September 12th, 2011 by Marie-Claire Clinton

I can still remember when “no win, no fees” first came in.  I was a trainee and I was asked by my then firm to look at what it would mean and whether I thought it would be a good idea for us to join Claims Direct, the original claims management company which subsequently went down the tubes in disgrace. http://www.accidentcompensation.com/ic3.htm

The idea at that time was that the arrangements would act as a replacement to legal aid, which was no longer available for personal injury claims, so that people who couldn’t afford a lawyer but who had a good case would still be able to pursue their case.

The success fee (the uplift that the lawyer charges) was to be calculated to compensate for the cases the lawyer took on but would lose.  This means that the cases which were won covered the costs of the ones which lost. In effect, it covered the risk the lawyer was taking in not getting paid along the way and the potential of not getting paid at all if the case did not win.

That was how it was meant to work.  Then came along referral fees, costs caps, fixed costs, insurers selling details of people who have had an accident, and the major advertising by claims management companies, which completely changed the landscape.

Instead of only people who would have qualified for legal aid being offered “no win, no fees” arrangements, now everyone expects to be given one irrespective of their means.

So that is the background.

One of the more controversial aspects has been referral fees.  When the “no win, no fees” arrangements first came in, solicitors were banned from paying or accepting referral fees by our professional rules.  This changed a few years in and that, in my opinion, is when it really started to go wrong.

I recently read an article, I can’t remember where so I can’t link it here, that said the solicitor receives fixed costs of £1,500 for personal injury claims up to £15,000, of which on average £400 is paid by the solicitor back to the referrer (the claim management company, insurer, etc).

As a business model, to me this seems completely bonkers.  The only one carrying the risk of the claim is the solicitor and to add insult to injury they then have to give more than 25% of their fees away.

I am extremely glad that they are moving to ban referral fees in the personal injury market http://www.bbc.co.uk/news/uk-14846666.  I would be even more happy if they abolished “no win, no fees” altogether and allowed us to enter into arrangements where we can take a % of the winnings instead.

August 26th, 2011 by Marie-Claire Clinton

I had a case which settled earlier this month, as they so often seem to do, ‘on the doors of the Court’ as the saying goes.  In this case, it was on the first day of what was scheduled to be a four day trial.  We hadn’t even seen the Judge, but when he was told the case had settled he was very pleased that we had freed up 3.5 days of Court time.

The settlement agreement was done by way of a Tomlin Order, which means that the mechanics of the settlement (who pays what to whom and when) remains secret and the only part which is on the public record is that the claim is suspended provided the settlement is honoured.

The party who is receiving money in settlement can say that the case was settled in their favour, but cannot give any more details except for being able to tell if certain people are part of the settlement agreement itself.

In this particular case, the defendant was extremely concerned that the settlement terms remained private, save that there was an agreed joint statement about the case which my client could show to certain people but not to others. It was absolutely forbidden that the joint statement be published in the
press or other media because the defendant was concerned about the potential harm to business reputation.  We reluctantly agreed.

The settlement required that the defendant pay a sum of money by instalments payable by certain dates.  If any instalment was missed or late, we would be entitled to get Judgment for the remaining balance of the settlement sum.

As the defendant was so anxious to keep the settlement secret, I thought it a sure bet that the instalments would be paid on time.  Judgments are a public record, so my client would be able to tell all and sundry that we had Judgment against the defendant which would indicate that my client had “won” the case, and by inference that the defendant was “guilty” of the illegal conduct alleged.  Exactly what the defendant was seeking to avoid by having the stringent do’s  and don’t in the settlement agreement.

How wrong I was!  Time for the first payment has come and gone so as soon as the Court actions my Request for Judgment my client can (if
so inclined) publish it in the press and elsewhere.

What I really don’t understand is why the defendant made us spend 2 hours working out settlement terms when the benefit of the secrecy has been undone by the defendant’s failure to pay on time.  Nowt so strange as folk, I guess.  I will keep you posted how this pans out.

August 12th, 2011 by Marie-Claire Clinton

Criminal law is not my area, as you may know, so this post is purely social comment not legal but I do feel compelled to post something on the events of earlier this week in the country.

