ARNEL CABRERA WINS HIS FIGHT TO STAY IN THE UK

At long last, some good news on the Cabrera case – on 4 August 2008, the Home Office revoked their earlier decision to deport Arnel Cabrera on the grounds that his residency was based on his wife’s employment. Please see below the press release which we released at the time:-

“The Home Office have now reversed their earlier decision and confirmed that Arnel Cabrera will be granted indefinite leave to remain in the UK. This is fantastic news and he is applying for his son to join him in Swindon as soon as possible. Arnel would like to thank everyone who supported his campaign to stay especially his Union (Unison), his local MP, Anne Snelgrove and those hundreds of people who signed the S J Edney on-line position expressing their support for him. It has been a very difficult 4 years for Arnel and he can now look to the future and start to rebuild a family life for himself and his son in Swindon as he and Mayra had planned before her tragic death”.

PLANS TO REFORM THE WAY PERSONAL INJURY CASES ARE PURSUED

On the 21 July 2008, the Ministry of Justice (the MoJ) released details of a package of reforms on how personal injury claims should be conducted in the future.

As a specialist personal injury practice, S J Edney are very disappointed with these reforms. They are a watered down version of the original proposals which, if implemented, would not only have saved significant costs in Claimants pursuing claims but more importantly would have speeded up the process itself.

The new claims process recommended by the MoJ will only apply to road traffic accidents (RTA) claims worth £10,000.00 or less. Its aim is to promote early admissions of liability and early settlements – which can only be a good thing – but in reality it does not take us much further forward than the fixed recoverable costs scheme that already exists for RTA claims that settle pre-issue for £10,000.00 or less.

The new claims process is in three stages:-

Stage 1 – preliminary investigation

  • The Lawyer Investigates the case. Once he has gathered all the required information he then completes and submits a claim form to the Defendant/insurer.
  • The Defendant/insurer then has 15 days to respond with a decision on liability. If liability is denied or there is no response or if liability is admitted but contributory negligence is alleged, the claim leaves the process.

Stage 2 – liability admitted

  • The Claimant’s lawyer will then obtain a medical report. Once it has been approved, it is then submitted within 15 working days as part of a settlement pack, which also includes a Schedule of special damages and an offer to settle.
  • The Defendant/insurer has 15 working days to accept or reject the offer. If causation issues are alleged, the claim leaves the process.
  • If an offer is not accepted, a counter offer is made. 20 working days is allowed for consideration of the offer and for further negotiation if appropriate.

Stage 3 – quantum not agreed

  • Application for a quantum hearing
  • Quantum hearing – a District Judge decides on amount of compensation to be awarded. This can be a paper exercise if both parties agree

In theory, this new process should catch upto 70% to 75% of all personal injury claims but it specifically excludes:-

  1. other personal injury claims including work accidents;
  2. claims in excess of £10,000.00 – the MoJ’s original proposals were to cover all claims upto £25,000.00;
  3. early rehab for Claimants being given statutory force as opposed to the current voluntary Code of Practice. Rehab at any early stage increases the prospects of a Claimant being able to return to work much sooner following an accident which in the majority of cases will lead to a reduction in the amount of compensation payable;
  4. solicitors taking out expensive insurance policies to cover the other parties’ costs even in cases where it is unlikely liability will be disputed.

Fixed recoverable costs will be payable if the claim falls within the new process – but there is no guidance on how much these costs will be.

We are sceptical about whether much will be achieved by these reforms. For example, it is unlikely that a Defendant/insurer will respond within 15 days with their decision on liability. They are currently allowed upto 3 months 3 weeks in which to provide the Claimant with a liability decision but this time limit is often ignored by an insurer. Causation and contributory negligence are often raised as issues which will automatically exclude the claim from the new process.

It is hoped that the MoJ will listen to further representations on their planned reforms from both the Law Society and APIL. Although this is a beginning, we believe that a number of further changes can be made as outlined by us above which would tackle the costs and delays which we have in the current claims process.

JACK STRAW CRITICISES NO WIN NO FEE LAWYERS

This has been a bad few weeks for Claimant’s lawyers. As well as disappointing proposals for a new claims process as described above, Jack Straw, the Justice Secretary at the recent Labour party conference made a blistering attack on the fees charged by lawyers under “no win no fee” cases.

