Tuesday, 28 January 2014

Channel 5’s idea for a PI lawyer 'Dragon's Den-type programme' belongs in the bin

Last week, Litigation Futures ran a piece that a number of lawyers wanted to believe was a premature April Fool’s story. Sadly, I know from my own personal experience that the story is not a hoax.

Step forward, Channel 5, which is considering what legal journalist Neil Rose described as "a Dragon's Den-style TV programme in which potential claimants try to persuade a panel of lawyers of the strength of their claim."

Yes, that's right. The channel's in-house development team has come up with the idea of a reality TV show for the personal injury sector. Its letter, circulated to a number of PI firms (including mine), set out the nuts and bolts of the idea:

"Members of the public (potential claimants) would attend a clinic like setting and then discuss their cases with four of the UK's leading personal injury/negligence lawyers. These cases would range from personal injury to medical negligence to consumer complaints and small claims.

"The contributor presents their case individually to the each of the lawyers, along with any evidence - photographs, home video, medical reports etc. It is here that the lawyers have the chance to question the claimant and establish the true evidence of the case.

"The lawyers must be ruthless in their pursuit of the truth if they're going to weed out the genuine, watertight cases of real affected claimants from those who are unreasonable, mislead or simply chancers trying their luck."

Touching faith?

In some ways, it's tempting to thank Channel 5 for the faith they evidently have in PI lawyers' televisual appeal. It seems they imagine that out here in the real world of toil for injured clients, there is a Duncan Bannatyne among us, or, perhaps, a Karren Brady (panellist from The Apprentice), a lawyer of such charisma (Perry Mason, perhaps! Or Rumpole!) that he or she will hold viewers' attention and help turn the show into a must-see hit.

Dragon's Den Cast

Channel 5's understanding of the legal process is also almost touchingly naïve. What do its creative minds think will happen to claimants, whose claims have been aired on television, but rejected? Have the words 'conflict of interest' ever been uttered in a Channel 5 commissioning meeting? What of defamation, as claimants lay the blame elsewhere?

But although such thoughts might prompt a wry smile, we should resist too light a response to this idea. The reason is simple. It flies in the face of the notion of justice.

The law is not a game. It's not light entertainment. People who have been hurt in accidents aren't fodder for a television show. They're real people who are often fragile and vulnerable. They need help. They need to instruct a solicitor knowing that he or she will do his or her utmost to investigate their claim and obtain the right compensation. The process of instructing a solicitor should not be turned into a sideshow, one of needless extra pressure accompanied by the whir of television cameras, shouts of 'cut' and requests for 'another take, please'.

Into the bin

Some time ago I wrote a blog about why I became a PI lawyer. There were a number of reasons; perhaps the key ones were wanting to help people and having a passion for justice. Nowhere on my list did the phrase 'opportunity to appear on TV' appear.

As if civil justice isn't under enough threat at present, along comes Channel 5 with its bone-headed idea. The channel's letter went straight into the bin at Spencers. I hope my colleagues in other PI firms up and down the country, large and small, will have the same response.

Thursday, 23 January 2014

A sanction too far? Striking a balance between access to justice and the new civil procedure landscape

How is justice faring post-Jackson?

We're now well into the new regime that was ushered in last April, when the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) 2012 became law. LASPO was inspired by Lord Justice Jackson's review of civil litigation costs and made for the biggest change to the domestic civil justice system since the Woolf reforms of the 1990s.

LASPO tried to strike a balance between streamlining civil procedure so that exorbitant and disproportionate costs weren't incurred by legal advisors, and ensuring that clients had proper access to justice. This was always going to be a tough challenge. And, in the wake of the much-publicised costs ruling in Andrew Mitchell's libel action against The Sun, it is debateable whether the challenge has been best met.

A black letter view

To revisit the Mitchell matter, the former government chief whip sued The Sun for libel over its coverage of the notorious 'Plebgate' incident. Regrettably his solicitors were late in filing a cost budget ahead of a case management hearing. The court then took a black letter view of the civil procedure rules, holding that Mitchell was to be treated, pursuant to CPR r.3.14, as having filed a costs budget comprising only the applicable court fees. In other words: he was prohibited from exceeding a set costs budget of £2,000.

