Category: Law

Law Society Responds To Autumn Statement Proposals on Personal Injury Claims

The Law Society has condemned the Autumn Statement’s proposals as it would undermine the right of personal injury claims victims to get proper compensation.

According to Law Society President Jonathan Smithers:

“The Law Society is gravely concerned that these proposals will completely undermine the right of ordinary citizens to receive full and proper compensation from those that have injured them through negligence.

“These proposals will stop people obtaining legal advice for all personal injury claims below £5,000 and stop people claiming for often debilitating injuries arising from road traffic accidents if these injuries are considered minor.

“This is a fivefold increase in the present level of cases currently within the small claims procedure, benefiting those who have negligently harmed people and will result in more people trying to work their way through a complex court system without any legal advice.”

“People recovering from their injuries will have to bring claims as litigants in person (without any legal advice) and this can be very unfair because those defending the claims can often afford to pay for legal advice.”

UK Chancellor George Osborne proposed to increase the small claims court’s limit from £1000 to £5000 to decrease the number of injury claims and address the compensation culture.

EAD Senior Partner Steve Cornforth criticised the Chancellor for addressing a fictional issue such as the “mythical compensation culture”. He claims the culture was created by the media and insurers to “alarm us all without having substantial evidence of its existence.

The Costings of British Justice

The recent recession and its consequent slow economic recovery has affected near enough every area of government spending. The Justice system is no exception: the past two years have seen many changes to cut costs: legal aid has been cut back hugely, arbitration and mediation are to be used wherever possible instead of court time, and there have been changes to the contracts of police station solicitors, to name but a few. The changes came into effect in April 2013 from Legal Aid, Sentencing and Punishment of Offenders Act 2012. The people in power call them ‘reforms’.

1The number of civil cases granted funding for legal advice and representation have dropped massively, with the sectors most dramatically affected being family law and social welfare. It is estimated that around two thirds of cases in the family court now feature somebody representing themselves.

Many, in the legal sector included, see the changes as flawed as they in essence limit access to justice to thousands of ordinary people. The European Convention on Human Rights and the Human Rights Act 1998 give the right to a full and impartial trial, with proper legal representation for any proceedings. The reforms, it can be argued, are breaching those human rights.

For some areas of law like personal injury compensation, the only chance of justice for an ordinary person is through private solicitors own Conditional Fee Agreements (CFAs). Litigants only have to pay their lawyers if and when they win their case, from the money they receive in compensation for their injury. If someone has been injured at work, for example, where there might have been a clear breach of an employer’s duty of care under Health and Safety laws and regulations, the injured party still has to resort to making an injury at work claim privately as this is not covered by state funding. If it were not for CFAs, many people would not be able to afford to seek justice for the wrongs they have suffered.

The legal sector have voiced many concerns over the changes to legal aid etc, before the bill was passed and still after. However the government has its economic targets to focus on instead, and are also busy trying to change human rights legislation… the new British Bill of rights anyone?

Ministry of Justice Gets Huge Fine for “Serious” Data Protection Failings

The Ministry of Justice has been issued with a civil penalty of £180,000 by the Information Commissioners Office (ICO) after what were described as “serious failings.” The failings in question led to 75 prisons around the country storing sensitive data in a way which fell far short of the required security levels.

This is not the first time the Ministry of Justice has faced penalties for poor data protection practices. In October 2013, they were issued with a fine that was almost as large (£140,000) following another serious failure to keep sensitive information safe. In this incident, details of all the inmates at a prison, totalling more than 1,000 individuals, were accidentally and repeatedly emailed to the families of three of the inmates.

The latest fine is one of the largest penalties that has ever had to be paid by a department of the government. The failings which led to the fine were uncovered after an investigation by the ICO into the data protection practices of the prison service in England and Wales.

The mistake occurred in May 2012 when prisons were issued with new hard drives for back-up storage of important data. These hard drives were equipped with advanced encryption to protect the data from falling into the wrong hands and to keep it safe from hackers. However, the prisons were not properly instructed in how to use these hard drives. Specifically, they were not told that the encryption function had to be turned on by the end user (in this case the individual prison). Instead, many believed that the encryption was an innate function of the hard drives and did not need to be activated.

The result was that data was held for more than a year without encryption by 75 prisons in England and Wales. In May 2013, while this problem was still in effect, a hard drive containing unencrypted data of nearly 3,000 prisoners was lost. Some of the prisoners in question had links to organised criminal gangs, making the loss of their data particularly concerning. All of this data was unencrypted and vulnerable.

