The Government’s Proposed Changes to the RTA Portal are Wrong and Unjust

As the year comes to a close I'd like to look back and write positively about events in 2012. After all, this was the year in which Britain hosted - to universal acclaim - the Olympics and Paralympics, Bradley Wiggins became the first Briton to win the Tour de France and Chelsea, my beloved football team, scooped the Champions' League trophy.

Regrettably, the feel-good factor generated by sporting success is not matched in other sectors of society. As my recent letter to The Times pointed out, Britain is bedevilled by ethical lapses in politics, journalism and finance. We must try to rectify these and instil higher standards of professionalism across the board, but so too, as the long-awaited Jackson reforms come closer to reality, should we take a long, hard look at how well we serve victims of accidents.

Slashing Costs in the RTA Portal Scheme

I say this because of the unconscionable changes which the government has proposed to the RTA Portal scheme. Fixed recoverable costs for Protocol claims were negotiated between insurers and claimant representatives just two years ago, before the Portal came into being. The figures took into account the amount of work required by law firms to process claims, from inception to conclusion. The fixed costs agreed represented the average cost of cases rather than the lowest possible level. They are not exactly generous: typically, time spent on RTA cases far outweighs the costs recoverable at the conclusion of the claim.

But, emboldened by its ban on referral fees and in cahoots with the insurance industry, the government now seeks to slash fixed costs in Portal claims by £700. This proposal is contained in the Ministry of Justice's consultation document. Put boldly, it means that for RTA claims of up to £10,000 no more than £500 in legal fees will be recoverable.

In Cahoots with Insurers

It seems likely that this arbitrary reduction is a reaction to the perceived levels of referral fee that some PI solicitors are thought to be paying. Undoubtedly, the proposal comes on the back of an 'insurance summit' held between the government and insurers earlier this year - to which not a single claimant representative was invited. It also follows a relentless campaign by the Association of British Insurers to influence policy under the guise of reducing motorists' premiums.

On top of this, further changes 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.

A Manifest Injustice

The proposals are manifestly unjust. An injury valued at £25,000 is very serious. It may be permanent; it will almost certainly be long-lasting. Such cases routinely require multiple medical reports, extended periods of treatment and often have a multitude of losses such as past and future loss of earnings, handicap on the labour market and considerable treatment costs. How can it possibly be right that injuries like this are dealt with for a total of £800? The number of hours of work required in such a case bears absolutely no correlation to the proposed recoverable costs.

The same is true of ostensibly smaller claims. £500 yields little of even a junior solicitor's time - unless that solicitor is paid the minimum wage.

When it comes to EL/PL claims, the proposals are no better. By their nature these claims are labour intensive. They do not sit comfortably within a portal regime. Again, though, lobbying by the insurance industry would see these claims shoe-horned into the Portal environment, despite the absence of any considered analysis of whether they are suitable and the correct level of legal fees for such work. Indeed, by way of a general point, Professor Paul Fenn (a leading expert in the interpretation of data from the RTA Portal) has concluded that it is simply too early to glean any meaningful data from the Portal. His suggestion that a further period is allowed for the Portal to settle is all the more compelling given the fact that some 50% of claims presently exit the Portal.

A Drop in Service

As I say, then, I wish I was looking back with a warm glow at 2012 – but when I think of the palpable injustice to victims of accidents that will flow from the proposed changes to the Portal I feel only anger and dismay. There is no doubt, if the changes are implemented, that the qualification and experience of fee earners handling Portal claims will drop. Just as depressing, from the client's point of view, is that many law firms will be forced to recover significant costs from injured peoples' damages in order to meet the massive shortfall in costs.

The government is wilfully neglecting the rights and trauma of accident victims out of a shocking obeisance to the insurance industry. Join APIL, MASS, the TUC and the Law Society and others next year in campaigning to stop the changes becoming reality - and, in the meantime, have a happy and safe Christmas.

We Must Do More For Victims Of Spinal Cord Injuries

Earlier this year, at the end of June, I attended the AGM of the All Party Parliamentary Group on Spinal Cord Injury. It was held at Portcullis House in the House of Lords, and I attended as a guest, having been invited by the Motor Accident Solicitors' Society. I found the experience to be poignant and inspirational in equal measure, and had planned, at the end of November, to attend a subsequent meeting of the Group. I was unable to do so owing to care issues facing my father, but my colleague, Allison O'Reilly, went in my stead.

Allison returned from the meeting feeling every bit as moved as I was. It's fair to say that she was angry, too. Here's why.

"The statistics read out by Dr Brett Smith of Loughborough University were frightening," Allison told me. "Dr Smith spoke about Spinal Cord Injured (SCI) people and their experience of living in care homes. He revealed that some 60% of SCI people living in care homes have considered suicide. One of them succeeded in turning off his ventilator, only to be saved by staff. When they came to investigate what had happened, he was too scared to reveal what he'd done. Dr Smith's evidence was of SCI victims up and down the country feeling as if they'd been condemned to life sentences, so poorly cared for were they in care homes."

I recall hearing similarly disconcerting testimony at June's AGM. I discovered a lack of clarity in determining who should pay for the treatment of SCI people, with some parts of the country passing the buck to NHS Primary Care Trusts, others to local social services. In turn, the divergence in practice created misconceptions, not least the widespread beliefs that once a person is not in hospital, they have to pay for their care, and that care outside hospital is social (or personal) care. A related myth is that people in residential or nursing homes automatically have to pay for their care.

Six months on, and Allison was unable to tell me that things had improved. The question of who pays for the care of SCI victims is as much a matter for debate as ever. This, and the many tragic tales aired at the meeting, accounted for Allison's anger. However, just as I was inspired by the story of John Burns last summer, so too did Allison come away feeling profoundly moved by an individual SCI victim.

Mr Burns is a tetraplegic who was injured in a watersports accident. His courage was palpable when he spoke at the AGM. Allison heard the testimony of Roger Hearn, who has also suffered a severe spinal cord injury. Allison encountered a similarly indomitable spirit in   Mr Hearn: "Roger is a lifelong cricket fan who was injured in a road traffic accident while in India on a cricket tour. He is now in a care home. It was heart-rending to hear of his experiences when he first came to the home - he had to tell the staff what to do but then, no sooner had they got to know him and understand his needs, they would move on. Often English wasn't their first language and communication was difficult. He has suffered huge indignity as a human being."

Allison went on to tell me that Mr Hearn credits his wife with keeping him positive - and yet, in his care home, it is not possible for the couple to sleep in the same bed. His wife therefore sleeps on the floor, to be close to her husband. No wonder, as Mr Hearn also told ITV, "survival is often just the name of the game".

Like me, then, Allison was moved and inspired by the tragic story of an individual SCI victim, but like me she also believes that, as a society, we must do more. It is simply unacceptable in a civilised democracy such as Britain that SCI victims have virtually no option but to live in care homes. They are as entitled to a decent quality of life as everyone else, and should be able to live in their own family homes - suitably modified, and with appropriate care provided - post-injury.

As Allison also put it: "I came away feeling so moved by Roger's story, and yet, there in the august corridors of the House of Lords, I could sense political defeatism. Will things change for SCI victims? I hope so - but only if we can make their plight better known."

Treat journalism as a profession with its own ethical charter

The following letter by John Spencer appeared in The Times 5 December 2012.

Sir

Few people seem willing to confront the most obvious question the Leveson Report raises about public life in Britain: the systemic lack of professionalism in so many walks of life.

Britain has become a country whose relationship with sound ethical principles has become, at best, ambivalent, and, at worst, non-existent.  Perfectly sensible laws exist to criminalise phone hacking, and yet they were routinely ignored. The reason is not that the laws lacked force, but that our culture has mutated into one which puts profit before duty.

This was evident in the MPs' expenses scandal, and it has been clear to see in the arena of personal injury litigation, where spam text messaging and unscrupulous behaviour by insurers and others continue to proliferate.