There then followed appeals, in which Mitchell's solicitors - who were acting on a no win, no fee basis - sought relief from the court's sanction for non-compliance. It transpired that they had filed a proposed £506,425 costs application on 17 June 2013. This was less than 24 hours before the date of the case management hearing; court rules state that costs budgets must be lodged seven days in advance. The defendant, News UK (parent company of The Sun), had filed its planned £589,558 budget figure for defending the case on 11 June - within the seven-day deadline.

The attempt to obtain relief from the court's sanction was unsuccessful. The Court of Appeal made its position clear, stating:

Andrew Mitchell
"The defaults by the claimant's solicitors were not minor or trivial and there was no good excuse for them. They resulted in an abortive costs budgeting hearing and an adjournment which had serious consequences for other litigants. It seems harsh in the individual case of Mr Mitchell’s claim, [but] if we were to overturn the decision to refuse relief, it is inevitable that the attempt to achieve a change in culture would receive a major setback.

"In the result, we hope that our decision will send out a clear message. If it does, we are confident that, in time, legal representatives will become more efficient and will routinely comply with rules, practice directions and orders. If this happens, then we would expect that satellite litigation of this kind, which is so expensive and damaging to the civil justice system, will become a thing of the past."

Robust - but is it fair?

The outcome of the Mitchell ruling is robust - and its effect is being felt across the civil procedure landscape. A great many cases of procedural non-compliance have resulted in rulings that take a dim, not to say intolerant, view of human error. This trend has become so pronounced that a recent headline on the Litigation Futures website sums up the prevailing culture: 'Costs judge grants relief over failure to serve N251 - yes, really!'

It is undoubtedly right that legal representatives smarten up their acts and do their absolute best to comply with procedural timetables. But sometimes extraneous factors intrude; sometimes there are good reasons for a delay; sometimes plain old human error can’t help but arrive on the scene.

This, to me, is something to be mindful of. The law is an absolute construct, something above and beyond us, before which we are all equal - rightly so. But it deals with people, with human life in all its teeming ambiguity and with all its potential for mistakes; with things that are often coloured grey rather than black and white.

I worry that too rigorous an application of court sanctions may in some situations deny access to justice to those who need it - clients, who shouldn't be punished for the mistakes of their legal advisors.

Friday, 17 January 2014

When it comes to head injuries in sport, prevention is better than cure

The Six Nations rugby championship is upon us. There are just a couple of weeks to go before the annual battle for oval ball supremacy among England, France, Scotland, Ireland, Wales and Italy. History says the trophy will be heading across the channel: each Six Nations championship held the year after a British Lions tour has been won by France. The Lions went on tour in 2013, so maybe the French will be sipping champagne on March 15, when the final matches are played.

I'm no rugby expert. I can't comment on what the form books says this year, but I enjoy watching the Six Nations - the physicality, speed and athleticism of modern rugby is breath-taking. But one thing I can comment on is the need for the best possible care for any player unfortunate enough to suffer a head injury.

Intense negotiations 

This is all the more salient given the news in Tuesday's Guardian about the ongoing legal wrangle between the National Football League and retired NFL players.

Some 4,000 former players sued the NFL, arguing that the NFL knew about the dangers of on-field head injuries long before it did anything, or enough, about them. It was also alleged that the NFL hadn't adequately assisted injured players once their careers were over.

Last August, after two months of what were described as "intense negotiations", the parties reached agreement to settle the litigation. The NFL did not admit liability, but the outline agreement was that the NFL and NFL properties would pay a total of $765 million for injury settlements and medical benefits for retired players. The money would also be used to fund medical and safety research and to pay all litigation expenses.

But as the Guardian reports, the $765m settlement has been rejected by a federal judge. Judge Anita Brody is not happy with the level of financial documentation submitted by the parties. She also doubts that the agreed sum will compensate all the retired NFL players who may one day be diagnosed as suffering from a brain injury. She doesn't doubt that the settlement was reached in good faith, but has, in effect, sent the parties back to the drawing board.

Collective Bargaining Agreements

Professional sport in Britain is conducted on different lines to the United States, where Collective Bargaining Agreements (CBAs) underpin the majority of sports. I am not a sports lawyer, but my understanding of CBAs is that they exist primarily to ensure that salary caps are in place. Salary caps are intended to keep costs down and create parity between clubs. CBAs also, as I understand it, have a considerable bearing on litigation between the leagues and players. Under the American CBA model, players have discernible rights against leagues, whereas here in Britain sportspeople like rugby and football players are employees of their clubs, not the governing leagues.

