Legal blogs

It has taken some time for the blogosphere to really take hold in the field of UK law. However, there have been some trailblazers which are now coming into the mainstream. One of the best of these is the blog of the self-styled Charon QC which provides an eclectic mix of law, humour and contemporary interest ranging from politicis to sport. It's run by Mike Semple-Piggott's team at the online student magazine Consilio and the CPD training for lawyers The Legal Practitioner. It really is highly recommended.

Bringing blogging firmly into the mainstream of legal comment, The Times Newspaper Online provides a blog from Alex Wade entitled A Legal Life. Alex is a media lawyer and writer whose topics range from hard-hitting legal issues to his hobbies of boxing, surfing and poker. He's surrently writing a book about surfing in Britain and he also writes a blog in this respect which can be found at Surf Nation.

If you're after a more general look at legal blogs in this country, then look at Blawgle which is a tailoured search engine for this area provided by Nick Holmes at Info Law. Nick himself also runs an excellent blog which can be found at Binary Law.

Fraud cases

Personal injury lawyers don’t exactly have a good reputation at the best of times. However, this has been exacerbated this month with a spate of news items uncovering fraudulent claims. This is nothing new to the civil justice system in itself. However, it is the number of cases which is perhaps surprising. This is also reflected in the increase of such suspected claims going through the County and higher courts. This might be due to the increased number of such cases although it is probably more likely due to other factors as well. The first is advances in technology in the past few years. This includes increasingly sophisticated methods of both gathering and sorting data as well as enhancements to old fashioned detective work such as improved hidden cameras and CCTV. The other factor may be that the insurance industry has scroed large successes in recent years in fighting first credit hire cases and then costs cases on a large scale. Having sharpened their collective teeth on these issues, the spotlight now appears to be shining on fraud. This will mean that defendant lawyers will have to keep up with those at the forefront of this area if they are to keep their business. It will also mean that claimant lawyers will have to be even more careful about the claims they take on. The issues now surrounding fraudulent and exaggerated claims are now issues of which all personal injury lawyers need to be aware. What remains to be seen is how the legal arguments develop over the next few years. For example, how the courts will view low impact claims and also what view they will take as to the effect of one fraudulent element of claim on the other heads. Unfortunately, as with so many of these issues, what is often forgotten in these fights is that the ultimate victims are likely to be those who pay liability insurance premiums on the one hand and those needing to take out after the event insurance premiums against possible costs orders on the other.

NHS Redress Bill

Abraham Lincoln said in 1850: "Discourage litigation. Persuade your neighbours to compromise whenever you can. Point out to them how the nominal winner is often a real loser -- in fees, expenses, and waste of time. As a peacemaker the lawyer has a superior opportunity of being a good man. There will still be business enough.”
This is perhaps more pertinent today than ever before and an example of a government initiative designed to tackle this is the NHS Redress Bill, the implications of which are worth considering at this stage. The Bill provides for the establishment of a scheme to enable the settlement, without the need to commence court proceedings, of certain claims that arise in connection with hospital services provided to patients as part of the health service. Currently, this scheme will only apply to claims under £20,000 although it is likely to be argued that it should be extended to all claims for clinical negligence in the future as it promises significantly to reduce costs if implemented effectively.
Significantly, the legislation allows part of the settlement to include contracts for future remedial care that is needed, alongside financial compensation. This is important since currently litigants are entitled as of right to claim for the cost of private provision of care (under section 2(4) of the Law Reform (Personal Injury) Act 1948). Again, it may be argued in the future that consideration should be given to repealing this section in relation to claims against the NHS and instead enabling the NHS to offer their own care packages for the future. This, in the long term, may ultimately bring down costs with the NHS providing those services it can cope with, and contracting the others in from the private sector.
However, what is perhaps most interesting about the whole initiative is that in setting up the system for the Redress Bill, the government considered other alternative systems of compensation. In Sweden, for example, a no-fault system of compensation operates for clinical negligence cases. This was considered although ultimately dismissed on the basis that it would probably increase the overall costs due to an increased number of claims. It remains to be seen whether alternative schemes will be devised to try and cut out the costs to society of personal injury litigation as a whole but one imagines it is only a matter of time before measures are considered. An obvious private sector initiative which many still hark back to as the answer to disproportionate litigation is the old ‘knock for knock’ system. Further they can point to the fact that if insurers and credit hire companies were able to arrive at bulk settlements, then it is all the more so that insurers should be able to do the same between themselves…and so the debate rolls on.