This issue stemmed directly from an earlier data protection issue on the part of the prison service. The new, encrypted hard drives were originally introduce in response to an earlier incident when the prison service lost data relating to around 16,000 prison inmates throughout the country.

The ICO’s head of enforcement, Stephen Echersley, said: “The fact that a government department with security oversight for prisons can supply equipment to 75 prisons throughout England and Wales without properly understanding, let alone telling them, how to use it, beggars belief.”

Following the ruling, the ICO released a blog clarifying the importance of encryption to data protection.

Corrupt Legal Professionals Face Crackdown

HandcuffsSolicitors and other members of the legal profession who work with criminal gangs to help them in their activities could face imprisonment of up to five years under new proposals from the Home Office. These proposals form part of the Serious Crimes Bill, announced today in the Queen’s Speech.

The bill also includes other provisions to facilitate a crackdown on organised crime. These include enhanced abilities for the seizure of criminal assets and the closure of loopholes that previously allowed some criminals to keep what they had gained from illegal activities.

In order to be prosecuted under the new bill, specifically under the offence of “participation in an organised crime group,” it will have to be established by prosecutors that a defendant had “reasonable grounds to suspect” that their activities were aiding criminals and facilitating crime.

The Home Office claimed that some lawyers, along with other professionals such as accountants, are wilfully assisting criminals by deliberately failing to ask questions about why their services are needed, and then later claiming ignorance of any criminal activity. Karen Bradley, a Home Office Minister, welcomed the proposals. She said that “Nobody is above the law. But for too long corrupt lawyers, accountants and other professionals have tried to evade justice by hiding behind a veneer of respectability.” She went on to suggest that the new law would [send] out a clear message” to professionals who were “helping to oil the wheels of organised crime.”

However, many voices within the legal industry have spoken out in opposition to the proposals. These include president of the Law Society Nicholas Fluck. While stressing that he had “no sympathy” for solicitors who aided criminals, Fluck said that it was questionable whether the laws would make any real difference given the regulatory and statutory obligations that solicitors are already under. He also said that the issue of criminal intent had to be looked at carefully. Requiring defendants to prove they did not have “reasonable grounds to suspect” that they were facilitating crime might result in a reversal of the burden of proof.

Richard Atkinson, chairman of the criminal law committee of the Law Society, joined Fluck in criticising the law. Atkinson asked whether the government may be “seeking to impose on lawyers and other professionals a duty to enquire into the workings of their clients.”

Illegal for Police to Delete Photos of Abuse Victim From Paedophile’s Computer?

Dorset Police are refusing to delete photos from the computer of a paedophile that show the girl he abused in swimwear and leotards. The police claim that, as the photos are neither prohibited nor classed as indecent under UK law, it would be unlawful for them to be deleted.

The offender in question, a man in his 50s, was jailed last year following his admission to a number of offenses. These included sexual assault of a child aged under 13. He was sentenced to a prison sentence of nine years. The man cannot be named for the same of his victim’s privacy.

He has now made a formal request that his mobile and laptop are returned to him. Officers are indeed required to return this property according to the legislation under which it was seized. However, the PC still contains photographs of the girl he abused, many of which show her in swimwear or in leotards, which the  police claim they have no power to delete.

The mother of the victim said that she was “appalled that the man who abused my child can ask the police to hand over our family photos for him to keep for the rest of his life.”

She went on to say: “My daughters struggle every day with the devastating consequences of his abuse and this will only make them feel more humiliated and degraded. Why should we continue to be traumatised further?”

As the photos are not illegal or technically indecent, the police claim they have no legal power to delete them from the offender’s personal computer. However, human rights organisation Liberty disagrees with this view of the law. They claim that returning the devices with the photographs left in place would  breach two separate articles of the European Convention on Human Rights.

Articles three of the Convention affords protection against inhumane treatment, while article eight deals with the issue of invasion of privacy. According to Liberty, in a letter written to Dorset Police, returning such intimate photos of the girls to the man who abused them for him to keep indefinitely would violate the Convention on both counts. Not only would it “[cause] the girls a significant amount of distress,” but would also represent “an enormous violation of their dignity and personal integrity.”

However, Dorset Police maintain that their options are limited. Martin Underhill, Police and Crime Commissioner for Dorset, has insisted that the police are not to blame for the fact and that he will lobby for a reform to the relevant legislation.

“Think of the trauma this causes to the victims,” Underhill said. “And think of the control and power this gives the abuser.”

