Justice minister Jonathan Djanogly has ruled out a change in the law on compensation for pleural plaques – despite admitting flaws in the current system.

Djanogly told a House of Commons debate this week that ‘it could be seen as unfair’ that compensation is available in Scotland and Northern Ireland but not in England. Compensation for pleural plaques victims was barred as a result of a case taken to the Law Lords in 2007. But the governments in Scotland and Northern Ireland have since voted to overturn that ban – a decision upheld by the UK Supreme Court last year.

Critics accuse the government of overseeing a ‘postcode lottery’, but Djanogly has rejected calls to bring English law in line with the rest of the UK.

He said: ‘In light of the medical evidence, the government do not consider it appropriate to overturn the House of Lords’ judgment that the condition of pleural plaques is not compensable under the civil law.’ He added that people with pleural plaques who go on to develop asbestos-related disease were still able to make a claim for compensation.

Pleural plaques – caused by exposure to asbestos – have long been a source of controversy between insurers and claimant groups.

Found on the inner surface of the chest, they are benign and not associated with any symptoms, but many people who develop pleural plaques go on to develop asbestos-related diseases such as asbestosis and mesothelioma.

Construction union UCATT claimed the government had ‘washed its hands’ of pleural plaques sufferers in England.

General secretary Steve Murphy said: ‘On the one hand they admit that it is unfair that all sufferers won’t receive compensation and in the next breath they reveal they intend to do nothing about it.

‘Plaques victims have suffered irreparable scarring to their lungs due to prolonged exposure to asbestos. Employers knew the risks workers faced but didn’t care.

‘The fact that pleural plaques sufferers in England and Wales are still denied compensation while those in Scotland and Northern Ireland can claim, has created a postcode lottery for asbestos victims.’

Medico Legal News Source: Law Society Gazette

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A Court of Appeal judge has criticised a defendant for rejecting mediation offered at a previous hearing – warning it will be a costly decision.

Lord Justice Longmore said it was a ‘great pity’ that appliance supplier Indesit, instructed by Plexus Solicitors, had not pursued the option of mediation as advised by Lord Justice Toulson in a personal injury case. Indesit had successfully defended a personal injury claim by employee Ali Ghaith, but Ghaith was subsequently given permission to appeal.

It was then that the appeal judge encouraged Indesit to pursue the option of mediation.

The company opted not to follow that advice on the grounds that costs had already exceeded the likely amount at issue. In a judgment given today, LJ Longmore said this was an ‘inadequate response’ that will ‘inevitably result in a substantial increase in costs’.

He added: ‘Indesit’s reaction is all too frequent and the court has, since April of this year, decided that any claim for less than £100,000 will be the subject of compulsory mediation.

‘It is devoutly to be hoped that such mediation will mean that these comparatively small claims will not have to be adjudicated by this court so frequently in future.’

His endorsement of mediation was backed by another member of the Court of Appeal panel, Lord Justice Ward, who said that ‘if [both parties] have any sense, they will heed a recommendation to mediate’.

He explained that the mediator had a ‘canny knack of transforming the intractable into the possible’ and that mediation should not be spurned when it is offered.

Ghaith, who had aggravated a back injury while lifting washing machine parts for a stock-take in 2007, sued his employer for personal injury, alleging a breach of manual handling regulations. It was agreed that liability (if any) would be no more than £60,000 because of the nature of the injury.

The claim had failed in the civil court on the grounds there was nothing more that could have been done on the part of the defendant.

But after Ghaith was given permission to appeal, LJ Longmore concluded he would allow the appeal and sent the matter to the County Court for an assessment of quantum.

Medico Legal News Source: Law Society Gazette

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The patient appeared to be fine to those who did not know them: polite, pleasant and without physical problems such as incontinence.  Yet three days later, relatives returned insisting something was wrong. Salisbury consultant in rehabilitation medicine Anba Soopramanien recalls the patient’s behaviour was typical of the kind of difficulties he faces in those with brain injuries.

He says: ‘The family came back and said “this person had changed — they used to be aggressive and confrontational and now they are not”. When you ask this person to do something it is done immediately and this person would never do that in the past.’

Hidden repercussions
The issue of masking — in which significant problems may not be immediately obvious — is one of many obstacles facing doctors treating brain injuries.

While more than 70 per cent of such injuries are classed as mild, without extended periods of unconsciousness, severity is not always an accurate predictor of long-term problems.
Cognitive repercussions can include confusion, difficulty in concentrating, memory problems and trouble with thought processes or learning. Physical issues might involve motor function, changes in sensation and difficulty in perceiving form and weight using touch. Patients may also have impaired speech and visual problems.

During Action for Brain Injury Week, brain-injury association Headway is highlighting the negative impact that patients’ emotional and behavioural changes can have on their relationships and families.

Support services
BMA community care committee chair Helena McKeown, who is also a GP in Salisbury, says her big issue as a doctor is getting access to support services for these patients, such as community physiotherapy, occupational and speech therapy, and for informal carers to have respite support.

She adds that knowledge in general practice has improved, with access to guidelines from the National Institute for Health and Clinical Excellence and the realisation that even mild head injuries can have consequences.

‘We are aware to watch for things, and refer them and speak with colleagues in emergency care about getting scans,’ she says.

Dr Soopramanien advises GPs to use simple language initially when speaking to patients with brain injuries, bearing in mind that they may lack insight into what has happened to them.

He also suggests looking out for low mood and to be aware when involving patients in activities that fatigue commonly accompanies acquired brain injury. GPs should also involve families, he says, as they can shed light on abnormal or changed behaviour.

Telecare plans
Carers need support too, according to Dr Soopramanien, and should have changes in patients explained to them.

He says: ‘Involve them in decisions about care and finances, provide them with advice on mental capacity assessment, put them in touch with other families for peer support and
organisations such as Headway. Support them, as they may feel vulnerable after a
sudden life-changing event that may have impacted on their financial and emotional stability.’

Patients with brain injuries often face additional problems when they are discharged from hospital into inappropriate environments, with badly structured long-term rehabilitation and follow-up, Dr Soopramanien says.

In a bid to improve this, he is testing how the latest technology can support those with cognitive, physical or visual impairments at home with an adapted health hub device, more traditionally used for patients with chronic obstructive pulmonary disease or heart failure.

The device would be customised for the individual needs of each patient and is being developed as part of an assisted living project by the Department for Business, Innovation
and Skills’ technology strategy board.

It could include prompts for those with memory problems, alarms for falls, and infrared sensors around the house to monitor activity in case the patient wanders.  Sensors could monitor vital signs such as blood pressure, pulse and oxygen saturation, while a screen could provide access to community services and contact with other health professionals as well as remote access to psychological or speech and language therapy.

Dr Soopramanien describes the kind of patient whom the device could help.

