Christmas Card from The Staterooms: Grumpy (ish) edition!

Dear Reader,

Well… let’s start with a proposition I saw on The Grumpy Guide to Christmas (BBC) and take it from there…

Why would anyone want to bring a tree into their living room?  Who cooked that idea up?  And another thing… if an elderly gentleman wearing  a red gown  broke into my house -  I would check the Judiciary website out to see which judge of the High Court had finally lost the plot.   Mind you, Lord Chancellor Killaburglar Grayling would approve if I used proportionately disproportionate force and acted against the interests of the intruder – so not all bad, I suppose.

It has been a strange year.  I have finally escaped from London forever and have moved to Chatham Maritime in Kent  as a base – a place which I find most conducive to thinking and writing.  I have also started on my year (+) long UK  Jag Rouge Tour looking at the state of our legal system and getting views on it from lawyers, police, academics and anyone else interested in the law – including filmed vox pops with ‘members of the public’ – which should throw up some strident and trenchant views.

I am finding it a fascinating exercise to do and learning a great deal from the many experienced lawyers who have taken part so far.  I am also grateful to the sponsors for assisting with the not insignificant costs of this exercise which is free to all to read, listen to and watch on my blog and the Tour blog.  And, the tour certainly can’t happen without the support of many who have talked to me so far and the many who  intend to do so in the future -  all give freely of their time and knowledge.

Jon Harman – has designed an advert for the tour – please do click – he has done great work!

[vimeo http://www.vimeo.com/51869113 w=500&h=281]

Van Rouge from Jon Harman on Vimeo.

A duck alerted me by text  to this gem from television news: … We’ve just seen headline in papers about a drunk manager attacking a tree”… Jeez.. you guys know how to Party!”

And talking of ducks – I came up with the idea of ducks texting me earlier in 2012.  Apart from the fact that I find ducks fascinating, the ducks I know are subversive and contribute greatly to my knowledge and understanding of the chaotic world many of us live in.  I may also have overdone the juice when I came up with the idea of texting ducks… but, mea culpa, there we are.

I shall be at my post throughout the Christmas period… aided and abetted by subversive ducks… we never close…

I rarely write about myself – and interviews with me are few. I did, however, enjoy the kind invitation from Alex Aldridge of Legal Cheek to contribute to his excellent “If I knew then” series:

If I knew then what I know now: ‘I was too ready to treat the view of the experienced as gospel’

And this duck had absolutely nothing to do with me… despite views expressed to the contrary on twitter by surprisingly many!  But what a great duck!

Well… I think that is enough for now – but I may write another Christmas card on the morrow.  Why not?  It is Chrimbo, after all – and, even though I shall be at my post, ignoring it, I hope you have a good one – if it is your thing.

And… if you are a user of twitter and Farcebook – you might enjoy listening to John Cooper QC expressing his views on the CPS guidelines on social media prosecutions  issued earlier in the week by DPP Keir Starmer QC.  A Christmas cracker!  It is here and if you scroll down – below

Best, as always

Charon

PS.. and remember… a duck texted me to say that they, too, are bipedal and asked if I could fly!  Think about that!

Tour Lawcast 14: John Cooper QC on the CPS guidelines on social media

Tour Lawcast 14:  John Cooper QC on the CPS guidelines on social media

“Well I don’t think John Cooper with all respect has seen anything like the number of cases I have. I don’t think he has thought about the sophistication of the issues. There are many cases…I mean he can point to one case [the Twitter Joke Trial]…yeah he makes a cheap point about one case, I’ve got to deal with the many thousands of cases that come in, I’ve got to deal with all the chief constables. So, yes, nice cheap point, but actually let’s get back to reality.”

These are the reported words of Director of Public Prosecutions Keir Starmer QC following the issuing of new guidelines on social media prosecutions when he was placed under pressure by criticism raised by an experienced criminal silk, John Cooper QC.

Speaking on Radio 5 John Cooper QC said of the guidelines  …”totally and utterly unnecessary”, adding that the 25 pages would be better condensed to “two words: common sense”.

Today, I talk to John Cooper QC about the CPS guidelines on Social Media.

Listen to the podcast

iTunes version of the podcast

Is it the end of the world for Personal Injury Claims?

Is it the end of the world for Personal Injury Claims?
By Kevin Donoghue, Solicitor

At 11.12a.m. on Friday 21st December 2012 the Mayan Long Count Calendar will read 13.0.0.0.0 for the first time in 5,125 years.