Legal Aid Challenges Rejected by High Court

Legal aid cuts have been an extremely contentious topic within the legal industry for some time now. The high court has now rejected a challenge to the justice secretary’s cuts to legal aid available to prisoners.

The high court has decided that, even if prisoners “suffer serious adverse effects,” the issue of cuts is ultimately a political one. As such, an appeal against the justice secretary’s decision, which came from both the Prisoners’ Advice Service and the Howard League for Penal Reform, has been rejected. The judges decided that they were not able to reverse the decision, which was down to the judgement of justice secretary and lord chancellor Chris Grayling.

The cuts form part of Grayling’s efforts to save a total of £220 million annually from the criminal legal aid budget. Most of the cuts that have been proposed as part of these efforts have been controversial in one way or another. Lawyers have questioned whether they are the most effective cost-saving measures and protested at the harm they could do to the availability of justice in the UK. This has led legal professionals to take protest action such as walkouts.

 

legal-aid-protests

Both of the charities who raised the challenge have expressed an intention to appeal against the decision. According to the arguments put forward by their lawyers at the challenge’s hearing, the cuts would not only harm the rights of prisoners but also their prospects for rehabilitation. The changes were also called “unfair, irrational and inflexible.” Furthermore, it was suggested that they would lead to “hidden costs” which would ultimately place a burden of millions on the taxpayer, making them counterproductive as a money[saving measure.

According to Phillippa Kaufmann QC, representing the charities, the result of the cuts would be “huge unfairness.” She said that female prisoners would find themselves unable to gain assistance when their eligibility for places in mother-and-baby units was being reviewed, for example. She also suggested that prisoners under close supervision, being segregated, or facing resettlement issues upon release might find it difficult or impossible to get the advice and assistance they need under the new system.

However, James Eadie QC disagreed. Representing the justice secretary, he claimed that many of the arguments made opposing the changes had been reviewed by parliament already. Ultimately, he claimed, the changes were approves in light of a situation that called for “financial stringency in the legal aid system because of scarce resources.”

How Insurance Companies try to Block Accident Claims

Most people who have been injured as a result of somebody else’s error are entitled to make accident claims against the negligent person or company. However, the actual expense of paying the settlement will often fall to an insurance company. In line with their reputation for being loathe to part with money even when a policy requires it, insurers have recently come under fire for using a number of tactics to try and falsely block accident claims. There are concerns that, at present, there are few legal repercussions or none at all for insurance companies caught deceiving victims in order to block a claim.

In order to avoid these sorts of tactics, it is important to always seek expert advice when making an accident compensation claim.

Exaggerating the Blame

Sometimes, the victim of an accident will be partly to blame themselves. In this case, they will still be entitled to make a claim against the negligent party, but the value of their claim will be reduced to reflect the fact that part of the blame was their own. For instance, if the person was in an accident that somebody else caused but did not take proper safety precautions themself, part of the blame will belong to them and part to the person who caused the accident.

Insurance companies have often been accused of exaggerating the level of blame that belongs to the victim in these cases. Generally, this involves offering an out-of-court settlement that is much lower than their true entitlement. They then falsely lead the victim to believe that this is all they can expect because of their own part in the blame.

Creating a Rush

Insurance companies have also been found to have deliberately rushed accident claims with the express intention of giving the victim less time to build the necessary case. Putting things into a rush reduces the time available for seeking advice and gathering evidence, making it more likely the victim will lose the claim and the insurer will not have to pay.

Furthermore, some insurance companies are reported to have actively discouraged victims from gathering evidence. Normally, this is done by deceptively claiming that gathering the evidence will create a delay. They then add the claim – an outright lie – that this delay will lower the amount of compensation the victim will receive, falsely leading the injured party to believe that gathering evidence is not in their best interest and weakening their case.

Eighth of Separated Fathers Have no Contact With Children

DivorceAccording to recent research from the National Centre for Social Research (NatCen), around an eighth of separated or divorced fathers do not have any contact with their children. More specifically, this applies to around 13% of such fathers throughout the UK.

NatCen have published this study annually since they were first founded in 1983. It draws on data gathered through the “British Social Attitudes Survey,” and aims to examine life for Britain’s families and the way it changes with each passing year. This year’s survey highlighted the fact that almost a million British fathers have children who they do not live with, and 13% of those do not have any contact with them at all.

According to claims from The Centre for Social Injustice, parts of the UK have become “men deserts” with entire neighbourhoods full of families that lack father figures. Furthermore, the Centre for Social Injustice described a “tsunami of family breakdown” as being responsible for the number of children left without a father.