‘She might be a relatively young woman, with a normal life before experiencing a bleed on the brain. She can walk normally and attend to her continence if prompted properly. The problem is that she may not know where everything is in the house and she may forget the sequence for something as simple as making a cup of tea. If she uses the shower, she may forget to rinse off the soap, she may not be able to identify where to find clothes. This is
where we can look at telecare to get her prompts.’

Disaster scenario
Doctors may not only be involved in treating patients but can sustain brain injury themselves, work with or become carers for others who do.

One doctor, who asked not to be named, says there were significant repercussions more than a decade ago when a colleague sustained a significant brain injury and was off work for more than six months.

Specialists deemed the brain injured doctor fit to return to work without supervision, but
colleagues, family, patients and other healthcare staff noticed significant changes to the doctor’s personality, along with a high error rate and a loss of confidence in their work.

The colleague says: ‘I would like to believe that we would do things slightly better now, particularly by involving and listening to patients’ experiences of a sick doctor.’

BMA Doctors for Doctors unit head Mike Peters says that having a head injury can affect work, life and family and may have a particular impact for those in the medical profession.
‘The impact may be greater because so much of a doctor’s personality is bound up in their role,’ he says.

Doctors may also be particularly affected as carers as they are aware of the worse cases and may go down a disaster-path scenario.

‘Doctors are used to planning treatment, prescribing and approaching issues from the medical model.

‘They may feel uncomfortable in the caring or nursing role where the relationship is different and this may be quite challenging,’ Dr Peters says.

‘Doctors may be very good with patients but it may not be the same for family. The doctor’s boundaries must be clear — you can’t be a doctor to your partner.’

Action for Brain Injury Week runs until May 20.
Medico Legal News Source: British Medication Association

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A Somerset woman is to get £290,000 in compensation from Bristol Water following her husband’s death from cancer caused by his contact with asbestos.

David Bean, from Shepton Mallet, had worked for the company as an engineer.

He had no protection when visiting pumping stations housing boilers covered with asbestos cement lagging.

Bristol Water said “stringent safety measures” had now been introduced for staff working with asbestos.

The solicitor for his wife Jean said the money would compensate her for loss of income resulting from his death last year at the age of 73.

Solicitor Brigitte Chandler said: “Mr Bean visited pumping stations all over the western area.

“They contained large boilers, often the size of houses, which were covered with asbestos cement lagging.

“Mr Bean would have been in contact with the asbestos as he walked around the pumping station.

“He was never given protective masks or clothing and continued to be exposed to asbestos until he left the company in 1992.

“Mr Bean was healthy until September 2010 when he developed chest pains, coughing and breathlessness. He was diagnosed with mesothelioma.”

Malignant mesothelioma is a form of cancer which affects the thin membrane that lines the chest and abdomen. About 2,400 people are diagnosed with the condition in the UK each year.

According to Cancer Research UK, up to 80% of cases of malignant mesothelioma are caused by exposure to asbestos fibres.

A spokesman for Bristol Water said: “It is with regret that Mr Bean, a retired former employee of Bristol Water and its predecessors, who started work with the business in the 1950s has passed away as a consequence of mesothelioma.

“Bristol Water’s insurers have made a compensation payment as a result of Mr Bean’s historic exposure from asbestos disturbed whilst carrying out his duties.

“In modern times, stringent safety measures have been introduced to avoid the risk of hazardous substances such as asbestos being disturbed and inhaled by employees.”

Medico Legal News Source: BBC News

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Insurers have suggested they may be willing to accede to solicitors’ demands to share information on known fraudsters.

Personal injury lawyers have urged insurers to give them access to records of people who have made false claims. The Association of British Insurers is preparing a new register, to be launched this summer, which will collate all members’ fraud records in one place for the first time. The possibility then arises that the register could be more widely distributed, subject to data protection rules.

‘We want to work with as many bodies as possible, including lawyers who have an interest in tackling fraud,’ said a spokesman for the ABI.

‘A project group has been working for 18 months on this register, which will keep details of all known fraudsters. We’re looking at the moment how it’ll work in terms of sharing.’

Last month the ABI highlighted an increase in numbers of people claiming whiplash injuries as proof whiplash was the ‘fraud of choice, often aided and abetted by ambulance-chasing lawyers’.

At its conference last month, the Association of Personal Injury Lawyers called for the industry to share records. APIL president Karl Tonks said: ‘It’s really frustrating when insurers are so reluctant to share information with us. If they have information that makes them think that a claim is fraudulent then they should tell us.’

Medico Legal News Source: Law Society Gazette

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Who? Richard Scorer, 44, head of serious injury at Manchester firm Pannone.

Why is he in the news? He is acting for eight women who were sexually assaulted by licensed taxi cab driver John Worboys and are now seeking to sue Worboys’ motor insurer on the grounds that the assaults were caused by, or arose out of, Worboys’ use of the vehicle. The High Court must decide how far, if at all, ­Warboys’ insurer is liable to pay damages to his victims under the terms of the Road Traffic Act 1988, which requires compulsory ­insurance cover for injuries caused by or arising from the use of a vehicle on a road. A ruling is expected in the next few weeks.

Thoughts on the case: ‘This case will not open the floodgates to similar claims. Such assaults are ­relatively rare and, anyway, it is fraud around whiplash claims that is forcing ­insurance ­premiums upwards, not cases like this. We are putting forward a decent, arguable point with the aim of winning justice for the victims.’

Route to the case: ‘I have spent 15 years handling assault cases and another firm referred this case to me.’

Why become a lawyer? ‘I worked as a paralegal in the US while a student and realised the law, in particular working for the vulnerable, was the career for me.’

Career high: ‘I worked on a case 12 years ago that set in motion the 2001 Nolan ­independent review of child abuse in the Catholic Church.’

Career low: ‘During the first week of my training ­contract, I was sent off to court with no papers and no advice from counsel. The ­hearing couldn’t proceed and the judge ordered costs against my firm.’

Medico Legal News Source: Law Society Gazette

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Hard questions must be put to insurers about the way they handle whiplash claims, lawyers have said ahead of a Whitehall “summit” with the insurance industry.

“Whiplash injuries are real, they can be long term, and must not be trivialised,” said Karl Tonks, president of the Association of Personal Injury Lawyers (APIL).

“Before it announces a raft of propositions which risk barring genuinely injured people from bringing legitimate claims, the Government must have a wider debate about the real issues, and it must also hold the insurance industry to account.

“I‟m really concerned that in all the latest populist rhetoric about whiplash claims, everyone is being tarred with the same brush,” he said.

“Of course we must put a stop to crime and to fraudulent claims. We are absolutely committed to that, but insurers really do hold the key,” he went on. “They have a wealth of information about fraudulent claimants at their fingertips and lawyers could play a real part in helping to weed out fraud if insurers would only share that information. Unfortunately, they are not willing to share it, and the Government needs to ask the industry why.

