Friday, 26 April 2013

Fight like fighting hell itself for the living

International Workers' Memorial Day takes place this coming Sunday. I'd wager this isn't an event in many lawyers' diaries, but I'd also suggest that it should be. After all, this is an international day of remembrance and action for workers killed, disabled, injured or made unwell by their work. It makes for a focal point, an occasion to highlight the avoidable nature of so many workplace accidents. It also serves as a rallying call for campaigns to secure improvements in workplace safety. A number of satellite events occur before and after 28 April, the official date of Workers' Memorial Day (which was started by the Canadian Union of Public Employees in 1984). There is one of great public importance today, in London: the world's first-ever asbestos demonstration outside a Russian embassy.

Workers' Memorial Day poster
Workers' Memorial Day Poster
Mary Harris "Mother" Jones

Why is this taking place outside the Russian Embassy?

The reason is simple.

From Russia, With Poison

In terms of land mass, Russia is the largest country in the world. Sadly, statistical evidence also shows that it is the largest producer of asbestos on the planet. According to, "In 2000, asbestos productions reached approximately 700,000 tons, much more than Canada and China. By the year 2008, mining produced more than one million tons of asbestos." That is a terrifying figure, especially given what the Western world has known for a long time about asbestos: namely, that it is a killer. Apparently, Russia's high production numbers stem from the city Asbest, where there is a seven-mile long mine with a width of one-and-a-half miles and a depth of a 1,000 feet. The city, located about 900 miles northeast of Moscow, has earned a tragic alternative name. It is also known as "the dying city", precisely because of its high rates of mesothelioma and other asbestos-related diseases.

No wonder, when one learns that about 500,000 tons of asbestos is gathered from the mine each year.

A Dubious League Table

Russia lies in third place in the league table that no one should be in: that for asbestos consumption. China and India have the unenviable top spots.

As has it, "Russia has widely used asbestos in roofing materials, automobile brakes and insulation. About 3,000 asbestos-containing products have been labelled as safe by the Chief Sanitary Officer of Russia." Moreover: "Annual asbestos-related deaths were 10,400 in 2005. With little opposition towards the use of asbestos, Russia will likely continue to use and export this toxic substance."

A recent letter to the Russian Ambassador to the UK calling for an end to trade in asbestos met with no response. But thanks to this country's evolved democratic principles - which privilege freedom of expression and the right to peaceful protest - something is being done. Those who oppose the production and export of asbestos will gather outside the Russian Embassy at 11.30am today in a demonstration which is supported by the GMB trade union, the Forum of Asbestos Victims' Support Groups UK and IBAS, as well as several other UK groups.

Time for Action

Protestors will urge Russia to leave its toxic and deadly asbestos in the ground. This is a worthy cause and I would commend anyone to take part peacefully in this demonstration.

Meanwhile, I hope not only that we continue the battle to rid the world of asbestos use but that those who otherwise haven't been aware of International Workers' Memorial Day will now put it in their diaries. After all, as Mary Harris 'Mother' Jones - the legendary American schoolteacher who became a leading figure in workers’ rights at the turn of the 20th century - advised, we should: "Pray for the dead - and fight like hell for the living."

The demonstration is on Friday April 26, 2013 for International Workers' Memorial Day and it will take place outside the Russian Embassy, 6-8 Kensington Palace Gardens, London W8 4QP at 11.30am.

Monday, 22 April 2013

The ABS Regime: who watches the watchmen?

The Alternative Business Structure (ABS) regime has been with us for a while now. First proposed by Sir David Clementi in 2006, ABSs became possible at the beginning of January last year. It was then that the Solicitors Regulation Authority (SRA) began accepting applications for ABS status.

A year later, the SRA announced that 454 firms had applied for ABS status. In a press release dated 11 January, it stated that "some 117 firms have completed the submission of all necessary information and 74 licences have been granted ... a further 19 [are] close to completion."