The solution to the issues highlighted by Lord Justice Leveson is not statutory underpinning, still less any form of more invasive legislation, but a wholesale reinvigoration of the notion that duty comes before profit. While the duty of the professions is to serve their clients, the media's duty is to serve the public. The two things are one and the same. They would not be problematic if it were the case that all those involved acted in accordance with the highest of ethical principles.

Yours

John Spencer

Director, Spencers Solicitors 

Natalie Sharp, our determined young boxer

This time last year, almost to the day, I wrote about boxing. I wondered whether the case against boxing was too strong to ignore, not least because of the views of the likes of Peter McCabe, the chief executive of Headway. For Peter, the case against boxing was clear-cut: "Repeated blows to the head causes chronic brain injury," he told me. "Anyone taking up boxing is needlessly risking their health."

Since then, though, Britain has hosted the Olympics, and many of us were inspired by the efforts of our pugilists. Haringey-based Nicola Adams especially put a smile on many faces when she became the first woman to win an Olympic boxing Gold medal. Her joy and enthusiasm were truly infectious.

I've also encountered boxing closer to home, too. One of Spencers' employees, Natalie Sharp, is a dedicated boxer. By day, Natalie is a litigator in our Chesterfield office; many nights a week, she trains at the renowned Unity ABC in Wincobank, Sheffield. Chief coach Brendan Ingle has a reputation that goes beyond boxing, so much so that even people who aren't so sure about the noble art - like yours truly - have heard of him. His gym, which produced Prince Naseem Hamed and Herol 'Bomber' Graham, is a byword for hard work, discipline and success.

Natalie has some serious ambitions. "I want to compete in the next Olympics in Rio, and I want to be the first female professional boxer to come out of the Ingle Camp," she tells me. To fulfil her dreams, Natalie trains at least three nights a week at Unity with Jon Keeton, a former cruiserweight professional boxer. "I love the atmosphere of the gym," she says, "and Jon is a great trainer. I've got a huge amount of respect for him." And when she's not in the boxing gym, Natalie is out running and working on other aspects of her fitness. "All in all, I train six nights a week, minimum," she says.

Before she took up boxing Natalie was a karate expert. She took up Wado Ryu when she was eight, and became a black belt, third dan. She also learnt how to kickbox before, two years ago, switching exclusively to boxing. Now 23, Natalie's previous martial arts experience means that she has it tougher than most when it comes to competing in Amateur Boxing Association (ABA) bouts: "Because I've got a lot of martial arts experience I've had to fight opponents who've already got quite a few fights under their belts rather than novices," she reveals. Due allowance should be made for this in looking at Natalie's record of two wins and two defeats from four ABA fights. "One of my opponents had had 10 fights, another had had 16," she tells me.

But Natalie doesn't bemoan her fate. She chalks up each contest as invaluable experience towards the fulfilment of her goals. She's a determined young woman who exudes a quiet and steely confidence as much as she is clearly athletic and physically very capable.

So, has Natalie, Spencers' very own boxer, changed my mind? Am I now a convert to the world of southpaws, rope burns and TKOs?

I don't think so. On a personal level I know that boxing isn't for me, and I continue to have reservations about it in a wider sense. But so long as it remains lawful, I would always respect an individual's decision to lace up a pair of gloves and step up to the mark. I think, as a society, that we should respect the rights of others to make their own choices. And when I think about just how hard Natalie works at realising her ambitions, in this toughest of arenas, I also take my hat off to anyone who's made of the same stuff.

I'll write about Natalie's progress from time to time, so do check in to see how she's doing.

'Tis the season to be jolly - but that doesn't mean drink-driving is OK

Wouldn't it be nice, at this time of year, not to have to worry about drink-driving?

By that I don't mean there should be a moratorium on the enforcement of criminal penalties for people caught driving over the limit. Far from it. What I mean is perhaps even more fanciful: that December would see people truly adopt the spirit of goodwill to all - and refrain from drinking and driving.

Regrettably, the case of PC Brendan Buggie reminds us that some people leave common sense at home when they have a drink. The police officer was off duty but well over the drink-drive limit when, last December, he crashed in Greater Manchester, killing a female friend who was a passenger in the process. Buggie had had six pints in local pubs before he decided to drive, only to crash his sports car into a parked van on the A56 in Ramsbottom. Bradford Crown Court recently heard that his passenger, Justyna Stanczak, died of massive internal bleeding a few hours after the incident.

Buggie was cleared of causing death by careless driving, but convicted of drink-driving. There are many, not least those commenting on the Mumsnet site, who say that the very act of driving while under the influence should have been enough to see a conviction for causing death by careless driving. As a citizen, I have much sympathy with this view, though lawyers will no doubt point out that it is important, in the court process, for the precise cause of an accident to be established before liability can be apportioned.

In this case, it seems that the road conditions were highly treacherous, with a great deal of ice on the surface. If this, though, accounts for the causation of the crash in a strictly legal sense, it is also worth noting that the evidence shows that Buggie did not even realise the roads were icy. Had he been sober, surely he would have better observed the conditions and adjusted his driving accordingly - or, perhaps, elected not to drive at all.

Buggie presently awaits sentencing. He has been told that the circumstances are so serious that he may face a custodial sentence, albeit that he was not convicted of causing death by careless driving. 

This sad story should serve as a wake-up call to those who think, like Buggie, that they’re sober enough to drive when they are, in fact, over the limit. The consequences of one act of stupidity can be as fatal as they were for poor Justyna Stanczak, or they can be almost as severe with victims suffering terrible head or spinal cord injuries, condemned to living the rest of their lives in a vegetative or paralyzed state.

In the UK, the alcohol limit for drivers is 80mg of alcohol per 100ml of blood, 35mg per 100ml of breath or 107mg per 100ml of urine. In most other European countries, the limit is less, usually 50mg per 100ml of blood. Moves are presently afoot in Scotland to lower the drink driving limit from 80mg to 50mg - moves which are supported by the Association of Personal Injury Lawyers. No wonder, when we consider that the UK currently has the highest threshold for drink-driving in Europe. As Alice Warren, APIL's Legal Policy Officer, says: "Lowering the drink-driving limit will reinforce the message that people should not drink and drive, therefore this is an extremely positive move that will improve road safety, and prevent injury and loss of lives." 

I endorse the proposals for change north of the border, and I also endorse APIL's stance. But meanwhile, how about a bit of good old-fashioned common sense? We all know what happens when we drink too much. Some of us lose our sense of perspective after a single drink. Most of us find our co-ordination adversely affected after a couple of drinks, and all of us will experience impaired reflexes after drinking just a small amount of alcohol. It's not rocket science to decide to leave the car alone if we've had a drink, or if we know we're going to be having a drink. And it'd make for a pleasing change if we all acted sensibly during this, the season of goodwill.

Government must shed light on the darkness shrouding child abuse with wide ranging enquiry

A Prime Minister recently announced a wide-ranging inquiry into child sex abuse saying "Any instance of child abuse is vile and evil thing. There have been too many adults who have averted their eyes to this evil. There has been a systematic failure to respond to it and to protect children".

For UK citizens who have listened daily in recent weeks to the deeply depressing revelations about Jimmy Saville, the Bryn Estyn children's home and others in North Wales and last week's news that a former Church of England Bishop and a priest have been arrested on suspicion of sex abuse in the late 1980s and early 1990s, you might think that the quote above is from David Cameron.

In fact it was made by the Australian Prime Minister, Julia Gillard, as she recently announced a Royal Commission into child sex abuse, the institutional responses to abuse, the potential complicity of those institutions and the response of the police. Similar state level inquiries are already under way in Victoria and New South Wales.

The precise remit of the commission is still to be determined but it is believed that it will cover a broad range of institutions from the Catholic and other Churches, boys scouts and sports groups and child welfare agencies. The founder of one child protection charity in Australia, Hetty Johnston of Bravehearts, has said that the Commission should be as broad as possible: "The royal commission needs to include not only the churches. It needs to include family and other courts, government organisations and other institutions, anybody who has a duty of care".

