Solicitor-Advocate Richard Edwards comments on a recent criminal injuries appeal in which he appeared for the parents of a student tragically killed in a hit and run incident in Liverpool

Solicitor-Advocate Richard Edwards talks about a recent criminal injuries appeal in which he acted for the parents of a student tragically killed after being struck by a hit and run driver.

 On 27^th November 2010 Andrew O’Neill died after being hit by a stolen Audi Q5 vehicle driven through Liverpool City Centre by David Gaskell. The vehicle was driven the wrong way up a section of North St John Street, Dale Street and Churchill Way before striking Andrew O’Neill and causing him fatal injuries.  An application for criminal injuries compensation was submitted and rejected by the CICA.  The substantive application is on-going but a preliminary hearing was held to determine whether or not compensation received by the family from the insurers of the vehicle should be offset against any criminal injuries award.  If the offset applied this would effectively end the criminal injuries claim as it was restricted to bereavement damages only.  The First Tier Tribunal decided in favour of the family finding that the position contended for by the CICA could produce absurd outcomes and given also there would be no double recovery the application should continue to a substantive hearing.  This case could be of use to other people who have suffered criminal injuries who wish to avoid the harsh restrictions of the Fatal Accidents Act 1976 and the limitations it imposes upon those who can recover bereavement damages.

The case has featured in APIL PI Focus and the article appears in the link here.

Richard Edwards responds to the Government consultation concerning the discount rate

The Government is consulting on how the discount rate should be set in personal injury claims. The discount rate is an important element in the calculation of levels of compensation paid to those who have suffered the most serious injuries. The rate applied can have a huge effect on the amount of compensation awarded.

The method used is to assume that an injured claimant will invest his compensation and will earn a rate of return over the period of loss. The discount rate is the assumed rate of return.  It is presently assumed that Claimants will invest their compensation in index linked government securities (ILGS). In 2001 the Lord Chancellor, then Lord Irvine of Lairg, set the assumed rate of return of 2.5% according to the average cross redemption yields then available on ILGS. By last Summer the average rate of return had dropped to 0.2%.

The Association of Personal Injury Lawyers lobbied the government hard to reduce the rate. This was because the Claimants were either having to take too many risks to achieve the assumed rate of return or were simply not achieving anywhere near that rate and not therefore receiving full compensation.

In the consultation paper, however, the Government canvasses opinions about the prospect of department from a rate set according to yields on ILGS and towards a calculation based on a mixed portfolio of investments. Such an approach will expose seriously injured Claimants to the inherent uncertainties in stock and money markets and is likely to have the effect that carefully calibrated compensation awards are depleted before the need for the funds has ceased.

This issue has previously been considered by the House of Lords in the well known decision,Wells –v- Wells. I have analysed that judgement and have explained why it is inconsistent with an approach based on a mixed portfolio of investments in an article published in the Solicitor’s Journal, a link to which appears here:- Richard Edwards. The discount rate: seeking to square the circle 12 SJ 157/3.

Richard Edwards comments on the effect of recent Government proposals to cut fees in personal injury claims

The Law Society Research Unit informs me that 14% of all solicitors practising in England & Wales undertake personal injury work. In the North West it rises to 34% and in Merseyside to 40%. The unanimous view of MoJ proposals to slash fees for dealing with injury claims is they will lead to substantial redundancies. The public will not of course shed a tear for the lawyers, but the pain will extend also to support staff.

The North West excels at PI work and exports its skills throughout the land. This is a vital strand of its knowledge based economy and the region can ill afford to suffer the looming job cuts. The perverse irony is that the only sure winners from the changes are insurers based in the City, where they are reported to be taking up expensive office space in prestige skyscrapers. I can’t help but think that if jobs in the City faced a commensurate threat the Government would be fighting to protect them rather than leading the assault.

When one considers that SMEs are also likely suffer disproportionately the generous amongst us might conclude the Government hasn’t properly thought this one through. That wouldn’t be particularly surprising given the die was seemingly cast after the Prime Minister’s summit earlier this year, to which only insurers were invited.

It must be acknowledged that a minority of lawyers have abused the system by forcing cases to disposal to claim the success fee. These practices have helped bring about conditions ripe for the siren calls of the insurance industry, but they have also been dealt with by LASPO. These additional changes are a step too far and it’s time for the Government to listen to all sides of the debate.

Also featured in the Liverpool Post: http://www.liverpooldailypost.co.uk/ldpbusiness/business-local/2012/12/06/merseyside-economy-could-be-hit-hard-by-proposed-shake-up-to-personal-injury-claims-99623-32369515/

And the Law Society Gazette: http://www.lawgazette.co.uk/letters

Solicitor-Advocate Richard Edwards reviews the law regarding the admissibility of surveillance evidence in personal injury cases and provides suggestions for reform.

