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.