“Insurers are increasingly contacting people direct, once they‟ve been in an accident, to offer cash straight away, outside the proper, formal legal process, because they believe it is cheaper to deal with people this way,” he went on. “But many of those people would ordinarily never think of making a claim. There‟s also a growing trend of insurers offering cash to claimants even before a report has been received from a doctor. How many unnecessary and invalid claims is this kind of behaviour encouraging?”

Tonks also challenged the insurance industry to commit to reductions in insurance premiums. “The current system for dealing with road traffic accident claims was thrashed out between all the parties just two years ago,” said Tonks. “As part of that process, the cost of bringing these claims was slashed, but there has never been a corresponding drop in premiums.”

Medico Legal News Source: APIL

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The controversial Legal Aid Sentencing and Punishment of Offenders Act received royal assent today, 11 months after it was introduced to parliament. Part 1 of the act paves the way for cuts to the scope of and eligibility for legal aid; part 2 reforms conditional fee agreements. Both come into force in April 2013.

Part 3 of the act deals with sentencing reform, creating a new offence of threatening people with a knife in public or at schools and causing injury by driving dangerously. It also criminalises squatting.

The bill met strong opposition in both houses, which inflicted 14 defeats on the government. The act will remove legal aid for wide areas of law including most private family law, social welfare law, clinical negligence, education and employment.

Part 2 abolishes the recoverability of success fees and associated costs in conditional fee agreements. A last minute climb-down by the government meant that the reforms will not be introduced for mesothelioma cases until a review of their impact on other cases has been carried out.

The act also creates tougher community sentences, gives prosecutors the right to appeal against Crown court bail decisions and clarifies the law around self-defence.

Justice secretary Kenneth Clarke said: ‘These reforms will strengthen our work to cut crime, protect the public and ensure taxpayers’ money is being spent where it is most needed and most effective.’

Justice minister Jonathan Djanogly said: ‘This act ensures we will continue to have one of the most generous legal aid systems in the world, which together with no-win no-fee deals means that legal help is widely available for those who cannot afford a lawyer. It will help people to explore the range of practical advice available to them to tackle problems early, rather than immediately taking legal action.’

Djanogly added that the act ‘will reduce lawyers’ fees, which we all end up paying for through increased prices and insurance premiums. It will make legal costs fairer between people suing for compensation and the defendants, so that the defendants are not denied access to justice through fear of high legal costs.’

But Law Society president John Wotton warned: ‘The consequence of this act will be that, in some very important areas like housing and welfare benefits law, vulnerable members of society will find legal advice and representation in the courts, funded by legal aid, more difficult to obtain.’

Wotton said the campaign against many aspects of the act, by the Law Society and others, had led to important concessions and amendments. But he said: ‘We cannot pretend that the final act is the outcome for which we had hoped.’

Medico Legal News Source: Law Society Gazette

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The insurance industry has proposed that fixed fees for low-value claims be set as low as £150, the Gazette can reveal.

A leaked email, apparently sent to members of the Association of British Insurers by the ABI’s assistant head of motor and liability James Dalton, calls for a ‘tactical steer’ to set limits for the RTA Portal. The email asks the General Insurance Council committee to advance the £150 figure as a ‘negotiating tactic’, recognising the Ministry of Justice will ‘inevitably set a number higher than that’.

The figure, a huge reduction on the current £1,200 cap for portal case fees, would apply to all claims valued up to £10,000. The email states that £150 would cut insurers’ costs but ‘runs the risk of the industry being seen to be unreasonable’. On the other hand, a figure of £350 could ‘limit the cost savings to insurers of the reduced fee but increase our credibility in the debate’.

Dalton says costs consultants have examined the work carried out by claimant law firms in processing low-value claims through the portal. This analysis has considered the averages of the salaries of the staff involved, their efficiency rates and overheads involved in running the firm.

Solicitor Andrew Dismore, co-ordinator of the Access to Justice Action Group, accused the insurance industry of ‘playing games’ and trying to drive out solicitors from the claims process.

‘They are playing a cynical and duplicitous game with the MoJ even though they get what they want anyway,’ he said.

‘The ABI want to drive any professionalism out of legal services and turn it into a tick box exercise. Their ultimate aim is third party capture and before-the-event insurance driving independent advice out of the market.’

A spokesman for the ABI said no final decisions have been taken on the response to the government consultation on fixed fees.

‘We have long argued that the current £1,200 fee is far too high and needs to be slashed if we are to be able to reduce car insurance premiums for customers.

‘We are considering a number of options as part of our response to the consultation and this should not come as a surprise. And these are just options amongst a range of others we are considering before we finalise our response and provide it to the MoJ.’

The government has said it will listen to all stakeholders as it decides on the future terms of the portal. Parties have until 25 May to submit responses.

Medico Legal New Source: Law Society Gazette

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Parent companies have a responsibility for the health and safety of their subsidiaries’ employees, the Court of Appeal has ruled in a groundbreaking case.

The judgment comes after a retired factory worker successfully sued his former employer’s parent company after contracting asbestosis. Cape, which owned the now-defunct Cape Products, had appealed against the decision, arguing that the two companies should be treated as separate entities.

Lady Justice Arden rejected that appeal last Wednesday, concluding there was a ‘direct duty of care’ owed by Cape to the employees of Cape Products.

Arden said the original judgment met the required circumstances needed to prove the parent company could be held responsible. These were:

• The businesses of the parent and subsidiary were the same.
• The parent had, or ought to have had, superior knowledge of health and safety.
• The subsidiary’s systems were unsafe as the parent company knew, or ought to have known.
• The subsidiary relied on the parent company for health and safety knowledge to protect employees.

‘Cape assumed a duty of care either to advise Cape Products on what steps it had to take in the light of knowledge then available to provide those employees with a safe system of work or to ensure that those steps were taken,’ said Arden. But the judge said her court was not attempting to ‘pierce the corporate veil’ and insisted a subsidiary and its company were still separate entities.

The judgment has been hailed a groundbreaking case with far-reaching ramifications for UK and multinational companies with subsidiaries in developing countries.

Vijay Ganapathy, senior solicitor in Leigh Day’s industrial disease department, who represented the claimant against Cape, said it was no longer possible for companies to ‘hide behind aged legal principles’ that assume parent companies have no responsibility for subsidiaries.

He said: ‘This is of particular relevance in asbestos disease cases as many sufferers face insurmountable challenges in identifying and locating insurers for their former employers.

‘As parent companies are much more likely to survive over the decades it takes for asbestos disease to develop, it should give hope to those now suffering that past negligence will not go unpunished.’

Medico Legal News Source: Law Society Gazette

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The government will this week set out tougher measures in a bid to cut the number of whiplash claims.

