Justice Without Lawyers

Justice without lawyers. How does that work then? Probably about as well as a healthcare system without home grown nurses.

It is widely considered that one of the main drivers of the enormous NHS trust deficits is Government cuts to training places. All very well in theory, but at 1 o’clock in the morning when a busy trauma department is filling up with patients and needs staff, what are they supposed to do? Turn patients away? Of course not. Their only alternative is to turn to agency staff, a much more expensive option, but often the only option. Worse still, it’s not like the government couldn’t have seen this coming.

Returning to the law, the Government have been reducing the general public’s access to legal services for going on three years now, and one of their wheezes for this year, has been virtualisation of the courts and court process. In other words, move the litigation process online, reduce the staffing bill, and close the courts.

So, having created an advice vacuum with their policies of the last 2-3 years the Government is talking about Online Dispute Resolution (ODR) as if it is a panacea to cure the very vacuum they have created, and yet it obviously cannot possibly be any such thing. What it will actually do is replace the system we have now; people using physical court buildings and staff to process and adjudicate their disputes, with a virtual place and process. It will not, and cannot, replace legal advice. To suggest otherwise, is analogous to suggesting that if you close down hospitals and take doctors out of the equation, you can replace them with a self-diagnosis and prescription website. Utter, utter, tripe.

I left partnership in a firm to set up my own practice 6 months ago, which is aimed at assisting small businesses and consumers with contractual disputes at low fixed fees, and which was prompted by another government policy, their doubling of the small claims limit 30 months ago to £10,000. The carnage I have seen, and helped people through, in the last 6 months has to be seen to be believed:

– all caused by the same mindset that has produced this announcement- The justice system therefore needs to adapt to make sure that people can still access it without lawyers by a process designed to work without lawyers (The Right Hon. The Lord Thomas Of Cwmgiedd Lord Chief Justice Of England And Wales, 25th September 2015) – an absence of lawyers. Had the small claims limit not been raised, many of those people could have afforded lawyers, because if successful, they could have recovered the money they were spending on legal fees.

In the last month, I was hired by a client less than a month before her trial, to try to help her. She was involved in an acrimonious contractual dispute with a business lender. It was only at that point that she realised that she was in trouble. She had a very good argument that the case, which was run (badly) by professional lawyers against her, was unfounded. Unfortunately, because she had only a limited understanding of the law, she was blind to a critical development in the case which destroyed entirely her chances of defending the case, only a couple of months after she started. Had she been legally trained, she would have seen it immediately. Even the judge at the final hearing told her that theoretically, she had a good argument, but that she had lost the chance to capitalise upon it. Had she hired a lawyer a year ago, when the dispute first began, she may have avoided a substantial judgement against her which was awarded a week ago.

Her position would have been no different had the court been online.

The Government’s attitude to litigation is that it is very much an optional activity”. I doubt that my client felt that she had much option when she was trying, and failing, to save her business without the help she needed, and could not afford.

And yet the government persists in pursuing policies time and again which withdraw legal help from all but those with the money to afford it. Even GPs have reported an increasing number of consultations with patients who have unresolved legal needs, which are adversely affecting their life, their mood and therefore their health.

Perhaps perversely, this all reminds me of a brilliant scene in Blackadder 4:

Blackadder – Would this brilliant plan involve us climbing over the top of the trenches and walking very slowly towards the enemy?”
Darling – How did you know that, Blackadder? It’s classified information.
Blackadder – It’s the same plan that we used last time, sir. And the seventeen times before that.
Melchett – E-e-exactly! And that’s what is so brilliant about it. It will catch them off-guard. Doing exactly what we have done eighteen times before will be the last thing they’ll expect us to do this time”.

And there is the problem. They keep repeating the same behaviour, expecting different results:

This is particularly so when the Government have already admitted that they pushed many of these changes through without any, or any effective, consultation.

Most of their reforms so far have had the cumulative effect of removing access to legal representation, advice and assistance. Taking lawyers away from people has caused this – saying that they will have to get used to it is not going to fix the problem, and is only going to make it worse.

At the start of this year, 87% of lawyers thought that legal representation was no longer a right. The LCJ appears to have just given that view his blessing!

This is the clearest confirmation yet that the Government does not WANT people to have legal representation. In fact, it mirrors their stance on Judicial Review, where restricting the scope of JR would reduce the likelihood of challenge to Government policy.

For the last six years, the Government has been behaving like a cowardly schoolyard bully, trying to ensure that the fight is unfair, and is rigged in their favour.

ODR cannot replace the need for legal representation, and neither can any “virtual” court system the Government intends to introduce. Representation, advice and legal assistance will still be needed, whatever system the Government puts online, because, just as in medicine, people need the help of experts in their field. They cannot solve complex legal problems by navigating a few decision trees online, and furthermore, regardless of the views of the LCJ, unrepresented litigants taking action against a large business (who will very likely still be legally represented), or vice versa, will still be at a disadvantage to the represented party, as in my client’s case.

As the Guardian says in their article above What the figures do not convey is the sheer human misery of being unable to get legal advice”.

In May, I wrote an article entitled “The Sick Society”, in which I made a number of predictions as to the likely path of society if this Government’s judicial policy does not change. None of those predictions have changed, but there is a growing wealth of evidence that they are already happening. They are:

• with fewer controls on employers, combined with an ever more competitive marketplace, there is likely to be a steady increase in the number of unemployed and underemployed people (zero hours contracts and those on unpaid apprenticeships and internships notwithstanding);
• an increase in the number of innocent defendants choosing to plead guilty in order to avoid punitive court fees if their case is lost;
• an uphill struggle for small businesses and injured people, who will find it increasingly harder to achieve redress against defendants with greater means;
• a long term deterioration in familial relations, due to all of the above, and also due to there being no effective method available for spouses and parents who cannot afford legal advice and assistance to resolve their issues;
• a concomitant impact on the social and emotional development of children, the nature of which can only be guessed at, but which is obviously not going to improve;
• with all of the above we are also likely to see an increase in mental health issues with a resultant increasing burden on the NHS. In fact, this has already been found to be the case, even in children.

