John Spencer

Where did all the ethics go?

2013-05-24T09:28:00.002+01:00

In September last year the Office of Fair Trading referred the UK's private motor insurance industry to the Competition Commission. The referral followed a study by the OFT in May 2012, which found that there were reasonable grounds to suspect that there are features of the insurance market that prevent, distort or restrict competition.

In other words: there is reason to think the insurance industry is not serving its customers well.

It's a year since the study that, in turn, led to the referral to the Competition Commission. Perhaps, if we look back at the study, we might find that insurers have started to get their house in order, ahead of the report of the Competition Commission in September next year?

Dubious Practices

Sadly, the short answer is 'no, they haven't'. The OFT, in its summary of the referral, put it thus: in focusing on "the provision of replacement vehicles and vehicle repairs", it was thought that "the insurers of drivers responsible for an accident ('at-fault' drivers) appear to have little control over the way repairs and replacement vehicles are provided to the 'not-at-fault' driver." The OFT added that this "may enable the insurers of not-at-fault drivers, and others such as insurance brokers, credit hire organisations and repairers, to engage in practices which appear to result in the cost of replacement vehicles and vehicle repairs provided to not-at-fault drivers being higher than they might otherwise be."

What is meant by the use of the word "practices"? Let's be clear. This means the payment of referral fees. The Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) may have banned the flow of these between solicitors, claims management companies (CMCs) and insurers, but they are alive and as insidious as ever when it comes to garages, credit hire companies leasing vehicles to drivers after accidents and recovery companies.

A Conduit for Backhanders

If little, if anything, has really changed, there's worse. An (unintended?) consequence of the Alternative Business Structure (ABS) regime, which came into being in January 2012, is that insurers have a ready-made way of circumventing the referral fee ban: they can now simply buy or merge with law firms. The backhanders keep flowing.

It's not easy to discern in the terms of the OFT referral but there is clearly a huge question mark over the conduct of insurers and their representative body, the Association of British Insurers (ABI). The ABI has proved adept at spinning the yarn that 'compensation culture' fuels hikes in insurance premiums and makes our lives a hostage to unscrupulous bounty hunters who will issue a claim at the drop of a hat - and yet it is the ABI's very members who cause the 'blame and claim' syndrome in the first place.

These thoughts lead inevitably to a consideration of the ethical standards - or absence of them - at play among insurers. Time and again stories of outlandish litigation in the media turn out to be bogus or wildly exaggerated; time and again we encounter insurers blaming the increase in the cost of premiums on everyone but themselves.

In truth, investment income - which is what our premiums are used for - has flattened out because of the global recession and so insurers seek to ramp up their profits through a back door which has become nothing but a conduit for backhanders. It's a vicious cycle: as one insurer ups the ante, passing on costs to another, so does its competitor. And so on, and on - until, hopefully, the Competition Commission will do something about it.

Wishful thinking?

Meantime, as Duncan Minty's excellent blog recounts, insurers continue to fall short when it comes to acting ethically. This post, for example, reveals that a "survey by CSR Europe and KPMG of five European insurers and five European banks found that 80% had no ethical objectives or targets of any kind, while only another 10% had a qualitative target." As Minty notes, while admittedly a small survey it shows "that ethical objectives and targets remain a challenge for insurers."

From a claimant solicitor's perspective, I'm tempted to go further and say that acting ethically seems to resemble a brick wall for insurers. But bricks walls don't stand forever. Even the Berlin Wall came down eventually. Minty has produced a free e-Book on setting ethical objectives and targets for your business. Here's hoping that the CEOs of insurance companies download it, read it and learn from it. Wouldn't it be nice to think that they'll do so, ahead of the Competition Commission's report next year?

Every eight hours someone is told they will never walk again

2013-05-17T13:59:00.000+01:00

It's a remarkable and dismaying statistic: every eight hours, somebody is left paralysed by a spinal cord injury and told they will never walk again.

The reality of a spinal cord injury (SCI) is all the more terrifying given the absence of adequate healthcare for those suffering. This is something that I've written about in the past, and it's something that I intend to continue to publicise. Please join me, then, in supporting Spinal Cord Injuries Day, which takes place today, Friday 17 May.

Raising awareness

Spinal Cord Injuries Day aims to raise public awareness of the grave difficulties faced by many people affected by spinal injuries. An excellent campaign is presently being managed by www.EveryEightHours.com to do just this, and I wholeheartedly embrace it.

Specifically, the campaign aims to ensure further and better medical research into more reliable treatments, to develop improved medical care and support for those affected by an SCI, and to provide guidance and support for those affected by spinal injuries so that they can lead independent lives.

My work has brought me into contact with many people with SCI. Often the diagnosis of paraplegia or tetraplegia comes after a sudden, traumatic and wholly unforeseen accident. Managing the injury takes time, money and a colossal amount of care - and has a huge impact not just on the injured person but on their family as well.

Research carried out by Loughborough University, on behalf of spinal injury support charity Aspire, reveals the harsh truth about the state of care for those affected by spinal injuries. Last year, for example, a fifth of those affected were discharged from hospital and transferred to a care home, irrespective of their age. Why? Because local housing cannot suitably accommodate the injured person's changed lifestyle and needs.

Health care is not good enough

Moreover, these care homes are often understaffed and, frankly, horrible places for those adjusting to their new lives. Loughborough University's research incorporated 20 interviews with residents from care homes across the UK, most of which suggested care workers don't have the necessary experience or know-how to look after people who have suffered such traumatic injuries.

From one interview it transpired that staff had attempted to move a person with spinal injuries using a 'slideboard', only to drop the patient on the floor. The result, adding insult to injury, was that the patient sustained a broken arm. On a separate occasion, that same person was provided the wrong medication - a potentially fatal mistake.

Indeed, as I wrote at the end of last year, my colleague Allison O'Reilly reported in the shocking truth of the story of Roger Hearn, who sustained life-changing damage to his spine in a road traffic accident while on a cricket tour in India. Mr Hearn spoke at a hearing held by the All Party Parliamentary Group on Spinal Cord Injury, and also gave an interview to ITV about his experience. He revealed that care home rules mean that his wife is prohibited from sleeping in the same bed as her husband. Her commitment to her husband's care is inspirational - Mrs Hearn sleeps on the floor next to his bed - but nevertheless Mr Hearn echoes the feelings of many with SCI when he says: "Survival is often just the name of the game."

Advances in technology are beginning to make a difference to those affected by spinal injuries, and it is to be hoped that one day science will provide real solutions. But for now, there is no quick fix. Those with SCI need help; their families need help; those working in this sector, to care for them and find solutions, need help too.

Please, therefore, share the www.EveryEightHours.com website through social media and get in touch with the spinal cord injury charities involved in the campaign.

We must do our best to make a difference.

Thalidomide victims must not be forgotten

2013-05-10T17:06:00.000+01:00

Recently I had the pleasure of meeting up with Michael Napier, who is well-known in the legal profession as the former senior partner of Irwin Mitchell. As well as being at the helm of Irwin Mitchell for 30 years, Michael has served the profession with distinction in a number of roles, including a stint as president of The Law Society. Today he continues to play a large part in the litigation sector, not least in his new appointment as Chairman of Harbour Litigation Funding Ltd.

Michael is as well placed as anyone to comment on the huge changes that the profession is undergoing at present. Our conversation ranged around a great deal of things, including the recent advent of the Jackson reforms as law in the form of the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO). And in chatting with Michael, another thorny topic was covered: the public image of personal injury lawyers.

Too often, personal injury lawyers are cast as mercenaries who are only interested in their own profit. This stereotype is trotted out by the media on a regular basis. In the same way, the media - and many politicians - would have us believe, as a society, that we are awash with spurious claims; that vast swaths of the population litigate at the drop of a hat, spurred on by avaricious lawyers.

Duty before profit

The truth is very different. My firm's motto is 'duty before profit'. We believe in our ethical and professional duty to serve our clients to the best of our ability. So, too, do the majority of personal injury lawyers. Frequently, indeed, personal injury lawyers help people to obtain redress in circumstances where corporate indifference or resistance might otherwise see them left uncompensated.

Michael reminded me of a good example of this. Thalidomide was manufactured in the 1950s and was sold from 1957 until 1962. Initially used as a sleeping pill, its use morphed into an apparent panacea for pregnant women suffering from the effects of morning sickness. Tragically, though, it caused many different forms of birth defect.

Thalidomide was withdrawn from sale in 1962 after the link between its use and deformities - including shortened limbs, blindness, brain damage, missing sexual organs and missing internal organs - was conclusively proved. But as if its victims had not suffered enough, the past 50 years have been a different kind of battleground.

As Thalidomide victim Guy Tweedy, from Harrogate, said last year: "Thalidomide was not an act of God. It was a man-made disaster. For seven months leading up to the drug being withdrawn, UK government officials had been given compelling evidence that it was responsible for a large number of babies being born with horrific birth defects ... For the last 50 years we have not only had to live with the devastating effects of Thalidomide, but we have had to fight every step of the way for compensation."

Here, personal injury lawyers have played a role. They have helped maintain pressure on the German manufacturer of the drug, Grünenthal - which only last year managed to issue a public apology to Thalidomide victims. Personal injury lawyers have assisted people in obtaining compensation for this tragedy. They've not thought of their profit but of doing their best to ameliorate the terrible misfortune suffered as a consequence of Thalidomide.