Having recently been in Australia attending and speaking at the Australian Lawyers National Conference, it is horrifying to see the similarities with recent events in the UK being played out on the other side of the globe.

In both countries, an unknown, but large, number of victims have been ignored or dismissed for decades. They have been forced to suffer in silence with their anger, hurt and fears. Meanwhile it is increasingly apparent that institutions and authorities, that children should have been able to rely upon and place their trust, have engaged in the systematic cover-up of the truth with a "look the other way" attitude towards cases of abuse and perhaps have even aided abusers.  That some of the victims of child abuse are to finally be given a voice to tell the truth will be greeted with mixed emotions by those that really matter - the victims themselves.

There is currently an internal BBC inquiry and the public inquiry into abuse claims in North Wales' children's homes is to be reopened.  But the UK Government should follow the lead of Australia and instigate a wide-ranging inquiry, rather than these narrowly focused investigations.

There will undoubtedly be those who will argue that inquiries are expensive, are frequently knee-jerk reactions to events and take too long (the child abuse inquiry in Ireland began in 2000 and only reported its findings in 2009).

But they are also an essential component of a democratic society when it is either proven or suspected that the normal institutions of government have failed to protect the innocent or seek justice for the victim. If the institutions of justice have failed to do their duty and protect society, it is sometimes necessary to by-pass those very institutions and implement an independent review of the evidence and historical and current events.

I sincerely regret that child abuse is unlikely ever to be eradicated, but we as a society must do all we can to prevent abuse in the first place and seek justice when it does occur. Society must be unafraid to look into its darker corners in the pursuit of truth.

Back from the Antipodes

Here's a quick update to say that I'm back from Australia – somewhat jet-lagged, it has to be said. I still feel as if I'm upside down. I can’t help but marvel at people who fly to the other side of the world for business trips of just a day or so, then return to the UK. Maybe their body clocks adjust by dint of being constantly on the move, but I'm still getting used to UK time.

I was in Australia for the national conference of the Australian Lawyers Alliance. This took place in a suburb of Adelaide called Glenelg. As I predicted, the weather was rather warmer than it is here.

I'm keeping this blog brief owing to the pile of work to which I've returned. At the conference – which I found hugely interesting and informative – I spoke about PI and litigation reform in the UK. However, the key thing that struck me about life in Australia, and the legal issues the country's lawyers have to deal with, boils down to one thing: immigration.

I recall reading that one in four of Australia's 21 million people were born overseas; to spend just a short time in the country is to see that it is a multicultural melting pot. However, Australia’s immigration policy is a topic of great controversy. The government exercises considerable control over who is allowed to enter the country through the visa system. Anyone who is not an Australian citizen must hold a valid visa to be lawfully in Australia.

This is reasonable enough, but ‘unlawful non-citizens' (as they are known) must be detained under the Migration Act until they are able to establish their Australian citizenship, or have evidence of being a lawful non-citizen (for example, they have a valid visa), or are granted a visa.

In speaking to Australian lawyers I discovered that there is considerable disquiet about the way in which people are detained, pursuant to one of the strictest immigration regimes in the world. One of the foremost firms with expertise in this area is Shine, whose offices span the country.

I met with various personnel from Shine, including two very interesting characters – former Lt Colonel Michael Mori, who represented Guantanamo Bay detainee David Hicks, and George Newhouse, an Australian Labor Party candidate in the 2007 election who now heads up Shine's social justice practice. Mori became a military judge in Hawaii but is now working for Shine in Melbourne, and, as with Newhouse, he has an excellent record in human rights cases.

In talking with Shine's lawyers I discovered that anyone who is reasonably believed to be an unlawful non-citizen must be detained by an Immigration Officer. Even worse, the detention can be indefinite and detainees have limited rights to challenge the need for and the conditions of their detention in a court. Worryingly, it seems that detention is the norm for those without a valid visa, rather than something exceptional. This cannot but raise serious concerns from a human rights perspective.

This is a bird's eye view of a serious problem, but it has parallels with the points I have regularly made about reform of the PI sector in the UK. What is required in Britain, as the changes recommended by the Jackson review come yet closer to implementation, clearly applies to Australia, too – namely a holistic assessment of the overall system which is flexible enough to take into account the nuances of individual cases. The aim must, at all times, be to put a premium on justice being seen to be done – and actually being done.

My visit to Australia revealed a wonderful country with a huge amount going for it, but, when it comes to its immigration policy and practice, there is undoubtedly work to be done.

Australia-bound

Some half a year ago I wrote about the reasons for becoming a personal injury lawyer. Among them I cited the ability to right wrongs, the fact that PI law immerses its practitioners in the real world, and the constant challenges of this fast-evolving sector.

Given that I'm writing this blog about to depart for Australia you might think that regular travel is another reason to become a PI lawyer. I admit, as I'm about to board a plane to Australia, that lately I've seen a fair bit of the world. However, it’s not always like this – far from it, in fact. And this trip, to the national conference of the Australian Lawyers Alliance, will be the last for a while.

This time round, I'm travelling to Glenelg, in South Australia. This is a suburb of Adelaide and yes, I reckon that the weather will probably be better there than in Britain. But from tomorrow I’ll be wrapped up in the conference and preparing for my session at 4.45pm on Saturday. I'm speaking then about PI and litigation reform in the UK. This, of course, is a topic close to my heart - not least as LASPO enters its home straight.

The Legal Aid, Sentencing & Punishment of Offenders Act will become law on 1 April 2013. I will be speaking to conference attendees about the deficiencies in LASPO and ancillary changes, which I have often mentioned on this blog.

While in Australia I'm hoping to meet with various lawyers after the conference, by way of gleaning as much information about the legal profession and PI sector there as possible. In particular, I hope to discover more about the way in which outside ownership of law firms - pioneered in Australia - has panned out.

I’ll write about my trip as soon as I can. Please look out for the resumption of this blog in due course.

Postcard from Portugal

I'm just back from an interesting trip to Portugal. It was my first visit to the country, and I found it to be a charming, likeable place – and not just because of the glorious weather.

From our base at The Oitavos Hotel, near Cascais, my wife Susanne and I enjoyed a cycle ride to the beautiful beach of Guincho, some great swimming and a couple of whistle-stop tours of Lisbon and Sintra. Both are quite wonderful places, though our two days of downtime wasn't enough to do them justice. What was clear to me, though, was the remarkable courtesy of the Portuguese people. It's a quality that's ever so slightly tinged with melancholy (witness the tradition of fado music), but the Portuguese sensibility – putting a premium on good manners, warmness, and welcome – is undoubtedly very attractive.

I was in Portugal for a conference hosted by the New York State Bar Association in Lisbon. It focused on various legal issues but my role was to speak about Alternative Business Structures (ABSs) in the UK. This I did at a plenary session last Saturday morning, chaired by Kenneth G. Standard of New York firm Epstein Becker & Green. Ken was an impressive character. Able and charismatic, he managed the session very well and also, via initiatives like a breakfast meeting for attendees, ensured that the session was effective and productive.

It was interesting to encounter the American view on outside ownership of law firms. As with so much of American life, debates take place on a federal level. Often, consensus isn't across the board; it's more a case of each state having its own view. When it comes to law firms being taken over, or invested in, by non-legal businesses, there did, though, seem to be a consensus. With the exception of the District of Columbia, the American view is hostile to outside ownership. There's a great deal of nervousness about the possible compromise of professional standards, independence and ethics. The worry is that the primacy of the clients’ interests will be sacrificed in favour of shareholder value.

As regular readers of this blog will know, I am  open minded but sceptical about ABSs and outside ownership too. However, as one or two participants, speaking from the floor, observed, to try and resist the influx of outside interests is rather like King Canute's attempt to quell the sea. The tide of change is on its way; as one American attorney said, we'd better get used to it.