I was in Birmingham on Monday and left about 30 minutes before the rioting and looting kicked off.  I can only imagine the fear and chaos which would have been felt by the bystanders.

I was also on facebook as events were unfolding and the rumours circulating about where things were supposed to be happening were fantastical.  My daughter even texted me to say that she had heard there was looting in our local Asda.  There wasn’t, of course, but you can see how it is quick and easy for those intent on disorder to mobilise themselves.

But for me what I take from this week is the positive message that the majority of people in the country feel abhorrence and disgust at the behaviour of the minority of troublemakers.  People coming together to protest against the lawlessness by participating in community clearing up, by putting names to the faces published by the police, and by being vocal in their views calling for calm to be restored.

What makes this country the place it is are the people and it is very clear that the majority of people are decent, law abiding, community minded individuals despite everything.

July 15th, 2011 by Marie-Claire Clinton

I feel very pro-active this week – I have managed to secure renewal of my practice’s professional indemnity insurance (PII) already!

Now this will not sound exciting to you unless you also run a solicitors’ practice but, believe me, it is a real weight off.

Unlike all other businesses which need to have PII, solicitors’ practices have one annual renewal date (1^st October) by which they have to have the insurance in place each year.

So no matter when you started your solicitors’ practice, there is this annual renewal when everyone has to renew by.

This means that the PII insurers know how much of the pie they are going to get because everyone applies at the same time.

This has caused problems for the past few years because the insurers could literally leave it to the last minute to confirm terms knowing that there would be little chance for practices to shop around if the premium was high.

There is a proposal on the table at the Solicitors Regulation Authority that this annual renewal date be abolished, but the earliest it would be changed (if it is decided to change it) is 2014.

But my insurer this year decided it would offer early renewal terms to existing policyholders.  If evidence were needed that the profession hates this annual renewal date malarkey then the fact that the insurer was overwhelmed with responses should spell it out loud and clear.

But my pro-action doesn’t stop there!  I have also

• set up a new company with a view to being able to deliver legal services in a more progressive way when the legal services market is “deregulated” in October (not that there seems to be any benefit at the moment because the PII insurers want to still insure it as a solicitors’ practice and don’t seem to understand the difference, but I shall persevere).
•  decided on a new trading style 
• bought a new domain name 
• sent out follow up emails to other local solicitors for our collective 
• cleared my desk of cr*p

 I don’t know what has come over me, I am usually so much more lazy.  Wonder what vanguard action next week will bring??

July 8th, 2011 by Marie-Claire Clinton

So another footballer is in the news for bringing legal action against a newspaper for breach of his privacy.

Unlike the recent spate of cases, this time he’s not asking for an injunction (super or otherwise) but for damages for breach of privacy.

My previous blog posts explain what the super injunctions were all about so I will not repeat it here.

In this case, it seems Rio Ferdinand was not given enough notice that the story was going to be published to allow him to get an injunction so his recourse is for damages – that is if it can be shown that the newspaper’s defence of public interest does not outweigh his right to privacy.

There is no doubt his privacy has been breached.  A relationship with a teenhood girlfriend which lasted into adulthood but petered out to a few texts/email and then no contact at all appears to have been “sexed up” to make it seem like it was a current fling.

According to The Guardian, they had not met in person for six years

http://www.guardian.co.uk/media/2011/jul/05/rio-ferdinand-sunday-mirror-article

and according to the BBC the last contact they did have was by text in February 2010 when Rio had just taken over as Englandcaptain from John Terry due to troubles in his personal life http://www.bbc.co.uk/news/uk-14033651.

It would seem that the woman in question, Carly Storey, approached the publicist Max Clifford shortly after the last text exchange between them and he arranged for her to sell her story to the Mirror Group Newpapers for £16,000.

I didn’t read the original story and can’t find a copy on the net now, presumably because it has been pulled in light of the legal action.  However, if they have not met in person for six years (which is about the time he decided to settle down with his now wife because she was expecting their first child), and relations between Rio and Carly Storey had been cooling for some time prior, it is hard to see how this is a story which could be in the public interest.