Campaigning must continue

Campaigning for Thalidomide victims must continue. Many remain alive today and they need care, consideration and decent provision for their futures. As such, I applaud the work of campaign groups such as Thalidomide UK and ShowYourHand, to which Michael, who is a trustee of The Thalidomide Trust, directed me. And looking back, by way of countering the clichés that abound about modern journalism as much as in the law, the excellent Sunday Times investigation into Thalidomide should be noted. Not only did it reveal that basic testing had not been properly carried out before the drug went on sale, it also helped increase compensation payable by the UK distributor from £3.25m to £32.5m.

Post-Leveson and the phone hacking scandal, journalism's standing is perhaps at its lowest. But rogue and corrupt journalists are the exception, not the norm. Most journalists want to report the facts of an event and serve the public.

So it is in personal injury law. The overwhelming majority of people in this sector work there because they want to help people.

Here's hoping that Thalidomide victims continue to receive all the help they need and deserve - and that the clichés are replaced by the truth.

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An ethical ABS is to be applauded - but there remain grave reservations about the regime

2013-05-03T16:14:00.000+01:00

I've written previously of my reservations about the Alternative Business Structure (ABS) regime, first proposed by Sir David Clementi in 2006 and a fact of legal life for nearly a year and a half now. Because they enable insurers and claims management companies to own and invest in law firms, ABSs are the Trojan horse in the battle against referral fees. It seems that no sooner were referral fees been banned, than we have been confronted with the means to get round the ban and perpetuate the very problem the Ministry of Justice sought to curtail.

But last week, a story on the excellent Legal Futures website gave me cause for cheer. The Community and Law Service (CALS) in Leicester has become the first not-for-profit organisation to set up an ABS. CALS has been authorised by the Solicitors Regulation Authority (SRA) to launch Castle Park Solicitors Community Interest Company. Its profits will be channelled back into continuing the work of the charity.

CALS gets there first

Image by JosephGilbert.org

CALS has beaten the application by Islington Law Centre to establish a not-for-profit ABS, which was made last November. Castle Park and CALS will not be sharing office space; from its premises, Castle Park will provide legal advice on family, immigration and employment law. Its intention is summed up by Glenda Terry, head of finance and administration: "We set it up because we wanted to have the facility to provide good-quality legal advice and representation mainly in the areas going out of scope of legal aid. We have pitched our fees competitively and hope it will be attractive to those on low to medium incomes."

This is a laudable aim, and one which will help to mitigate the effects of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), which, for me, remains one of the most poorly conceived pieces of legislation to have made it onto the statute books in recent years. Legal aid has been decimated by LASPO, so too the ability of solicitors to bring meritorious claims for impecunious clients. The emphasis is on commodification and wholesaling, rather than considering and caring for an individual's needs.

Helen Grant misses the point

It is no use hearing Justice Minister Helen Grant acknowledge that LASPO's reforms to civil justice will bring "some pain initially and uncertainty for a while." The fact is that LASPO's provisions will have a dire effect on those who need legal advice, making it commercially impossible for many solicitors to represent them.

At least, though, CALS and Castle Park have used the ABS regime to counter LASPO. Here, utilising the ABS model ensures that paid-for services are introduced alongside traditional free services. Castle Park will thus generate income for CALS, which offers free housing and debt advice. In time, it is hoped that CALS will become less reliant on government funding and grants.

The ethical underpinning of both CALS and Castle Park is welcome, not least as insurers continue to push for ABS status so that they can, in effect, become law firms themselves. The SRA has already approved the creation of Admiral Law and BDE Law, joint ventures between insurance giant Admiral and law firms Lyons Davidson and Cordner Lewis. Ageas, which jointly underwrites Tesco's car insurance policies, has set up a venture with New Law, the PI firm based in Cardiff. Direct Line has got an application for an ABS in the pipeline, and the SRA says there are 104 similar applications currently being processed.

Not only do such ABSs allow insurers to refer claims to lawyers, but conflicts of interest are surely inevitable in this changing legal landscape. It is only a matter of time before an ABS law firm represents a client who is insured by the parent insurer. It will be interesting, when this scenario comes to pass, to see what the Justice Minister and the SRA make of it.

Fight like fighting hell itself for the living

2013-04-26T08:25:00.000+01:00

International Workers' Memorial Day takes place this coming Sunday. I'd wager this isn't an event in many lawyers' diaries, but I'd also suggest that it should be. After all, this is an international day of remembrance and action for workers killed, disabled, injured or made unwell by their work. It makes for a focal point, an occasion to highlight the avoidable nature of so many workplace accidents. It also serves as a rallying call for campaigns to secure improvements in workplace safety. A number of satellite events occur before and after 28 April, the official date of Workers' Memorial Day (which was started by the Canadian Union of Public Employees in 1984). There is one of great public importance today, in London: the world's first-ever asbestos demonstration outside a Russian embassy.

Workers' Memorial Day Poster
Mary Harris "Mother" Jones

Why is this taking place outside the Russian Embassy?

The reason is simple.

From Russia, With Poison

In terms of land mass, Russia is the largest country in the world. Sadly, statistical evidence also shows that it is the largest producer of asbestos on the planet. According to www.asbestos.com, "In 2000, asbestos productions reached approximately 700,000 tons, much more than Canada and China. By the year 2008, mining produced more than one million tons of asbestos." That is a terrifying figure, especially given what the Western world has known for a long time about asbestos: namely, that it is a killer. Apparently, Russia's high production numbers stem from the city Asbest, where there is a seven-mile long mine with a width of one-and-a-half miles and a depth of a 1,000 feet. The city, located about 900 miles northeast of Moscow, has earned a tragic alternative name. It is also known as "the dying city", precisely because of its high rates of mesothelioma and other asbestos-related diseases.

No wonder, when one learns that about 500,000 tons of asbestos is gathered from the mine each year.

A Dubious League Table

Russia lies in third place in the league table that no one should be in: that for asbestos consumption. China and India have the unenviable top spots.

As asbestos.com has it, "Russia has widely used asbestos in roofing materials, automobile brakes and insulation. About 3,000 asbestos-containing products have been labelled as safe by the Chief Sanitary Officer of Russia." Moreover: "Annual asbestos-related deaths were 10,400 in 2005. With little opposition towards the use of asbestos, Russia will likely continue to use and export this toxic substance."

A recent letter to the Russian Ambassador to the UK calling for an end to trade in asbestos met with no response. But thanks to this country's evolved democratic principles - which privilege freedom of expression and the right to peaceful protest - something is being done. Those who oppose the production and export of asbestos will gather outside the Russian Embassy at 11.30am today in a demonstration which is supported by the GMB trade union, the Forum of Asbestos Victims' Support Groups UK and IBAS, as well as several other UK groups.

Time for Action

Protestors will urge Russia to leave its toxic and deadly asbestos in the ground. This is a worthy cause and I would commend anyone to take part peacefully in this demonstration.

Meanwhile, I hope not only that we continue the battle to rid the world of asbestos use but that those who otherwise haven't been aware of International Workers' Memorial Day will now put it in their diaries. After all, as Mary Harris 'Mother' Jones - the legendary American schoolteacher who became a leading figure in workers’ rights at the turn of the 20th century - advised, we should: "Pray for the dead - and fight like hell for the living."

The demonstration is on Friday April 26, 2013 for International Workers' Memorial Day and it will take place outside the Russian Embassy, 6-8 Kensington Palace Gardens, London W8 4QP at 11.30am.

The ABS Regime: who watches the watchmen?

2013-04-22T12:32:00.000+01:00

The Alternative Business Structure (ABS) regime has been with us for a while now. First proposed by Sir David Clementi in 2006, ABSs became possible at the beginning of January last year. It was then that the Solicitors Regulation Authority (SRA) began accepting applications for ABS status.

A year later, the SRA announced that 454 firms had applied for ABS status. In a press release dated 11 January, it stated that "some 117 firms have completed the submission of all necessary information and 74 licences have been granted ... a further 19 [are] close to completion."

ABSs on the rise

No doubt the numbers have increased over the past few months. No doubt, too, that this will please the government. It has long trumpeted ABSs as a force for good and a means of driving "greater efficiency", especially in criminal legal aid. Speaking about this sector, the Lord Chancellor, Chris Grayling, recently declared, as reported by Legal Futures, that "we are proposing a model of competitive tendering, where solicitors’ firms must compete to offer the best price they can for work in their local area. This will mean successful firms expanding or joining together, to achieve economies of scale which can be passed onto the taxpayer in savings to the public purse."

Consolidation is the name of the game

Consolidation, motivated by the desire to save £220m from the legal aid budget, is the name of the game, as heralded by Jack Straw in a speech in March 2009. Inevitably this will change the legal landscape as we know it - though I will add that the advent of so-called 'Tesco law' is far from universally applauded - I continue to have a major concern about ABSs and their impact on the personal injury arena. In a nutshell: they could serve as a way round the Ministry of Justice's ban on referral fees.

As I've said before, ABSs are Trojan horses in the battle against referral fees. They enable insurers and claims management companies to own and invest in law firms, thereby circumventing the laudable effort to rid us of referral fees and what the government condemns as 'compensation culture' (though this is, as none other than the Master of the Rolls, Lord Dyson, recently observed, a perceived compensation culture, not an actual one). When insurers and claims management companies can own and invest in law firms, they can handle PI claims from start to finish. They will therefore control the whole process. The raft of ancillary fees paid by those outside the legal profession, the likes of garages, reporting engineers, towing companies and trade unions, can just continue in another guise.

