiven for stumbling over the acronym. Is a DBA a new kind of Aston Martin, you might wonder, or perhaps the name of a new law firm?

It is neither. A DBA is a Damages-Based Agreement: a contract between the claimant and his or her solicitor, in which the solicitor agrees to be paid a percentage of the damages recovered in the case. DBAs are a constituent element of the welter of reform coming our way from 1 April this year, when the majority of Lord Justice Jackson's proposals become law.

No delay for DBAs

Some aspects of the Jackson reforms have been given a stay of execution. For example, last December the under Secretary of State for Justice, Mrs Helen Grant, issued a ministerial statement announcing that the provisions of the LASPO Act which would remove the recoverability of success fees and insurance premiums will not come into force for defamation and privacy claims until a "new regime of costs protection" has been introduced for these proceedings.

However, no such delay will apply to DBAs. The draft DBA Regulations have now been laid before both Houses of Parliament and their approval is a formality. It is important, therefore, that lawyers have a view on DBAs - not least so that they can explain them to clients.

DBAs are a variation of the 'no win, no fee' paradigm, in which lawyers have a financial stake in the outcome of claims and are therefore thought to be all the more motivated to secure the best result for the client. The key variation comes in the government's plan to introduce a 25% cap on the damages available for the lawyer (which, given the inclusion of VAT in the cap, amounts to a de facto cap of 20.8%). It is intended, too, that recovered costs will be included in the cap, meaning that in some cases the whole of the cap could be utilised for costs recovered from the other side. A number of other limitations apply to the cap. Counsel's fees, for example, are included, but the costs of experts' reports are not.

Problems with the cap

The purpose of the cap is to protect clients from overcharging and to provide sufficient flexibility for reasonable remuneration consistent with the commercial risk of conducting a claim. However, without going into the minutiae of DBAs and their expected operation, it is clear  they present a potential  problem. Their effect, in a great deal of litigation, will be to encourage solicitors to try to settle cases as early as possible, when to do so might not be in a client’s best interests. For example, a claim worth £10,000 will yield no more than £2,500 to a solicitor retained under a DBA; that which is worth £20,000 will net £5,000. This is one of the reasons perhaps why Lord Justice Jackson recommended that client's should be independently advised on whether to enter a DBA.

DBAs may need to be re-examined. The Civil Justice Council Working Party on DBAs, of which I was a member, were acutely aware of the limitation of the Ministry of Justice imposed timetable being too tight to allow us time to explore all issues in as much detail as we would have liked. I am therefore looking forward to attending a lunchtime seminar later today at Queen Mary University of London, in which DBAs will be debated. Professor Rachael Mulheron from Queen Mary’s kindly asked me to participate in the seminar, which is being hosted by the Practical Law Company.

To Turin for PEOPIL's RTA Conference

I will return to this topic in due course but meanwhile an overseas trip looms. Later this week I fly to Italy, where I will be speaking at the Pan-European Organisation of Personal Injury Lawyers (PEOPIL) RTA conference in Turin on 8 March. This takes place at the Golden Palace Hotel on the Via dell'Arcivescovado, in what I was interested to learn is Italy's fourth-largest city.

Although the main focus of the day is fatal accidents there will be time to deal with whiplash caused injury. As I have written on previous occasions, the backlash against whiplash in the UK is unjust and medically unsound. I have noted similar moves to curtail victims' rights to claim for whiplash in other jurisdictions. It will be fascinating to see how my European colleagues in PI law are dealing with what seems to be yet another attempt by at least some in the insurance industry to avoid  their obligation to pay all legitimate claims.