It would seem to me to be a case of someone jumping on the band wagon to make a few bucks and the newspaper was chancing its arm.

I agree withRio– there has to be a line for everyone between what is private and what the public have the right to know.  Just because the public may be interested in the private life of people does not necessarily make it in the public interest under the law.

The Court is the impartial arbiter on these issues and we should know later this week whether a “kiss and tell” from an old flame is a proper thing for a newspaper to be publishing.

Personally I hope not, otherwise imagine all those skeletons which could be popping up all over the place – we all have them, I am sure.

June 24th, 2011 by Marie-Claire Clinton

I just love the way that the news is writing my blog articles at the moment – makes my life very easy!

So following on from a previous post, the juror who contacted a defendant in a criminal trial pleaded guilty to contempt of Court and was sentenced to 8 months in jail – http://www.bbc.co.uk/news/uk-13792080. 

The defendant herself was given a 2 month sentence but this was suspended because she has a young child and the Judge thought they had been separated long enough due to the trial.

In their usual helpful way, the BBC have produced a “Facebook: 5 things to avoid” article – http://www.bbc.co.uk/news/uk-13775479 – which has a catalogue of amusing faux pas people have committed on Facebook.  I wonder how many of us fit into one category or another?!

Just a short posting this week, the news story speaks for itself.  Wonder what the next few week’s news will bring for me to write about?

June 9th, 2011 by Marie-Claire Clinton

I read this article and it really made me laugh – typical “The Sun” phraseology and the comments in particular are so entertaining. 

http://www.thesun.co.uk/sol/homepage/news/3111826/Woman-juror-discussed-trial-on-Facebook.html

Apart from the fact that the article is written in a light hearted way, the message it conveys is actually very telling.  The fact that the woman concerned did not relate IMing on Facebook as the same as discussing the case with someone just goes to show the way some people consider chatting on social media as a ‘less real’ means of communicating.

What I mean by that is it seems to me that some people use social media as an extension of their stream of consciousness thoughts, with little or no consideration of the impact an unedited brain dump could have on those reading it, or on the wider community. 

Of course, this problem is not limited to jurors, although it is they who make the headlines because of the expense of re-trials should their action result in an unfair trial and the possibility of the juror being convicted of contempt of Court. 

http://www.bbc.co.uk/news/uk-england-manchester-13149551

http://www.bbc.co.uk/news/uk-11796648

I have seen lawyers tapping away on their iPhones, Blackberries and netbooks on social media, chatting about goodness know what. I can see that it would be all too easy for them to get caught up in the moment and publish something they shouldn’t without immediately realising what they were doing.  Sadly, once it is out there, it is virtually impossible to get back in. 

Legal Professional Privilege (LPP) is an absolute rule between lawyers and their clients which means that private conversations have to remain private.  How easy it would be for an unwary lawyer, at the end of a long day, to let slip something covered by LPP.  The consequences for that lawyer would be disciplinary action leading to being struck off if the wrong is bad enough.

I actually think the problem is not with social media and its users, but with the legal system itself which has failed to appreciate that emailing, texting, posting and IMing are everyday occurrences for most people and should have adapted the training accordingly. 

Judges should include in the jury warning not to post or write anything about the trial anywhere while the trial is continuing, including by email, text, social media post and IM.

Trainee lawyers should, as part of their LPP training, be warned of the dangers of using social media other than in a very considered way for anything other than purely social matters.

I do feel a bit of a hypocrite here – I am on Facebook constantly and I blog, and we are being told constantly that these are excellent marketing tools.  However, when it comes to the legal system and our professional obligations, we should take time to consider the possible effects of our actions before sending our missives out into the virtual world.

May 24th, 2011 by Marie-Claire Clinton

The Super-Injunction really is the hot legal topic at the moment, I guess because it has all the ingredients for public interest – money, scandal,  rumour, speculation, “us versus them”.