Moreover, I have recently encountered conduct that shows just how ethically suspect some insurers can be – and how their own behaviour is what fuels our 'compensation culture'.

Quis custodiet ipsos custodes?

Recently a colleague of mine was involved in a road traffic accident. The other driver opened their car door into the side of her as she drove past. Doing so made quite a mess of the front wing of the car and my colleague was understandably shaken up.

The other driver's insurer made contact with my colleague within 24 hours. Remarkably, despite her not even mentioning any injury whatsoever, the insurer made her a pre-medical offer of £2,000. My colleague did not provide any response to the offer as she was more interested in ensuring that she had use of another vehicle. The next day the insurer called to increase the offer to £2,400, and also make an offer for her son of £1,500.

My colleague was unlikely to have made a claim at all. And yet she finds herself offered nearly £4,000 in PI compensation.

Who, then, is really fuelling the so-called 'compensation culture'? Surely it couldn't be the insurance industry? Could it?

(For those who don't know their Latin, I'm no expert either. But 'Quis custodiet ipsos custodes?' means 'Who watches the watchmen?' It seems appropriate here.)

Post-LASPO, can there be justice for victims of exposure to asbestos?

2013-04-12T16:17:00.000+01:00

The ever-diligent Michael Lees, who tragically lost his wife Gina when she was just 51 from mesothelioma (asbestos-caused cancer of the lung lining), has been in touch to tell me about a report he is preparing. Michael's report probes the development of asbestos legislation and guidance in schools and colleges, and will shortly be published. The report raises a number of serious issues about asbestos, all the more so now that we inhabit the post-LASPO world.

For anyone new to this blog, what I'm referring to is the Legal Aid, Sentencing and Punishment of Offenders Act. The majority of its provisions came into force on 1 April. Despite the Act's title - which might lead the unwary to conclude that its provisions are confined exclusively to the criminal law - it has a direct bearing on civil litigation and the personal injury sphere, not least in the prospects of success for claimants suffering asbestos-related problems.

Sterling work by scientists

Michael's report raises real disquiet about the impact of the Court of Appeal decision in the case of Williams v Birmingham University when set against the new LASPO regime. First, though, and thanks to Michael's excellent research, I should explain the importance of a 1965 paper by Dr Newhouse and Dr Thompson, which was first published in the British Journal of Industrial Medicine.

Newhouse and Thompson revealed that non-industrial, low level exposures to asbestos could cause mesothelioma. Their conclusions were brought to the public's attention when the Sunday Times published an article entitled 'Scientists track down killer dust disease' in October 1965. Thereafter, it was generally accepted by the courts that 1965 was a watershed moment: it marked the date from which a defendant should have reasonably foreseen that low levels of asbestos exposure could cause mesothelioma.

The Williams case

But in 2011, the Court of Appeal's judgment in Williams changed all this. The facts of this case are as follows. In 1974 Michael Williams was an undergraduate at Birmingham University. He was exposed to asbestos while carrying out experiments in a service tunnel beneath the university for between 52 and 78 hours in total. The tunnel contained asbestos-lagged pipes in poor condition and there was a lot of asbestos dust on the floor, which Mr Williams disturbed. The asbestos was identified as crocidolite, amosite and chrysotile.

Mr Williams died aged 54 of mesothelioma in 2006. His widow brought legal proceedings against the university, alleging that it had negligently exposed her husband to asbestos, which in turn caused mesothelioma. At the original trial, at Leeds County Court, it was found that the exposure to asbestos had materially increased the risk of Mr Williams contracting mesothelioma – and that Birmingham University knew, or ought to have known, that the pipe lagging in the tunnel contained asbestos and that low-level exposure could cause mesothelioma. In other words, the university was in breach of its duty of care. The report by Newhouse and Thompson was crucial in the court's decision.

The university appealed. The Court of Appeal ruled that the university was not in a breach of duty as they considered that an organisation such as theirs would not have reasonably foreseen that Mr Williams was being exposed to an unacceptable risk. Instead of using 1965 and the work by Newhouse and Thompson as determining the state of knowledge of the university in 1974, Lord Justice Aitken ruled that their state of knowledge would have been that an "acceptable" level of exposure was the workplace "hygiene" asbestos fibre level stated in Technical Data Note TDN 13 of 1970.

Lord Justice Aiken's judgment concluded: "In my view the best guide to what, in 1974, was an acceptable and what was an unacceptable level of exposure to asbestos generally is that given in the Factory Inspectorate's 'Technical Data Note 13' of March 1970, in particular the guidance given about crocidolite. The university was entitled to rely on recognised and established guidelines such as those in Note 13."

Flaws with the Court of Appeal's reasoning

Michael’s report rightly points out serious flaws with this conclusion. On the one hand, workplace asbestos hygiene and control levels are for people working on asbestos. As such, they were never a threshold for a 'safe' level of exposure. On the other, workplace control levels were never meant to be the threshold for an acceptable or unacceptable level of exposure for occupants of buildings. Beyond this, we have known for many years that a very small exposure to asbestos fibres could potentially cause mesothelioma, and that there is no known threshold exposure below which there is no risk - whether for workers or occupants (a distinction which, to me, seems wholly arbitrary).

How does all this apply to schools and colleges? Since the mid-1960s, they have acted on the basis that they could be in breach of their duty (to pupils and staff) if they failed to take measures to reduce the exposure of any pupil or member of staff to a minimum. But now, post-Williams, this position is in doubt. Defendants, confronted by claims for asbestos-related disease, are now able to contest whether they are in breach of a duty.

Access to justice?

This has huge ramifications. Whereas for many years defendants sought to contest liability on the grounds of a break of the chain of causation (a strategy which now appears to have little mileage thanks to the decision of the Supreme Court in 2011 in Sienkiewicz -v- Grief (UK) Ltd), Williams now enables them to dispute that they are in breach. The goalposts have shifted towards defendants, and post-LASPO, this is even more apparent. As Michael persuasively argues, there is a pressing need to challenge the Williams decision. But to do so might be commercially unworkable given the punitive changes to claimant lawyers' ability to recover costs introduced by LASPO.

Sadly, LASPO once again comes up short when applied to real victims of injustice.

Look out for more information, and Michael's report, on the Asbestos in Schools website.

LASPO: an insurrectional crossing of a legal Rubicon

2013-04-05T13:43:00.000+01:00

The Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) 2012 slunk into formal existence a few days ago. If only the date of its arrival - 1 April - was an April's Fool's joke (granted, of a rather convoluted and unpleasant kind). But LASPO is no joke. It may well be one of the most foolish pieces of legislation ever enacted, but regrettably it is all too serious.

A seismic shift

LASPO's advent as law which is alive and kicking amounts to a seismic shift in the UK litigation landscape. Often enough, legislation arrives, is found to be suspect in its operation, and is later repealed and/or replaced with something sensible. This time round, I am not convinced that we will one day see a reversal of the changes wrought by LASPO. They are simply too profound.

The Act's overarching aim is to save £350 million from the government's legal aid budget. To me, it is informed not just by the desire to save money but by the prejudice which would have us believe that the UK is rife with nothing but meritless personal injury claims. David Cameron himself is on record as castigating what he uncritically believes is a 'blame and claim' mentality, one that has created spiralling litigation borne of specious claims and unscrupulous claimants.

The media perpetuate what those who work at the coalface of personal injury litigation know to be a widespread but unfounded cliché: that ours is a 'compensation culture'. It is not. Ours is a society whose evolved ethical and legal principles make it possible for those who have been wronged to seek redress for the wrongs done to them. There is nothing suspect about this. It should instead be celebrated as a vital facet of what makes our democratic adherence to the rule of law so admirable.

But now, though, with LASPO, claiming redress will become more difficult. And yet more worryingly, its changes cannot but have a negative effect on that which clients should be able to take for granted - the honour and professionalism of their legal advisors.

Contingency fees by another name

A key change brought about by LASPO is in the introduction of Damages-Based Agreements (DBAs). Philosophically, DBAs becoming part of British litigation is the equivalent of crossing the Rubicon. It means that we have adopted the contingency fee model common to the United States. For the first time in contentious matters in the UK, solicitors will be entitled to enter into agreements with clients in which they have a vested interest in the outcome, for under DBAs solicitors can receive up to 25% of the damages obtained.

This is a departure from the previous the regime of Conditional Fee Arrangements (CFAs), introduced by Section 58 of the Courts and Legal Services Act 1990 and the Conditional Fee Agreements Order 1998. Here, solicitors can charge clients the usual charge out rate, plus an uplift (or 'success fee'), if the case is won. Confusingly, LASPO heralds a dual DBA/CFA system - but without recoverability of the success fee in CFAs. On top of this, recoverability of premiums of After the Event Insurance (ATE) is also no longer possible.

Confused? Practitioners are sure to be, as the complexities of DBAs v CFAs are worked out, against the background of their rushed introduction. Lawyers now have a clear personal interest in litigation. The words of Lord Denning, in Re Trepca Mines Ltd (No. 2) (1963) (CA), come to mind, but have arguably been ignored ever since the introduction of CFAs. His Lordship suggested that if legal advisors had a personal interest in the outcome of litigation they might be tempted to "influence the damages, to suppress evidence, or even to suborn witnesses".