Parliament’s own report into the impact of these changes, the “Impact of changes to civil legal aid under Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012” states:

“80. Witnesses observed that demand for [legal] services was going up, partly as a result of the legal aid reforms but also because of other reasons such as changes in the benefits system and immigration rules, pressure on housing and rising use of zero hours contracts.[138]”

This isn’t just my opinion. It is happening.

Now.

Justice is, and always has been, at the core of our society. So instead of saying that people will have to get used to life without lawyers, the Government should be finding a way to restore contact between the general public and the legal services they once had, but have, under the last two Governments, lost.

It is truly a sad reflection of our leadership, that all of this is happening in the year in which falls the 800th anniversary of the signing of the Magna Carta, but this fundamental affront to our proud legal heritage also highlights the clear agenda of the incumbents; that justice should no longer be defined as “Just behaviour or treatment: a concern for justice, peace, and genuine respect for people” [Oxford Online Dictionary], but as a commodity to be bought only by those with sufficient means to afford it.

Everyone else will have to DIY.

Meanwhile, I have to get back to work. My hot water boiler has packed up, and I’m sure that with a £5 toolkit and a modicum of common sense, I can replace it and have the taps running hot by tea time…

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Thanks for reading.

Dean

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Compulsory Community Service for Lawyers

Yesterday, I posted a hypothetical article exploring what it would be like if the members of a profession other than the legal profession were expected to work for free.

This was prompted by a think tank study suggesting that lawyers should be made to work for free.

Regardless of the reasons given in the report (“reputational repair”…), the clear drive for this is to fill the huge advice desert created by the Government’s legal changes over the past three years, in particular, LASPO (the Legal Aid, Sentencing, and Punishment of Offenders Act (2012). Indeed the day after the report was published, Michael Gove announced that the Government will not backtrack on their legal aid changes (and why should they – the “fix” was announced the day before).

The proposal, when you look into it in a bit more depth, however, is truly startling in the liberties it takes with the rights of the British professional.

These plans, if brought to fruition, will result in lawyers working for free for up to 10% of their working year. The proposal is that this will be compulsory.

The only other societal situation in which this occurs, is in “Community Payback” (the current name for what we used to know as Community Service).

Community Payback is a compulsory work order given to convicted criminals as an alternative to custodial sentences.

According to Gov.UK, Community Payback sentences can be given for periods of 40 to 300 hours, depending upon the seriousness of the crime. The average of 40 and 300, is 170 hours.

170 hours is 4.25 working weeks.

10% of a lawyer’s working year, is 4.8 weeks (10% of 48 weeks, having deducted 4 weeks holiday).

So to summarise, the Government’s latest proposal to fill the advice vacuum left by their hugely destructive legal changes, is that lawyers should do more compulsory unpaid work in a year than criminals convicted of offences such as damaging property, benefit fraud and assault.

Only, unlike criminals, lawyers should have to do this every year of their career.

Sentenced, but not tried or convicted.

I can’t wait to see the legal justification for this.

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Accountants to be forced to work for free?

A Westminster-based think tank today released a report stating that accountants should be made to work for free.

The think tank (“Public Thingy”), has released a report, which, amongst other things, argues that the public has lost trust in their professionals, and in particular, accountants. The report states that “A variety of indices suggest declining levels of trust in the UK”….”Collapse of public trust in institutions and professionals should particularly concern us, not least because in many ways we are a service nation”.

It goes on to say that those working in the accounting profession, are far more trusted than bankers, politicians and journalists. However, these levels of trust cannot be taken for granted and neither are they necessarily indicative of clear virtue in practice”.

So, accountants score more highly than politicians, bankers and journalists, but if the stats don’t support your case, rationalisation is your best friend!

The report goes on, “the underlying problem for accounting practice is an increasing loss of purpose for the professions as a whole and a loss of vocation for individual professionals”“The accounting profession has seen an erosion of its sense of wider social purpose and vocation. Accountants are still more trusted that politicians, bankers and journalists” (in case you’d forgotten). 

The report holds the profession responsible for the erosion of access to good accounting practice for all.
The 36 page report however blatantly ignores the fact that the Government has imposed a withering hailstorm of attrition on the accounting sector in the last three years, including but not limited to:
  1. Reduction, verging on partial elimination, of all State sponsored accounting services, meaning that businesses who need State assistance with their accounting, are now faced with the choice of doing it themselves and getting it wrong, or paying money they don’t have for a service that used to be free, or subsidised;
  2. A bewildering assault on private accounting services, aimed at driving down the cost of accounting services to low level fixed fees, the results of which can only be a reduction in service levels and an increased level of professional negligence.
Given that the result of both 1. and 2. are that accountancy practices, particularly smaller ones, are less able to provide quality accounting services for the fees they can now legally charge, it is difficult to understand the conclusion of Public Thingy’s report that, having had their fees summarily suppressed by legislation, accountants are to be expected to carry out 10% of their work for free.
To draw an analogy, according to this report, politicians are still held in lower regard than accountants. As everyone knows, David Cameron stated that he believed the award of a 10% payrise to MP’s was “wrong”, which would seem to fall in line with Public Thingy’s expectations of social conscience in the professions. Of course despite denouncing the award, he didn’t manage to actually reject it, but Mr Cameron did nevertheless stand firm, and through a Downing Street source, said We’re writing a letter to Ipsa to reiterate we stand by the detailed submission we had already made to them last year saying we think this rise is wrong.”
So Mr Cameron “wrote a letter”. That’s that sorted.
All’s well, honour is satisfied, and so is the bank manager.
So, politicians have done the decent thing. What are accountants going to do to restore their tarnished image?
The fact that their image has been irrepairably damaged by Government action which has resulted in the depression of the industry’s service levels from limousine to Lada, is not the Government’s problem.
Public Thingy have the solution: get them to work for free. They should donate 10% of their time free, to fill the gap left by the Government, whose meddling has decimated the industry, and the sterling and ubiquitous service it used to provide. And that’s after having drastically reduced the level of fees they can charge for the work they do.
This all sounds like either a warped nightmare, or a very bad joke. Could the Government really wreak havoc on the accountancy sector, and could they really make accountants work for free?
Of course they couldn’t.
Of course they wouldn’t.
And they wouldn’t make plumbers work for free, or printers, or roofers, or shopkeepers.
And ResPublica (I make no apologies for the truly appalling pun), the Westminster think tank, have provided the weight Gove needs to begin moving such a proposal forward.
Why is it that this Government manifests itself as a self-styled paladin of commercial enterprise, and yet has time after time proven itself committed to throttling the life out of the legal industry, clearly secure in the belief that the law can take everything thrown at it and still continue delivering 110%?
The Law is the foundation of civilized society. As anyone who has played Jenga will know, continuation brings a certainty of collapse.
Still, at least accountants are safe.
For now.
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Err, TWO non-lawyer Lord Chancellors?