That said, I think it's salutary to remember what brought about change in the UK. The ABS regime is a direct consequence of the reforms proposed by Sir David Clementi. Those reforms – which include the enactment of the Legal Services Act 2007 and the creation of  the Legal Services Board came about because of the perception that the provision of legal services in Britain was byzantine, fragmented and failing. There was a perception that the legal profession had become protectionist and restrictive. The public was not getting the profession it deserved.

Reform has arrived here in Britain, and although I have sympathy with the nervousness of my American and Portuguese counterparts I believe that their resistance to change can only be justified if what they are seeking to preserve is beyond reproach. Thus, in the same way that here we must insist that strictly ethical behaviour and principles underpin ABSs, so too must overseas lawyers look squarely at their profession and be satisfied that they act, at all times, not just in accordance with the law but ethically and professionally too. Only in this way can they - and we here in Britain, where change is not just in the air but on the ground - ensure that he who pays the piper doesn't call a discordant, morally dubious tune.

Lisbon-bound for the NYSBA seasonal meeting

Today, I’m Lisbon-bound for a conference hosted by the New York State Bar Association at the Pestana Palace hotel. By all accounts this is a fine, city centre hotel, though I’ve opted to stay away from the hustle and bustle at The Oitavos Hotel, some 40 minutes drive from Lisbon.

This is my first trip to Lisbon, and next week I’ll post a snapshot of my impressions of this venerable and historic city. As I write, however, the task in hand is preparing a short speech I’ll give on Saturday morning, as well as a panel discussion. Between 9.00 and 11.00am, debate will centre on Alternative Law Firm Structures around the world, in a plenary session chaired by Kenneth G. Standard of New York firm Epstein Becker & Green. Other panellists include Vasco Marques Correia, the president of the Lisbon District Council of the Portuguese Bar Association; Junlu Jiang, of King & Wood Mallesons, Beijing; and Steven Younger, from Patterson Belknap Webb & Tyler LLP, New York.

I will be talking about Alternative Business Structures (ABSs), first proposed in Britain six years ago by Sir David Clementi, then given statutory footing in 2007 by the Legal Services Act and finally ushered in by the Solicitors Regulation Authority earlier this year. ABSs were much touted prior to their arrival as heralding a brave new world that would be of great benefit to consumers. They would allow non-lawyers to own and invest in law firms, thus revolutionising the legal profession because clients would have a cheaper, one-stop option for their legal needs.

Among those who sounded cautionary notes about ABSs were sole practitioners and small firms, who were wary of the notion of ‘Tesco law’ and ‘one size fits all’ for legal problems. I was also dubious about ABSs given the way in which they could be deployed to circumvent the Ministry of Justice’s  ban on referral fees in personal injury cases to be implemented in April 2013.  Because ABSs enable insurers and claims management companies to own and invest in law firms they can sidestep the MoJ’s efforts. It cannot be good for the consumer for a culture to arise which sees insurers start handling PI claims from start to finish.

In Britain, the take-up for ABS licences has been relatively slow, but the bandwagon is moving. More and more law firms are set to form alliances with other businesses, creating more ABSs. I do not object per se to the idea of ABSs, provided not only that a watchful eye is maintained on their ability to sidestep the ban on referral fees but also that the profession as a whole abides by its age-old principles. By this I mean that professionalism and ethical conduct must not be allowed to play second fiddle to the commercial dictates of outside ownership or too obsessive a focus on shareholder value.

The danger, with ABSs, is that he who pays the piper calls the tune. As lawyers, our tune must sing to the client’s good, first and foremost. ABSs are acceptable, so long as this is not forgotten. This is the most serious issue for debate.

Thoughts on whiplash on the eve of the Expert Witness Institute conference

Tomorrow I will be attending the Expert Witness Institute (EWI) Annual Conference at Church House Conference Centre in the heart of Westminster. This year’s Conference is themed around the implementation of Lord Jackson’s reforms in April 2013. The reforms have long been in the offing, and it’s no exaggeration to bill them – as do the EWI event organisers – the ‘Big Bang’. Lord Faulks QC’s ‘view from the House of Lords’ of the reforms should be particularly interesting.

But if April 2013 is set to yield seismic changes to the civil litigation landscape, I hope that the same isn’t true when it comes to our treatment and sympathy for whiplash injuries. As I have noted before, an unruly bandwagon is being piloted by an alliance of insurers, government and certain newspapers to convince us that whiplash is an invented condition. If the bandwagon isn’t stopped, it will career into whiplash victims and ruin their ability to obtain redress.

I hope to raise this issue at the conference, especially when I join EWI director Nick Addyman, EWI fellow Dr Keith Rix and Brian Gardner FRCS in a ‘medical breakout’ session. We’ll be debating topics dear to our hearts; the prejudice against whiplash is certainly one of mine.

However, before reiterating some of my beliefs about whiplash, perhaps I should first make clear that there is common ground here. I and other claimant PI lawyers agree with insurers that there is an opportunity for fraud in the current system. So, too, do we agree that fraud contributes to the rising cost of motor insurance. We also welcome the government’s wider interest in the motor industry and the myriad of factors that could contribute to lowering the cost of motor insurance, including education, training and monitoring for new and young drivers. 

But the myth that whiplash is not a genuine injury has got to be scotched. Whiplash is real and there is a wealth of evidence that demonstrates its potentially debilitating impact and long-term consequences.  The government’s proposal to increase the small claims limit in personal injury cases from £1,000 to £5,000 cannot but have a devastating effect on whiplash victims. It should be remembered that this idea was consulted on at length and rejected by the Ministry of Justice on the grounds that it would stop genuine accident victims from receiving justice.

Moreover, reducing legal fees to an artificially low level – as is also mooted – may have the unintended consequence of lowering the quality and standard of representation in whiplash cases. It could also lead to legitimate claimants having to fight for compensation without legal representation, therefore eroding access to justice.

Finally, imposing an arbitrary accident speed (e.g. 15 miles per hour) below which a claim cannot be made has little medical foundation, as serious injuries can occur even in low speed collisions. In addition, satellite litigation and unnecessary costs may be generated by arguments over evidence of exact speeds. One can well imagine endless and costly debate over whether a claimant was driving at 15mph or at 14mph. Technology such as telematics could have a role in reducing fraud and bringing down the cost of motor insurance in the future, but it is not a panacea. These schemes are currently unproven and cannot be relied upon as an absolute measure when all circumstances and individuals are different.

So much for the laments. Do we, I hear you ask, have any solutions? We do. Take a look at the 10-point plan for eliminating fraud produced by the Association of Personal Injury Lawyers. Some of APIL’s ideas overlap with mine, which appear below:

• There needs to be better co-operation between all affected parties to clean up the sector. We need a holistic approach involving government, insurers, the car industry, accident victims, medical professionals and legal professionals.
• There should be compulsory medical examinations. No whiplash claim should be settled without a medical examination. In other words: no medical, no damages. This would help to reduce fraudulent or exaggerated claims.
• There must be robust regulation of claims management organisations. This would reduce the negative impact they have on the industry.
• Better enforcement of data protection legislation is desperately needed. This would prevent the misuse of customer data, which concerns consumers and brings the industry into disrepute. It would also curtail the use of unsolicited marketing to encourage people to take up fraudulent or exaggerated claims.
• Better regulation of insurance companies is needed to stop sharp practices such as third party capture (pressuring claimants to settle before the case has been fully considered).
• The sector needs to work with medical organisations to develop better knowledge and understanding of what soft tissue injuries can be caused by motor accidents and to ensure that medical examinations and reports are substantive and objective.
• There must be continued improvement in vehicle safety to reduce and prevent head and neck injuries.

I’d be delighted to discuss any of this at tomorrow’s conference, or via comments to this blog.