This event, some say, will lead to the end of the world. Theories about how this will happen include a solar storm, a switch in the Earth’s magnetic poles, another planet colliding with Earth, a planetary alignment, and a total Earth blackout.

Mayan Temple of Kukulkan, Chichen Itza, Mexico.  The Temple is a monumental representation of the Mayan calendar.

For many of those in England & Wales involved in civil litigation and in particular personal injury claims, the Mayan calendar is premature. The End of Days is expected to be in April 2013, when a ‘perfect storm’ of changes to the English legal system come into effect. The anticipated reforms include:

* Implementing the Legal Aid, Sentencing and Punishment of Offenders Act 2012 which removes the recoverability of legal costs for the winning party in most circumstances
* banning referral fees in personal injury accident claims
* extending mandatory use of the fixed-fee RTA online ‘portal’ to include cases valued at up to £25,000
* bringing other types of accident, such as public and employer’s liability claims, into a similar fixed-fee portal scheme
* drastically reducing the costs paid for cases in those portals
increasing the small claims limit from £1000 to £5000 for Road Traffic Accident (‘RTA’) personal injury claims (including, but not limited to, ‘whiplash’ soft-tissue injuries)

If these reforms are implemented in their entirety, the likely effect will be to dramatically reduce access to justice for accident victims in all areas of personal injury, not just RTA claims.

Government policy with personal injury claims
In pursuing these reforms, the government has been strongly influenced by a small but powerful group of insurers, who have successfully convinced ministers that the solution to the increase in insurance premiums, particularly motor policy costs, is to remove lawyers and their fees from the process in all but the most serious accidents. By doing so, the government will be able to:

• combat fraud (which, while reprehensible, in motor claims adds only £3.83 per policy),
• attack the perception of a ‘compensation culture’ (which Conservative Lord Young of Graffham reported in 2010 ‘is one of perception rather than reality’)
• save legal costs (the current proposal in the RTA portal is to reduce pre- proceedings settled claim costs from £1200 to £500), and
• reduce the number of claims made against government and local authorities (as claimants will struggle to find lawyers willing to represent them in anything but the most straightforward of cases), and
greatly increase the chances of failure of any claims made (as a consequence of the inequality of arms caused by claimants being un-represented and/or under-funded).

Small Claims
The most significant change will be the increase in the small claims limit, an idea which was considered and rejected in 2007, and again in 2009 (then by Sir Rupert Jackson, who is responsible for many of the above changes but sensibly felt that they alone would suffice to achieve his aims).

It is presently being considered in another consultation paper which was prepared following February’s closed door sessions involving the government and insurers only. Claimant representatives were not invited.

The impact in practice is clear when considering the latest Judicial College Guidelines, the ‘Bible’ for valuing accident claims.

This book is relied upon by judges, barristers and solicitors to give ‘ballpark’ figures when assessing claims. Most importantly, it is referred to by claimant solicitors when considering whether to represent a potential client.

It shows that people who have suffered serious injuries, such as those involving broken bones, will be unable to claim legal fees if the small claims limit is increased.

Examples include a fractured wrist which takes up to a year to recover (valued by the Guidelines at between £2500 to £3375), a partial amputation of the little finger leaving residual sensitivity (valued at between £2800 to £4200), and a whiplash injury taking up to a year to recover (£3100),

Consequently, if the limit is raised, many innocent accident victims will be forced to represent themselves or pay privately out of their own pockets if they want to instruct a solicitor to make a claim. The days of ‘no win no fee’ representation, where the solicitor ensures that the claimant receives 100% of their compensation, will be over for them.

Winners and Losers
Solicitors and their staff, barristers, job-seeking law college graduates, unions and their members (who rely on referral fees to minimise dues), the Court system and judges who will be dealing with unrepresented people, the public purse (which will see reduced income and increased benefits claims as a result of law firms failing), but most of all innocent accident victims, will all suffer.

Those involved in the insurance industry, including insurance companies and their law firms, shareholders, and the Conservative Party (which has received millions in insurance company donations in recent years) will all do well.

Fraud on the innocent
Justice Secretary Chris Grayling (who received £71,000 from Peter Wood, the founder of Direct Line, to fund his office) stated when issuing the consultation paper on the proposed increase in the small claims limit that it would ensure that ‘genuine’ claims are settled while ‘fraudsters are left in no doubt there will be no more easy paydays’.