Radio silence for the last month, I know, but life has overtaken me, and, if I’m honest, all has gone quiet (well, relatively so) on the MOJ front.

Not really surprising since we have just had an election however, and all the new incumbents have of course retired to the “Plotting Room” to hack out their battle plans.

Did I say “Plotting Room”?

I meant “Cabinet Room”.

It’s now old news that Cameron has appointed Michael Gove as Lord Chancellor. It’s also old news that Mr Gove is the second LC appointed by Mr Cameron (in a row) to be missing a professional legal qualification. To be fair to Mr Gove, he hasn’t had a chance to make his presence felt yet, and it’s only fair that we give him that chance. I’m talking of course about his role as LC. Obviously he’s had his fair share of headlines to date:

  1. the National Association of Head Teachers,
  2. the Association of Teachers and Lecturers,
  3. the National Union of Teachers, and
  4. the National Association of Schoolmasters Union of Women Teachers,

…due to his education policies. Tim Gallagher, who proposed the motion for the NAHT, said: “This motion’s intention is to send the strongest message possible to this government that many of their education policies are failing our children, their parents and the very fabric of our school communities.” His education policies were considered by highly experienced Head Teachers as “devoid of meaningful consultation” and “lacking in understanding”.

Interestingly, Chris Grayling, his predecessor as Lord Chancellor, was accused by the legal profession of skimping on his consultations and of having no understanding of his role – the more observant readers may have spotted a theme developing at this point (as will the less observant).

But, the purpose of this brief missive (for those used to my blogs who are currently uncorking the bottled oxygen, I promise, this one is brief) is not to discuss Mr Gove’s record at the MOJ. Time enough for that later.

The purpose of this article is simply to float a question, which I am surprised I have not seen raised since the election.

What possible reason could there be for Cameron appointing two non-lawyer Lord Chancellors?

The first? Possibly coincidence, on a good day, if you were feeling in a generous mood, downhill, with a following wind (and possibly afterburners) etc, etc.

The second? Coincidence again? Not a chance.

The only rational explanation for appointing two non-lawyers to the position of Lord Chancellor, having already run the five year gauntlet of beatings from the judiciary, can only be to ensure that justice does not get in the way of cost cutting.

After all, if you were demolishing a house, you wouldn’t use a builder. Would you.

THE SICK SOCIETY

In three days’ time, we have a general election. So far, we have heard a great deal from the parties about who will be allying with who after the election, or not, but little about the detail of their promised policies. Not that promises mean much anymore, after the Liberal Democrats’ now famous u turn on their promise to oppose increases in tuition fees.

But their policies are the reason we turn out every four or five years to cast our vote, and after the socio-economic firestorm of the last five years, many people feel that reparation is required, and the parties’ policies should reflect that.

No right-minded voter would vote on the basis of one single issue. However there are issues whose effects percolate throughout the entire fabric of society. Justice is one of them.

In the film, Devil’s Advocate, after Al Pacino has just told Keanu Reeves that he is his father (oh, and Satan – who’d have thought…), Keanu Reeves asks him why he chose to manifest himself on Earth as a lawyer:

Keanu Reeves (Kevin Lomax); “Why the law?”
Al Pacino (John Milton/Satan); “Because the law, my boy, puts us into everything”.

The story is thankfully fiction, but the point above is not only a fact, but a blindingly obvious one at that. Which makes it all the more extraordinary that a seemingly intelligent group of politicians can have inflicted so much damage on the legal system of England and Wales.

Over the last five years, the Conservatives have taken it upon themselves to mount a sustained and vigorous attack on the rights of the common man. Among their more well-known policies, they have:

  • Introduced the “Bedroom Tax”, and Benefits sanctions for the most minor of defaults; both have resulted not only in widespread hardship, but even in tragedy;
  • Withdrawn legal aid for both family and criminal work, and have left convicted defendants who have pleaded not guilty facing payment of high fees, leading many to believe that many accused parties may prefer to plead guilty rather than roll the dice at trial;
  • Stated their intention of reducing the costs of civil litigation, and did so, and then raised court fees by an average of 600%. How raising court fees is supposed to be compatible with the Government’s identified issue that “The costs of civil litigation are too high, and are fuelled by no win no fee conditional fee agreements (CFAs)”, is anyone’s guess, and is just another illustration of the undisguised hypocrisy and contempt which has characterised much of the policy of the last five years.
  • Increased tribunal fees resulting in a reduction in tribunal applications of approximately 70%. The only logical result from this is that employees who have been unfairly dismissed are not taking action because they cannot afford the fees.
  • Taken action to restrict access to Judicial Review, one of the most powerful tools available to the people when seeking to hold the Government to account.