ABSs on the rise

No doubt the numbers have increased over the past few months. No doubt, too, that this will please the government. It has long trumpeted ABSs as a force for good and a means of driving "greater efficiency", especially in criminal legal aid. Speaking about this sector, the Lord Chancellor, Chris Grayling, recently declared, as reported by Legal Futures, that "we are proposing a model of competitive tendering, where solicitors’ firms must compete to offer the best price they can for work in their local area. This will mean successful firms expanding or joining together, to achieve economies of scale which can be passed onto the taxpayer in savings to the public purse."

Consolidation is the name of the game

Consolidation, motivated by the desire to save £220m from the legal aid budget, is the name of the game, as heralded by Jack Straw in a speech in March 2009. Inevitably this will change the legal landscape as we know it - though I will add that the advent of so-called 'Tesco law' is far from universally applauded - I continue to have a major concern about ABSs and their impact on the personal injury arena. In a nutshell: they could serve as a way round the Ministry of Justice's ban on referral fees.

As I've said before, ABSs are Trojan horses in the battle against referral fees. They enable insurers and claims management companies to own and invest in law firms, thereby circumventing the laudable effort to rid us of referral fees and what the government condemns as 'compensation culture' (though this is, as none other than the Master of the Rolls, Lord Dyson, recently observed, a perceived compensation culture, not an actual one). When insurers and claims management companies can own and invest in law firms, they can handle PI claims from start to finish. They will therefore control the whole process. The raft of ancillary fees paid by those outside the legal profession, the likes of garages, reporting engineers, towing companies and trade unions, can just continue in another guise.

Moreover, I have recently encountered conduct that shows just how ethically suspect some insurers can be – and how their own behaviour is what fuels our 'compensation culture'.

Quis custodiet ipsos custodes?

Recently a colleague of mine was involved in a road traffic accident. The other driver opened their car door into the side of her as she drove past.  Doing so made quite a mess of the front wing of the car and my colleague was understandably shaken up.

The other driver's insurer made contact with my colleague within 24 hours. Remarkably, despite her not even mentioning any injury whatsoever, the insurer made her a pre-medical offer of £2,000. My colleague did not provide any response to the offer as she was more interested in ensuring that she had use of another vehicle.  The next day the insurer called to increase the offer to £2,400, and also make an offer for her son of £1,500.

My colleague was unlikely to have made a claim at all. And yet she finds herself offered nearly £4,000 in PI compensation.

Who, then, is really fuelling the so-called 'compensation culture'? Surely it couldn't be the insurance industry? Could it?

(For those who don't know their Latin, I'm no expert either. But 'Quis custodiet ipsos custodes?' means 'Who watches the watchmen?' It seems appropriate here.)

Friday, 12 April 2013

Post-LASPO, can there be justice for victims of exposure to asbestos?

The ever-diligent Michael Lees, who tragically lost his wife Gina when she was just 51 from mesothelioma (asbestos-caused cancer of the lung lining), has been in touch to tell me about a report he is preparing. Michael's report probes the development of asbestos legislation and guidance in schools and colleges, and will shortly be published. The report raises a number of serious issues about asbestos, all the more so now that we inhabit the post-LASPO world.

For anyone new to this blog, what I'm referring to is the Legal Aid, Sentencing and Punishment of Offenders Act. The majority of its provisions came into force on 1 April. Despite the Act's title - which might lead the unwary to conclude that its provisions are confined exclusively to the criminal law - it has a direct bearing on civil litigation and the personal injury sphere, not least in the prospects of success for claimants suffering asbestos-related problems.

Sterling work by scientists

Michael's report raises real disquiet about the impact of the Court of Appeal decision in the case of Williams v Birmingham University when set against the new LASPO regime. First, though, and thanks to Michael's excellent research, I should explain the importance of a 1965 paper by Dr Newhouse and Dr Thompson, which was first published in the British Journal of Industrial Medicine.

Newhouse and Thompson revealed that non-industrial, low level exposures to asbestos could cause mesothelioma. Their conclusions were brought to the public's attention when the Sunday Times published an article entitled 'Scientists track down killer dust disease' in October 1965. Thereafter, it was generally accepted by the courts that 1965 was a watershed moment: it marked the date from which a defendant should have reasonably foreseen that low levels of asbestos exposure could cause mesothelioma.