Portal changes on the horizon

Worse is on the horizon. LASPO also seeks to reduce the monies recoverable in low value Road Traffic Accident (RTA) cases. Put simply, in RTA claims of up to £10,000 no more than £500 in legal fees will be recoverable. Other changes to the RTA Portal, which introduced fixed costs in the first place, 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.

These changes are all in LASPO, subject to a modest stay of execution: they come into being at the end of the month, on 30 April. A core lament is this: how can a solicitor be said to be acting in his or her client's best interests, when the maximum that he or she will recover in costs could be as little as £500? The changes are a charter for a lack of professionalism and an 'accept the first offer that comes along' attitude. It is hard to see how solicitors will be able to conduct cases commercially without such an approach.

I mentioned earlier that LASPO amounts to a crossing of the Rubicon. I've just looked up the term, which, of course, means to pass a point of no return. Its origin lies in Julius Caesar's army's crossing of the river Rubicon in north-eastern Italy in 49 BC. Caesar's crossing of the Rubicon was considered an act of insurrection.

It strikes me that LASPO might just be an act of insurrection against the solicitor's fundamental duty: to put duty before profit, and serve clients before commerce.

The Endless Winter

2013-03-26T09:24:00.000Z

When, oh when, is this winter going to end? Spring is supposed to be here but if there are any green shoots to be seen they're obscured by snow in many parts of Britain. The bad weather is quite extraordinary, and scuppered something that two of my colleagues had been looking forward to on the weekend - their taking to the pitch at Chesterfield football club.

As I've previously written, Spencers is delighted to have agreed a sponsorship deal for Chesterfield FC. Last Saturday, my colleagues Rob Landman and Lee Foster were due to meet the club's chief executive, Chris Turner, on the pitch at the Proact Stadium. Rob and Lee are football fans, and walking on to the pitch at half time during Chesterfield's game against Plymouth Argyle, where they would then confirm Spencers as sponsors of the community stand in an announcement to the club's supporters, was something they were both excited about.

It wasn't to be. As Rob tells me: "The game was a victim of the weather. Heavy snow meant that it was cancelled on Saturday morning, a few hours before kick off. We felt really sorry for everyone, but especially Plymouth's players and fans. They'd come an awfully long way, and probably had no way of getting home, so bad was the weather."

Rob and Lee are now looking forward to Chesterfield's derby game against Bradford City on 13 April as their next date to take to the pitch. Here's hoping that winter has, by then, at last given way to spring.

Asbestos in Schools: the evidence

2013-03-25T10:03:00.000Z

Last week I wrote about a House of Commons Education Select Committee and its consideration of evidence, on March 13, from a number of parties on the issue of asbestos in schools. I've since been able to find out more about what transpired over two sessions of evidence.

The focus of the committee's questioning centred on the extent to which parents should be concerned for the safety of their children, given the presence of asbestos in schools. The committee looked at how much more people in schools are at risk compared to personnel in other buildings, and how should asbestos be managed.

The first evidence session
Key witnesses in the first session were Michael Lees, of the Asbestos in Schools Group; Julie Winn, Chair, Joint Union Asbestos Committee; Professor Julian Peto, London School of Hygiene and Tropical Medicine, and Roger Leighton, Headteacher, The Sydney Russell School, Dagenham.

There was general agreement to the effect that long-term sampling through widespread air tests (conducted in volume and over time) are necessary to understand the scale of the problem and those schools most at risk. A central source of information on this would provide cost-benefit analysis and mean that a greater understanding will be gained with the result of asbestos being removed over a phased time period.

The evidence from Professor Peto was alarming. He told the committee that 200-300 people are dying every year, because of asbestos in schools in the 60s and 70s, and that this will only slowly reduce with 40-60 deaths still happening in 50 years time. The net effect is that thousands will die over the next 50 years directly from exposure in schools.

There was agreement about one of the biggest areas of concern: how asbestos in schools is being managed. Management is regarded as inadequate, with training and surveys not currently mandatory. There is concern that governors have little awareness, understanding or training in managing asbestos. Local authorities are supposed to have individual plans per school and yet many have one for all schools. There is the question of who is responsible in schools outside local authority control, many of which are unaware of the liability they are taking on in regard to asbestos.

Transparency and availability of data was also identified as a problem. Although Roger Leighton expressed his concern that hysteria and panic could result if schools were identified as particularly at risk, Julie Winn felt that this information should be disseminated. Indeed, she suggested that we take a lesson from the USA, where such information is widely published and readily available. There, the response has been proactive engagement rather than hysterical reaction. While I respect Mr Leighton's concerns, overall I agree with Ms Winn's views.

The second evidence session
In the second evidence session, David Laws, the Minister of State for Schools, and David Ashton, Director of Field Operations Directorate, Health and Safety Executive (HSE), provided the government's response to the issues raised in the preceding session.

Mr Laws was asked whether asbestos should come under the Department for Education's (DfE) Property Data Survey Programme. He rejected this suggestion, on the grounds that it would be intrusive and because the HSE maintain that so long as existing asbestos is managed properly it is safe. He confirmed that although the survey was commissioned before his time, the decision to exclude asbestos from the survey was deliberate. For Mr Laws, including asbestos in the Property Data Survey could actually be dangerous: he said that it would both expensive and potentially destabilising to bring it within the survey's remit.

This last contention is flawed. At a meeting with Mr Laws in January, representatives of Asbestos in Schools explained that expensive and intrusive asbestos surveys are not necessary, not least because asbestos fibres are airborne and so do not necessitate the drilling of holes in walls and other such activity. All that is required is collation of the data that is already held by schools and local authorities. This data would become part of the audit on the DfE Asset Management Software system along with all the other data from school buildings.

The European perspective
Interestingly, March 13 also saw a vote by the European Parliament. A large majority (558 votes in favour - 51 against) voted in favour of the resolution on 'Asbestos related occupational health risks and prospects for abolishing all asbestos'.

Key points are as follows:

The EU should devise models for monitoring asbestos fibres in the air in the workplace
The EU should develop models for monitoring existing asbestos in private and public buildings
The EU should conduct an impact assessment and cost benefit analysis of the possibility of establishing action plans for the safe removal of asbestos from public buildings and buildings providing services which require regular public access by 2028; competent government ministers should coordinate the action
Member States should develop public asbestos registers

These recommendations seem eminently sensible to me - not least if they could be implemented as soon as possible.

Meantime, the sterling work of all involved in highlighting the continuing dangers posed by asbestos in schools is to be applauded. It is to be hoped that the government takes due stock of it, to the extent that a full inquiry is initiated in the very near future.

Will the government please listen about asbestos in schools?

2013-03-14T16:41:00.000Z

Yesterday a House of Commons Education Select Committee heard evidence from a number of parties on the issue of asbestos in schools.

Asbestos in schools may not occupy the front pages, but it is a vexed and fraught issue which demands greater media scrutiny. Consider, for example, that 16 teachers died from mesothelioma in England in 2011 alone. Over the 10 years between 2002 and 2011, well over 100 former teachers have died from mesothelioma.

The statistics, which come from a letter from Glen Watson, Director General for Office for National Statistics, to Lord Wigley, dated February 2013 (following a House of Lords question), make for worrying reading. If a teacher was killed every month in the classroom from violence there would be public outrage, urgent calls for action and, no doubt, an inquiry, but asbestos is perennially ignored.

Sterling work by Michael Lees

Yesterday Michael Lees was among those who reminded MPs of the terrible dangers of asbestos. Mr Lees' wife Gina, who was a teacher, died 12 years ago from a lung disease which a coroner blamed on exposure to asbestos in classrooms. Since his wife's tragic death Mr Lees has campaigned tirelessly to highlight the widespread problem of asbestos in schools, undertaking detailed research, giving lectures and writing admirably on the subject in the national and local press and in professional publications.

Mr Lees, who is one of the founder members of the Asbestos in Schools Group (AiS), has also emphasised what should be obvious, but which sadly is often neglected: that asbestos in schools is by definition in a volatile environment, and as such cannot but pose a risk. The government's policy of 'managing' that risk by doing nothing, as, in effect, enshrined in the Control of Asbestos Regulations 2012, is seriously flawed.

I heartily commend Mr Lees' efforts, and join him in calling for the Department for Education (DfE) to stop delegating responsibility to individual local authorities and schools and for it to oversee the development of a nationwide programme to protect teachers and children from the dangers of asbestos.

Time to extend the Property Data survey

It is vital that the current nationwide survey into the state of England's schools (the DfE's Property Data Survey Programme) is extended to identify the scale of the problem of asbestos in our 23,000 educational premises and then to prioritise those schools that most need action. Indeed, it beggars belief that asbestos is not specifically included in the survey.

Parents and all those who are rightfully concerned about asbestos in schools are entitled to openness and transparency about the problem. In an ideal world, we would be able to eradicate asbestos from our schools once and for all, but in reality we must prioritise funding towards those schools where teachers and children are most at risk. We can only prioritise action and expenditure if the scale of the problem is fully understood.

I would also suggest that a single body be created to take responsibility for the issue of asbestos in schools. Currently, as so often when it comes to reform, there is a piecemeal rather than a holistic approach to the problem. Regular school inspections should be undertaken, with a comprehensive database of findings made publically available online, with a detailed, clearly articulated plan for the phased removal of asbestos. Future Schools Capital Allocations should also include provision for the removal of asbestos from the schools most at risk.