As a result of the above changes, one survey states that people are now more concerned about access to justice than access to free healthcare. This point is reinforced by the fact that GPs are reporting that they are seeing increasing numbers of patients with unresolved legal needs during their consultations.

It is not only the public, but Judges who are becoming more and more concerned at this withdrawal of justice from the masses. Sir Alan Moses recently said, “No one seems to care about the plight of those who have neither the ability to protect themselves in a legal sense and cannot afford a lawyer”. And for those brave people who do try to present their own case, the courts cannot cope.

An open letter was recently written by more than a hundred Peers, lawyers and doctors, requiring that the new Government, whatever creed it may be, takes steps to restore justice to the people.

This plea has become lost among the headlines, and was no doubt viewed by some in Whitehall as just another whining and self-serving attempt at self-promotion by those who submitted it.

I believe it is a genuine appeal to the next incumbents to fight a cancer in our society, which was born out of, and is growing due to, this Government’s policy. I further believe that there are serious long term consequences looming if some of the changes that have been introduced in the law are not reversed.

Cameron came out just over a year ago and finally admitted that he was not imposing austerity just in order to repair the economy, but because it was the way he believed society should stay.  He said that the Country needs “to do more with less”. If these policies continue, many people, almost all of them less wealthy and more vulnerable members of our society, will get less for less, not more for less.

The Tories talk about rising employment figures, but the reality is, with checks and balances on employers reduced, (see this article for a summary) zero hours contracts and under employment more prevalent, a sick work force with a growing reliance on food banks, and this can only get worse.

From my long years of experience as a personal injury lawyer who has worked on employers’ and public liability claims, I know that, whilst the large majority of employers may well treat their employees fairly, many don’t, especially the lower paid employees. The above changes are already making that worse.

Add to that restrictions on the quality of representation already being seen due to the introduction of fixed legal fees for injury claims, the withdrawal of legal aid for most family work and its reduction in criminal work, and the doubling of the Small Claims Limit in April 2013, and it is apparent that justice is no longer a foregone conclusion in most adversarial cases, particularly in low value disputes. Even the Master of the Rolls believes this to be the case.

Women and children are staying in violent relationships because they cannot afford to take legal action.

And finally, we could shortly have innocent people pleading guilty, simply because they cannot afford the consequences of losing, whether they are innocent or not.

Cameron heralded his 2010 campaign with his flagship policy – the “Big Society”. What he has achieved in the last five years is no Big Society, but a “Sick Society”, where success replaces justice as a commodity to be bought by those with the means to afford it. Meanwhile for those who cannot, in the longer term, the consequences are likely to be;

  • with fewer controls on employers, combined with an ever more competitive marketplace, there is likely to be a steady increase in the number of unemployed and underemployed people (zero hours contracts and those on unpaid apprenticeships and internships notwithstanding);
  • an increase in the number of innocent defendants choosing to plead guilty in order to avoid punitive court fees if their case is lost;
  • an uphill struggle for small businesses and injured people, who will find it increasingly harder to achieve redress against defendants with greater means;
  • a long term deterioration in familial relations, due to all of the above, and also due to there being no effective method available for spouses and parents who cannot afford legal advice and assistance to resolve their issues;
  • a concomitant impact on the social and emotional development of children, the nature of which can only be guessed at, but which is obviously not going to improve;
  • with all of the above we are also likely to see an increase in mental health issues with a resultant increasing burden on the NHS. In fact, this has already been found to be the case, even in children.

None of this is likely to have a beneficial effect upon the country’s GDP.

All of us, regardless of our position in society, could find ourselves down on our luck. A divorce, a redundancy, a repossession, a County Court Judgement could be all that separates us from those looking to the State for support.

If we were to do so today, however substantial our contribution to the exchequer over the years, we are unlikely to meet with any sympathy. In fact, Mr Cameron recently summarised the Government’s position succinctly, when he suggested that those requesting financial help to bury a dead war hero should seek a “charitable solution.

At some stage, if not in the next Parliament, someone with the power and authority to make a difference, will realise that, in the words of Al Pacino, “the law, my boy, puts us into everything”. Hopefully they will then be able to begin undoing some of the damage that the Conservatives have done over the last 5 years.

I just hope it doesn’t take too long for the penny to drop.

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big-society-slogan1

Happy 800th Anniversary Magna Carta – where has justice gone?

On 15th June 2015, we celebrate the 800th anniversary of Magna Carta. The website, which has been set up as part of the celebration of this great event, emphasises the importance of this innovative document, which established for the first time the accountability of the state and the rights of the common man. The above web page heralds as its title “To no one deny or delay right or justice”. A noble proclamation, and ye (well, we) can all find countless pages devoted to the Magna Carta celebrations on the web.

So, why ye (sorry, you) may ask, is there a Vote for Justice Rally on the 23rd April, less than 2 months before the 800th anniversary of arguably the most important event in English justice, ever?

The short answer is that the last two years have seen the most significant and sustained assault on justice in England and Wales for decades.

The Vote for Justice Rally is in response to the dramatic reduction of legal aid, primarily in criminal work,  but also in family work. In fact, almost 60% of parents involved in family disputes have been forced to represent themselves in Court since the removal of legal aid. Some even believe that, because of the dearth of legal aid now available for domestic violence, women will die as a result of these changes.

These cuts were just a small part of the draconian legal changes imposed since 2013. The legislation that imposed the bulk of these changes was the Legal Aid, Sentencing and Punishment of Offenders Act (2012). The same act also imposed significant changes on personal injury cases.

Other than legal aid, the main changes are, a ban on solicitors buying personal injury cases, and extensive changes to the legal costs recoverable by claimants on winning their injury cases, the result of which is that injured claimants who win their cases can now no longer keep all of their compensation.