Hats off to Stewarts Law

The law firm, which has offices in London, Leeds, New York and Delaware, entered six teams in last Saturday’s London triathlon. The teams consisted of partners, associates, trainees and paralegals, as well as clients and their friends.

Photo courtesy of  Julian Chamberlayne

I applaud the firm's commitment to the triathlon not just because exercise is a good thing. What’s better yet is that all involved were raising money for Dan's Fund for Burns, a charity which provides burn survivors in the UK with ongoing support, resources and practical assistance with their recovery. The charity was established by Polly Miller (a former client of Stewarts Law) after her husband Dan, best friend and seven other friends were killed in the 2002 Bali bombing. Polly herself was badly burnt in the attack.

Polly's experience – which revealed that many burn victims receive virtually no support from health care professionals – led her to set up her admirable charity. Much though it does excellent work, the fact that the charity exists cannot but cast a spotlight on the NHS. The glare intensifies when we consider the Draft Care and Support Bill, published last July.

The Bill aims to create a single law for adult care and support, replacing more than a dozen different pieces of legislation. It will provide the legal framework for putting into action some of the main principles of the White Paper, entitled 'Caring for our future: reforming care and support'. So far, so sensible, but a close look reveals that the provisions of the Bill are wanting.

In an earlier blog, I objected to the Bill's idea that people may have to pay for care by selling their homes, an initiative which cannot but have serious consequences for their offspring and which seems to me to amount to a death tax, and may affect large numbers of seriously injured people.

The efforts of firms like Stewarts Law in last Saturday's London triathlon are to be praised for redressing the deficiencies in present social care system, but the Bill needs to tackle these deficiencies head on.  Here's hoping that there will be due consideration by the lawmakers of the plight of people such as one of Stewart's former clients. Having sustained serious burns injuries he became a double amputee, but he was able to cycle his recumbent bike in the triathlon. Well done to Julian Chamberlayne and Paul Paxton, the firm and all involved - and if you'd like to help out, its still not too late to make a donation by visiting: http://www.justgiving.com/StewartsLaw-LondonTriathlon.

Postcard from Berlin

Towards the end of last week I found myself rushing to catch a plane to Berlin. I duly checked in to The Westin Grand Hotel on Thursday evening, the reason for my visit being the 15th anniversary annual conference of PEOPIL.

PEOPIL is the Pan-European Organisation of Personal Injury Lawyers. The conference began at the Westin Grand on Thursday morning, which meant that I missed its first day, but there remained two days in which a number of topics dear to those who work in the PI sector were covered. They ranged from talks about the recovery of punitive damages in European courts and the use of medical experts to an excellent presentation on establishing jurisdiction by Philip Mead of Old Square Chambers.

However, rather than remark on the technical matters discussed at the conference, I hope regular readers will allow me to make a few general observations.

First, the power of Twitter was harnessed to great effect at the conference by no less a figure than Gerard McDermott QC. In between tweets wishing the Cambridges luck in their privacy action and commending the Times’ coverage of the UBS trial McDermott QC – a leading barrister at Nine St John Street and Outer  chambers – urged more PI barristers to attend conferences like PEOPIL (he observed that only himself and Philip Mead had made the trip) and noted a number of interesting points, for example concerning “conflicts between Hague Convention and Rome II regulation and opportunity for forum shopping”.

As well as updating followers on what was happening at PEOPIL, McDermott, who specialises in medical malpractice, product defects as well as catastrophic road traffic accident litigation, added a few snapshots of Berlin. We saw the Brandenburg Gate and also learnt that “The Westin Grand in Germany is a truly Grand hotel. Built by East Germans before unification. I think to show what they could achieve.”

Twitter-speak doesn’t allow for fulsome descriptions, but I can endorse what Gerard McDermott said about the Westin Grand. It’s a truly remarkable place, located in Berlin’s historic centre. It oozes atmosphere and has possibly the most efficient and friendly staff I’ve ever met. The Brandenburg Gate is nearby, so too many other historic locations – the Reichstag building, the Potsdamer Platz, the Gendarmenmarkt and Museum Island. Berlin’s transformation following reunification in 1990 means that the area is also full of elegant boutiques and designer shops.

I visited another nearby famous place – Checkpoint Charlie, the best-known Berlin Wall crossing point between East Berlin and West Berlin during the Cold War. While once a symbol of repression, Checkpoint Charlie is now a major tourist attraction, surrounded by souvenir stands selling all manner of tat (especially fake military items). I have to say that I wasn’t hugely impressed by this aspect – it reminded me a little of the anti-climax of visiting Land’s End – but it is nevertheless impossible not to be moved by even a fleeting visit to Berlin, replete as it is with so many landmarks of European history.

Towards the end of Saturday my visit came to an end. At Tegel Airport I experienced something unusual – German inefficiency. I managed to board my plane, which departed at 5pm, but I had cause to wish that the staff of the Westin Grand were working at the airport. The atmosphere verged on mayhem and I seriously doubted I’d get through security and make my flight, but back in Britain I was hardly consoled  by Chelsea’s 0-0 draw at QPR. By all accounts it was an even game, with my team playing effectively to secure a point. Here’s hoping that effectiveness makes for three points in the next game – and here’s to widening Gerard McDermott’s plea: it’s not just more barristers who should attend conferences like PEOPIL, it’s solicitors and everyone who cares about the future of PI law.

Dawn Makin’s case is absolutely tragic for the loss of the life of a young child, as well as the devastating subsequent impact on her life

It also puts the spotlight on serious data protection breaches in the personal injury sector.

A few weeks ago the tragic case of Dawn Makin hit the headlines. The former nurse killed  her four-year-old daughter, Chloe in February 2011 before seeking to take her own life. Dawn Makin herself is now wheelchair bound following the suicide attempt. She is now serving a 12-year sentence following conviction for the killing.

Cases in which a parent kills a child are always awful. How, we wonder, is it possible that any parent would ever do such a thing? Our hearts go out to the poor, innocent child.

The data protection breach background pales into insignificance by comparison. Dawn Makin was sacked for illegally accessing a computer at Moorgate Primary walk-in centre in Bury. Why did she do this? To pass on the confidential, medically sensitive and personal details of 29 road accident victims to her boyfriend Martin Campbell, who worked for a personal injury claims company and who has since pleaded guilty to data protection offences.  He and Dawn Makin split up but she, too, was due in court to on data protection charges after a number of patients quite properly complained to NHS Bury in May 2010. Consequently Dawn Makin lost her job.

Judge Anthony Russell, passing sentence, stated: “The facts of this case are appalling. The victim was a four-year-old child, someone who trusted you. This was a sustained attack. Chloe must have undergone significant and considerable physical and emotional suffering. Finally, the physical injuries you have caused to yourself which are permanent and the knowledge you have killed your only child will be with you for the rest of your life.”

We should also condemn, in the strongest fashion possible, the very existence of the culture that facilitated the actions of Martin Campbell.

If personal data protection rights were properly respected, and the law observed, there would have been no mileage in Martin Campbell seeking to persuade his partner to reveal confidential medical information. As it is, the regrettable truth is that, as you read this, someone, somewhere will be illicitly selling on personal data.

We must hope that cases such as Dawn Makin’s mark the absolute limit of the tragedy that can indirectly  flow from data protection breaches, and further hope it acts as a catalyst to an impetus to prevent continued and future breaches.

Simmons v Castle: a small step in the right direction, but sadly that’s all

The Court of Appeal recently declared that general damages in most tort actions are to increase from 1 April, 2013. That’s good news, isn’t it?

I wish it was, but a closer look reveals that it isn’t necessarily so. The Court of Appeal’s judgment came in the case of Simmons v Castle. The endorsement of a settlement between the appellant motorcyclist and respondent car driver saw the Court of Appeal hold that it had an ongoing responsibility and the power to monitor and set the guideline rates for general damages in tort claims, including personal injury actions. Any such rates would be neither rules of law nor practice rules, but judges at first instance should consider themselves bound by them.