Justice secretary Kenneth Clarke and transport secretary Justine Greening will jointly outline plans to reform the diagnosis procedure. In a statement to be made on Wednesday, the government is expected to announce an accreditation system for doctors who assess whiplash claims. There are also likely to be tougher regulations on out-of-court settlements and insurers will be encouraged to challenge claims they believe to be fraudulent.

Reform of the whiplash claims system has been imminent since the start of this year, when prime minister David Cameron described Britain as the ‘whiplash capital of Europe’.

The Sunday Times quoted Clarke as saying it was ‘scandalous’ to have a system in place where it was cheaper for insurers to settle ‘spurious’ claims than defend them.

The government’s proposals are likely to find favour with the insurance industry, which called for objective evidence to be produced to prove a whiplash claim, in addition to the claimant’s GP’s diagnosis. A report by the Commons Transport Committee in January into the cost of motor insurance concluded that the rise in personal injury claims was the ‘main reason for the rise in premiums’.

The report said insurers should require fuller diagnosis of whiplash injuries to prove a claim is valid, and that legal expenses should be cut to encourage insurers to defend claims.

If there was not a significant fall in whiplash claims, the report said, primary legislation would be necessary to require objective evidence of an injury, or the injury having a significant effect on the claimant’s life, before compensation was paid.

Medico Legal News Source: Law Society Gazette

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The government’s controversial legal aid reforms are set to become law after it won its final battle over the bill in the House of Lords yesterday.

Peers had inflicted 14 defeats on the government in votes on proposed amendments to the Legal Aid, Sentencing and Punishment of Offenders bill during its parliamentary passage.

The final vote, on an amendment called by Labour’s former attorney general Lady Scotland to ensure legal aid for more domestic violence victims, ended in a draw, with 238 peers voting for it and 238 against. Under parliamentary convention that counts as a win for the government.

Lady Scotland’s amendment was the only change still under debate after crossbencher Lord Pannick reluctantly withdrew his amendment seeking a statement in the bill putting a duty on the government to ensure access to legal advice.

Earlier in the week, the government announced a concession to one of the most controversial elements in part 2 of the bill, agreeing to exclude claims for the lung disease mesothelioma from the reforms until a review of their impact on other areas had been carried out.

The bill is now set for royal assent. The Ministry of Justice said no date for that had been confirmed, but it is ‘likely to be soon’.

Labour’s shadow justice secretary Sadiq Khan said: ‘The bill is a sad and tatty chapter in the story of post war access to justice. The onslaught on our precious legal aid system is an act of vandalism for which this Tory-led government will be forever remembered.’

Medico Legal News Source: Law Society Gazette

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Personal injury lawyers are refusing to play ‘deal or no deal games’ with the government over fixed fees for smaller cases.

The government has written to all stakeholders asking them to suggest a limit for the value of claim that solicitors should be able to charge through the RTA Portal.

The scheme currently fast-tracks cases valued at up to £10,000, but the Ministry of Justice wants to extend that limit to £25,000 and widen the scope to employer’s and public liability cases.

Deborah Evans, chief executive of the Association of Personal Injury Lawyers, told the Gazette that her group will not respond to the request for specific figures. ‘It’s not about a “deal or no deal” game – governments should make evidence-based decisions, not put their finger in the air and come up with a figure,’ she said.

APIL was one of several groups invited to meet justice minister Jonathan Djanogly last month to discuss the government’s plans. It is believed Djanogly is keen to establish a compromise figure, but claimant groups say this is impossible without independent analysis of small claims.

‘[Djanogly] has a preset idea that every case is whiplash,’ said Evans. ‘Cases up to £25,000 are very difficult and need medical reports.’ Evans said that extending the portal to employer’s and public liability cases poses several difficulties, not least establishing liability.

Prime minister David Cameron made it clear earlier this year that he expects the current £1,200 fee limit for the portal to be reduced, following talks with insurance, consumer and business groups. He said the insurance industry had committed to adjusting car insurance premiums to reflect any reduction in legal costs.

Nick Starling, director of the Association of British Insurers, told the APIL conference in Newport last week that this promise still stands. ‘In a competitive environment where [insurance companies] are fighting very hard against each other it would be commercial suicide not to pass on savings to customers,’ he said.

Medico Legal News Source: Law Society Gazette

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A Ministry of Justice official has said it will be up to solicitors to police a key aspect of the civil litigation reforms.

Robert Wright, head of civil litigation and funding at the MoJ, admitted last week there is no way for the government to ensure a 10% uplift is applied to all damages settlements. The uplift is a crucial concession to balance the removal of recoverability of after-the-event insurance premiums and success fees from losing defendants.

But with nothing on the statute book, the MoJ will rely on judicial intervention for cases that go to court and on claimant solicitors for the vast majority that settle earlier. Speaking at the APIL conference, Wright said: ‘It’s up to you as lawyers to know what figure is the right figure and negotiate that with defendants.

‘For any injury you will know what you think is the right figure and whether it is x plus 10%.’

Labour MPs and peers have campaigned in parliament for the uplift to be included in the Legal Aid, Sentencing and Punishment of Offenders bill. During a debate on the bill last week, Paul Goggins, MP for Wythenshawe and Sale, told the Commons that the uplift was ‘an estimate and cannot be guaranteed’.

In February, justice minister Jonathan Djanogly said discussions about the uplift had been held with the senior judiciary, with further clarification expected this year.

During his speech, Wright – standing in for Djanogly after the minister cancelled his appearance – said it was essential LASPO was adopted in full.

A series of amendments has attempted to make exemptions in a number of areas of civil litigation, with debate ongoing about industrial disease and mesothelioma cases.

Wright said: ‘The government believes that in order for the reforms to be effective they must apply to all areas of civil litigation – it can’t be right to distinguish between one claim and another.’

Medico Legal News Source: Law Society Gazette

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Personal injury lawyers have called on the government to raise the cap on compensation for victims of crime. A Ministry of Justice consultation, ‘Getting it right for victims and witnesses’, closed this week after three months.

The Association of Personal Injury Lawyers responded to the consultation with a call for the £500,000 cap on the Criminal Injuries Compensation Fund to rise.

‘Crime victims with the most severe injuries may require care for the rest of their lives,’ said APIL president Karl Tonks. ‘The cap of £500,000 is nowhere near enough, in many cases, to meet the ongoing medical and care needs.’

The cap was brought to light earlier this month by a campaign for financial support for six-year-old Thusha Kamaleswaran, who was paralysed after being shot in a gang shootout last year.

Kara Smith, of Stewarts Law, who represented the family’s claims to the compensation authority, argued comparable injuries would attract payouts of around £5m had they been caused in a road traffic accident. The MoJ will reveal its plans for compensation payments later this year.

Medico Legal News Source: Law Society Gazette

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A personal injury firm based in Cardiff has become the first Welsh practice to be licensed as an alternative business structure (ABS).