The Williams case

But in 2011, the Court of Appeal's judgment in Williams changed all this. The facts of this case are as follows. In 1974 Michael Williams was an undergraduate at Birmingham University. He was exposed to asbestos while carrying out experiments in a service tunnel beneath the university for between 52 and 78 hours in total. The tunnel contained asbestos-lagged pipes in poor condition and there was a lot of asbestos dust on the floor, which Mr Williams disturbed. The asbestos was identified as crocidolite, amosite and chrysotile.

Mr Williams died aged 54 of mesothelioma in 2006. His widow brought legal proceedings against the university, alleging that it had negligently exposed her husband to asbestos, which in turn caused mesothelioma. At the original trial, at Leeds County Court, it was found that the exposure to asbestos had materially increased the risk of Mr Williams contracting mesothelioma – and that Birmingham University knew, or ought to have known, that the pipe lagging in the tunnel contained asbestos and that low-level exposure could cause mesothelioma. In other words, the university was in breach of its duty of care. The report by Newhouse and Thompson was crucial in the court's decision.

The university appealed. The Court of Appeal ruled that the university was not in a breach of duty as they considered that an organisation such as theirs would not have reasonably foreseen that Mr Williams was being exposed to an unacceptable risk. Instead of using 1965 and the work by Newhouse and Thompson as determining the state of knowledge of the university in 1974, Lord Justice Aitken ruled that their state of knowledge would have been that an "acceptable" level of exposure was the workplace "hygiene" asbestos fibre level stated in Technical Data Note TDN 13 of 1970.

Lord Justice Aiken's judgment concluded: "In my view the best guide to what, in 1974, was an acceptable and what was an unacceptable level of exposure to asbestos generally is that given in the Factory Inspectorate's 'Technical Data Note 13' of March 1970, in particular the guidance given about crocidolite. The university was entitled to rely on recognised and established guidelines such as those in Note 13."

Flaws with the Court of Appeal's reasoning

Michael’s report rightly points out serious flaws with this conclusion. On the one hand, workplace asbestos hygiene and control levels are for people working on asbestos. As such, they were never a threshold for a 'safe' level of exposure. On the other, workplace control levels were never meant to be the threshold for an acceptable or unacceptable level of exposure for occupants of buildings. Beyond this, we have known for many years that a very small exposure to asbestos fibres could potentially cause mesothelioma, and that there is no known threshold exposure below which there is no risk - whether for workers or occupants (a distinction which, to me, seems wholly arbitrary).

How does all this apply to schools and colleges? Since the mid-1960s, they have acted on the basis that they could be in breach of their duty (to pupils and staff) if they failed to take measures to reduce the exposure of any pupil or member of staff to a minimum. But now, post-Williams, this position is in doubt. Defendants, confronted by claims for asbestos-related disease, are now able to contest whether they are in breach of a duty.

Access to justice?

This has huge ramifications. Whereas for many years defendants sought to contest liability on the grounds of a break of the chain of causation (a strategy which now appears to have little mileage thanks to the decision of the Supreme Court in 2011 in Sienkiewicz -v- Grief (UK) Ltd), Williams now enables them to dispute that they are in breach. The goalposts have shifted towards defendants, and post-LASPO, this is even more apparent. As Michael persuasively argues, there is a pressing need to challenge the Williams decision.  But to do so might be commercially unworkable given the punitive changes to claimant lawyers' ability to recover costs introduced by LASPO.

Sadly, LASPO once again comes up short when applied to real victims of injustice.

Look out for more information, and Michael's report, on the Asbestos in Schools website.

Friday, 5 April 2013

LASPO: an insurrectional crossing of a legal Rubicon

The Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) 2012 slunk into formal existence a few days ago. If only the date of its arrival - 1 April - was an April's Fool's joke (granted, of a rather convoluted and unpleasant kind). But LASPO is no joke. It may well be one of the most foolish pieces of legislation ever enacted, but regrettably it is all too serious.