There seem to be a number of reasons that fathers lose contact with their children after a relationship comes to an end. One such factor seems to be fathers entering into new serious relationships. According to the NatCen report, only 69% of fathers maintained contact with their children when entering into a new relationship. This compares to 86% of fathers who do not enter into a serious new relationship.

According to Eloise Pool, a Natcen Spokesperson, financial problems are also a factor. According to Pool, “Some fathers simply don’t have the financial resources, or spare bedrooms, to be able to maintain regular contact with their children.”

This compounds existing concerns over the effect of rising divorce rates on children. Another recent report, this time from the Marriage Foundation, suggests that 50% of infants in the UK at present can expect their parents to divorce by the time they are 15. This is based on an estimate drawn from current divorce rates and analysis of trends.

However, the government hope that recent reforms to the legal process surrounding divorce will help tackle these concerns. Earlier this year, a new Child Maintenance Service was introduced. This is primarily aimed at making the divorce process easier and more amicable rather than preventing separations. However, it is hoped that this will lessen animosity between separated parents, which could contribute to more ongoing contact between fathers and children. It is also hoped that it will lead to more optimised financial arrangements, helping tackle the factor of money pressures.

House of Lords adds its Opposition to Government over Legal Aid

Former Justice Secretary Kenneth Clark announced last year that, to keep the Ministry of Justice in line with cuts and austerity measures imposed by the Chancellor, that the legal aid budget of  £2bn would be cut by £350m, coming into effect this April.

This was to great opposition and protest throughout the legal sector. Many legal practitioners and bodies stated that the effect of such cuts would be to deny people justice, as people would not be able to afford representation in court. A basic democratic right would be infringed if the legal aid bill was cut, critics warned.

The proposals outlined cuts to mainly civil law areas, including family, personal injury, criminal negligence, immigration and similar. Such areas have a day to day impact on people’s lives, and as such the opportunity to get legal aid for those areas is vital to allow the average citizen the opportunity to get justice, the legal sector argued.

The Ministry of Justice (MoJ) stated that such cuts would make more people turn to arbitration or alternative dispute resolution (ADR). Critics, whilst approving of the idea to encourage ADR, said it was morally wrong that citizens should be effectively be denied the choice of whether to obtain justice by the courts or by ADR, and be forced by lack of money or representation to go down the ADR route- which might not be appropriate for all claims.

In an interview earlier this month, Lord Neuberger, the President of the Supreme Court, gave his own criticism of the cuts. With the absence of legal aid and the ability to get legal representation, Lord Neuberger stated that the amount of litigants in person (LIP’s: claimants who represent themselves in court without a lawyer) would probably rise. He commented that “this will mean that court hearings will last longer, the burden on court staff and judges will increase… and you may find the savings the government thinks it’s making in legal aid will be offset in other costs of courts and judges and court staff in supporting litigants in person.”

The Act of Parliament concerning the proposed cuts went before the House of Lords last week.

In a rare show of crossbench solidarity, the Lords condemned the Bill, with former Labour justice minister Lord Bach calling the government a “playground bully”. The Bill before the Lords contained none of the exemptions initially promised, amongst other failings and criticisms.

Three motions regretting the government’s actions over the broken promises in this legislation were debated in the House- and resulted in a defeat for the government.

Lord Bach’s regret motion was passed by 166 votes to 161- a narrow majority, but a government defeat nonetheless. Baroness Grey Thompson’s (crossbencher) regret motion (concerning legal aid and the disabled) resulted in another defeat; 163 votes to 148. Baroness Scotland (formerly Gordon Brown’s Attorney General- and the first woman to hold the role) spoke out concerning legal aid for victims of domestic violence; her motion was also passed, by 156 votes to 140.

The Bill was eventually passed- but surprising crossbench solidarity and fierce opposition to the Bill was a great political and moral defeat for the government. The stormy passage through the House of Lords and stinging criticism from throughout the legal sector and civil rights advocates shows just how unpopular Mr. Clarke’s legal aid cuts are. The cuts will take effect later this year; but at great political and moral cost the government.

In his interview, Lord Neuberger said that his “worry is the removal of legal aid for people to get advice about law and get representation in court will start to undermine the rule of law because people will feel like the government isn’t giving them access to justice in all sorts of cases… And that will either lead to frustration and lack of confidence in the system, or it will lead to people taking the law into their own hands.”

Even though the Law Lords no longer sit in the House of Lords, on some matters it is if the Law Lords never left the red benches.