NewLaw Legal, founded in 2004, was confirmed as the fourth ABS by the Solicitors Regulation Authority today.

It is also the first legal disciplinary practice to be passported to ABS status, having already brought non-lawyers in to the management structure.

Helen Molyneux, chief executive of NewLaw Legal, said: ‘NewLaw was founded in anticipation of the legal services market being opened up to non-lawyer ownership.

‘Since then we have shaped the business to take on a corporate structure in anticipation of this moment. Our ABS status will give added momentum to the joint venture business strategies that we have been evolving for some time.’

The announcement follows the first three ABSs to be granted a licence last month: Co-operative Legal Services, John Welch & Stammers and Lawbridge Solicitors.

Lowri Morgan, Law Society manager for Wales, said it was a ‘historic day’ as the principality entered the new era of legal services.

She added: ‘While NewLaw is the first legal practice to become an alternative business structure in Wales under the reforms to the way law firms are owned, I have no doubt others will follow.’

NewLaw has around 270 staff, 65 of who are solicitors.

SRA chair Charles Plant last week said that 74 applications for ABS status were at an advanced stage.

Medico Legal News Source: Law Society Gazette

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Justice secretary Kenneth Clarke today made a surprise U-turn to postpone Jackson reforms for mesothelioma cases.

The issue has been the most controversial aspect of part two of the Legal Aid, Sentencing and Punishment of Offenders bill, with the Lords voting for a second time on Monday to oppose the government. Clarke today tabled an amendment in the House of Commons postponing LASPO reforms for all claims relating to mesothelioma cases.

The postponement will allow time for a review of the likely effect of the reforms. The Ministry of Justice will report on the review’s conclusions.

The amendment means that in mesothelioma cases, after-the-event insurance and success fees are likely to remain recoverable from losing defendants after April 2013, the date when Jackson reforms are due to be implemented. The amendment is a surprise climbdown from the government, which as recently as the Lords debate on Monday was arguing that cases could not be differentiated.

Justice minister Lord McNally told the House of Lords mesothelioma cases could not be treated differently to other types of serious illness, but the government lost by nine votes.

A Labour spokesperson described the U-turn as ‘a huge victory for asbestos charities and those that have been advocating for so long that the Jackson reforms were flawed in their disregard of victims.’

Medico Legal News Source: Law Society Gazette

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People claiming whiplash injuries should not be entitled to compensation unless there is objective evidence that they have suffered injury. This is one of several radical reforms which the ABI today said needs to be considered to reduce the UK’s whiplash epidemic and bring down the costs of motor insurance. Britain’s thriving whiplash industry is now pushing up the cost of the average motor insurance policy by a staggering 20%.

Despite a fall in the number of car crashes, whiplash claims have risen by a third in the last three years. Every year 570,000 people claim for whiplash injuries – enough to fill the London Olympic Stadium seven times over. Last year these claims cost insurers over £2 billion, adding an extra £90 a year to the average annual motor premium of £440.

Speaking at an international whiplash conference in Bristol today, James Dalton, ABI’s Head of Motor and Liability said:

“If whiplash was an Olympic sport, the UK would be gold medallists. The fact that whiplash is virtually impossible to disprove means that for too many it has become the fraud of choice, often aided and abetted by ambulance-chasing lawyers and claims management firms”.

Outlining ideas for radical reform, James Dalton added:
“The crackdown on our whiplash epidemic has started with the Government’s reform of civil litigation which will reduce the scope for ‘have a go’ claims. But we also need to consider radical action if we are to get a grip on whiplash, such as:

• A system where whiplash claimants receive no compensation for alleged pain and suffering (general damages) unless there is objective medical evidence of injury.
• Capping or reducing the level of damages for whiplash claims.
• Having a panel of independent doctors to assess whiplash claims, rather than the claimants GP.
• Greater use of bio-mechanical evidence that might enable the introduction of a speed threshold under which there would be a presumption that whiplash has not occurred.
“Only by thinking big and bold can we reduce the whiplash problem and the costs of motor insurance.”

Medico Legal News Source: ABI

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A regulation chief has warned the UK’s biggest commercial firms that they are ‘deluded’ to think alternative business structures will not affect them.

Solicitors Regulation Authority chairman Charles Plant told the Association of Personal Injury Lawyers conference on Friday that no firm could assume they would be immune from the impact of the new ownership model. ‘For those firms and businesses who say they have no interest I say you’re looking through the wrong end of the telescope,’ he said.

‘Your competitors are very interested, as are the young lawyers who represent your future. The tentacles of ABSs spread to many other areas and will impact directly on you.’

Young lawyers entering the profession want to be part of progressive practices, Plant said. ‘The new generation want to control their destiny and, given the choice between joining a traditional law firm with slow steps up the ladder and joining one with share options, many will take the latter course. City of London firms take note.’

Plant, a former partner at City firm Herbert Smith, said ‘Well-run, ambitious firms who understand what is going on in the market will treat this period as one where the opportunities are great. If these firms take the opportunities I am sure they will succeed, just as those who fail to take the opportunities I fear are doomed to fail.’

He stated that 74 applications for ABS status were now at an advanced stage and denied there had been delays to the process.

The SRA announced its first three successful licences last month but no further applications have been completed since then. Of the next round, Plant said: ‘Many are not straightforward, some of the structures being proposed are complex and need careful scrutiny by us, whilst some are incomplete. There is no backlog – the applications are being properly and efficiently processed.

‘You will have read some applicants have expressed surprise by the rigour but that is what the protection of the public and the profession requires.’

Plant said it was important that personal injury firms prepare themselves for the future, with government reforms of civil litigation set to coincide with new competitors gaining ABS status. He gave his backing to law firms having official links with claims management companies and said it was one option for negating the effects of a ban on referral fees.

Plant also warned that the SRA will be looking closely at firms that continue to offer services on a no win, no fee basis.

‘Some firms will conduct too many cases on contingency fees and will expose themselves to collapse if they don’t win those cases. We will conduct enquiries on such firms.’

Medico Legal News Source: Law Society Gazette

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The incoming president of the Association of Personal Injury Lawyers has launched a stinging attack on the prime minister and insurance industry. Speaking at the APIL conference in Newport today, Karl Tonks accused insurers of creating a ‘dysfunctional’ system through third-party capture of people who would never otherwise make a claim.

He said insurance companies that used referral fees and then wondered why claims were rising were ‘as deluded as the chronic alcoholic who doesn’t seem to be able to understand why he keeps waking up with a headache’.

Tonks also accused insurance companies of slowing down the system and driving up costs by refusing to share information on fraudsters – claiming to have been told by one insurer that ‘it’s much better for us to run cases all the way and then get more costs back’. Tonks said the path to compensation for victims of industrial disease was ‘littered with broken promises’ and accused insurers of accepting premiums with little or no prospect of ever paying claims.