We can only hope that the Select Committee took careful note of the representations made by Michael Lees and others who took the trouble to give evidence yesterday. Asbestos in schools has for too long been ignored and deserves due recognition as the serious problem that it is. It cannot be right that teachers and our children are exposed to such unnecessary risks.

What price Chesterfield FC one day playing in the Premier League?

2013-03-13T11:16:00.001Z

The odds are probably long. Chesterfield football club may have been in existence, in one form or another, since 1866, but in that time the Derbyshire team have not once played in the top flight. And yet, look at Swansea City. Under Michael Laudrup, Swansea play some of the best football in Britain, and are set for the Europa League next season after their League Cup success. Just ten years ago Swansea narrowly avoided relegation to the Football Conference. Who's to say that Chesterfield won't follow in Swansea's footsteps?

Giving something back

Time will tell, but in the short term I'm delighted to announce that Spencers Solicitors is now one of Chesterfield’s sponsors. Hats off to my colleagues, Rob Landman and Lee Foster, who have worked tirelessly to bring about what I think is a great step for the firm.

Chesterfield is the site of our principal office, and it's where we've been, in one guise or another, for the past 35 years. Getting involved with the town's football club gives us a chance to get to know the local people all the better, and to put something back, not least because of the sterling community work undertaken by the club. To that end, we've sponsored the Community Stand - the hub of Chesterfield's community work.

We've agreed sponsorship for a three year term. On 23 March, before Chesterfield's home game against Plymouth Argyle, Rob and Lee will take to the pitch at half time to meet the club's chief executive Chris Turner, who will announce the deal.

Hope springs eternal

As football fans, we're all very excited about linking up with a professional club. Regular readers of my blog will know that I'm a Chelsea fan, but as much as I looked out for The Blues' result against Manchester United last weekend I also kept an eye out for how The Spireites fared. They did well, with a solid 2-0 home win over Bristol Rovers. Currently occupying a mid-table position, with 50 points, a good run of form may yet see manager Paul Cook's team reach the play-offs. Indeed, as he put it: "It's mathematically possible to go up with nine games to go, why can't I believe? I believe every day."

Chesterfield's most notable recent successes came in the 1990s. Back then, they won the Division Three play-off final at Wembley in 1995; two years later, they reached the FA Cup semi-finals. In doing so they became the first club outside the top two divisions to reach this stage of the competition since Plymouth Argyle's famous 1984 cup run, beating Premier League Nottingham Forest along the way before eventually losing a semi-final replay to Middlesbrough. This was a case so near, and yet so far: a thrilling first semi-final ended 3-3, before The Spireites lost the replay 3-0.

More recently, Chesterfield won the 2010-11 Football League Two title, to add to two previous triumphs in the old Fourth Division. The club was also the Johnstone's Paint Trophy winner in 2011-12.

In finalising the sponsorship deal I also visited the club. Its ground, the Proact Stadium, is impressive, as are the facilities overall. The Proact Stadium has a capacity of 10,400, and the club kindly offered Spencers the use of it for a game once the real business of the football season is over. I'm not sure who we'll play, but I'm sure we'll take up this excellent offer. Meantime, wouldn't it be wonderful to see the stadium full to the rafters, with fans enjoying promotion success?

This may not come this year, but hope springs eternal among football supporters and I will join all those who pray that Chesterfield win the majority of their nine remaining games and secure a play-off place. But if not, there is always next season - and the next, and the next, and the next again, until one day, who knows, top flight football becomes a reality. And if you don't believe me, just ask the fans of Swansea City. In football, dreams can still come true.

From DBAs to Turin

2013-03-05T11:30:00.000Z

What do you think of DBAs?

If you're not a PI law practitioner, you might be forgiven for stumbling over the acronym. Is a DBA a new kind of Aston Martin, you might wonder, or perhaps the name of a new law firm?

It is neither. A DBA is a Damages-Based Agreement: a contract between the claimant and his or her solicitor, in which the solicitor agrees to be paid a percentage of the damages recovered in the case. DBAs are a constituent element of the welter of reform coming our way from 1 April this year, when the majority of Lord Justice Jackson's proposals become law.

No delay for DBAs

Some aspects of the Jackson reforms have been given a stay of execution. For example, last December the under Secretary of State for Justice, Mrs Helen Grant, issued a ministerial statement announcing that the provisions of the LASPO Act which would remove the recoverability of success fees and insurance premiums will not come into force for defamation and privacy claims until a "new regime of costs protection" has been introduced for these proceedings.

However, no such delay will apply to DBAs. The draft DBA Regulations have now been laid before both Houses of Parliament and their approval is a formality. It is important, therefore, that lawyers have a view on DBAs - not least so that they can explain them to clients.

DBAs are a variation of the 'no win, no fee' paradigm, in which lawyers have a financial stake in the outcome of claims and are therefore thought to be all the more motivated to secure the best result for the client. The key variation comes in the government's plan to introduce a 25% cap on the damages available for the lawyer (which, given the inclusion of VAT in the cap, amounts to a de facto cap of 20.8%). It is intended, too, that recovered costs will be included in the cap, meaning that in some cases the whole of the cap could be utilised for costs recovered from the other side. A number of other limitations apply to the cap. Counsel's fees, for example, are included, but the costs of experts' reports are not.

Problems with the cap

The purpose of the cap is to protect clients from overcharging and to provide sufficient flexibility for reasonable remuneration consistent with the commercial risk of conducting a claim. However, without going into the minutiae of DBAs and their expected operation, it is clear they present a potential problem. Their effect, in a great deal of litigation, will be to encourage solicitors to try to settle cases as early as possible, when to do so might not be in a client’s best interests. For example, a claim worth £10,000 will yield no more than £2,500 to a solicitor retained under a DBA; that which is worth £20,000 will net £5,000. This is one of the reasons perhaps why Lord Justice Jackson recommended that client's should be independently advised on whether to enter a DBA.

DBAs may need to be re-examined. The Civil Justice Council Working Party on DBAs, of which I was a member, were acutely aware of the limitation of the Ministry of Justice imposed timetable being too tight to allow us time to explore all issues in as much detail as we would have liked. I am therefore looking forward to attending a lunchtime seminar later today at Queen Mary University of London, in which DBAs will be debated. Professor Rachael Mulheron from Queen Mary’s kindly asked me to participate in the seminar, which is being hosted by the Practical Law Company.

To Turin for PEOPIL's RTA Conference

I will return to this topic in due course but meanwhile an overseas trip looms. Later this week I fly to Italy, where I will be speaking at the Pan-European Organisation of Personal Injury Lawyers (PEOPIL) RTA conference in Turin on 8 March. This takes place at the Golden Palace Hotel on the Via dell'Arcivescovado, in what I was interested to learn is Italy's fourth-largest city.

Although the main focus of the day is fatal accidents there will be time to deal with whiplash caused injury. As I have written on previous occasions, the backlash against whiplash in the UK is unjust and medically unsound. I have noted similar moves to curtail victims' rights to claim for whiplash in other jurisdictions. It will be fascinating to see how my European colleagues in PI law are dealing with what seems to be yet another attempt by at least some in the insurance industry to avoid their obligation to pay all legitimate claims.

Asbestos in the News - Again

2013-02-27T12:32:00.000Z

Regrettably, asbestos is in the news. I've been keeping an eye out for stories on what was once dubbed the 'miracle mineral' over the past few days. There have been plenty.

To start in the UK, an asbestos clean-up is underway at Dale Farm, the plot of land on Oak Lane in Crays Hill, Essex which was, until late in 2011, the site of an illegal encampment of travellers. Asbestos debris came from roofing sheets on an industrial building at the site, which was damaged by fire last year. Basildon Council has now retained contractors to handle what is expected to be a week-long operation.

Hospital Trust Fined

Belfast Crown Court was the centre of an asbestos story last week. There, a representative of the Belfast Trust pleaded guilty to charges of failing to ensure the safety of staff at Belfast City Hospital in an incident linked to asbestos. The Trust also admitted failing to tell sub-contractors about the presence of asbestos before they started work at the hospital last January, and to failing to manage the risk.

In Wales, an industrial property owner was fined by Caerphilly Magistrates' Court for exposing untrained workers to asbestos at a building in Newport, while the Herts and Essex Observer this week reported on an asbestos alert at Barclays Bank in Sawbridgeworth. Fortunately, it proved to be a false alarm.

Also of some cheer, albeit again arising from highly regrettable circumstances, was the award of £160,000 compensation to pensioner Eli Richards, who worked for bathroom appliance manufacturers Armitage Shanks for 17 years from 1979. Mr Richards was diagnosed with mesothelioma, a form of incurable lung lining cancer, in December 2011. A fit and healthy non-smoker and sportsman all his life, Mr Richards worked in conditions where warnings about asbestos dangers were conspicuously absent. Protection was lacking, too. At least Armitage Shanks had the good grace not to dispute the claim.

Asbestos around the Globe

So much for the UK. What about the rest of the world? Well, a number of stories demonstrate the global nature of the problem of asbestos and the absolute necessity of doing everything to protect people - and particularly children - from its dangers.

In Uganda, the Parliament’s Science and Technology Committee of MPs called upon the government to replace all asbestos roofing from educational establishments which are still prevalent in technical schools, colleges and universities. One MP told the story of a staff member at the Principal Uganda Technical College who had died after using water harvested off an asbestos roof.