Starting with the Court of Appeal decision in Rall v Hume and culminating the High Court decision Douglas v O’Neill Richard Edwards has reviewed the leading authorities regarding the admissibility of surveillance evidence in personal injury claims in a recent article published in the journal of personal injury law (issue 2 2012). 

 

As well as considering the legal principles the article includes tips for practitioners to help reaching decisions about how to respond to such evidence.  It also considers whether the law needs to be reformed to ensure that the use of this material is properly controlled to minimise the risk of abusive and disproportionately invasive practices and disruption to the administration of justice.

A link to the article appears here with the kind permission of Sweet & Maxwell, the publishers of the journal of personal injury law:-Richard Edwards ‘Admissibility of Surveillance Evidence: A Review of the Current Law and Suggestions for Reform’ JPIL (2) 2012

Richard Edwards on the proposed changes to the small claims limit

Following the cabinet reshuffle responsibility for law reform and civil justice has been handed to Helen Grant MP. One of her first ministerial decisions was to order a welcome rethink of Government plans to cut compensation payments for criminal injury claimants.

 

Also waiting in her in-tray are Government proposals to extend the limit in the small claims court from £1,000 to £5,000 in personal injury claims. If introduced huge numbers of accident victims will be forced to bring claims without legal representation. Most won't bother, those that do will lack the skills needed to bring a claim successfully against the might of the insurance industry.

 

A timely reminder of the financial power of insurers comes with news of the floatation of Direct Line, owned by state backed RBS, valued at a colossal £3 billion, and reported to be planning to return between 50% and 60% of its future profits to investors.

 

If the perverted proposal is implemented it will be Bollinger in the boardrooms and those generous insurers will no doubt lay on sparkling wine at the AGM, financed with compensation intended for people injured by the carelessness of others. Perhaps next time he reaches a crescendo at PMQs Ed Milliband will adjust his mantra and say that this is a Government of millionaires for billionaires?

Solicitor-Advocate Richard Edwards on unethical inducements

I read that a GP was recently found to have unreasonably induced a patient to accept a cosmetic procedure by offering a discount if it was booked with two other patients. This and other failings led the General Medical Council (GMC) to impose 10 conditions on his registration. The GMC was concerned that the discount increased the pressure on the patient to proceed. Other cosmetic surgeons have been criticised for offering buy one, get one free deals on breast operations.

 

Like the decision to undergo surgery, the decision to bring a claim for compensation, potentially resulting in legal proceedings, needs a cool head. Litigation is invariably stressful and few, save perhaps for Russian oligarchs, embark upon it with relish. A claimant’s honesty might be challenged and the legal documents drawn up along the way carry a risk of contempt of court proceedings and a criminal conviction. The lawyer’s job is to explain these risks carefully at the outset, free from irrelevant considerations, so that the decision to proceed is properly taken in the client’s best interests.

 

Personal injury victims are presently being bombarded by some firms with offers of cash or gadgets. These inducements and those offered to cosmetic surgery patients are cut from the same cloth. Both inappropriately distract and interfere with important decisions. Unfortunately, whilst the GMC displays a keen understanding of the issues underlying unethical inducements this is presently lacking at the Solicitors Regulatory Authority.

 

This letter appeared in the Law Society Gazette on 30th August 2012: http://www.lawgazette.co.uk/opinion/letters/pi-pressure

Richard Edwards: The poorest will pay for cuts to policing and criminal injuries awards

Last week HM Inspectorate of Constabulary reported concerns that budget cuts of 20% to police forces would impact on the provision of effective policing. The Government, however, optimistically maintains it can protect front line services but the signs do not augur well. Across the pond in the Californian city of Stockton a remarkable rise in crime followed when city officials slashed the police force by a quarter in a desperate effort to balance the books. That there is a causal link between a reduction in police resources and rising crime is hardly surprising.

Perhaps the Government’s decision, announced last week, to reform the Criminal Injuries Compensation Scheme should be considered in this context? The proposals will see the complete removal of awards for those who have suffered injuries presently valued less than £2,500 and reduced payments for claims presently below £11,000. Is this a hasty re-writing of the rule book in anticipation of an increase in calls on Treasury coffers?

If there is a rise in violent crime the overwhelming majority of the victims will inhabit our most deprived communities. Even the small award of compensation, designed to represent a token of sympathy from the rest of society, will be denied and replaced with cold indifference. I thought the plan was to balance the books on the backs of those with the broadest shoulders?

An edited version of this article was printed in the Liverpool Post, 12th July 2012.