As far as the ban on payments for cases is concerned, speak to any personal injury lawyer and they will tell you that:

a) This didn’t work, and;
b) It was never going to work.

The referral agreements changed to marketing agreements, which were drafted in full compliance with the new rules, and business continued as usual. In fact, the insurers who were paying the claims started sidestepping the ban before the law even changed.

So that was a great use of resources by the MOJ.

Turning to the deductions from a claimant’s compensation, you’ve all seen those TV adverts, right, the ones where sombre lawyer types with sharp suits and Hollywood teeth assure you that they will fight the big bad insurance companies to the death on your behalf? Did you notice when the script switched from you’ll keep “100% of your compensation”, to “all of the compensation you deserve”? In case you’ve ever wondered why, that’s why.

All of these rights have been snatched away from ordinary people like you. In return you have been given the dubious benefit of Qualified One Way Costs Shifting, or QOCS.

In essence this means that if you claim and lose, you don’t have to pay your opponent’s legal costs. The person sued (usually represented by an insurer who will be paying the claim) cannot recover their legal costs if they defeat the claim, with the one exception of you (the claimant) having been “fundamentally dishonest”.

Just as with referral fees, this is not working out quite as anticipated. In view of the fact that insurers cannot now recover their costs if the claim fails, many firms are running more or less every case that comes through the door, regardless of prospects, in the hope that insurers will make early settlement offers rather than fight them.

This of course has not helped the Government in their quest to stamp out unmeritorious claims. Quite the opposite, in fact. And it is having an equally negative effect on claimant/insurer relations. What the Government wanted was for the national claims pool to be reduced and purified. What they have got is a system where a higher proportion of new enquiries than was the case before LASPO, are now presented as claims.

Well, remove the risk, and what did they think would happen?

The result is that the insurance industry has moved from DEFCON 3 to DEFCON 2, and they now see fraud everywhere. Demonstrably genuine claims which, 5 years ago would have been settled on the best terms, are now being fought tooth and nail.

Another great use of our taxes by the MOJ.

To make up for losing 25% of their damages as costs, claimants have also been given a 10% increase in damages (100, minus 25, plus 10 is….nope, maybe it’s just me), but this apparent benefit is, in practice, rarely more than a mirage. Unless a claimant takes a case all the way to trial, cases tend to settle for a negotiated global sum and it seems clear that you, the claimant, are still worse off since LASPO. So as a result of LASPO, injured claimants have suffered a significant reduction in their ability to access legal redress. Even insurers agree that the benefit of this assault on justice has been largely theirs.

But the assault on justice does not stop there.

Staying with injury claims, recoverable legal fees for road traffic accidents have been reduced by 60%. Imagine hiring an accountant and learning that a change in Government policy had reduced their fees by 60%. Granted, not everyone would be that bothered, but would you really expect them to offer the same service as they had before? And would you be that surprised when they told you that they would have to add a 25% surcharge? Inevitably the dramatically reduced fees will reduce the quality of the work done. How can they not?

In fact, they already have, and as a result of the sharp drop in remuneration, evidence of under settling of claims has emerged.

So that worked well.

For public and employers’ liability claims, fixed costs have been applied across the board up to a claim value of £25,000. The costs scales are in fact quite reasonable, but are only workable if insurers behave reasonably, and at the consultation for fixed costs, the MOJ was presented with a significant body of evidence of routine unreasonable behaviour by insurers, and ignored it.

With personal injury, it doesn’t even stop there. Claims resulting from accidents at work were made harder for claimants to prove by the Enterprise and Regulatory Reform Act (2013).

Many people do not realise, until they have an accident at work, that the employer holds all of the cards – documents, witnesses, even the equipment and location are theirs. Decades of health and safety legislation designed to neutralise the imbalance between an employee and their employer was rendered impotent by this act, meaning that employment injury claims will now be much harder to prove. Those regulations were designed to protect employees, and to force employers to take better care for their workers.

However, in this enlightened age of zero-hours contracts and fierce competition in the aftermath of the recession, it does not take a brain surgeon (although it clearly takes more than several politicians) to work out the effect that this is likely to have on employers, and on their employees.

Then there is the dramatic increase in both tribunal fees and Court fees. The increase in tribunal fees has led to a 73% drop in tribunal claims, such a significant drop in fact that the Government are now considering lowering the fees.

The inescapable conclusion from this is that unfairly dismissed employees are not taking action because they cannot afford the fees (well, when you’ve just been unfairly sacked, tribunal fears are hardly your first priority).

Then there is the very recent 600% rise in Court fees (about which I have already filled several column inches). Perhaps they think we have forgotten, but this increase followed the rise in Court fees a year earlier levied by the same Government!

Are we to expect another fee rise? How far does this go? Should claimants expect to have to set up monthly standing orders to the MOJ? Will we have to sign over our houses to the Government if we wish to make a claim in future? I look forward to the next announcement with great anticipation.

Throw in the Government’s determination to stifle access to judicial review, and the unmistakeable conclusion is that they are pursuing a sustained and ferocious attack on the ability of the common man to access justice. This is not just my view either. Most lawyers now believe that wealth is central to having unfettered access to legal assistance and redress.

For the remainder of us who cannot afford to pay for legal help, the only options in such cases are to find someone who can provide justice on a shoestring, or of course to DIY. Many people, unable to pay for a lawyer to help them, are doing it themselves, and are getting it wrong. Good cases are being thrown away because ordinary citizens are unrepresented, and some are even pitting themselves against trained lawyers in court.

This outcome is not especially surprising when you hear that the Ministry of Justice has admitted that “they did not have the time to research the potential impact of cuts to civil legal aid”. Their candour is welcome, although not unexpected when you look at the impact assessments from the consultations, for example the consultation into reform of the whiplash claim process and costs.