In India, the country's Competition Commission is probing alleged cartel activity in the market for asbestos cement sheets, still mainly used in rural areas for low cost houses and warehouses. Further east, in Australia a class action against Carlton and United Breweries looks set to begin. It won't be the first asbestos-related claim the brewery has faced: it has settled six before trial in the past decade. This time, 20 former workers have contacted a law firm with a view to initiating proceedings for exposure to asbestos in the 1950s and 60s.

Looking west across the Atlantic, in the US six Arizona school districts have been fined for 'numerous violations' of the Asbestos Hazard Emergency Response Act (AHERA) by the US Environmental Protection Agency.

WHO lays down the law

Thankfully, a Joint Statement, released on February 19, 2013, by the World Health Organization (WHO) and the International Agency for Research on Cancer (IARC) didn't pull any punches. It boldly stated that all forms of asbestos are carcinogenic to humans and that the most efficient way to eliminate asbestos-related diseases is to stop the use of all forms of asbestos.

There was also positive news closer to home. The Health and Safety Executive (HSE) is attempting to raise the awareness of young workers, who they believe still do not understand the huge dangers posed by asbestos. The HSE points out that around 4,000 people die every year in Great Britain because of asbestos-related diseases. It believes that 1.8 million tradespeople are still at risk of exposure to the material.

The above isn't an exhaustive summary of recent asbestos stories. I'm sure I've missed a few. There may be other stories of relative good cheer, with companies at least promptly admitting liability and settling claims, rather than putting people who are victims through the stress and anxiety of the legal process. There will be other stories of more tragic import. But most worryingly of all, there will be tales of the harm and woe caused by asbestos that we will never know about.

So perhaps, in a way, it's a good thing that all the above are 'out there' and known about. At least such stories mean that we will keep asbestos in the forefront of our minds, until we have at last dealt with it satisfactorily and made sure that we protect our children from its terrible capability for damage.

For an insightful take on asbestos issues, Cenric Clement-Evans blogs here.

A Spotlight on 'Compensation Culture'

2013-02-21T10:31:00.000Z

The case of Baljinder Kaur Gill, who was killed in a staged crash-for-cash accident, shines a light on the reality of the so-called 'compensation culture'.

Here we have a tragic incident in which perpetrators of a criminal enterprise have justly been given lengthy custodial sentences. Four men - Radoslaw Bielawski, Jacek Kowalczyk, Andrzez Skowron and Artur Okrutny - concocted a plan which would see a VW Passat and an Audi A3 collide with an innocent Ford Transit van on the A40 in Buckinghamshire. Their intention was to claim personal injury compensation.

A Disgraceful Scheme
The men put their plan into operation on the evening of 11 June, 2011 - to disastrous effect. Gill, 34, died when her Ford Fiesta, which had been hit by one of the men's vehicles, was hit again by a Renault Trafic van. Her car had been stationary in the fast lane of the A40 after she had been unable to avoid crashing into the Ford Transit van, whose experienced driver had commendably managed to avoid hitting the men’s vehicles. Ms Gill left her car with its hazard lights flashing but returned to retrieve some possessions. Her car was then hit by the Renault van in what Reading Crown Court heard was "an explosion of metal, glass and dust". Ms Gill was fatally injured at the scene.

The men stood to gain £20,000, having targeted the Transit van because they knew it would have valid insurance. Their ill-conceived and disgraceful scheme caused harm not only to Ms Gill. Probably because of 'rubber-necking', there was a pile-up on the opposite carriageway. It left another person seriously injured.

Just Sentences
Bielawski, 24 and Kowalczyk, 32 were both jailed for a total of 10 years and three months for conspiracy to commit fraud, causing death by dangerous driving and conspiracy to pervert the cause of justice. Skowron, 25 who was to be paid an undisclosed fee for taking part in the scam, was jailed for 10 years. Okrutny, 23 who was to be paid £300, was not present at the crashes but was jailed for 12 months.

Mr Justice Sweeney was right to pass stringent sentences on the men, in what he noted was "the first such enterprise to result in a death to come before the courts".

Every right-thinking person would understand and most would welcome the sentences, and applaud the investigative work of the police.

I hope we can rid society of this evil. This case demonstrates that fraudulent activity exists, just as the ensuing tragedy shows just how terrible the full consequences can be. But I also hope that those who maintain that we inhabit a world in which spurious claim follows spurious claim will take stock and pause for thought.

Time for a Common Sense look at 'Compensation Culture'
Back in 2005, Tony Blair gave a speech in which he called for "common sense culture, not compensation culture". In a sound-bite quickly picked up by the media, Blair said: "Public bodies, in fear of litigation, act in highly risk-averse and peculiar ways. We have had a local authority removing hanging baskets for fear that they might fall on someone's head, even though no such accident had occurred in the 18 years they had been hanging there."

Blair helped set in train a backlash against a fundamental tenet of tort law: that the claimant should, if he or she has proved negligence and causation, and if the resultant damage is not too remote, be placed in the position he or she would have been in had the accident or injury not occurred. Ever since, the media has delighted in stories of absurd claims supposedly brought by solicitors acting unethically and claimants on the make.

The truth is otherwise. The vast majority of claimants are honest and their solicitors continue to adhere to the basic principles of tort law: if someone has been injured, they take up the cudgels on that person's behalf and seek redress, which as a matter of law is always intended to restore the position and no more .

It is right that our democracy allows this to happen. It is a sign that we are civilized, and that we care. Those who may need to bring claims arising from the collateral damage in the Gill case should not fear obstruction by insurers or vilification by third parties who insist they're making the most of their misfortune. They should be emboldened in their conviction that they are entitled to right the wrongs inflicted on them.

The fact is that the men behind the appalling events that led to Baljinder Gill's case are those who truly represent Britain's 'compensation culture'. Common sense condemns them - and gives thanks for a developed judicial system that allows victims to bring claims, when to do so is right.

A Poor Decision by Churchill

2013-02-13T09:43:00.001Z

Last week Churchill, the insurance giant, was in the news - and not because it had announced a new series of benign ads featuring a cuddly dog and a well-known actor.

Instead, Churchill made the headlines because it has decided to appeal against a judgment by the high court.

Bethany Probert, now 16, suffered traumatic brain damage and a number of debilitating injuries when she was hit by a car one afternoon in December 2009. The young girl, who was walking home from riding stables, was hit by a driver who was travelling at 50mph along a country lane - too fast, according to the court.

The result of the accident was that Bethany was left with limited walking ability, depression and a lack of concentration or spatial awareness. She requires specialist equipment, a support worker and an open plan, single-storey home - in other words, ongoing care for the rest of her life.

Her mother would have taken some small solace from the court's judgment that Bethany was in no way guilty of contributory negligence. At least, she would have thought, there will be compensation to look after her daughter.

But not if Churchill has its way. The insurer was last week granted leave to appeal against the judgment (which would have seen Bethany paid up to £5m compensation), in what is being seen a test case to determine the extent to which children can be held responsible for their injuries in road accidents.

Churchill maintains that Bethany should have wearing a high visibility jacket as she walked along the road. In the words of a Churchill spokesperson: "While we accept that our insured was liable in part for the accident, we are appealing [against] the decision that he was entirely to blame."

Churchill's appeal can only be greeted with great dismay. Each case is, of course, dependent on its own facts, but the idea that children should be compelled to wear high-visibility jackets on country lanes, lest they are partly at fault for accidents, is ridiculous. I wish Bethany, her family and their solicitors (Richard Langton of Messrs Slater & Gordon) well in their battle against Churchill.

Institutionalized Blindness

2013-02-07T08:28:00.000Z

Amid the understandable uproar about standards of care at Stafford Hospital - where abuse and neglect contributed to hundreds of deaths between 2005 and 2008 - there was, at least, a genuine expression of regret from on high.

Too often, when an institution fails, its leaders bury their heads in the sand, but not Mike Farrar, the CEO of the NHS Confederation. Speaking on Newsnight earlier this week, a haggard-looking Farrar seemed to speak from the heart when he said: "As someone who came into the health service to do good, today is a day I genuinely feel shame."

Appalling Conduct

The harrowing catalogue of failings at Stafford Hospital is presently the subject of a fifth public inquiry. Like the fourth inquiry, this one was chaired by Robert Francis QC. More than 160 witnesses appeared at the hearings, and one million pages of evidence have been sifted through. The findings of the inquiry are due imminently. Tragically, it is a fair bet to conclude that even though this time the focus is on the commissioning, supervision and regulation of the trust from 2005 to 2009, "appalling" conduct will once again be found.

In the face of this, Farrar did not hide. He told Newsnight that "The culture of [Stafford Hospital] was not geared up to put patients' needs right at the heart of it; there was almost an institutionalised blindness to what mattered."

He added: "The risk, I think, today, is that we look to external things like better regulation or more inspection, to try to solve what effectively is a problem that can really be only solved by having a culture in every hospital where every member of staff is geared up to try and provide the best possible care for patients."

Mea Culpa

Farrar's mea culpa may not cut much ice with Stafford Hospital's mistreated patients and their families, but it is nevertheless to be applauded. Here, in marked contrast to the behaviour of politicians, senior journalists and bankers embroiled in recent scandals, is a man prepared to say sorry. And in his use of the phrase "institutionalized blindness", Farrar also sheds light on a phenomenon which regrettably spans many areas of modern life.

Take, for example, the problem of asbestos in schools. This seems to be routinely ignored, despite well-publicised instances of teachers contracting cancer and the simple fact that, of all places, schools are not predictable environments. When applied to a school, where children run, skip, shout and jostle as only children do (rightly so), the Control of Asbestos Regulations are surely negligent to state, as they do, that "asbestos is only dangerous when disturbed. If it is safely managed and contained, it doesn't present a health hazard."

