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.

Richard Edwards: Public trust in lawyers is being damaged by the quest for profit

The Legal Services Consumer Panel has published the results of a survey showing that public trust in lawyers has dropped from 47% to 43%. The Law Society has expressed concern and called on the profession and the Legal Services Board to act to halt the fall.

Considering this called to mind a recent experience whilst having a trim at the barbers when I was distracted by an advert on a local radio station. Introduced by a juvenille jingle, a firm of personal injury solicitors screamed at listeners offering a sizeable cash incentive in return for instructions.

The lady cutting my hair told me she didn’t think it was right, whilst the owner jokingly asked if I had ever done a similar ad. For a fleeting moment I was embarrassed to be a member of my profession. Based on the response of those in the barber shop alone the advert appeared to damage trust in the legal profession.

Some solicitors in their quest for profit are engaged in a race to the bottom. Unfortunately when they crash not only is the whole profession wounded but public confidence in the civil justice system is too. So far regulators have declined to act, but I wonder if the worrying results of this survey might provide the catalyst for change?

This article appeard in the Liverpool Post on 14th June 2012, follow link here: http://www.liverpooldailypost.co.uk/ldpbusiness/business-local/2012/06/14/public-trust-in-lawyers-is-being-damaged-by-the-quest-for-profit-99623-31175877/

Richard Edwards on the whiplash debate

Ken Clarke is making the important problem of fraudulent whiplash claims unnecessarily complicated.  The answer to the problem is not only staring the government in the face it is positively jumping up and down and screaming at it.  The ban on referral fees will have a substantial impact, provided the unlawful activities highlighted recently are not allowed to continue under the guise of alternative business structures. The government should also ban cash and other inducements.  It need not, however, take my word for that, this problem was identified by Lord Young in his report of 2010, endorsed by the Prime Minister.

The director of Argent Rehabilitation (part of the Parabis Group) has provided his solution to the problem, namely that accident victims should receive physiotherapy and no compensation rather than the cost of the physiotherapy and compensation. Well he would say that, wouldn’t he?   

I read recently that Direct Line is valued at between £3-£5 billion and Aviva £8.7 billion. The sheer financial clout of these companies makes them one of the most powerful and effective lobbying groups in the land and perhaps the effect can be seen in the different approach the government takes to the opposing sides in the debate.  For instance insurers were recently invited to a cosy meeting with the Prime Minister at number 10, although I haven’t heard it suggested that Peter Cruddas helped with the arrangements. Meanwhile not even the junior minister Jonathon Djanogly could be bothered to keep his engagement at the APIL conference recently, and chose instead to send a civil servant along in his place.  Listening to only one side of the debate leads to bad policy.

At its core this is not just a battle for influence with the government but for the hearts and minds of the premium paying public. The sheer scale of the problem of insurance fraud and the manner by which it is fuelled means that claimant lawyers who don’t pay referral fees or offer unsustainable incentives will find it difficult to get their message across.  For this reason I say the SRA is asleep at the wheel.

Although the problem of fraud in personal injury work is a serious issue the solutions are simple and the government should introduce them with haste.

An edited version of this letter was printed in the Law Society Gazette follow the link here:

 http://www.lawgazette.co.uk/opinion/letters/tackling-fraud

Richard Edwards on the Queen's Speech 2012

Perhaps it’s the nature of coalition politics but this government often seems to act like it’s run by Dr Jekyll & Mr Hyde. Take for instance last week’s Queen’s Speech. Simultaneously it heralded measures to increase transparency in courts (the crime and courts bill) and steps that will enable courts to consider sensitive information under closed procedures in civil proceedings (the justice and security bill).

The procedures would permit the government to argue it should not be required to disclose sensitive material to a litigant. On behalf of the litigant a special advocate will be appointed to argue in favour of disclosure, but the litigant will be shielded from the material and the proceedings; a Kafkaesque nightmare.

On the other hand the government has caved in to pressure from broadcasters and intends to extend tv recordings of legal proceedings beyond the Supreme Court in limited circumstances. For now we’re told this will be restricted to hearings in the Court of Appeal and whilst “there will be no filming of victims, witnesses, defendants or jurors” an extension into the crown court is envisaged. Potentially the thin end of a worrying wedge.

Strong arguments have been made in favour of each of the conflicting proposals, but they carry great dangers that I hope will be fearlessly aired in Parliament.

An edited version of this piece appeared in today's Liverpool Daily Post, follow this link:

http://www.liverpooldailypost.co.uk/ldpbusiness/business-local/2012/05/17/the-queen-s-speech-shows-the-government-s-two-faced-nature-99623-30983976/

Richard Edwards on the limitations of the Leveson Inquiry

Lord Justice Leveson’s Inquiry in to the culture, practice and ethics of the press has thrown a spotlight on the relationship between politicians and media organisations, in particular Rupert Murdoch’s News International. One claim is that the Tories entered a ‘Grand Bargain’ with the media mogul who, in return for providing the backing of The Sun, was assured of support for his attempt to seize full control of BSkyB. Although denied by David Cameron, a special advisor to Jeremy Hunt has lost his job for appearing too close to the Murdochs and the hunt for the Culture Secretary is still very much on.

LJ Leveson has stated it is not his responsibility to determine if Mr Hunt has breached the ministerial code, but his terms of reference include examining the relationship between the press and politicians. LJ Leveson’s task is immense and goes to the very heart of our democracy. Striking the right balance between a need for robust regulation on the one hand and freedom of speech and investigative journalism on the other will be difficult, yet achievable. I doubt even Lord Leveson, however, believes he can come up with a viable solution that will see an end to politicians climbing in to bed with press barons and, as Murdoch put it, making love like porcupines.

An edited version of this was printed in the Liverpool Daily Post on 3^rd May 2012, follow this link:

http://www.liverpooldailypost.co.uk/ldpbusiness/business-local/2012/05/03/what-the-leveson-inquiry-tells-us-about-politicians-and-media-organisations-99623-30885663/

Richard Edwards on the difficulties of challenging reforms to personal injury claims

It always helps to win an argument if you are able to occupy the moral high ground.  You would think therefore that lawyers acting for people injured by others negligence would have a head start when trying to defeat government proposals to change the way personal injury claims are dealt with.

Regrettably, however, that is not proving to be the case.  To understand why one need only examine the way the profession has developed in years of deregulation.  The hard sell tactics through tacky advertising, the offering of cash and other incentives to accident victims and the unlawful trade in personal information has damaged the profession and ultimately it is helping to create conditions less favourable to those whom the lawyers are supposed to protect.  

Despite its best endeavours the Association of Personal Injury Lawyers has found its task of moderating government reforms an uphill struggle. 

There are many lawyers who fight hard to protect and advance the rights of people who have suffered serious injuries through no fault of their own.  It is a great shame this important work is becoming obscured.

Accident victims have been let down by the government and a share of the blame must go to the SRA for allowing this situation to develop, but the profession must also look to itself.

Many in the profession are justifiably dismayed at the government's heavy handed approach but attempting to raise a challenge in the current environment is like asking David to fight Goliath without the slingshot.

An edited version of this article appeared in the legal section of the Daily Post on 5^th April 2012 and can be read here:- http://www.liverpooldailypost.co.uk/ldpbusiness/business-local/2012/04/05/opinion-richard-edwards-on-why-lawyers-are-struggling-to-combat-reforms-to-personal-injury-claims-99623-30693817/