Hence, their Lordships ruled in favour of an increase in damages – but only by 10 per cent. The judgment sent insurers calculating  by how much they will need to  increase consumers’ premiums. They, along with the rest of us, had assumed that any increase in general damages would come through the implementation of the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO), also in April next year. But at the same time as insurers lament the guidelines of Simmons v Castle, so do personal injury lawyers who work at the coalface. The fact is that 10 per cent is nowhere near a large enough increase in rates for damages that have remained static and too low for far too long

This is not just the view of a claimant solicitor. Over 10 years ago, in 1999, the Law Commission Report No. 257 concluded that in cases where general damages exceeded £3,000 they should increase between 50% and 100% (with an appropriate tapering rise for cases where general damages were between £2,001 and £3,000). The Commission found that damages were not generally commensurate with claimants’ losses but also that “the ongoing non-pecuniary effects of many injuries are far greater than anticipated by victims at the time that they receive their compensation.” The Commission’s conclusions were reached after extensive research and an opinion poll on public attitudes to levels of compensation.

This issue was considered by the Court of Appeal in the 2000 case of Heil v Rankin. Regrettably, the recommendations of the Law Commission were not generally accepted. The Court held that in cases where the general damages exceeded £10,000 they should thereafter increase by 33%. However, there would be no increase for cases where general damages were under £10,000.

Little has happened since the Heil judgment. The recommendations of the Law Commission have not been implemented. Meanwhile, the cost of litigation has continued to rise. LASPO continues to wend its way through the legislative process, but there is no sign of provision for well-thought out increase in levels of damages envisaged by the Law Commission – as ought to be the case.

Now, along comes a recommended increase of 10 per cent, originally recommended by Lord Justice Jackson, implemented before April next thanks to Simmons v Castle. In some ways, we should be grateful as some were doubtful such a decision would come at all, but the truth is that as a society we are still woefully under-compensating injured people. We are still a long way from a collective endorsement of carefully considered recommendations which were made by experts, after due diligence and research, as long ago as 1999. The 'Simmons' adjustment does not even counterbalance the LASPO none recoverability provisions. As such, it is a step in the right direction, but that’s all it is.

The DWP’s Mesothelioma Scheme: Just Not Good Enough

Amid all the excitement of the Olympics it is perhaps no surprise that a press release issued at the end of July attracted little attention. It came from the Department of Work and Pensions, and sounded like a piece of very good news in announcing that, from 25 July, £300m was being pledged for the support of mesothelioma victims.

There was a catch – and hats off to The Observer for disclosing it last Sunday. In this piece, Jamie Doward highlighted the fact that the scheme is only available to future victims of mesothelioma, a form of cancer caused by exposure to asbestos.

To be fair, the DWP’s original press release, issued on 25 July, made clear that the scheme would only apply to “newly diagnosed victims”. It stated that the scheme “will allow around 3,000 mesothelioma victims across the UK who are unable to claim compensation because they cannot trace a liable employer or employers’ liability insurer to receive approximately £300m in payments in the first 10 years”, adding that around “300 mesothelioma sufferers a year currently lose out on compensation because they are unable to trace a liable employer or employers’ liability insurer”.

Lord Freud, the Minister for Welfare, declared: “We have worked tirelessly together with the insurance industry to agree this package of measures on behalf of those who face this terrible disease. The new scheme will mean that, for the first time, sufferers of diffuse mesothelioma, who cannot trace either a liable employer or employers’ liability insurer, will have access to extra payments.”

That sounds fine, so far as it goes – but the trouble is that it doesn’t go far enough. For starters, it seems that there will be a two year delay in the implementation of the scheme owing to the need for primary legislation. Mesothelioma is a terribly aggressive cancer, and the life expectancy of anyone diagnosed with it is nine months to a year. This means that anyone diagnosed with the disease now is likely to die before the scheme comes into force.

Moreover, as The Observer reports, there is considerable disquiet at the fact that the scheme only benefits suffers of mesothelioma. People suffering from asbestosis, pleural thickening and asbestos-related lung cancer are excluded from the scheme, but campaigners say these conditions amount to 50% of all asbestos diseases.

No wonder Tony Whitston, the chairman of the Asbestos Victims Support Groups Forum, told The Observer he was “bitterly disappointed at the exclusion”. He went further, accusing the government of acceding to the wishes of “rich and powerful insurers”.

I have previously alluded to the rather too cosy relationship that exists between the present government and the insurance industry, and have much sympathy with Mr Whitston. There is something about the wording of the DWP’s press release that is worrying. Lord Freud comes across as too keen to praise insurers (in saying how “tirelessly” they have worked with the DWP), and the press release is also at pains to point out that the scheme is “funded by insurers”. Then comes a quote by Otto Thoresen, the Association of British Insurers’ Director General (rather than someone from, for example, the Asbestos Victims Support Groups Forum). Mr Thoresen has this to say:

“Mesothelioma is a particularly aggressive cancer and the insurance industry, working with government, is determined to do all it can to ensure that sufferers get the support they need as soon as possible. This package of measures will deliver help to claimants much faster, including to those who would otherwise go un-compensated.”

Regrettably, though, this conjunction of the government and the insurance industry has not done all that it can. The scheme only applies to people suffering from mesothelioma since 25 July this year, will not be wholly effective for two years, and excludes a vast swathe of asbestos-related conditions. The bottom line is that many people will continue to go un-compensated, and, as so often when it comes to this government and the PI sector, so-called ‘reform’ simply isn’t good enough. 

Into the Twitterverse

For many lawyers of a certain age, Twitter is baffling. To be fair, it’s not just lawyers who are perplexed by the 140-character publishing phenomenon that is Twitter. Many people of middle age and beyond find Twitter incomprehensible too; including myself until relatively recently I have to confess. Why, they ask, would anyone want to share thoughts that are, by definition, on the minimalist side – and who on earth is interested?

A cursory glance at some Twitter statistics provides ammunition against the opponents. Stephen Fry has over 4.5 million followers; as of 15 August, @BBCBreaking (BBC Breaking News) could boast of 3,824,931 followers. From celebrities to news channels, then, Twitter has emerged as a viable – in fact, vital – means of disseminating their message and generating interest in either their lives (we can all know what Mr Fry had for breakfast, if we wish) or what they have to say. Needless to say, companies have seen value in Twitter, too: organisations from Google Inc to Starbucks have developed a strong Twitter presence, with legions of followers.

At Spencers we haven’t been resistant to Twitter, but it’s fair to say that we haven’t utilised it as much as we should. Not any more: look out for plenty of tweets from yours truly from now on. I think Twitter is a great way of conveying news and information about developments in the PI legal sector, from referral fees to plans to extend the RTA Portal. Please take a look at @SpencerSols and @JohnSpencerLaw for more.

Meantime, for those of you who may also have been slow to Twitter but now see its value, I’ve been brushing up on my media law. There are a number of pitfalls to be wary of, and here, indeed, one can see the difference between the generations. People of my age, whether legally qualified or not, will readily understand that legal liability could flow from the misuse of software like Twitter, while the younger (especially teenage) generation probably have little or no idea of what could go wrong as a consequence of a poorly judged tweet. Here, then, are some guidelines.