The time was right, he added, for a fund of last resort for industrial disease sufferers to track down insurers and an employers’ liability insurance bureau. ‘This is the industry’s corporate responsibility and insurers individually and collectively need to step up, accept their responsibility for this scandal and put it right.’

Tonks then turned his attention to prime minister David Cameron in the wake of his attack on the health and safety ‘monster’ and plans to remove red tape announced earlier this year. The new president said the relaxing of health and safety legislation would have both a social and financial cost and ‘take us back to a bygone era, where children were sent up chimneys and people lost limbs with no recourse and no criticism of irresponsible employers’.

Tonks said APIL would continue to argue that government reforms in the Legal Aid, Sentencing and Punishment of Offenders bill were unfair on claimants.

He added there is ‘much to be fought for’ over the detail of qualified one-way costs shifting and Part 36, and argued that the government’s reliance on people taking out before-the-event insurance will create a two-tier division between those who can afford cover and those who cannot.

He added: ‘[Firms] need to think differently about risk, prospects of success and affordability of cases. Yet this work cannot start until the government, with care and proper thought, fulfils its responsibility to finish the job and communicate the rules.’ The conference, due to finish tomorrow, was missing two of its main speakers after justice minister Jonathan Djanogly cancelled his appearance earlier this week and Lord Justice Jackson withdrew because of ill health.

Medico Legal News Source: Law Society Gazette

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The incoming leader of the Association of Personal Injury Lawyers will go on the attack against insurers this week.

Karl Tonks, incoming president of APIL, will use his inaugural speech on Thursday at the group’s annual conference to call for fairness in the civil litigation system. Tonks, head of employers’ liability at national personal injury firm Fentons, will call on the government to ensure fairness in the debate between claimant and defendant lawyers.

‘We have a system where insurers can contest claims until the eve of an expensive trial, cause significant costs to be incurred unnecessarily, and make an innocently injured person wait unreasonably long for the compensation he may desperately need,’ he will say.

‘Then those same insurers pass those wasted costs on to their customers in the form of higher premiums.’

Tonks’ speech comes as the government pushed in the House of Commons to ensure the passage of the Legal Aid, Sentencing and Punishment of Offenders bill.

The legislation will remove the recoverability of lawyers’ success fees and after-the-event insurance from unsuccessful defendants. Personal injury lawyers are expected to debate how the system will affect the sector and how to respond to the challenges.

Tonks will also call on the government to fulfill a long-awaited pledge to create a fund of last resort for industrial disease victims.

The government inherited a consultation document calling for insurance firms to finance claimants in their search for their former employer’s insurer, but the scheme has stalled in the past two years.

Tonks will say: ‘It’s obvious what needs to be done. We need a fund of last resort. The insurance industry needs to start paying what it should pay.’

The conference programme will be missing two key speakers after late withdrawals. Justice minister Jonathan Djanogly has been called into Westminster by Conservative whips to vote on the Finance bill.

Lord Justice Jackson will also not appear after it was announced by the Judiciary that he will shortly undergo an operation to treat cancer. He is expected to return to full-time work by October.

Medico Legal News Source: Law Society Gazette

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The government says it will oppose all but three of the 11 amendments made by peers to the Legal Aid, Sentencing and Punishment of Offenders bill when the measure returns to the Commons tomorrow.

A government response to the Lords’ amendments, published on Friday afternoon, signals the government’s intention to restore cuts to legal aid for children. The cut was among the measures overturned during the bill’s passage through the Lords last month.

The government also said it disagrees with Lords amendments to retain legal aid for first-tier welfare benefits appeals; for expert reports in clinical negligence cases; to impose a duty on the Lord Chancellor to provide advice services; and to ensure that the proposed telephone gateway is not mandatory.

The only amendments not opposed by the government are changes to ensure the independence of the director of legal aid casework; the retention of legal aid for welfare benefit appeals to the Upper Tribunal, the Court of Appeal and the Supreme Court, and the widened definition of domestic violence.

However, the government does not accept the Lords’ amendment to broaden the evidential criteria required to demonstrate domestic violence.

Campaign group JustRights said that 6,000 children (14% of those who had received legal aid in the last year) would lose the right to legal aid if the government gets it way.

The group’s co-chair, James Kenrick, said: ‘The government has the chance on Tuesday to finally make good its claim that it wants to protect children from cuts to legal aid. If it does not, we now know that thousands of highly vulnerable children, often with little or no parental support, will be left to navigate alone a legal system which is daunting enough even for competent adults.’

On Part 2 of the bill, the government disagrees with the changes made that would have exempted victims of industrial diseases from the Jackson civil litigation reforms. These amendments would have ensured that success fees and after-the-event insurance premiums continued to be recoverable from the unsuccessful defendant in such cases.

In advance of the bill’s return to the Commons, the Association of British Insurers has briefed MPs, urging them not to support the two amendments. It says the amendments will ‘unravel’ the positive work currently being done to support and speed up compensation for sufferers.

Shadow justice minister Andy Slaughter accused the insurance industry of ‘trying to mislead MPs with this highly inaccurate briefing which seeks to prevent sufferers of some of the worst industrial diseases from legal redress’.

Head of communications at the Law Society Graham Capper said: ‘The House of Lords amendments, while they would cost the government very little, improve the bill substantially, and would provide legal aid for cases involving some of the most vulnerable individuals.

‘It is to be hoped that the government’s outright rejection of them is merely its opening negotiating position.’

Capper added: ‘More surprising is the government’s rejection of the amendment to Part 2 of the bill which applies to mesothelioma cases, and the ABI’s assertion that this is somehow good news for victims.

‘Is it good news for victims of this type of chronic industrial disease that they will have to surrender up to 25% of their damages to cover costs, even when their former employer is found liable for their injury?’

Medico Legal News Source: Law Society Gazette

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The government has admitted that a 2010 act designed to help people gain compensation for industrial diseases is unlikely to be implemented until 2013.

The Third Parties (Rights Against Insurers) Act was pushed through two years ago to update legislation dating from 1930. It gave claimants, including those suffering from asbestos-related diseases such as mesothelioma, the right to proceed against an insurer directly without having to re-establish a defunct former employer.

The act is one of several Law Commission proposals effectively to have been shelved, a Ministry of Justice report reveals.

Justice secretary Kenneth Clarke said it was ‘unlikely’ the Third Parties Act would commence until 2013 due to work on ‘other priorities’.

Shadow justice minister Andy Slaughter told the Gazette that Clarke should urgently explain ‘this unconscionable delay’.

He said: ‘Alongside the legal aid bill, this is yet another example of the government favouring the interests of insurers over those of victims.’

The Association of Personal Injury Lawyers said victims of asbestos-related disease have been waiting for reform since the Law Commission started looking at the issue in 1998.

