Thursday, 31 October 2013

Rob Landman steps up to CEO role at Spencers

Tomorrow sees a change at Spencers Solicitors. I'm delighted to announce that Rob Landman takes the helm as the firm's CEO. Rob's appointment means that I'm taking up a new role - that of Chairman.

Rob steps up from his previous role as Chief Financial Officer, a position he has held with great effectiveness since 2008. In that time I've seen Rob work with such consistent excellence that he has scotched a prejudice that I admit I once harboured: that CFOs do not make for CEOs.

Rob has demonstrated, time and again, that he is much more than just a numbers man. Yes, he has implemented a number of financial strategies that have driven significant cost savings, but more importantly he has shown a superb, holistic understanding of the dynamics of the legal profession and the intersection of the personal injury sector and Spencers' own role in it.

Robert Landman Photo
Robert Landman - Spencers Solicitors CEO
As a fellow board member for many years, Rob has been a vital player in the development of the firm's strategy, helping to re-orientate Spencer's resources and talent to face the modern legal landscape. The firm is now in great shape to pursue a specialisation into the most serious personal injury cases, as well as maintaining its core PI work and building on both a local Derbyshire presence and its national reputation.

Tomorrow, then, sees an important change at Spencers. It's one that I'm excited about, even if it is inevitably accompanied by the difficulties we all experience when letting go of the reins. Letting go isn't always easy. The time has to be right and it is for our practice as well as for me.

Rob needs to be free to be the CEO; he won't prosper if I'm forever on his shoulder, as opposed to being available to him and the practice to succeed. The transition to Chairman is liberating and exciting for me, too. It will further free me up to focus on public policy development, whether through APIL, the Civil Justice Council, or otherwise. One of my abiding passions is ensuring that government policy is not inimical to justice, whether for the individual, groups of people or businesses. As Chairman, I will be able to bang this drum - one which is, happily, in completely in sync with the firm's strategy and vision.

I am looking forward to continuing to work with Rob in our new respective roles. I hope to give valuable input when it's needed, but it is Rob is responsible to drive our practice forward. Rob is wholly committed to Spencers' belief in putting duty before profit, is the perfect man for the CEO role, and will, I am sure, excel in it. I wish him all the best as he steps up into the role tomorrow.

Friday, 25 October 2013

Whiplash reform: riding roughshod over the injured person?

Whiplash is in the news - in a good way, so far as the government and insurers are concerned. Wednesday saw the publication of the government's response to what some might say was a pejoratively entitled consultation: "Reducing the number and costs of whiplash claims". A number of reforms tailored to this apparently noble end are proposed. The result was a welter of media headlines which will have warmed the hearts of members of the Association of British Insurers.

Fleet Street seems to have swallowed the spin that says either that whiplash doesn't exist, or, if it does, that it is always exaggerated by an unholy alliance of unscrupulous personal injury lawyers and claimants on the make. Hence, then, the congratulatory flavour of yesterday's coverage, as editors chose to praise Justice Secretary Chris Grayling for bravely tackling the scourge of fraudulent whiplash claims, those which drive up the cost of insurance premiums, penalise honest drivers and contribute to the dread, if factually dubious, 'compensation culture'.

The devil is in the detail

Reducing the Number and Costs of Whiplash Claims: A Consultation on Arrangements Concerning Whiplash Injuries in England and WalesBut what, though, is the true impact of the reforms?

First up, the government says it wants "an improved, robust system for medical examinations and reporting which will ensure those who make unnecessary, exaggerated or fraudulent claims are deterred from doing so, and that the genuinely injured get the help they need." It therefore intends to introduce independent medical panels, to which claimants will have to submit before a claim can be made. This is sensible, in principle, but it has a flaw: a panel inevitably restricts choice. Better would surely be the creation of a register of accredited medical experts so that the injured person, like any other litigant, can choose his or her expert. There are other questions, too, such as who will control the panel, how its members are vetted, and what sort of appeal process will be set up. 'Independent', rather than funded and administered by the ABI, is key - and the devil is in the detail.

Time to consider ending pre-medical offers to settle

Pleasingly, the government says it will tackle a fundamental problem which has long gone under the radar: the practice conducted of settling cases without a medical report. However, there is a further and associated problem, where a representative of an insurer contacts a person who has been in an accident and offers them a cash settlement, 'to avoid the time, cost and hassle of going to solicitors'. The practice is inimical to justice - it means an injured person is being bought off, without the benefit of specialist legal advice - but it also contributes to the very vicious circle that the ABI and its members lament. Where someone is confronted by someone on the end of the phone offering money for a soft-tissue injury (which may be the extent of an individual’s injury), there will be people who will be only too tempted to pocket the money and run.