The phrases “It has not been possible to quantify the costs associated with this proposal”, and “It has not been possible to quantify the benefits associated with this proposal”, are repeated 6 times. In fact there is no evidence in the impact assessment that they have found it possible to quantify anything.

And yet despite this, they pressed on with changes which have led to solicitors’ firms closing down, claimants losing a significant proportion of their compensation, and the creation of an advice vacuum for those on low, or no, income.

That’s an impact, isn’t it?

In a nutshell, the Government’s approach seems to be that “we don’t know what the outcome will be, but we’re going to do it anyway”. Life on the edge – how exciting!

As I write this, the internet is littered with reports of the Andrew Marr interview with George Osborne, in which George Osborne, who, having presided fiscally over a very difficult five years for the NHS, has, a month before the election, just promised to find £8 billion for the NHS if the Conservatives are re-elected.

In the aftermath of a five year brutal attrition of public services, the question “where does the money come from” inevitably springs to mind. George Osborne avoided answering that question 18 times. Of course, wherever the money may or may not come from, I’m sure that, as some people have alleged, the promise has nothing to do with the letter from 100 doctors to Mr Cameron 5 days earlier.

Is this just another example of “suck it and see” politics, which seems to have characterised this Government? The embarrassing reconsideration of Employment Tribunal fees referred to above certainly seems to fit that theory, as does the miraculously impact-free impact assessment (not much of a ring to that…) for the Whiplash Consultation, and the MOJ’s comments concerning the lack of consultation, during the Civil Legal Aid consultation (or that…).

So why this extraordinary attack on justice? Is it really just because cuts needed to be made from the public purse?

No.

There is no benefit to the public purse from reducing legal costs in personal injury work. The Government stated at the time that, as far as injury claim costs were concerned, they were seeking to reduce the burden on consumers by helping insurers to reduce car premiums. So how does that fit with making injured consumers and small businesses pay a 600% increase in court fees?

It doesn’t.

So what is the justification behind this onslaught? As far as injury claims are concerned, evidence has emerged of deals between the insurance industry and the Government.

Whether there were deals or not, and what the Government may or may not have got out of them, will remain a mystery. However, the haphazard and rapid manner in which these changes have been implemented suggests a lack of understanding of the subject matter. In fact, following the withdrawal of legal aid for family matters, the courts are now so inundated with unrepresented parties (“litigants in person”) that the Government is now having to spend more time and resources on dealing with that problem.

Another plan that didn’t quite come out as intended.

Chris Grayling, the first non-lawyer Lord Chancellor ever in this country, has been repeatedly criticised for having no understanding of his role, and there has been considerable discussion over whether the position of Lord Chancellor should be held by a lawyer. Mr Grayling’s own view is that he considers being a non-lawyer an advantage, as “it enables you to take a dispassionate view”, in which you do not “favour the bar or…the solicitors’ firms”. Well you would never have guessed the last bit.

So in conclusion, one has to acknowledge the considerable irony that, in the year the Magna Carta celebrates its 800th anniversary, a year in which the legal system of this country should be hailed as having evolved into an unparalleled paragon of justice, it has in fact atrophied into a shell-shocked combat zone, in which the expenditure of far too much energy is necessary just for legal firms to survive, and many haven’t.

Injured clients no longer recover all of their compensation; impecunious parents and spouses struggling to negotiate a difficult separation, are forced to plead their own case in court; victims of domestic violence are left with no alternative other than to stay and hope things change; and criminal lawyers are forced to stage protests in a brave but probably futile final effort to save their industry from being decimated.

So much for the accountability of the state and the rights of the common man.

On the 15th of June, are the Conservatives really going to be celebrating the 800th anniversary of the signing of the Magna Carta?

Or will they be privately rejoicing having confined it to the shredder?

Who knows?

However, there is one final point of relevance to the Magna Carta which I have not yet addressed. This becomes immediately apparent if you refer to clause 45 which states:

“(45) We will appoint as justices, constables, sheriffs, or other officials, only men that know the law of the realm and are minded to keep it well.”

My money is on the shredder.

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WHAT IS THE DEFINITION OF HYPOCRISY?

The Merriam-Webster dictionary defines it as follows: “noun hy•poc•ri•sy \hi-ˈpä-krə-sē also hī-\: the behavior of people who do things that they tell other people not to do : behavior that does not agree with what someone claims to believe or feel”.

According to the Cambridge online dictionary, the meaning of hypocrisy is: “noun [U] uk /hɪˈpɒk.rɪ.si/ us /-ˈpɑː.krə-/ disapproving – a situation in which someone pretends to believe something that they do not really believe, or that is the opposite of what they do or say at another time: There’s one rule for her and another rule for everyone else and it’s sheer hypocrisy”.

Not the traditional opening to a legal blog, but not an unexpected start to an article about the Government, some would say.

The idea for this article came to me last week when I picked up a court order for a provisional assessment hearing.

For those who don’t know, provisional assessment is a relatively new method of assessment of legal costs. In essence, a Judge sits down with the legal bill, a sharp pencil and a cup of strong coffee, and doesn’t stop scribbling until all the fat has been squeezed out of the bill. The intention is to replace detailed assessment hearings – no parties present, no pontificating barristers (sorry barristers) and shorter assessments. In fact 2 hours should more than do for most assessments of bills from £15,000 to £50,000.

Anyway, parking that tangent for a moment, the order stated, as they all do, that the receiving party must pay a fee of £675 for the privilege of having their bill assessed. Not that that is the problem. Indeed far from it – all fine so far.

Where the problem lies, is when you look at recoverable legal fee reductions driven remorselessly by the government in 2013, for no apparent reason other than to please insurers.

For all road traffic injury claims of a value of up to £10,000, from July 2013, the legal fees recoverable by the claimant are £500.

