If the NHS treated its patients better it wouldn’t have such a large legal bill

February did not begin in a positive fashion for personal injury lawyers. Well, not if you're a Telegraph reader, and believe everything you read in the press.

On 1 February, the paper published an article with as loaded a headline as you can get. 'Ambulance-chasers push NHS costs bill to £200m', proclaimed this piece. It went on to cite figures released by the NHS Litigation Authority, a not-for-profit part of the NHS which manages negligence and other claims against the NHS in England on behalf of its member organisations.

Inflammatory accusations

The Telegraph seemed very happy to give some oxygen to the Authority's claims - perhaps because the chance to wield the 'ambulance-chaser' tag in connection with the legal profession was too good to resist. It happily repeated any number of inflammatory accusations - the kind of thing guaranteed to provoke readers over their Saturday breakfasts.

"Lawyers involved in clinical negligence cases against the NHS are attempting to charge the health service up to £1,400 an hour in costs, leaving taxpayers with a bill of nearly £200 million a year," was one such gem.

The Telegraph added that "compensation lawyers are claiming costs and fees worth up to 10 times more than the damages awarded to the patients that they represent." There followed an example which could not but infuriate: "one firm tried to claim £37,000 in costs for a case where the damages paid to the patient were £3,000. The bill was reduced to £3,000 following court action." Then there was yet another: "a London-based firm attempted to charge £1,440 an hour, with total costs of more than £100,000. It eventually accepted an offer of £30,000 in costs."

It's all quite scurrilous - well, so it seems. After all, how can it be right that claimant solicitors pocketed £196m in fees for claims against the NHS last year? At a time when, as the newspaper put it, "the NHS is facing severe financial pressures."

The NHS Litigation Authority singled out certain law firms which it believes are particularly guilty of excessive charging. No wonder, for Catherine Dixon, its head, believes that some firms are trying to maximise their profit at the NHS' expense. She argues that the NHS could save £69 million each year if the cost of lawyers representing patients was capped at the same level as the cost of the health service's lawyers, plus an extra 20 per cent.

"It seems to me that it is out of kilter with the level of damages they are seeking to recover from their clients and defence costs," she told the paper.

"I don't think that charging significantly higher costs is appropriate, particularly against a body like the NHS which is looking after the health of the nation.

"Access to justice is important, and it is right that claimants' solicitors are paid a fair amount for the work they do. But I would rather see the excessive amounts we're spending on costs going into patient care."

Maxey on the money

The Authority's claims were also aired in this piece in Claims Magazine. At least this time - in contrast to the way the Telegraph covered the story - an opposing view was given. This came from James Maxey of Express Solicitors, who said: "I used to take the angry ambulance chaser jokes in good humour but no longer. I've spent too much time with the families and victims of clinical negligence, some of them with lasting disabilities that words like 'devastating' just cannot convey."

Mr Maxey is right. He also roundly and rightly rejected Ms Dixon's argument that personal injury claimant lawyers were "front-loading" costs by hiring expert witnesses and conducting extensive investigations for what she believed were relatively low value claims. As Mr Maxey says, due diligence is properly required before any solicitor takes on any claim, as is the appointment of a medical expert. It is absurd to suggest that personal injury claims can be conducted in the absence of this.

And beyond this, there is a single obvious and damning point. If the NHS treated its patients better, either by not being negligent in the first place or by admitting liability early rather than digging its heels in and contesting meritorious claims, its legal bill would be an awful lot smaller.

The government's U-turn on mesothelioma is wrong

There's something about U-turns that automatically rings alarm bells.

On the roads, they're banned in almost every circumstance - for a good reason. A driver executing a U-turn goes against the prevailing traffic, causing danger and the risk of an accident.

Governmental U-turns are no less dangerous. Last week we were confronted with one by Justice Minister Shailesh Vara. It is difficult not to see it as both a disaster and an injustice.

A manifest injustice

It transpires that the government has decided to revoke the exemption of mesothelioma claims from the success fee and after the event premium elements of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO). This follows a consultation launched in July last year.

The consultation was initiated to determine whether sections 44 (on success fees) and 46 (on ATE premiums) of LASPO should be brought into force in relation to mesothelioma claims. Along with many other personal injury practitioners, I was concerned to ensure that they remained exempt. Bringing them into force for mesothelioma claims could only result in a manifest injustice, which was summed up succinctly by my colleague Matthew Stockwell, the current president of the Association of Personal Injury Lawyers. As Matthew put it:

"It's impossible to rationalise why dying people should have to pay for the inherent risks of pursuing redress, when they certainly never asked to be in a position where they need compensation.

"Mesothelioma claimants know they are going to die, and they know they have to race against the clock when they make a claim. They are simply trying to make their last few months more bearable, and to ensure that their families will have some security when they're gone. If ever a claimant needed full compensation, it is surely the claimant facing a death sentence just because he turned up for work."

Adding to the distress of sufferers

Matthew's sentiments are absolutely right. Moreover, Shailesh Vara's declaration that "the Government carried out the section 48 review as part of the consultation on reforming mesothelioma cases, which concluded on 2 October 2013" and that, as a result, the government has "concluded that they intend to apply sections 44 and 46 of the LASPO Act to mesothelioma cases" comes across as dry and insensitive to the point of indifference.

This feeling is bolstered by the Justice Minister's additional statement. He said that the government understands “mesothelioma victims face an appalling and fatal disease with which they and their families have to come to terms, while also having to engage with the claims process. Without in any way seeking to minimise the distress this entails, however, there are many other serious personal injury and fatal claims, to which the LASPO reforms already apply, that produce difficult challenges for victims and families."

What is this statement, other than one which minimises, if not enhances, the distress of mesothelioma sufferers and their families?

To her credit, Conservative MP Tracey Crouch has joined with Labour MPs in saying that a proper review has not been carried out. Shadow justice minister Andy Slaughter has also urged the Justice Minister to conduct another consultation. We can only hope that sense, justice and fairness prevail, and that the government reverses its decision. For once, that would be a U-turn that makes sense.

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.

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.

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:

"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.

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.