This, the practice of pre-medical offers to settle, is a very common insurer practice. Today, as you read this, an insurer will be seeking to buy off a claim before a lawyer ever sees it. During the consultation on whiplash it was notable that many MPs were wholly unaware of this egregious practice. Now that they are, they propose it must be stopped (see the All party parliamentary transport committee's recent report). The government's statement of intent is laudable but it must not be forgotten. We cannot allow a new culture to arise, whereby insurers add avoiding 'the time and hassle of having to get a medical report' into their armoury of tactics to see off claims.

The small claims court limit must not be raised

There is much to comment on in yesterday's announcement, but ultimately it all comes down to justice. Anyone who has ever suffered whiplash knows that it is real, and painful, and debilitating. Why should the insurance industry avoid paying for it, when an injured person suffers through no fault of his own? For avoidance seems to be the name of the game - hence the government's much more worrying statement of intent, that in due course the threshold for small claims court personal injury claims will rise from £1,000 to £5,000. The average whiplash claim sees damages of between £3,000 and £3,500. It is clear that raising the small claims court limit to £5,000 will have a major impact on whiplash claims. With legal costs being irrecoverable, they will, for the most part, be uneconomical. The net result will be that they will disappear.

This would be great news for the ABI, but it takes no heed of the person we should be worried about: the injured accident victim. Having just overhauled our civil justice system in the most radical and comprehensive way for more than a decade, there is no call to change the small claims court limit - and there is every reason to get the reforms proposed on Wednesday 100 per cent right.

Wednesday, 16 October 2013

Are some lawyers (men) more equal than others (women)? The answer is 'no'

Question: how many female lawyers are at the top of the legal profession? You'd hope the answer would be: "A great many - in fact, they're present in the same numbers as men. Thanks to things like The Law Society's Diversity and Inclusion Charter, not to mention Britain's well-developed equality laws and the way in which society has developed, women are now just as likely to occupy the top roles in the legal profession as men."

Sadly, the truth is otherwise, as the estimable Baroness Hale pointed out recently. Speaking earlier this month at a conference to mark the beginning of the legal year, Baroness Hale - the deputy president of the Supreme Court and, as such, the country's most senior female judge - called for more women and ethnic minority lawyers to be appointed to make the judiciary more reflective of society as a whole.

A lack of diversity

Brenda Hale, Baroness Hale of Richmond
Brenda Hale, Baroness Hale of Richmond

Lady Hale became the first woman to be appointed as a law lord in 2004. She commands huge respect among the judiciary and beyond, but the very fact that it took until the 21st century for a woman to become a law lord cannot but give cause for concern. After all, women achieved partial suffrage in the UK in 1918, gaining full suffrage in 1928. It is remarkable the best part of a century passed before a woman penetrated the glass ceiling of the judiciary.

Since becoming a law lord, Lady Hale has seen the metamorphosis of the judicial functions of the House of Lords into the Supreme Court (which came into being in 2009) - and she has also noted the palpable absence of other women at this level. As she put it:

"While I am flattered and proud to have been the first woman appointed as a law lord in 2004 I do not want to be the last. I am disappointed that in the 10 years since I was appointed not one among the 13 subsequent appointments to this court has been a woman. Things are improving in the lower ranks of the judiciary, but regrettably not yet up here. I do not think I am alone in thinking that diversity of many kinds on the bench is important for a great many reasons."

For Lady Hale, there are two main reasons for the absence of women at the top, as reported by The Law Society Gazette - the division of the legal profession into barristers and solicitors, coupled with the fact that only top barristers have traditionally been seen to have the merit to be top judges. In effect, the system means that men of the same ethnicity and professional background are all too tempted to appoint their colleagues to senior roles.

Diversity - but from the glass ceiling down

The same can be said of the constitution of the majority of law firms. Take any magic circle firm, and ask whether there are as many female partners as there are men; the answer will be 'no'. Many such firms have adopted diversity policies, and yet seem to operate them from the glass ceiling down.