Just to put that in perspective, an injury claim worth £10,000 involves an extended period of pain and suffering and often a period of loss of earnings or care provided by relatives. Often cases worth this amount require more than one medical report to prove the value, because recovery is not as quick as hoped. That in itself usually means that the case takes upwards of a year to settle.

Let’s assume that the injury is (say) a frozen shoulder worth around £5800 to £9400. The Judicial College Guidelines, which sets that value against the injury, also says this:
“Frozen shoulder with limitation of movement and discomfort with symptoms persisting for about two years. Also soft tissue injuries with more than minimal symptoms persisting after two years but not permanent.”

So the injury takes 2 years to settle to the point where the claim can be resolved; remember that if you settle your client’s claim before they have substantially recovered, you could be guilty of professional negligence.

So, in summary (and coming back to our tangent sitting nice and cosy on the back burner) 2 hours of a judge’s time is worth £675. However for a personal injury practitioner trying to do the best for his client against an insurer who is often denying liability, their 2 years of work on that case is worth (wait for it….) £500.

£675 – 2 hours of court time

£500 – 2 years of solicitor time.

Hmm. We’ll come back to that later.

And now the point of the article, which is, and isn’t, the definition of hypocrisy.

Recently the MOJ announced a huge court fee rise which takes effect from Monday 9th March 2015.

And no, I’m not overworking my superlatives, unless you consider that “600%” is not huge. Forgetting for the moment that court fees were increased in April 2014, less than a year ago, Justice Minister Shailesh Vara, says that court fee increases of 600% are “no serious risk to legal services”

Well quite!

How could increasing a court fee from £1,515 to £10,000 on a £200,000 claim (an increase of £8,485, or 560%) possibly affect access to justice? You may think “well he’s just picked the top figure for maximum impact”. Guilty as charged, I’m afraid.

The increase for a claim of £50,000 is a paltry £1,890, or 310% (£610 – £2500).

Judges are incandescent at the proposal, and have pointed out that the proposed fees are 25 to 100 times greater than those payable in New York.

How can a Government that fights ferociously to reduce recoverable legal costs to £500 for cases that take up to and over a year to complete, argue at the same time that 600% increases of court fees are also justifiable?

Their reason cannot be because the fixed costs regime is the right thing to do. And how do we know that? Because the Government decided last week not to extend this to insolvency, because the Government agrees “more time is needed”.

So their reason is that “more time is needed”.

Insolvency practitioners have known about this since 2010, when these changes were first mooted. How much time do insolvency practitioners need? 10 years? A generation? More to the point, should insolvency practitioners be offended, that the Government say that they need more time to get their heads around changes forced on the PI sector in a few months, than it originally took them to qualify as lawyers?

What possible reason can there be for the Government not wanting to extend the low fixed fee regime to insolvency?

All becomes clear when you recognise that the Inland Revenue is one of the largest creditors in the country in insolvency proceedings . The Government doesn’t want to reduce its own income from insolvency work by imposing on its own departments similar fee cuts to those it forced onto personal injury practitioners.

So, when it says that £500 is a reasonable sum of money for a claimant solicitor dealing with a case over a period of up to or over a year, what it really means of course, is that that figure isn’t nearly enough (certainly not sufficient for its insolvency lawyers), but suits the Government’s pro-insurer agenda.

Their arguments that fee increases of 600% will not seriously affect the legal sector, are about as credible as the ATF agents driving tanks at the walls of the Koresh compound in Waco, in 1993, shouting over loudhailers “this is not a raid”.

Really?

To appreciate how ridiculous the Government’s stated position is, you only need look at their recent increase of employment tribunal fees to a maximum of £950, which has led to a 79% reduction in tribunal cases – hardly a panacea for industrial harmony.

Still, if Mr Vara says it with confidence, maybe he’s right. Or maybe they’re just driving the same skinflint agenda, at the expense of the fabric of society.

How can all this possibly be explained? Some believe that they are trying to stamp out claims altogether. Maybe this is the ultimate manifestation of the Big Society – if you’ve been screwed by a debtor or injured by a negligent employer, turn the other cheek – pull your socks up Britain and just get on with it.

Either way, to argue that solicitors are more than adequately remunerated for running road traffic injury cases with fees of £500 (just let’s not apply them to Government work), and then that court fees need to go up by 600%, would admirably suffice as a new definition of hypocrisy.

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ONLINE DISPUTE RESOLUTION – INSPIRED INNOVATION OR BUDGET (IN)JUSTICE?

This week, Shadow Justice Minister, Sadiq Khan MP, accused ministers of avoiding answering his parliamentary questions on the growth of unrepresented parties in court. He had been seeking, as long ago as October, information on how many cases involved unrepresented litigants in the last 4 years.

So far the Government has not answered.

No surprise there.

The number of unrepresented parties in court has soared, largely due to Government withdrawal of legal aid, and the increase in the small claims limit to £10,000. It’s no surprise they don’t want to answer difficult questions.

Meanwhile the Civil Justice Council recently recommended addressing the problem by replacing the Small Claims system (and in fact the system for all claims up to £25,000) with Online Dispute Resolution (ODR).

The title of the report is “Online Dispute Resolution for Low Value Civil Claims”.

According to the report, low value claims are those below a value of £25,000.

The Government’s own figure for the average annual wage is approximately £23,000*.

Leaving aside the fact that £25,000 is for many a life changing sum, and, according to the Government’s own figures, more than a year’s earnings, the CJC’s classification of low value claims suggests that either they have borrowed the classification from the Government**, or they are as out of touch as the Government, or both.

This could be a good thing (ODR, not the CJC being out of touch), provided it’s done properly. But then this proposal seeks to place the bulk of the legal process for money claims of up to £25,000 in the hands of software developers. There are now, and will always be situations that do not fit the box; if not, we wouldn’t have a precedent based legal system, and it’s difficult to see how software decision trees can be successfully applied to legal problems. Is the next step to be online self diagnosis? What if you tick the wrong box and end up with  diabetes instead of cancer?