The Corporate Line

But if this is a potentially terrifying example of institutionalized blindness, it extends to the corporate arena, too. As alleged this week, Marks & Spencer knew full well of asbestos risks 10 years before the company was fined £1m for breaches to guidelines for asbestos removal in its Reading branch.

William Wallace, who was at that time working as a health and safety manager, told the BBC that he wrote to the then chairman of the company, Sir Richard Greenbury, highlighting a series of breaches at M&S's Marble Arch store, recorded in logs between shifts. "You could not have guaranteed the safety of anybody, the workers, the staff, the customers: you could not have given a 100% guarantee that those people were safe", said Wallace.

M&S's response to these allegations is dismaying. Steve Rowe, an M&S board member, said: "On the face of it these allegations sound worrying, but our team at the time 15 years ago thoroughly investigated them on the day." He added that M&S was unable to find any "case whatsoever to say any member of staff or any member of the public was put at risk."

Turning a Blind Eye

This declaration is at odds with the findings of the court in the Reading case. In September 2011, M&S was convicted of two charges under the Health and Safety at Work Act 1974 in relation to the work at the Reading store. Fining the company a total of £1m, Judge Christopher Harvey Clark QC criticised M&S for the "systemic" failure of its management. In response to asbestos safety complaints, said the judge, M&S chose to "turn a blind eye" to what was happening because the asbestos work was "already costing the company too much".

In other words, profit came before staff welfare - but not according to Rowe, who told the BBC: "Marks & Spencer never, ever puts profit before safety. There wasn't a blind eye. Our investigations were full and thorough ... Implementation of the policy wasn't good at Reading. We are very sorry about that. We regret it. So we are disappointed by the judge's comments."

At the time of the Reading judgment, M&S stated it was "disappointed" by the ruling. Now, a year and a half later and in the face of further serious allegations, M&S seems once again to be "disappointed".

It would doubtless reassure M&S's staff, contractors and customers to learn that the company could find it in its corporate heart to open its eyes - and feel more than mere disappointment.

Asbestos in Schools: A Missed Opportunity

2013-01-30T09:53:00.000Z

Towards the end of last year Cwmcarn school in Wales was closed after a structural survey identified asbestos in the main block. The report by Santia Asbestos Management Limited concluded that the health risk posed by asbestos was so great that the school should be demolished.

The dangers posed by asbestos have long been known - and they remain a real issue. In the past 10 days Bronglais Hospital in Wales has been in the news, after a critical review of its management of asbestos. It is feared that up to 30 maintenance staff at the Aberystwyth hospital could have been exposed to asbestos.

In light of any number of similar stories and the wealth of available data on how carcinogenic asbestos dust is, you would be forgiven for believing that the government, in its recently commissioned review of the buildings that comprise the education estate, would put 'Asbestos Risks and Management' at the top of its assessment list. This is not the case. In fact, assessment of asbestos is barely even a footnote to the brief. Our schools are being reviewed by sundry experts, at taxpayer expense, and yet clear and identifiable risks to their constituents - children, the most vulnerable sector of society - are not being considered.

A Flawed Survey

Let’s rewind to the genesis to what is now known as the Property Data Survey Programme (PDSP). As part of the government's response to the Review of Education Capital in July 2011, the Department for Education (DfE) agreed that urgent work should be undertaken to collect up-to-date information on the building condition of the education estate. Collection of such data had ceased in 2005. The aim, as stated by the DfE, was to "deliver the most accurate, consistent and comparable data set possible on the condition of the English schools estate."

In September 2011, Partnerships for Schools (now the Education Funding Agency) was commissioned by the DfE to deliver the PDSP. Some 23,000 educational establishments throughout England would be surveyed in order "to ensure future capital maintenance funding is targeted to meet the most urgent condition needs." Work duly began in early 2012. The various surveying companies contracted are expected to complete their analyses in summer, possibly autumn, this year. Their findings will be used to calculate the 2014-15 capital funding allocations. The government then plans to continue with a rolling 20% sample of the education estate each year, so as to enable "a credible full picture of the estate’s condition every five years."

The word "credible" beggars belief. How can the PDSP be regarded as credible if it fails to include an assessment of asbestos in schools?

The PDSP will not assess the danger of asbestos in schools - but it does pay it some lip service. As such, the survey will only seek confirmation that the school has carried out its statutory obligations, i.e. maintaining an up-to-date Asbestos Management Plan and/or Asbestos Register. It will not direct them to the DfE website and relevant guidance. No detailed assessment of the documents will be carried out by the surveyor but if, presumably because they are blindingly obvious rather than carefully investigated, the surveyor identifies any asbestos issues, he or she will bring them to the attention of the school. Each school is then to be left to undertake any corrective measures. This is in keeping with the Control of Asbestos Regulations 2012 (previously 2006) and related legislation, which leaves responsibility for asbestos firmly with local authorities and schools.

In other words, when it comes to asbestos the PDSP passes the buck. It amounts to a huge missed opportunity to determine the scale of the asbestos problem in England's schools and educational establishments. Despite spending millions of pounds on the surveys (£500-£750 for nurseries, £750-£1,200 per 17,000 plus primary schools and £2,000-£3,000 per 3000 secondary schools), no central information will be gathered on the scale of the asbestos problem in our schools.

And Some Flawed Regulations

Perhaps the government feels that express engagement with asbestos in the PDSP is not merely an extra cost but unwarranted. After all, the Control of Asbestos Regulations 2012 (which updated previous asbestos regulations to take account of EU Directive 2009/148/EC), articulate the so-called "basic principle" that "asbestos is only dangerous when disturbed. If it is safely managed and contained, it doesn't present a health hazard". Two other basic principles hold that asbestos should not be removed unnecessarily ("removing it can be more dangerous than leaving it in place and managing it") and "not all asbestos materials present the same risk. The measures that need to be taken for controlling the risks from materials such as pipe insulation are different from those needed in relation to asbestos cement."

When it comes to schools, the basic principles are seriously flawed. Schools are full of people who, by definition, act in spontaneous and unpredictable ways. It is ludicrous to expect children not to disturb asbestos.

It is tragedy that we are saddled with such inadequate primary legislation but t is all the more disturbing that the PDSP will not collate vitally needed data on asbestos in schools and make it available nationally. Please join me in urging the government to reassess the brief underpinning the PDSP so that our children's lives - and the lives of those who teach them - can be better protected.

Freedom of choice of medical care should not be forfeited

2013-01-28T09:58:00.000Z

Two weeks ago Charlie Scott was awarded £7.1m in a case that took 14 years to resolve. The story made various nationals, including the Mail, Guardian and The Lawyer. Charlie's story is therefore reasonably well-known, but that doesn't make it any less heart-rending.

Mistakes by midwives when Charlie was born at The Royal Bournemouth Hospital left him with a serious form of cerebral palsy. He cannot walk, talk, sit up or drink without assistance.

Charlie was diagnosed with spastic quadriplegic hemiplegic athetoid cerebral palsy at six months. He will require lifelong care. Quite rightly, his mother commenced legal proceedings against the Royal Bournemouth Hospital Trust - which denied liability for 12 years. Two years ago, Mrs Scott's tenacious lawyers succeeded in proving clinical negligence. The result, now, is the award of £7.1m.

To many people, the award would sound fair, given both the backdrop and the very considerable cost of Charlie's future care. But on 11 January Christine Tomkins, the Chief Executive of the Medical Defence Union, appeared on Radio 4 and suggested that compensation payments of this kind were "unsustainable".

Citing figures from the NHS Litigation Authority - which put its total liability at £16.7 billion in 2011 - Ms Tomkins said: "That's an awful lot of taxpayers' money. And if you look at the rate of increase, in 2010 they paid out £863 million in compensation and in 2011 that figure was £1.2 billion. That is a 39% increase in a single year."

Ms Tomkins criticised rules dating back to the foundation of the health service in 1948, saying that their effect is that the NHS has to pay for the cost of severely damaged patients "on the basis that all the future care will be provided in the private, independent sector". With regrettable predictability, a number of people were quick to post comments in various media to the effect that it is an outrage that victims should be awarded such seemingly high damages.

This issue is complex. Prevention must be better than cure: negligence such as that which so badly disabled Charlie should not happen in the first place. But if it does, claims should be resolved as quickly as possible, and victims must have freedom of choice. They must be given the freedom to try to obtain the best possible care for the rest of their lives. Anything less strikes me as a travesty.

Refreshingly Boring - but Ethically Sound

2013-01-23T08:45:00.001Z

It's rare, in today's world, to be heartened by anything to do with the banks but that is precisely how I feel thanks to last week’s story about Barclays' boss Antony Jenkins.

Jenkins has told the bank's 140,000 staff to buy in to its new code of conduct - or leave.

Leading by Example

Described by The Guardian as "a refreshingly boring banker", Jenkins has had his work cut out since his appointment at the end of August last year. He replaced Bob Diamond when the former CEO was forced out by the Libor fixing scandal. Barclays was fined £290m in June 2012 for its part in the scandal, and its troubles didn't end there. It is fair to say that Jenkins walked into a maelstrom, with a daunting task: to restore public confidence in an institution whose reputation has been absolutely shattered.