Another of Baroness Hale's observations sums up where we are going wrong. Asked about whether barristers or judges should wear wigs, she said: "I am not in favour of barristers or judges wearing wigs. My main objection is that they are men's wigs… I think diversity of appearance is just as important as diversity of background and experience."

She is, of course, quite right. Why on earth do we preserve the wearing of 'male' wigs, when they come with such loaded, patriarchal and sexist connotations? There are however, valid arguments about appropriate anonymity and gravity, which is a separate matter.

It is high time that the profession took a long, hard look at its commitment to diversity. Are we doing enough? Are we truly equal? Or, as in George Orwell's Animal Farm, are some lawyers (men) more equal than others (women)?

The answer is 'no'. Let's make sure it's heard loud and clear.

Friday, 11 October 2013

Child abusers must be brought to justice. Helping their victims give evidence in court is vital

There have been a number of heart-rending cases of child abuse in the news recently. Each of them is tragic and disturbing. How, we ask, can a mother like Amanda Hutton be so deranged and callous as to starve her four-year-old son to death? Perhaps even worse was the joint enterprise perpetrated by the parents of another four-year-old, Daniel Pelka, who died after what the judge in their trial described as "a sustained period of appalling cruelty."

Daniel's parents were rightly sentenced to life imprisonment in August this year. At least justice was done in this dreadful case. But many other instances of child abuse, particularly those with a sexual element, are regrettably not prosecuted satisfactorily. According to NSPCC statistics, fewer than 25% of 23,000 child sex offences recorded in England and Wales last year ended in prosecution.

The best evidence serves justice

This is a terribly dismaying statistic. It exists not because children are lying but because they do not receive the support they need in order to give evidence in court. Cases routinely collapse; abusers walk free and, often enough, offend again.

Staggeringly, just two per cent of child witnesses received guidance from registered advisors, says the NSPCC. At least half of them did not understand the questions they were being asked. The experience of giving evidence is intimidating enough for adult witnesses in cases without a sexual element; how much worse must it be for a child or vulnerable victim in a sexual abuse case?

It must be terrifying - a reliving of the harrowing events to which the witness was so wrongly subjected, made all the more difficult by aggressive cross-examination by barristers and the inherent formality of legal proceedings. For this reason, NSPCC chief executive Peter Wanless is absolutely right when he says: "It is vital that children are supported by a registered intermediary when they are interviewed by the police and if they give evidence in a trial. Justice can only be served if they are able to give their best evidence."

As Mr Wanless also says: "These children have to publicly relive the most traumatic, upsetting and humiliating experience of their lives in order to try and get justice. A victim of child sex abuse is usually the sole witness to the crime and the strength of the case lies in their testimony."

NSPCC research shows that more than half of child witnesses reported stress symptoms such as panic attacks, self-harm and difficulty sleeping ahead of trials. No wonder, given the findings of the NSPCC's research.

New CPS guidelines

Justice Secretary Chris Grayling
Justice Secretary Chris Grayling

Thankfully, the Crown Prosecution Service has been consulting on this difficult issue, and is soon to release new guidelines. It is to be hoped that they will substantially improve matters for children, and that we will see the comments of the Lord Chief Justice, Sir John Thomas, come to fruition. His Lordship said recently he would introduce a pool of judges with specific training for complex child abuse cases.

Another sensible idea was trailed by Chris Grayling, the Secretary of State for Justice, in the summer. Mr Grayling said that young and vulnerable victims, who have survived the most horrific crimes, will be offered the chance pre-record both their evidence and any cross-examination for a later trial. This innovation is being piloted in Leeds, Liverpool and Kingston-Upon-Thames.

Witnesses in civil cases should not be forgotten

I would go further, and say not only that the scheme should be deployed nationally, but that we also need to look at civil justice, too. Child abuse victims may rightly wish to bring claims for redress, and while the burden of proof is lower in civil cases than in criminal trials, the giving of evidence is just as fraught and potentially upsetting.

In campaigning to bring perpetrators of child abuse to justice we are doing the right thing by improving the lot of victims who have to give evidence in a criminal trial. But let's improve things across the board. Let's bring about the same positive changes in civil cases, too.

Wednesday, 2 October 2013

The Alcock judgment: a patchwork quilt that needs to be unstitched

The intensity of last Saturday's football match between Tottenham Hotspur and Chelsea was palpable even to those listening to it on the radio, let alone the fans present at White Hart Lane. This was a classic London derby, a game of pulsating action and plenty of bite. Everyone who saw the two sides compete for a hard-fought 1-1 draw would agree that this was football at its most visceral and unforgettable.