For this reason, threats by England footballers to strike back in 2003 (when they objected to the treatment of Rio Ferdinand over a missed drug test) may have shown admirable camaraderie but had no legal basis.
Likewise, it may be that officials on high in rugby, football and other UK professional sports look across the pond at the NFL litigation and breathe a tentative sign of relief, in the belief that the absence of CBAs here means that huge class actions against the leagues aren't heading their way.

Perhaps; a sports lawyer will have the answer. But two things are abundantly clear: first, even if the leagues in Britain may not be about to receive a massive head injury class action claim, individual clubs undoubtedly owe a duty of care to their players and could be sued; and secondly, the law is one thing - proper care and due diligence for sportspeople is another.

Prevention is better than cure

So, as we look forward to the Six Nations, it strikes me that we should redouble our efforts to ensure that the government takes the lead and sets an example. It should state unequivocally that clubs must, as a priority, ensure that the best possible awareness of the consequences of head injuries exists among everyone from managers and coaches to players and medical staff. Likewise, schools must take the best possible care of pupils who play sports like rugby and football. And similarly, those in charge of the national teams as they go into the Six Nations.

It's great news, for example, that from next season all professional rugby players will undergo a concussion training programme - but here's hoping the various Six Nations teams will also find time to talk their players about the risks of head injuries before the tournament.

We all want to see a fast, pulsating and impassioned contest for the Six Nations title. We don't want to see players suffering brain injuries that could have been prevented, which lead to litigation. Prevention is better than cure. Here's hoping that British sport - and its administrators all the way up to the government - wake up to the reality of traumatic head injuries suffered by those playing sport.

Wednesday, 8 January 2014

Spare a thought for Theo - and Hillsborough's victims, too

Spare a thought for Theo Walcott. The charismatic and talented Arsenal winger didn't seem to be in too much pain when he fell to the turf in last Saturday's FA Cup third round fixture against Spurs, but the gloss of his team's 2-0 victory has been well and truly dented. Walcott, it transpires, has suffered the injury all footballers dread - a rupture of his anterior cruciate ligament.

None of us who witnessed Walcott's injury, whether at the Emirates or while watching the game on TV, can be said to have been traumatised by what we saw - not least because Walcott seemed in good spirits as he was carried off the pitch on a stretcher. But as we now learn that the on-form Arsenal star is almost certainly ruled out of the England squad for this summer's FIFA World Cup in Brazil, as well as side-lined for the rest of Arsenal's best season in years, only the hardest of heart would not feel sorry for him.

Walcott, included when 17 years old by Sven Goran Eriksson in the 2006 World Cup in Germany but not selected for a game, was omitted by Fabio Capello for his squad in the 2010 World Cup in South Africa. His terrible luck continues. Even if, miraculously, he recovers swiftly from the operation on his knee, it would surely be a mistake to take him to Brazil.

The effect of witnessing a traumatic event

Universally popular, at his club and in the England set-up, Walcott deserves and gets our sympathy. And if we play again, in our mind’s eye, the moment of his injury, it seems that bit worse. We see him wince with pain; we feel it that bit more acutely. As human beings, we empathise.

If this is what we feel, as spectators confronted by an injury which isn't as bad as, say, Eduardo Da Silva's horrific leg break, isn't it clear that witnessing disturbing events can lead to psychological harm - harm which may be even longer lasting than the physical damage sustained by those immediately affected?

To me, the answer is a resounding 'yes'. And because of this - and with the 25th anniversary of the Hillsborough disaster approaching, on 15 April this year - it is high time that the law on psychiatric injury is revisited.

Case law since Hillsborough does not square with reality

In the wake of Hillsborough case law evolved to a point which does not square with reality. The leading authority is Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310. Here, Alcock and several other claimants were '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. But instead of providing for compensation for their traumatic experiences, 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.

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, in Frost v Chief Constable of South Yorkshire Police [1999] 2 AC 455 described the law on recovery for psychiatric harm as "a patchwork quilt of distinctions which are difficult to justify". The so-called 'control mechanisms' have also been described as "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".