1. A tweet is subject to the law of libel. While my friends in media law tell me that this isn’t entirely settled law, it is generally agreed that a tweet has sufficient permanence to be regarded as publication in written form (rather than a verbal communication, which would be treated as slander). This means that something libellous – for example, saying that someone is a liar, or dishonest, or corrupt – could lead to the publisher being sued. The usual defences to defamation claims will apply, but if in doubt, don’t tweet.
2. Tweets can fall foul of the Communications Act 2003, which prohibits the sending of grossly offensive communications or those of an indecent, obscene or menacing character. This provision was recently in the news with the conviction of Paul Chambers for sending a tweet saying “... I am blowing the airport sky high”. In a victory for common sense, Mr Chambers’ conviction was overturned, but persistently malicious or threatening tweeters won’t be so lucky. The moral is: don’t use Twitter to vent your fury.
3. Likewise, don’t use Twitter to harass someone. Doing so on two or more occasions could amount to harassment under the Protection from Harassment Act 1997.
4. If you intend to disclose personal or confidential information on Twitter, take care: the Data Protection Act 1998 may apply. For employees authorised by their employers to tweet, take care not to disseminate personal information about colleagues – and be careful, however upset  by your boss you may be, not to disparage your employer via Twitter. You would almost certainly be in breach of your employment contract.
5. There are other ways in which Twitter could be misused. A tweet could amount to a misrepresentation, it could amount to a fraudulent statement, or it could be actionable as a malicious falsehood.

The bottom line is this: as with all social media, use your common sense. If you behave courteously and respectfully, you won’t break any laws. If you have something useful to say, you should find that you acquire followers who enhance your personal reputation or that of your business. If you can help people into the bargain – by keeping them up to date with developments in their sector and sharing information – so much the better. It’s this that we hope to do via @SpencerSols, so please take a look and let us know how we’re doing.

Post-Chicago Musings

Last week my first overseas blog appeared. It came all the way from Chicago, Illinois, where I was attending the American Association for Justice annual convention. This week’s blog again has an American flavour, as I reflect on lessons learnt during my stay at the Chicago Hilton, where the conference was held.

I’d like to add to the two general points I made last week (that wherever one finds oneself in the world, claimant lawyers are engaged in an adversarial battle with insurers, and that claimant lawyers here and in America seem to be up against a legislative drive to reduce or cap the costs they can recover). In a sense, what I am going to say is also a general observation, but nevertheless I think it’s an important one.

Put simply, I think that rather than knocking the American litigation landscape we should look at it objectively and ask if it has a thing or two to teach us. I think it does, for reasons I will explain.

The British tendency is to categorise American lawyers as ambulance chasers (or worse). Our press regularly skews coverage of American legal proceedings to paint a picture of a system in which pre-trial jury selection is bizarre, and where US lawyers habitually exaggerate or even invent claims. But while there is rarely ever smoke without fire – some claims about the excesses of American lawyers are undoubtedly true – if you scratch a little deeper there is much to be said in favour of the American way.

The main reason I say this is because the American system is underpinned by a belief that the client comes first. An American claimant who secures recompense for an injury is not condemned as being part of a ‘compensation culture’. Instead, it is accepted and understood that a claimant’s lawyer will do everything in his or her power to gain as much as is properly due for a client. The client’s needs come first, which means that no stone is left unturned in the preparation of a case. Yes, this dovetails with a financial incentive for the lawyer involved, but in America there is recognition that lawyers have businesses to run. That they might make a profit is not viewed as something wrong and unpalatable.

Contrast the way in which civil litigation has developed in Britain – and the way it is heading. Recent years have seen successive reforms which, put together, make it harder and harder for British solicitors to represent clients to the best of their ability. There is a sense, here, that lawyers who make a decent living are somehow ‘evil’, that they fuel the ‘compensation culture’ which is so hated by the government.  This also leads to a very worrying knock-on effect for clients potentially, in creating an environment in which early settlement, at a fraction of what a client could have obtained in damages, will be become difficult to resist. There is some statistical  evidence of this which has recently been presented to the Ministry of Justice by Professor Fenn.

The emphasis, here, is on getting rid of claims quickly, at low cost. In America, the focus is on getting the right result. Here, the beneficiaries of the system can be insurers; in the States, the client’s case is the main thing, and is never or at least rarely sacrificed..

Doubtless there are issues with the American personal injury system. As I say, the point I am making is a general one. Likewise, the way we do things here is not all bad. But my trip to America reminded me of the real role of the personal injury lawyer: to serve injured people. I think we would all do well to remember this rather than uncritically accept governmental  soundings off about the ‘compensation culture’.

Or, put another way, if you were the victim of a serious accident, through no fault of your own, would you rather obtain the maximum compensation to which you were entitled – or settle the case early so that the insurers didn’t have to make a hefty payout?

Postcard from Chicago

This blog is a first. In contrast to my usual musings, which are penned at various places in the UK, this one comes all the way from Chicago, Illinois. And no, before anyone tells me that I must be a workaholic, I'm not here on holiday.

I'm here as an attendee of the American Association of Justice (AAJ) annual convention, which is being held at the Chicago Hilton. The AAJ has been going for over 65 years, and previously  known as the Association of Trial Lawyers of America (ATLA). Its purpose is to support plaintiff lawyers of all guises, making for (as its website puts it) "a collective voice of the trial bar on Capitol Hill and in courthouses across the nation".

The AAJ's annual conference is attended by trial lawyers of every hue. There are seminars for trucking litigation lawyers, for those specialising in chiropractic malpractice litigation, birth trauma litigation and various kinds of pharmaceutical litigation. There all manner of other lectures and talks, all of which enable the open exchange of information and cutting edge know-how. I felt it was important to get a sense of how American lawyers deal with the kinds of issue that Spencers Solicitors handle, and so booked myself in for the four day conference.

The experience has been illuminating and when time allows I may write in more detail about it. For now, though, I will observe that two truisms seem to apply to the legal world on both sides of the atlantic.

Firstly, claimant lawyers are engaged in an adversarial battle with insurers. The latter subject to a minority exceptions seem to seek to minimise their liability at every stage, rather than remembering that without the people who take out their policies they wouldn't be in business. If only, as I have often argued in this blog, there could be a more constructive dialogue between insurers and claimant lawyers - if only a more holistic approach could be taken to the question of a victim's right to compensation - much time, cost and anxiety would be saved.

Secondly, claimant lawyers here and in America seem to be up against a legislative drive to reduce or cap the costs they can recover. While there may be merit in this in some ways, it cannot be right if the effect is to jeopardise a victim's ability to secure compensation to which he or she is rightfully entitled.

A final, more tangential observation is that it's true: American lawyers really are more theatrical than their British counterparts. They certainly don't lack for confidence and character. Last night, for example, my daughter Esme (who is accompanying me on the trip) booked us into Buddy Guy's Legends club. This is one of the most famous blues clubs in the world, and we had a fantastic evening watching brilliant musicians like Eric 'Guitar' Davis and Corey Dennison. As the evening wended on I found myself talking to a chap at our  table. He was confident and charismatic - and turned out to be an appeal judge from North Carolina.

Somehow, one doesn't seem to meet Court of Appeal judges in Ronnie Scott's club in the heart of the West End. That's not to say they don't like jazz - in fact, I suspect quite a few of them do - but it is to say that they'd be hesitant about striking up a conversation with a complete stranger. Not so in America, and tonight Esme is taking me to another blues club. I'll be surprised if any lawyers who happen to be there are backward about coming forward.

Britain’s dock workers shouldn’t have to rely on a Brando figure

Of all manual labour jobs, working in a dockyard might be the hardest. I say this because a friend once spent a summer working in Exmouth docks in Devon. He was exhausted by the end of every day. Sometimes his hands and wrists were cut by what he was unloading – he especially he hated fertiliser bags. But there was no alternative; my friend couldn’t just stop and invoke health and safety legislation. It was a case of either getting on with whatever he had to do, without complaint, or losing his job.

That was some 25 years ago. Society has come a long way since, and Britain stands proud as having the best health and safety at work record in Europe. Employers no longer resent provisions in legislation such as the Healthy and Safety at Work Act 1974. The majority now accept that they have a duty of care to look after, as far as possible, their employees’ health, safety and welfare while they are at work. For all that the tabloids sometimes assert that this means that it’s impossible to change a light bulb without performing a risk assessment, there’s an undeniable upside: our working environments are, for the most part, safe places to be.