After the game, I reflected on football's ability to leave a mark. What happens on the pitch becomes etched in our collective memory, imprinted forever in our consciousness. No doubt the game's inherent theatre, its speed and its competitiveness are reasons for this.

Hillsborough case law on psychiatric injury

But, as the 25th anniversary of the Hillsborough disaster looms at the end of the current season, it is important to recall that sporting events can leave a mark for different reasons. And, when it comes to Hillsborough, it is a regret to note that the law on psychiatric injury is both unsatisfactory and borne of what we now know to be erroneous assumptions about what happened at Sheffield Wednesday's historic ground on 15 April, 1989.
A view of Sheffield Wednesday F.C's Hillsborough Stadium

At Hillsborough that day, 96 fans died in a terrible crush early on in an FA Cup Semi-Final between Liverpool and Nottingham Forest. The crush resulted in injuries to a further 766 people. Those involved ranged from children to the elderly. The tragic incident is Britain's worst-ever stadium-related disaster.

Appalling misinformation appeared in the public domain just hours after the disaster. It grew worse and worse, as the police sought to blame fans for what happened rather than take any responsibility themselves. The Sun newspaper famously poured oil on troubled waters with a front page splash that only its then-editor, Kelvin MacKenzie, believed in. MacKenzie's story, headlined 'The Truth', was a vicious libel on Liverpool fans, and rightly led to The Sun being all but boycotted in Liverpool .

The real truth

But the old saying is that the truth will out - and soon enough it did. The Taylor Report, published in 1990, found that the main reason for the disaster was a failure of police control. Lord Taylor's inquiry also led to Liverpool's fans receiving their first official exoneration - and to the police being roundly criticised for lying and evasiveness. Later, in September 2012, came the findings of the Hillsborough Independent Panel. This categorically found that no Liverpool fans were responsible for the deaths, and said that attempts had been made by the authorities to conceal what happened, including the alteration by police of 116 statements relating to the disaster.

Against all this a number of fans and their families rightly sought redress for their sufferings because of Hillsborough. Indeed, the disaster went on to spawn what remains, to this day, the leading authority in domestic case law on psychiatric injury. That case is Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310. Here, Alcock and several other claimants were what the law describes as ‘secondary victims’: they were not primarily affected, in the sense that they were injured or in danger of injury, but they suffered harm because of what they witnessed.

Rewind to what I said at the beginning of this piece. Football is an intense, visceral spectacle, conducted as mass participation theatre. How awful must it have been for those who saw their loved ones at risk, injured or even killed in the Hillsborough disaster?

Alcock needs unstitching

It seems obvious that the effect of what they saw would have been profound and damaging. But the Alcock case, which went all the way to the House of Lords Judicial Committee, imposed a series of  "control mechanisms" to fetter a victim's ability to bring a claim. If these "control mechanisms" are not met, there is no duty of care, and therefore no possibility of a claim for negligence. Chief among them is the requirement that a claimant must perceive a "shocking event" with his or her own senses, either as an eye-witness or happening upon its immediate aftermath. This means that if a father saw his son crushed via television footage, or if he arrived some 30 minutes after the incident, he would not be able to bring a claim.

Lord Steyn of Mostyn has described the law on recovery for psychiatric harm as "a patchwork quilt of distinctions which are difficult to justify". In another judgment (Frost v Chief Constable of South Yorkshire Police [1999] 2 AC 455), Lord Hoffman said that "the search for principle was called off [in Alcock]". The "control mechanisms" were "more or less arbitrary conditions which a plaintiff had to satisfy and which were intended to keep liability within what was regarded as acceptable bounds". Into the bargain, they are more or less impossible to understand by the ordinary man.

The 'ordinary man' - and woman - are the people who were at Hillsborough nearly 25 years ago, they were at White Hart Lane on Saturday and they attend football matches up and down the country week in, week out. The House of Lords has stated that it can go no further than the principles articulated in Alcock, dubious as they are. Only Parliament can legislate for change.

Against what we now know to be the truth of Hillsborough, it is high time that we revisit Alcock. It seems more than possible that its principles were informed by the extraordinary level of misinformation dominating the media and political agendas at the time. It is time for this particular patchwork quilt to be unstitched and put back together in a way that offers real justice for victims of psychiatric injury.