Book review: The Future of the NHS

The Future of the NHS by Dr Michelle Tempest (xpl Publishing www.xplpublishing.com, 2006)
This is one of special those books that comes along only very occasionally and is truly for everyone to read. It is written by over 40 top health professionals and policy-makers and covers all the big issues facing the NHS. The book starts with chapters from all three political parties (a rare thing in one volume) and is followed by guides to developments in all the main medical disciplines. It then goes on to look at issues such as management and funding of the NHS. Of particular interest to lawyers will be the chapters on the legal issues facing the service. It examines in particular the challenges of clinical negligence cases and what will be the possible effects of the NHS Redress and Compensation Bills. One chapter suggests that the Redress Scheme might be extended to all cases. It also suggests that there should be some immunity for medics in situations of extreme emergency, similar to the immunity barristers used to have in court. The book also looks at some of the employment law issues facing such a large organisation. This provides a really fascinating insight into healthcare provision and issues which affect us all. It is aimed both at professionals and the general public and is a must for anyone wanting to understand some of the issues facing the institution.

Coroners' Courts Reform

Finally, the government is to reform the coroners' courts process. See http://news.bbc.co.uk/1/hi/uk/5068496.stm. At present the proposals will include an appeals process to the chief coroner, the ability of relatives to refer a death to the coroner and 65 full-time coroner posts.

Claims Management Regulation

I notice that the Department for Constitutional Affairs are advertising for an organisation to run the regulation of claims management companies. See http://www.dca.gov.uk/procurement/claims.htm. It will be interesting to see how this develops and whether case law comes after the Compensation Bill comes into effect as to the definition of regulated claims management services etc.

Compensation Culture

People are always knocking the so-called ´compensation culture´ and it´s time we heard views from people inside the industry. This is particularly so as the Compensation Bill is currently going through Parliament. In particular the spirit of the judgment in Tomlinson v Congleton Borough Council is now being enacted into law by allowing courts to be able to consider the wider social value of the activity in the context of which the injury or damage occurred. Whatever one’s views as to the rights or wrongs of such a move, it highlights the role of personal injury law in influencing how society approaches health and safety and in particular how it deals with risk. This is a debate which should move away from using cliches such as ‘compensation culture’ and instead address the issue head on.

Nobody likes it when someone is injured as a result of a risk which has been taken. However, the social consequences of promoting a culture of risk aversion can also prove unpopular. As Tacitus wrote “The desire for safety stands against every great and noble enterprise”. Where the balance is to be struck between the two extremes should be seen less in merely legalistic terms but also in the wider social context. Whether you are acting for Claimants or Defendants, it is to be hoped that the Compensation Bill will stimulate further debate on this topic.

We would welcome people´s views on this issue.

Low impact type cases

It has been clear for a long time now that a growing area of practice for many people on both sides of the personal injury industry is that of low impact cases. There have been two cases in the last 18 months which have gone as far as the Court of Appeal: Armstrong v First York and Kearsley v Klarfield. However, most cases end at first instance and therefore very little is actually published on the topic. It would be interesting to hear what people´s views are on this topic.

Welcome

Welcome to the new blog for the free email newsletter Personal Injury Brief Update (www.pibriefupdate.com). We hope that this will help to stimulate debate in the field of personal injury and we welcome contributions both from England and Wales and further afield. If you have any questions about the blog generally, please contact us.