The main thrust of his speech to the conference was a “crackdown” on excessive fees charged by lawyers under the “no win no fee” system coupled with yet another attack on the size of the Legal Aid budget.

“It is claimed” Jack Straw said “that they (the government) have provided greater access to justice, but the behaviour of some lawyers in ramping up their fees in these cases is nothing short of scandalous”

Jack Straw continued to talk about lawyers charging as much as £600.00 an hour in some cases and he wants to introduce a cap on the uplift that lawyers can charge if they win.

This rant follows just days after accusations from the British Medical Association that solicitors are encouraging a compensation culture on the basis that the annual bill paid out by the NHS Litigation Authority in compensation for claims had risen to £90m a year – compared with nearly £41m just 4 years ago.

These comments have made a few headlines – typically the Tabloids report that this is further evidence that have a so called “compensation culture” fuelled by fat cat lawyers.

Both these accusations are unfair. Alarmist conference speeches and newspaper headlines achieve nothing at all and they ignore the important facts.

In reply to Jack Straw’s accusations, we would just ask him to take note of the following:-

1. Lawyers only began to run cases on a “no win no fee” basis because his Government abolished Legal Aid for personal injury claims some 10 years ago. To ensure that a Claimant has protection against his opponent’s costs in the event of him losing his case at Court, insurance has to be obtained and the premium payable can be very high especially in clinical negligence cases.
2. The costs ultimately payable by either the NHS or a Defendant depends hugely on how they conduct the litigation. An early admission of liability on their part would result in less costs being paid to a Claimant’s lawyer. If a case is defended to Trial, which often happens with NHS cases, the costs payable if they lose will be substantially higher.
3. What Jack Straw did not appear to take on board, is that under the no win no fee scheme, if a Claimant’s case is unsuccessful, his or her lawyer will not be paid anything at all. This is the reason why there is a success fee as in theory it is meant to compensate the lawyer for those cases they lose. It should not be overlooked that the insurance policy taken out by a Claimant would pay the Defendant’s costs in the event of them being unsuccessful with their claim so financially they should not be out of pocket at all.
4. In our experience, very few, if any, lawyers charge anything like £600.00ph. The Court guideline rate for the most senior lawyer in Swindon is a third of this figure. Even if they are entitled to a success fee it is very rare that this would be as high as a 100% even in a complex clinical negligence case. Lawyers fees are also subject to a detailed assessment by a Judge if a Defendant believes that their costs are too high.
5. As a specialist clinical negligence practice, we would invite the British Medical Association to concentrate their efforts on improving clinical safety within the NHS which would reduce the number of claims made against the NHS. We would remind them that doctors can only be successfully sued if their conduct has fallen short of the standard of their own medical peers.
6. Very few people in this country now qualify for Legal Aid in order to bring a clinical negligence claim. Middle income couples are outside the scope of Legal Aid. Even those on a low income may still not get Legal Aid if they do not satisfy a particularly onerous cost/benefit test which in effect means that Legal Aid is only available to those who suffer a serious injury and have good prospects of success.
7. Mr Straw maintains that the Legal Aid budget is spiralling out of control. This is nonsense. The increase in the Legal Aid budget of £500m since labour came to power equates to a rise of 3% a year – a drop in real terms when inflation is taken into account. It is interesting to note that during this period new labour has created some 3,600 new criminal offences. This also ignores the impact the Human Rights Act has had on our society. In reality, Legal Aid lawyers are doing more work for less remuneration.

It is hoped that both Jack Straw and the British Medical Association will now leave Claimants and their lawyers alone. We are only operating within a system which has been created by our politicians.

NHS SUPERBUG INFECTIONS REDUCED

Some good news – the Government’s target of halving MRSA infections in 4 years has been reached with a number of cases in England falling by a third in the past year.

The Health Protection Agency confirmed on the 19 September 2008 that since 2004 there have been a 57% reduction in the number of infections.

The improvement comes after a government drive to “deep clean” all NHS hospitals that was announced last September and completed in March.

The agency’s quarterly report showed that 836 bloodstream infections caused by MRSA were reported in England from April to June compared with 969 in the previous quarter and 1306 in the same period last year. The figures also showed a 30% decline in another hospital acquired infection, Clostridium Difficile over the past year.