Lord Steyn was right. So, as we spare a thought for Theo Walcott, let's also think of Hillsborough's victims and, indeed, the unjust state of the law, that with which anyone tragically caught up in a disaster will be confronted. It's time to revise the law, it's time to unstitch the patchwork quilt, and it's time for parliament to legislate for change.

Wednesday, 1 January 2014

Three wishes for 2014 (and no more Masters…)

Happy New Year to all. Here's to prosperity, health and peace for all in 2014. Here's also to much-needed changes in the three following areas:

1. Women and the glass ceiling.

Sadly the glass ceiling is still there. I'm reminded it lurks, invisibly, in a great many sectors of society. Women work hard, perform brilliantly and every bit as well as, if not better than, men, only to find that access to the top positions is often denied. Whether through patriarchy, or chauvinism, or sexism; on occasion even through conspiracy. The fact is that women still don’t get a fair deal.

Take, for example, the law. Today's City firm in London will have a raft of corporate social responsibility (CSR) programmes and policies, implemented because the firm's partners recognise that they need to give something back.  And yet for all the CSR, for all the positive PR it yields, often those very same firms still have partnerships in which men vastly outnumber women.

It is the same in so many other sectors of the legal profession - which is why the news just before Christmas that women, for the first time in history, have been recommended for more judicial posts than men was so welcome. The Law Society Gazette reported the news, which comes from statistics released by the Judicial Appointments Commission.
​Women overtake men in judicial appointments - Law Society Gazette

It transpires that across 17 selection exercises for court and tribunal posts completed between April and September in 2013, 280 (52%) of those recommended for appointment were women, compared with 233 men (30 recommendees declined to identify their gender).

Yes, a judge should attain his or her role regardless of gender and solely on fitness for the job, but after centuries in which women have been explicitly or tacitly treated as second class citizens this news is good, and hopefully the trend will continue making equality a reality.

2. Hillsborough and the law on secondary liability.

As a football fan I thoroughly enjoyed the Boxing Day we've just had, when - for the first time in an age - every single league team in England was in action, along with all the teams from the Scottish Premier League. But amid the feast of football, I couldn't help but think ahead to this year's 25th anniversary of the Hillsborough disaster.

We all know the facts. At Sheffield Wednesday's historic ground on 15 April, 1989, 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.

But what we don’t all know is how the law has dealt with the disaster. It was, thanks to the ruling in Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310, a disaster of its own kind for what the law describes as ‘secondary victims’: those who were not primarily affected, in the sense that they were injured or in danger of injury, but who suffered harm because of what they witnessed.

Alcock severely restricts their ability to bring claims for post-traumatic stress disorder thanks to arbitrary 'control mechanisms' created by the court. 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.

The Alcock ruling and its criteria for recovery for psychiatric harm has been described "a patchwork quilt of distinctions which are difficult to justify". Set against what we now know to be the truth of Hillsborough, this is true. We need to revisit Alcock and campaign for a change in the law so that real justice is available for victims of psychiatric injury. APIL are planning to do just that and they need our every support.

3. The notion of justice.

Just before Christmas I wrote of War On Welfare's admirable success with its e-petition, which has now garnered enough signatures for force a parliamentary debate on a number of issues which affect the sick and disabled, not least the present government's seemingly obsessive desire to implement cuts in this area. WOW's work has been tireless and fantastic, and we must all do our bit to maintain its momentum, but so too should we continue to fight the systemic erosion of formerly sacred legal principles with which the government also seems to be engaged.

I am mindful in particular of the proposals to reduce the availability of judicial review and the apparently endless attack on what used to known simply as 'legal aid'.

What has happened to the notion of justice? Why is it now so rife with 'cost considerations'? What has happened to the days of absolute legal principles, with which no government - other than a dictatorship - would dare to tinker?

Three of my wishes for 2014, then, are for the end of the glass ceiling, due recognition of the rights of those who suffer psychiatric injury and a restitution of our fundamental commitment to justice. Oh, and while we're at it, how about a change to nomenclature in the courts - is the term 'master' really what we need for a judicial officer in the civil justice system, women included? Or is a remnant of the very sexism and unthinking patriarchy that preserves the glass ceiling?