What really made me smile in this report http://www.bbc.co.uk/news/uk-13482403 on “the footballer who must not be named” proposed action against Tweeters was this quote from lawyer Graham Shear:

“obviously somebody has acted in breach of a court order, which has a penal notice and therefore it is an unlawful act to tweet this information.”

This creates a Catch-22 situation – the whole purpose of the super-injunction is that the existence of the injunction itself is kept a secret.  So how would you or I know what the injunction prohibits if we are not allowed to know it exists, let alone read it?

Can it be right that someone unaware of the contents of an injunction can be prosecuted under it?  Surely only if it is brought to your notice can it be held against you?

Fair enough if it turns out that the person who started the Twitter rumour mill was someone who was given notice of the injunction, because to act in breach of an injunction to put information into the public domain to then argue the injunction should be lifted because the information is already in the public domain is an abuse of the legal process.

But it would seem to me that to use the law to try to stop gossip and rumour generally is a step too far.

The problem is, of course, that the privacy laws in this country were made long before social media took off and Judges have to apply the law in force as best they can in today’s age.

As David Cameron says, it seems mad that print media cannot publish things which are common knowledge in the virtual world.  http://www.bbc.co.uk/news/uk-13498504.

Perhaps a review by Parliament will show that new laws are needed which can properly address the modern concerns, but quite how they can be enforced out of the jurisdiction I have no idea. This is why the Scottish newspaper published details of “the footballer who must not be named”, saying that the laws of England and Wales do not apply to them.

These developments come on the back of the report last week http://www.judiciary.gov.uk/Resources/JCO/Documents/Reports/super-injunction-report-20052011.pdf by the “Committee on Super-Injunctions” which concluded that there was not a lot wrong with the current system save that interested media should be informed in advance about injunction applications which affect them.

It would seem that the report itself is already out of date as the consensus now appears to be that a radical rethink is needed to have a workable, enforceable, and consistent approach.

It remains to be seen how this will pan out, but in the meantime it gives me plenty of material to blog about.  What will I fill my pages up with when sports stars and celebrities no longer misbehave and then try to keep it secret?  But then again, that’s not very likely, is it?

May 23rd, 2011 by Marie-Claire Clinton

I read this article with interest because it was news to me that the government were considering increasing the limit for small claims from £5,000 to £15,000.

http://www.thesheriffsoffice.com/articles/will_changes_to_small_claims_courts_affect_enforcement/?utm_medium=email&utm_campaign=The+Sheriffs+Office+-+Email+40+May+11&utm_content=The+Sheriffs+Office+-+Email+40+May+11+CID_a7e3a778f0406359b2e7a0da64527526&utm_source=Email+marketing+software&utm_term=This+is+part+of+a+wide+review+which+will+include+proposals+to+ensure+that+the+court+is+able+to+tackle+those+debtors+who+wont+pay+their+debts+He+is+also+proposing+a+number+of+ways+to+tighten+enforcement+techniques++MORE

Whilst the Sheriff’s Office believe this change in the small claims limit will have no impact on the use of the High Court Sheriff to enforce Judgments,  I have serious concerns.

The small claims regime is supposed to be a simplified process designed so that parties to claims can represent themselves if they want or need to. 

The most significant part of the small claims route is the no-costs rule.  This means that win or lose you have to pay your own legal fees.  

If you win you can claim back a very small amount of fixed costs (£80 generally), the Court fees you have paid, possibly some witness expenses/loss of earnings, and any expert fees up to a maximum limit, but you cannot claim back lawyers fees.

On a cost/benefit analysis it is therefore usually not economical to have a lawyer involved in your case all the way through.  When I have a client who has a small claim, I advise them to use me on an ad hoc basis – they do the work themselves and I review it to make sure it is correct and complete.

Most clients don’t have a problem with preparing documents etc, but they struggle to understanding what exactly is required by the Court. 