It is all very well de-skilling the court process, and even judicial staff, but you can’t “de-skill” the law – no dumbing down of the legal process will change the law, nor its applicability.

Furthermore, the Government aren’t exactly known for their track record with successfully implementing new computer systems (amongst them, the NHS, Department of Transport, DVLA, DEFRA, NOMIS, MOD DII, Identity Cards and others).

The Government have been responsible for a dramatic reduction in access to justice – criminal legal aid, family legal aid, civil litigation, small claims, employment tribunals, to name but the headline acts.

All of these have served to narrow the scope of peoples’ rights and their access to legal redress. It is no surprise that this chiefly hits those of lesser means. So a cheap, efficient dispute resolution system is a good thing, provided people do not hemorrhage more of their legal rights in the process. Any system which cuts corners, sacrificing detail for cost cutting, risks producing the wrong decision. Even the Master of the Rolls thinks so.

Those with good cases could lose or not have their cases properly dealt with simply because the evidence was not presented properly. This has already been seen to happen with the Government’s solution to reducing the cost of running road traffic accident claims .

If done properly, this could work, but peoples’ rights are at stake, and another botch job for no reason other than to alleviate pressure on a beleaguered court system will not serve peoples’ interests well.

People will still need the opportunity to take their own professional advice and have their case prepared properly.

We await developments with cautious curiosity.

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Dean V Talbot F.C.I.L.Ex.

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*”Households Below Average Income An analysis of the income distribution 1994/95 – 2012/13″
**Pre-Action Protocol for Low Value Personal Injury (Employers’ Liability and Public Liability) Claims S 2.1, and Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents from 31 July 2013 S 1.2(1)a

Legal representation is no longer a right (or is it…?)

Don’t take it from me – that’s what 87% of lawyers who were questioned, think: Furthermore, more than 79% of those lawyers surveyed believe that de-skilling is inevitable. Not great when the customer needs things done properly.

For those who don’t know, the English and Welsh legal system has been systematically pulled apart over the last 2 years and reconstructed. Well, partly reconstructed.

In short, criminal legal aid funding has been dramatically reduced, family legal aid has been more or less annihilated (except for some few exceptional cases), and civil litigation has been changed beyond recognition, making it harder for ordinary people to enforce their rights.

The most talked about area of civil litigation is injury. Whilst people who have suffered injuries at others’ hands now have a much harder job proving their case, and will no longer be able to keep all of their compensation, this article does not concern injuries, but in fact deals with one area which is often overlooked – small business and consumer claims.

Some examples:

• That repeat customer who refuses to pay his bills;

• That computer that packed up 1 month after you bought it;

• The new conservatory that sprang a leak;

• The car salesman who conveniently forgot to tell you that your car had a very expensive fault before you bought it.

Many people are not aware that the Small Claims Limit was raised last year from £5,000 to £10,000. That means that since April 2013, if you have a contract claim of up to £10,000 (including, but not exclusively, as above) you either pay to go to court yourself, or write it off.

I’ll say that again. You write it off.

Writing off a debt of up to £10,000 is a choice many people make, because if they hire a solicitor to help them, even if they win, they can’t recover their legal costs from the loser. So they could recover their (say) £9,000 debt, but may have paid (say) £3,000 – £4,000 to a solicitor to achieve that. What’s the point, especially when it can take 1-2 years to get there.

The logical outcome of such changes is easy to envisage – people who can’t afford solicitors either don’t take action or run their cases themselves. Many people need to consult a lawyer, but can’t afford to do so, and so don’t.

Many people on the other hand are brave enough to run cases themselves, and many get it wrong, because (surprise, surprise) the law is complex. Even the Master of the Rolls, who ushered in most of the plethora of changes in the law over the last two years, believes that winnable cases WILL be lost because people are running them without legal assistance.

The Court of Appeal not only agrees, but their frustration at having to explain the law to those who cannot afford a solicitor, is all too evident.

The good news is that there are now alternatives which will provide you with the expert legal help you need, at a fraction of the cost of a conventional solicitor’s practice.

Going back to the article at the top, the 87% are right. And wrong.

Government policy IS forcing the public further away from access to justice, BUT the market is adapting to respond to those changes. If you want to know more, you can contact me here.

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Dean V Talbot F.C.I.L.Ex.

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Help for LIPs

In October, Simon Hughes announced that the Government would be providing help for LIPs (Litigants In Person; that is, unrepresented claimants or defendants). The Government have pledged to create a network of advice centres within court buildings to help people who are running their own cases.

This has been prompted largely by the explosion of unrepresented family court litigants following the almost complete elimination of legal aid for matrimonial cases. The courts are choking with people trying to enforce their rights without legal help and, because they are unrepresented and therefore have no legal advice, thousands of cases are taking longer, significantly increasing the workload for the courts. This applies not only to family work but also small claims – the Government increased the small claims limit last April from £5,000 to £10,000, meaning that much larger and more complex financial disputes must now be run without representation by lawyers, as the legal fees your lawyer would run up in representing you cannot be claimed back even if you are successful in the small claims court.

The announcement that the Government are introducing advice centres is therefore welcome news, but only insofar as people will have advice at court. People need advice before and during the running of a case however, and many believe that the provision of advice centres in courts is nothing more than a sticking plaster on a broken leg.

In disputes over thousands of £s, it is important for people to receive expert legal advice throughout the course of their case. Court fees also increased significantly last year, and for those risking a payment of over £500.00 to the court, just to get their case to hearing, they need more than just some advice in the hour before the trial; they need proper preparation. It is hoped that this will be just the first step in the return of access to justice to the general public. You can read more about this here….  http://www.lawgazette.co.uk/news/hughes-pledges-14m-to-help-lips/5044568.article

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Dean V Talbot F.C.I.L.Ex.

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