A spokesman said: ‘The provision in the 2010 act for claimants to have the right to seek compensation directly from insurers, without having to resurrect the defunct companies of negligent employers, would make a huge difference to people suffering from long-latency diseases.’

The Health and Safety Executive says male deaths from mesothelioma will peak this year at 1,860. This means that more than 3,000 people are likely to have died from the disease in the time taken to pass the Third Parties Act.

The act is one of 18 Law Commission projects to have stalled under the current government, the MoJ report reveals. A further two, concerning intoxication and criminal liability and the illegality defence, have been dropped altogether.

Clarke said progress is being made on further implementations and that the government ‘continues to hold the excellent work of the Law Commission in very high regard’.

Medico Legal News Source: Law Society Gazette

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A leading US litigation funder has announced £10m profits ahead of its expansion into the UK market.

In its financial results released this week, Burford Capital revealed it committed around £113m to 19 new investments during 2011. Since being launched in September 2009, the group has invested an average of £4m per case. Net returns are often as much as a third of the settlement, although this varies case-by-case.

Now the funder plans an ‘aggressive’ move into the UK market, having acquired legal expenses insurer Firstssist in December.

The acquisition could mean hundreds of UK cases on Firstassist’s books receive funding from Burford – at a much lower average investment – in the coming months.

Chief executive Christopher Bogart said the existing model for the US business will change significantly when it transfers across the Atlantic. ‘As the prominence and acceptance of litigation funding continues to grow, we continue to see robust levels of inquiry and strong demand for our capital.’

He added: ‘Most excitingly, we are seeing an increase in the users of capital – litigants and law firms – thinking creatively about how to put capital to work in their businesses.’

Bogart explained that Burford had ‘no say whatsoever’ in how cases conclude and could not insist on early settlements. This model, he said, can only work if there are sufficient investments to ensure a return on investments every month.

Bogart said he was aware of continued criticism of third-party litigation funding in the UK, but blamed it on ‘entirely self-interested people of firms that today benefit from the imbalances present in the litigation system’.

However, he warned that with increasing investments in UK litigation comes the greater chance that unsuitable groups will join the market.

‘With increasing prominence comes the risk of market activity by those who are less than forthright about their capabilities and limitations,’ he said. ‘We urge diligence and probing investigation by investors or potential users of capital to ensure that claimed market participants in fact have the capital and the capacity to do what they promise.’

Medico Legal News Source: Law Society Gazette

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A City investor in the legal profession has urged firms to diversify if they want to survive.

Rob Terry, founder and chief executive of the Quindell Group, which moved to acquire Liverpool personal injury firm Silverbeck Rymer in January, said multi-disciplinary practices are the best way to protect profits.

Terry told a claims management conference in Manchester last week that lawyers’ fees were an ‘easy target’ for a government trying to reduce legal costs.

‘You need to launch ­multiple brands and to make sure you have re-skilled your business to be able to operate these brands,’ he said.

‘However much a law firm cuts costs and increases efficiencies, if they are not controlling rehabilitation or medical reporting processes the costs will not lower.’

Terry said that investments in technology and offshore processing were also essential.

His own company, which trades on the Alternative Investment Market, has investments in medical evidence provider Mobile Doctors and the car insurer Ai Claims Solutions.

Terry said Quindell hopes to confirm its status as an alternative business structure soon and would be interested in speaking with other firms and claims management companies about further investment.

He told the conference there could ‘easily’ be 30% fewer law firms in 10 years’ time, a figure echoed by a number of other speakers.

Anthony Hughes, chief executive of national insurance firm Horwich Farrelly, said claimant firms face similar upheaval and consolidation to that experienced by defendant firms in recent years.

‘The claimant industry is far more disparate with hundreds and thousands of small firms doing small amounts of work,’ he said.

‘We have been forced to commoditise the product we offer. We work on fixed fees and have changed the cost structure.

‘The insurers forced us to make some of these changes, but it has worked.’

Medico Legal News Source: Law Society Gazette

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Campaigners were today celebrating a UK Supreme Court ruling that insurance policies cover asbestos-related disease even after employees have left their job.

Insurance companies had sought to limit their obligations to indemnify employers against liabilities towards staff who contracted mesothelioma.

In effect, the ruling is an endorsement of the historical ‘causation’ approach, meaning employers’ liability claims are valid at the time the victim was exposed to asbestos, not when the symptoms appeared.

The ruling could allow thousands of insurance claims by families of people who died after exposure to asbestos.

Today’s decision, by a 4-1 majority, has also been hailed as a victory for employers and current insurers, who will be given certainty over future policies.

In his judgment Lord Clarke said: ‘The whole purpose of these policies was to insure employers against liability to their employees.

‘That purpose would be frustrated if the insurers’ submissions on this point were accepted.’

Len McCluskey, general secretary of the Unite union, said the ‘responsibility holiday’ is now over for insurers.

‘This is a landmark ruling which will affect thousands of victims of asbestos,’ he said. ‘It is a disgrace that insurance companies went to such lengths to shirk their responsibilities.’

Leon Taylor, partner at City firm DLA Piper, said the result will be ‘a relief’ to thousands of disease victims and their families, as well as EL policyholders, whose mesothelioma-related insurance claims have been on hold pending the outcome of the litigation.

He added: ‘For the insolvent insurance companies involved, their administrators and liquidators now have the judicial guidance they needed to satisfy their obligations to properly manage claims in the interests of all the companies’ creditors.’

The Association of British Insurers welcomed the ruling and blamed the case on the ‘small group’ of insurers acting independently and at odds with the UK insurance industry.

Nick Starling, ABI director, added: ‘The ABI and our members are committed to paying compensation as quickly as possible to people with mesothelioma who have been exposed to asbestos in the workplace.

‘We have always opposed the attempt to change the basis on which mesothelioma claims should be paid, as argued by those who brought this litigation.’

Click here for the judgment.

Medico Legal News Source: Law Society Gazette

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The government suffered two further defeats over its planned legal aid reforms last night after peers voted in favour of amendments to retain funding for children and young people.

At the third reading stage of the Legal Aid, Sentencing and Punishment of Offenders bill, the House of Lords voted by 232 votes for and 220 against to ensure that children are automatically entitled to legal aid.

In a second amendment the house voted 228-215 to retain legal aid for all clinical negligence cases involving children.

Gold medal winning Paralympian Lady Grey-Thompson told peers that there should be no question of children being left to present cases on their own, or being reliant on the exceptional funding test. She said that the government’s proposal to remove funding for children would remove children’s rights to challenge the state.

Meanwhile, the government defeated an amendment that would have retained legal aid for vulnerable people aged 18-25, and another that would kept legal aid to enable overseas victims to sue UK companies rather than having to use conditional fee agreements.