These are the usual directions given by the Court to the parties in a small claims case:

1. The claim be allocated to the small claims track.
2. The matter be listed for final hearing on the first available date with a time estimate of 3 hours. 
3. Each party must deliver to every other party and to the Court Office copies of all documents upon which they intend to rely at the hearing.  Such documents must be presented 14 days before the date of any final hearing. The original documents must be brought to the hearing. 
4. No later than 14 days before the hearing of the claim each party must deliver to every other party and to the Court Office signed statements of all witnesses on whom each party intends to rely at the hearing.  For the avoidance of doubt, this includes the evidence of the parties themselves and of any other witnesses whether or not the witnesses are going to come to court to give evidence.  
5. No party may rely at the hearing on any report from an expert unless express permission has been granted by the Court beforehand.  Anyone wishing to rely on any expert must write to the Court immediately on receipt of this Order to seek permission, giving an explanation why the assistance of an expert is necessary. 
6. The Court may decide not to take into account a document (or video) or the evidence of a witness if the directions given in this Order have not been complied with.

I understand what is being asked because this is what I do day in day out, but even the term “directions” is mystifying to anyone unfamiliar with the legal system.

A “direction” is simply a command from the Court telling you to do something and by when.  So the directions above translate to:

1. the Court will set a date for the 3 hour final hearing (ie. trial) and will let you know when it is to be;
2. if you have any documents you will use to support your case, you have to give a copy to both the other side and the Court at least 2 weeks before the final hearing and bring the original with you on the day;
3. if you or any witness wants to give evidence to support your case, you have to set out in a written document what they say and that document needs to be signed with a statement saying “I believe the content of this statement are true” and dated, and you have to give a copy to both the other side and the Court at least 2 weeks before the final hearing;
4. if you think you need an expert to give evidence at the hearing, you need to ask the Court to allow you to;
5. if you fail to give the 2 weeks advance copies of your written statements and any documents, the Court can decide to ignore that evidence at the hearing.

Imagine losing your claim because you hadn’t understood the Court “direction” to provide written statements and as a result your evidence was ignored at the final hearing.  Bad enough if it is £5,000 (which is a lot of money), but so much worse if it was £15,000!

I know that the counter-argument will be that a party can use the services of a lawyer, they just won’t be able to claim back the cost from the other side if they win. 

But why not?  They are not in the wrong.  They haven’t acted improperly so why should they lose part of what they are owed by not being able to recover their reasonable legal costs?

I can understand the reasoning for claims under £5,000 because the legal costs are disproportionate to the amount in dispute.  But on claims over £5,000, the Court is able to control the amount of legal costs the losing party has to pay by deciding what amount is reasonable.

But these are not my biggest concern. 

Litigants in person (ie. people representing themselves) not only generally do not know what is required of them because the Court “directions” are not easily understandable to non-lawyers, they also generally don’t understand the law – what may seem unfair may actually be the law (as a Court clerk regularly says to people, “This is a Court of Law, not a court of justice or principle”) and conversely what may seem to be an insignificant detail not worth mentioning may actually be the determining factor in a case.  This is not a criticism of litigants in person, our legal system is complicated and confusing and at times utterly mystifying.

It is also true that cases which involve litigants in person take up a lot more Court time than cases where the parties have legal representation.

My primary concern is that if the small claims limit is increased and there are consequently more litigants in person, then the Court system will cease to be fit for purpose.  

Cases will take longer meaning more delays.  Litigants will be more dissatisfied with so much money at stake because they will feel that they have not had a fair trial simply because they did not understand what they needed to do to present their case at its best.

How long will it be before people lose faith completely in the system?  And once that is lost, what will follow?  I am not saying this because I have a vested interest – I very rarely deal with claims under £15,000 – but because I am genuinely concerned for people who need to seek redress through a Court system which may well end up failing them.

May 13th, 2011 by Marie-Claire Clinton

I am having a really good week this week and to top it all off I have had my letter published in our trade magazine.

In summary, I am bemoaning the fact that the outsourcing of issuing claims from the local Court to a bulk administration centre has also brought in a change in policy that a copy of the issued claim form is no longer provided to the claimant.

This may seem sensible – saving the paper and postage – but it does cause real practice problems for us not having a copy of the documentation which has been issued, especially if the defendant later says that the copy provided to them was different.

Read the full article at http://www.lawgazette.co.uk/opinion/letters/claim-caveat.