It’s with some concern, then, that I read about proposals by the Health and Safety Executive (HSE) to axe rules which are specific to dockyards. There is more about this on the website of the Association of Personal Injury Lawyers. In a nutshell, the HSE proposes that regulations which are specific to dockyards, such as ensuring ladders are in place as a means of escape if workers fall into the water, are to be scrapped and replaced with ‘guidance’.

The measure is in keeping with the present government’s obsession with cutting red tape. I object to red tape as much as the next man – if it’s unnecessary and counter-productive. But I’m very worried when I see ‘red tape’ being cut in a dangerous working environment like a dockyard. The words of APIL president Karl Tonks are salutary: “Five times more dock workers die than the national average for workplace deaths so the last thing the port industry needs is weaker safety measures.”

It’s impossible not to agree. Working in a dockyard is tough enough without stripping workers of much-needed health and safety protection. As ever, what is required is a full and considered appraisal of existing rules and regulations and a holistic approach to whether they work or not. I very much doubt that this has been undertaken; once again, it seems as if the government is looking for sound bites in the tabloids rather than properly assessing a given situation.

In 1954, years before my friend had his summer stint in Exmouth docks, Elia Kazan’s On The Waterfront was released. The film chronicled corruption in New Jersey’s dockyards, with former boxer Marlon Brando famously taking on the mob boss, and winning. Great though it is, On The Waterfront depicts a lost era, one in which health and safety at work was as fanciful as rain in a desert.

We’ve come a long way since. What we don’t want is our dock workers having to rely on a Brando figure to secure their rights. I urge a rethink of the HSE proposals and due consideration of whether their implementation might not ultimately have tragic consequences.

The White Paper on Social Care: we mustn’t let it turn into a missed opportunity

Recently I wrote about John Burns, whose battle to secure continuing healthcare in his own home gave me cause for considerable concern. For those who may not have seen my previous piece, Mr Burns suffered a tragic water sports accident which left him paralysed and without sensation from the neck down. But at the very time when he most needed the support and infrastructure of family life, he was forced, through lack of any alternative, to live in institutional care. Understandably, Mr Burns regarded this as akin to prison. He missed anniversary celebrations and seeing his sons grow up, and all the up and downs that make a family so special.

I was fortunate to hear Mr Burns speak at the AGM of the All Party Parliamentary Group on Spinal Cord Injury, held at Portcullis House. He brought his audience to the brink of tears as he so spoke so courageously. I left feeling profoundly moved, and determined to try to raise the profile of people in Mr Burns’ position.

With this in mind I applaud the publication of a white paper on the future of social care, published last week along with a draft social care Bill. As a press release from the Law Society has it, this amounts to “a rare opportunity to unify and modernise existing legislation which must not be wasted.” Law Society President Lucy Scott-Moncrieff  states: “Simplifying and unifying a mass of existing statute is an arduous and complex exercise.  The aim must be to improve the experience of those requiring care.”

The publication of the white paper comes against a backdrop of reduced spending on social care, a society whose citizens are living longer and a need for clarity on how the system will be funded in future. But does it do enough to help seriously injured people?

I will be taking a look at both the white paper and the draft Bill in detail to find out, but one thing strikes me as dubious at the outset. It is envisaged that elderly people in need of care will be able to take out loans on the value of their homes, repayment of which will be deferred until their death. Therefore people will not be forced to sell their homes to obtain care, but is it right that the family inheritance is potentially eradicated in this fashion?

I don’t think it is. I believe that as a society we are guilty of failing to respect those in need of care properly, whether they are the elderly or those unfortunate enough to suffer a serious and debilitating injury. At present, costs are pushed back and forth between local authorities and the NHS – a problem the white paper seeks to deal with by proposing greater integration – but as a starting point surely we should be accepting that society has a duty to meet the costs of care? After all, those who need care have paid their taxes and, in all but a tiny minority of cases, they have contributed to the wellbeing of their communities and the economy of the nation. Why does government, past and present, assume the default position that it is the individual’s responsibility to pay for care?

I will return to this topic in the future but, for now, I am not convinced that those suffering catestrophic injury  would be impressed or relieved by the content of this white paper.  Let’s make sure it doesn’t end up being a missed opportunity. 

Ex Turpi Causa in RTA Cases: about as clear as mud

Should a thief who is injured in the course of a burglary be able to sue a house-owner if, say, a creaking and rotten floorboard collapsed as he was tiptoeing around the house, causing him to fall and break his arm?

Many of us will unhesitatingly say ‘no, of course not’. Others might go further and say that if the home-owner went on to injure the burglar, rather than help him, he should not, in law, be liable. After all, as the tabloid press like to remind us, an Englishman’s home is his castle.

But what of a burglar injured by the negligent driving of a co-conspirator while making a getaway? This scenario was recently before the court in the case of Joyce v O’Brien and Tradex. Mr O’Brien stole a pair of ladders from the front garden of a house and put them in the back of a Ford Transit van. He sped off, with his nephew (Mr Joyce) standing on a footplate at the rear of the van, holding onto the ladders. Having careered around a couple of corners, Joyce lost his grip, fell and sustained a serious head injury.

Joyce went to law.  He argued that O’Brien’s insurer, Tradex, should pay him compensation, which raised an interesting point of law: given that both men were engaged in a joint criminal enterprise, did the ex turpi causa principle apply? Latin scholars will recall the maxim in full – it is ‘ex turpi causa non oritur actio’. In plain English, it means one cannot seek redress where one has first acted dishonourably. 

The court held that Joyce’s injuries were caused not just by O’Brien’s driving but by his nephew’s precarious position on the footplate, where he was attempting to secure the ladder as well as himself. There was therefore a causation problem with Joyce’s claim, but it also failed as a matter of general public policy. As Richard Lynagh QC and Suzanne Chalmers, who represented Tradex, have it here: “a participant in a joint enterprise of theft which involves dangerous driving in order to escape the scene cannot recover for injuries suffered in the course of that enterprise.” Moreover, a driver could not owe a duty of care to his co-conspirator in a joint enterprise of theft.

The case is interesting in its own right, and it put me in mind of two recent Court of Appeal decisions. The first is Churchill Insurance v Wilkinson [2010]. Here, the passengers, who were insured, allowed an uninsured driver behind the wheel. The second case is Delaney v Pickett, heard in 2011. This case involved a reckless driver who was found to be a habitual cannabis user who was convicted of dangerous driving. In both cases, the insurers argued that the accident victims had breached their policy terms and were therefore not entitled to compensation.

There is an important backdrop to both cases – section 158 (1) of the Road Traffic Act, which gives an insurer the right to recover any outlay from their insured where their insured has allowed the use of a vehicle by an uninsured driver. There is also a related case, namely Cockayne v Evans, in which Ms Evans gave permission to Adam Cockayne to drive her motorcycle without giving any thought to whether he was insured or not (he wasn’t).

Taken as a whole, the three cases are complicated. The facts differ in each, and it would be inappropriate to rehearse them all here. However, suffice to say that Wilkinson V Churchill ultimately went to the European Court of Justice, which decided that section 151 (8) does not accord with European Directives on the harmonisation of motor insurance. In other words, it cannot operate to prevent a claimant from a right of entitlement to damages, where the claimant is a victim, albeit that the claimant permitted the use of a vehicle by an uninsured person.

Despite this, the Court of Appeal decided not to consider the Wilkinson case when it came to decide the Delaney v Pickett appeal. This, too, visited ex turpi causa territory, because the vehicle being driven was being used to buy and then resell cannabis. The Court of Appeal opted to treat the claim as an uninsured driver claim pursuant to section 143 of the RTA (which governs Motor Insurance Bureau claims) but concluded that it could be legitimately excluded.

Confused? Don’t worry – everyone in the PI sector is too. The bottom line is that while each case should be treated on its own facts, there is an absence of congruity between domestic law and European Directives on motor insurance. Watch this space: just as thieves will continue to bungle their getaways, it’s a certainty that the law here will soon be tested again at ECJ level.