A seismic shift

LASPO's advent as law which is alive and kicking amounts to a seismic shift in the UK litigation landscape. Often enough, legislation arrives, is found to be suspect in its operation, and is later repealed and/or replaced with something sensible. This time round, I am not convinced that we will one day see a reversal of the changes wrought by LASPO. They are simply too profound.

The Act's overarching aim is to save £350 million from the government's legal aid budget. To me, it is informed not just by the desire to save money but by the prejudice which would have us believe that the UK is rife with nothing but meritless personal injury claims. David Cameron himself is on record as castigating what he uncritically believes is a 'blame and claim' mentality, one that has created spiralling litigation borne of specious claims and unscrupulous claimants.

The media perpetuate what those who work at the coalface of personal injury litigation know to be a widespread but unfounded cliché: that ours is a 'compensation culture'. It is not. Ours is a society whose evolved ethical and legal principles make it possible for those who have been wronged to seek redress for the wrongs done to them. There is nothing suspect about this. It should instead be celebrated as a vital facet of what makes our democratic adherence to the rule of law so admirable.

But now, though, with LASPO, claiming redress will become more difficult. And yet more worryingly, its changes cannot but have a negative effect on that which clients should be able to take for granted - the honour and professionalism of their legal advisors.

Contingency fees by another name

A key change brought about by LASPO is in the introduction of Damages-Based Agreements (DBAs). Philosophically, DBAs becoming part of British litigation is the equivalent of crossing the Rubicon. It means that we have adopted the contingency fee model common to the United States. For the first time in contentious matters in the UK, solicitors will be entitled to enter into agreements with clients in which they have a vested interest in the outcome, for under DBAs solicitors can receive up to 25% of the damages obtained.

This is a departure from the previous the regime of Conditional Fee Arrangements (CFAs), introduced by Section 58 of the Courts and Legal Services Act 1990 and the Conditional Fee Agreements Order 1998. Here, solicitors can charge clients the usual charge out rate, plus an uplift (or 'success fee'), if the case is won. Confusingly, LASPO heralds a dual DBA/CFA system - but without recoverability of the success fee in CFAs. On top of this, recoverability of premiums of After the Event Insurance (ATE) is also no longer possible.

Confused? Practitioners are sure to be, as the complexities of DBAs v CFAs are worked out, against the background of their rushed introduction. Lawyers now have a clear personal interest in litigation. The words of Lord Denning, in Re Trepca Mines Ltd (No. 2) (1963) (CA), come to mind, but have arguably been ignored ever since the introduction of CFAs. His Lordship suggested that if legal advisors had a personal interest in the outcome of litigation they might be tempted to "influence the damages, to suppress evidence, or even to suborn witnesses".

Portal changes on the horizon

Worse is on the horizon. LASPO also seeks to reduce the monies recoverable in low value Road Traffic Accident (RTA) cases. Put simply, in RTA claims of up to £10,000 no more than £500 in legal fees will be recoverable. Other changes to the RTA Portal, which introduced fixed costs in the first place, are proposed. The government seeks to extend the Portal vertically, to handle claims up to £25,000. It intends to fix recoverable costs for such claims at £800 - which is a third less than the current recoverable costs on injuries between £1,000 and £10,000. That's not all. The horizontal extension of the Portal is also proposed, so that it will include employers' and public liability (EL/PL) claims up to £25,000. Here the costs recoverable will be £900.

These changes are all in LASPO, subject to a modest stay of execution: they come into being at the end of the month, on 30 April. A core lament is this: how can a solicitor be said to be acting in his or her client's best interests, when the maximum that he or she will recover in costs could be as little as £500? The changes are a charter for a lack of professionalism and an 'accept the first offer that comes along' attitude. It is hard to see how solicitors will be able to conduct cases commercially without such an approach.

I mentioned earlier that LASPO amounts to a crossing of the Rubicon. I've just looked up the term, which, of course, means to pass a point of no return. Its origin lies in Julius Caesar's army's crossing of the river Rubicon in north-eastern Italy in 49 BC. Caesar's crossing of the Rubicon was considered an act of insurrection.

It strikes me that LASPO might just be an act of insurrection against the solicitor's fundamental duty: to put duty before profit, and serve clients before commerce.