How to do this? Doubtless spin-doctors would come up with a variety of clever strategies, and it is just as certain that behind the scenes Jenkins would have been met with a bewildering array of tasks. But, for me, one thing was blatantly obvious: Jenkins needed to bring sound ethical principles back to Barclays. He needed to establish a professional ethos and set the tone and lead by example.

An Ethical Blueprint

Last week's announcement that bonuses and performance will now be assessed against a new 'purpose and values' blueprint goes some way to achieve this. Jenkins has not pulled his punches, and, in telling staff to sign up to five key values - respect, integrity, service, excellence and stewardship - he has positioned himself and Barclays firmly against the malpractice of the past.

Consider his words, as disseminated in a memo last Thursday:

"I have no doubt that the overwhelming majority of you … will enthusiastically support this move. But there might be some who don't feel they can fully buy into an approach which so squarely links performance to the upholding of our values. My message to those people is simple: Barclays is not the place for you. The rules have changed. You won't feel comfortable at Barclays and, to be frank, we won't feel comfortable with you as colleagues."

Jenkins' firm leadership is to be applauded. It is a stance that those in positions of power, whether in politics, the professions or elsewhere, would do well to emulate.

Asbestos in schools must be tackled

2013-01-16T09:28:00.001Z

Once upon a time asbestos was known as the 'magic mineral'. The name arose because of its ability to withstand fire, a property that contributed to the huge use of asbestos by manufacturers and builders in the 19^th century. But as the 20^th century progressed, so too did the flipside to the so-called magic of asbestos. In fact, by the 1970s the bitter truth about asbestos became widely known: it was a killer.

The inhalation of asbestos fibres can cause serious and fatal illness. Malignant lung cancer, mesothelioma and asbestosis (a type of pneumoconiosis) are commonly seen among those who have been exposed to asbestos dust. Knowledge of these conditions led to the banning of blue and brown asbestos materials in Britain in 1985. Later, in 1999, the import, sale and second-hand reuse of white asbestos was prohibited, and then, in 2006, the European Union banned all use of asbestos as well as the extraction, manufacture and processing of asbestos products.

Can we assume, then, that asbestos is no longer a problem in the UK?

The elephant in the room

Far from it. Asbestos is as much an issue today as it was 100 years ago, when its carcinogenic properties first became known. Each year some 4,000 people die as a result of past exposure to asbestos. Often enough, health problems take 40 years to manifest themselves after first exposure. Little can be done once a diagnosis is made, with most patients dying within 18 months. Victims can find themselves in a doubly invidious position, whether because employers or insurers are untraceable or because of the time it takes for a legal claim to be resolved.

But there is another problem. It is one that potentially affects society's most vulnerable group - children. As Cenric Clement-Evans, who sits on the executive committee of the Association of Personal Injury Lawyers (APIL), says: "Asbestos in schools is the elephant in the room."

Clement-Evans is a senior solicitor with Welsh law firm NewLaw Solicitors. He has done much to highlight the dangers of asbestos in schools, not least in helping to generate momentum for the signature of this petition. Its aim is laudable: to call for "the National Assembly for Wales to urge the Welsh Government to put measures in place to ensure that parents and guardians of children across Wales can easily access information about the presence and management of asbestos in all school buildings."

Children like to disturb things

The reason? As a recent BBC programme revealed, there are 1,514 schools in Wales containing asbestos (which equates to 85% of Welsh schools). Government policy is that, so long as the asbestos is in good condition and not likely to be disturbed, it is better to manage it for the remaining life of a school rather than remove it. This, in turn, means that most of the asbestos stays put in schools, where it will have to be managed long into the future.

But for Clement-Evans and many others, this isn't good enough. How can we be sure that children - by their nature disruptive, unpredictable and spontaneous – will behave in such a way as not to disturb asbestos in their schools? Even if dire examples such as Cwmcarn School (which, last October, a specialist contractor advised should be closed because of asbestos) are the exception, a risk is taken each day that children attend a school which is known to have asbestos on the premises.

Moreover, last year's report on asbestos in schools by the All-Party Parliamentary Group on Occupational Health and Safety found a number of additional reasons for disquiet. These range from insufficient awareness among staff and school workers of the dangers of slamming doors (doing so releases untoward levels of amosite fibres) and the all too frequent failure to identify asbestos-containing materials in schools. And most significantly, the All-Party report found that government policy is suspect because: "the asbestos is often not in good condition, or it is unsealed and hidden. Tests have shown it can be disturbed by normal school activity and asbestos fibres released over the course of many years without anyone being aware of that. No doubt [the] schools thought that they were managing their asbestos safely, whereas in reality they were not."

Changes must be made

For Clement-Evans, as for the All-Party Group, a number of key solutions should be adopted by the government. The phased removal of asbestos from schools should be implemented, there should be enhanced training and awareness of asbestos risks and there should be openness and transparency, so that parents are not in the dark about levels of asbestos in schools. Schools should also be inspected regularly and a comprehensive database of findings maintained.

Needless to say, what Clement-Evans has commendably highlighted as a problem in Wales applies just as much in the rest of Britain.

More than 228 school teachers have died of mesothelioma since 1980, with 140 dying in the past ten years. None of us want our children to join those unwelcome statistics. We must all do what we can to press for change.

Deliberate handball or not, cheating is wrong

2013-01-10T15:37:00.000Z

Regular readers will appreciate that perhaps two or three times a year I stray 'off piste', as it were, with the content of my blog. Forgive me, this is one such occasion - and once again football is responsible. This time, though, it raises a question that dovetails with many other themes aired on this blog.

On the back of the latest controversy involving Luis Suarez, I want to ask: what sort of society do we inhabit when the actions of the Liverpool player are lauded as professional?

I refer, of course, to the striker's handball in last Sunday's FA Cup Third Round tie against Mansfield Town. Suarez took a fine pass from Stewart Downing in his stride and shot on goal, only for his shot to be blocked by a Mansfield defender. However, Suarez never gives up and kept running - so much so that the rebound came his way. Into his right hand's way, that is. Having controlled the ball with his hand, it fell kindly in his path, enabling the player to smash the ball into the bet.

Deliberate or not?

Was it deliberate? It seems that the match officials thought not. They felt that this was a case of accidental handball, of ball to hand rather than hand to ball. Suarez's goal stood, and Liverpool went 2-0 up. They went on to win the tie 2-1 despite valiant efforts by their non-league opponents.

After the match there was plenty of condemnation of Suarez. But leaving aside what only Suarez can know (whether his action was deliberate or not), I found the verdict of a number of seasoned former footballers extraordinary. The majority suggested that Suarez had no obligation to own up to having cheated – if, indeed, that is what he did. Their view was that as a 'professional', Suarez was duty-bound to do the best for his team, so that even if he had cheated his duty was to keep quiet - to get away with it if he could

This brings to mind the 'professional foul' in football, that which is cynically inflicted but which everyone who watches the game seems to accept is a natural part of its fabric.

For football, read the professions

Why should it be? Why should we allow the so-called 'Beautiful Game' to have ugliness at its heart? And what does it mean for society when the country's most popular game either blatantly, at worst, or tacitly, at best, condones cheating?

There is a parallel here with professionalism in other walks of life, notably law and politics. Too often, we appear to turn a blind eye to breaches of ethical codes and rules. It seems that we only object when something is outrageously bad - or when a journalist exposes the truth. As in football, it is almost as if we expect a degree of cheating. This cannot be right. For football as much as the professional sector, the highest standards of fair play and ethical rigour should prevail.

I appreciate that there will be other equally legitimate views on this vexed topic, and would welcome hearing these, as well of course as any more supportive views.

Cash for Access: a Question of Equity?

2013-01-04T14:40:00.000Z

A new year dawns. The first thing I'd like to do is wish all my readers the very best for 2013. This salutation naturally extends to all Spencers' clients and staff. It goes further, too, to anyone unfortunate enough to be the victim of an accident.

Next, though, some less than upbeat words. Here we are, in the first week of 2013, and already the media is reporting on a story which has ethical laziness written all over it. I am referring, of course, to the latest cash for access scandal.

It seems that a number of all-party parliamentary groups have been sponsored in return for invitations to Westminster events. At the events, high-placed individuals from arms manufacturers, pharmaceutical companies and foreign governments get to meet MPs, peers and policymakers. Can those in receipt of financial donations really say they remain unmoved by the representations, over cocktails, of big business, keen to mould policy to its own advantage? Perhaps. But the fact that we have to ask the question, of those in positions of power and trust, cannot be right.

On Wednesday, The Times disclosed a number of worrying contributions to, for example, The Associate Parliamentary Health Group and The Parliamentary Internet Communications and Technology Forum. I won’t go into the specifics - not least because it seems fair to see what those allegedly in receipt of the funding have to say about it - but I will say that, if true, this matter once again raises grave concerns about ethical standards in British public life.

There is an old principle in the law: 'He who comes to equity must come with clean hands'. The focus of the doctrine is on the notion that a petitioner seeking an equitable remedy - that is, one beyond the letter of the law - must not have acted wrongly in the first place.

If you will allow me to extend or, rather, reverse the metaphor, this saying has resonance with the yet another cash for access story and the ongoing failure to adhere to unimpeachable professional standards in this country.

In other words: will 2013 be the year in which those in positions where they can dispense equity – those in positions of power - finally act with clean hands? I hope so.

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

2012-12-21T16:46:00.000Z

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

2012-12-12T15:41:00.000Z

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."