The government has now been defeated 11 times by peers over the bill designed to save £350m from the legal aid budget, the second largest number of defeats in a bill ever. Labour’s Criminal Justice Act 2003 was defeated 17 times by peers.

On part 2 of the bill, which abolishes the recoverability of success fees and after-the-event insurance from defendants, Lord Prescott failed to win concessions on  defamation and privacy.

The former deputy prime minister, who campaigned on the issue after his experiences with phone hacking, argued that claimants should have access to ‘no win, no fee’ in cases where they are not on an equal footing with defendants. Prescott told the house: ‘The government are shifting the balance of payments and costs on to the complainant, even when the complainant is found innocent and the defendant is found guilty. I do not think that that is right.’

Justice minister Lord McNally said the issue will be looked at in a future defamation bill and told Prescott his amendments were ‘premature’. The House voted with the government by 194 to 120.

The bill will now go back to the House of Commons where many of the Lords amendments are expected to be reversed.

Medico Legal News Source: Law Society Gazette

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The Solicitors Regulation Authority today announced the identities of the first three alternative business structures.

The Co-operative Legal Services, John Welch & Stammers and Lawbridge Solicitors are the first to have their applications approved. They can now provide reserved legal activities while owned and managed by non-lawyers, under the terms of the Legal Services Act.

The SRA has spent almost three months processing more than 180 applications from a range of businesses.

Co-op Legal Services, set up in 2006, employs 400 staff and has plans to add a further 150 this year. ABS status will allow it to diversify into family law later this year, to complement services in personal injury claims, will writing, probate, conveyancing and employment law.

Operating in Witney, Oxfordshire, since 1932, John Welch & Stammers has seven fee earners and 11 support staff.

Practice manager Bernadette Summers will now be appointed as a non-lawyer managing partner to join two existing solicitor partners.

Lawbridge Solicitors, based in Sidcup, Kent, has one solicitor, Michael Pope, who will now be joined in the shareholding by his wife Alison, practice manager.

SRA chief executive Antony Townsend said the announcement is a culmination of two years’ work: ‘By stimulating competition and encouraging innovation, we should see consumers’ experiences enjoy a major boost.

‘Some people may be surprised that there are two high street practices with a handful of staff among the first wave of ABS organisations that we’ve authorised. But we’ve always said that ABS offers options for all firms.’

Justice minister Jonathan Djanogly said customers will find legal services ‘more accessible’ and the service ‘more competitive and efficient’.

Djanogly added: ‘Our UK legal services are unrivalled around the world and these changes will allow them to reach new heights, as solicitors’ firms develop new markets, seek external investment and join up with other businesses to offer different products to consumers and provide opportunities for growth.’

The Law Society has congratulated all three practices on being the first to receive the ABS licence and said the trio all reflect the opportunities that non-lawyer ownership can offer.

John Wotton, president of the Law Society, said: ‘The Co-operative Group is a well-known brand on the high street, with a substantial profile and a strong reputation for ethical business.

‘I’d like to welcome Co-operative Legal Services into the Law Society fold. Lawbridge Solicitors and John Welch & Stammers are existing law firms who have taken an innovative step in adopting new ownership structures.’

He added that the latest development would introduce new ways of working and increase choice for consumers and corporate clients.

David Edmonds, chair of the Legal Services Board, stressed that while regulation has a part to play in the new era, it must not restrict growth.

‘Breaking down barriers to entry and freeing the ways in which firm can operate is key. But the change and innovation has to be provider-led. We will be working to make sure that regulation does not create inappropriate barriers and targets risk. Supervision must be proportionate.’

Medico Legal News Source: Law Society Gazette

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The family of a girl who suffered brain injuries after complications before her birth fear changes to the legal aid system will deny others justice.

The parents of Olivia Collis from Cardiff received state support in fighting
a medical negligence case.

The UK government wants to save £350m a year on legal aid by 2015 and has
proposed limiting access for medical negligence cases.

But it says cases such as eight-year-old Olivia’s will not be affected.

The Legal Aid, Sentencing and Punishment of Offenders Bill returns to the
House of Lords on Tuesday after a series of defeats.

Olivia’s mother, Leanne, feels that other families who face years of court
proceedings and litigation in medical negligence cases should also be able to
call on the state for support.

The Welsh Ambulance Service has admitted partial liability in Olivia’s
case.

“Without legal aid families are going to be left to fend
for themselves,” said Mrs Collis.

”When you’ve got a child which is brain injured – the mother and father have
got to take time off work.

“Their financial situation is worse, without legal aid families are going to
struggle.”

The family is waiting for experts to assess how much care and equipment will
be needed to help Olivia in the future, before a final compensation figure is
agreed.

Amendments have already been made to the bill which would allow support in
obstetric cases of medical negligence.

But according to solicitor Andrew Davies there is still concern that some
child brain injury cases such as Olivia’s may not be included.

“I think there is a strong case for arguing that those most vulnerable in
society should have the means of bringing their cases through the courts,” he
said.

“Those cases tend to be the most difficult, tend to be the most costly – and
frankly there are few better ways of bringing a case to the court other than
with legal aid support.”

The bill is aimed at replacing legal aid for clinical negligence cases with a
reformed system of no win, no fee arrangements, under which, the government
believes more cases will be funded privately, rather than by the taxpayer.

A spokesperson for the Ministry of Justice said: “At more than £2.1bn per
year, we have one of the most expensive legal aid systems in the world which in
the current financial climate we just cannot continue to afford.

“Legal aid is an essential part of the justice system, but it is also in
urgent need of reform if we are to deliver the modern, efficient justice system
we all expect.

“We are clear that clinical negligence claims in obstetrics cases which
result in severe disability must receive legal aid.

“We have therefore brought forward an amendment to our bill which will make
this clear in law.

“A safety net will continue to exist for other more serious and complex
clinical negligence cases where there is a human rights issue.”

The spokesperson said 82% of cases were already not funded by legal aid.

“Claimants will also have access to solicitors through ‘no win-no fee’ deals,
which the government is reforming,” they added.

“We are making special arrangements so that people will be able to insure
themselves against the cost of reports if they lose.

“Importantly, we are also bringing in a rule that will mean, in most cases,
victims will not have to meet the other side’s costs if they lose.”

A Welsh Ambulance Service spokesperson said: “We very much regret the
circumstances surrounding this case and reached an agreement with the family in
January prior to a court hearing.

“The trust is fully co-operating with the family’s legal team to complete
clinical and legal discussions to determine the final settlement.”

Medico Legal News Source: BBC News

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Campaign groups, which fight for the rights of injured people, have welcomed the House of Lords votes to exclude industrial disease cases from the proposed changes to ‘no-win, no-fee’.

But the groups have questioned why there is a different rule for other injured people.

To read the full story, read Legal Futures’ website, here.

Medico Legal News Source: APIL

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