But how big a problem is fraud in personal injury claims? According to a recent report in The Actuary, in 2011 more people made fraudulent claims when exaggerating home insurance losses (71,000) than those who made dishonest motor insurance claims (45,000). If, on the insurers own figures, only 7% of all motor insurance claims are fraudulent, why force through such massive changes to our civil justice system to harm the honest 93%?

Trust the insurers
For those soothed by Mr. Grayling’s words that genuine claims will be dealt with fairly, the Court of Appeal judgment of 12 December 2012 in Christine Brown-Quinn & Others v Equity Syndicate Management Limted and Motorplus Limited is worth considering.

In that case the Court found that before the event insurers who restrict an insured’s right to instruct a lawyer of their own choosing on the basis of cost were in breach of The Insurance Companies (Legal Expenses Insurance) Regulations 1990. This law gave effect to European Directives and Regulations going back as far as 1997, and had been brought to the insurers’ attention then, and again in 2002 (Sarwar v Alam).

Nevertheless, insurers continued to write policies which were non-compliant to ensure that their panel solicitors were instructed by their customers to save costs. Consequently, innocent accident victims were prevented by their own insurers from instructing a solicitor of their own choosing.

The Court of Appeal, not known for its strong language, lambasted those same insurers in Lord Justice Longmoor’s judgment which states ‘The facts of this case have revealed that the insurers exhibit an insouciance to their obligations under the Directive and the Regulations which leaves one quite breathless.’

Given that, in this case, the victims of insurers’ sharp practice were people who had paid their own insurers for cover, imagine how unrepresented victims who make a claim against insurers will be treated.

Reflection time
Contrary to the popular view, the Maya themselves do not consider 21 December to be the End of Days. According to Dr. Jaime Awe, Director of Belize’s Institute of Archaeology, the significance of 2012 is that it ends one cycle and begins another. As he says, ‘it is a time for reflection, and for considering future direction.’

The government would do well to heed his words, think about the impact of these reforms, and keep the small claims limit as it is. As the consultation on raising the limit is anticipated to conclude on 8 March 2013, just 14 working days before the reforms above are due to be implemented, there is still time.

Kevin Donoghue is a solicitor whose firm, Donoghue Solicitors, represents people who make personal injury claims and actions against the police. Donoghue Solicitors is an Association of Personal Injury Lawyers corporate accredited practice.

Obligations and Responsibilities of Owning a Website

Obligations and Responsibilities of Owning a Website
Ben Travers, Stephen Scown Solicitors

An increasing number of agricultural businesses are diversifying and operating a website for the first time. Ben Travers, head of intellectual property and information technology at Stephen Scown Solicitors in Exeter explains what you need to think about if you own a website.

While a website can be a powerful marketing tool, many are unaware of the obligations and responsibilities which go with owning a website. Web users are becoming increasingly aware of their rights online so it is important that websites are legally compliant. The range of issues which apply to website owners is vast and can appear daunting.  Yet, with careful thought and clear guidance, the legal pitfalls can be navigated. One of the biggest issues facing web owners is privacy.  The Data Protection Act governs how businesses can collect personal data online (such as email addresses) and what businesses can do with that data.  Whilst the act does not require businesses to have a privacy policy, having an effective policy available on your site and sticking to it, can go a long way towards helping compliance.

Recent changes in the law create further burdens for websites which use cookies (small pieces of data installed on a user’s computer when they visit a site).  Most websites use cookies and must now provide full details of the cookies used and obtain consent from visitors before installing cookies.

Additionally, website owners should consider putting terms and conditions of website use in place.  These are designed to create a contractual relationship between the owner and visitors to the site, helping owners control the use of materials on their site by third parties, control third party links and limit their liability, including liability for any content posted by users such as messages posted on a forum. Such terms also help you to comply with your legal requirements to provide certain information to your visitors about the business operating the site. Businesses must also be aware of their obligations to consumers.  The law gives great protection to consumers buying goods online and compliance with the Distance Selling regulations, which set out the circumstances in which consumers can return goods purchased online, is important.  Ensuring your online dealings with consumers are legally compliant is crucial, not just for avoiding the legal implications of non-compliance, but also for protecting your reputation.

For more information please visit
Stephens Scown LLP Exeter
Curzon House, Southernhay West,
Exeter, Devon EX1 1RS

Timely advice on the drink driving laws from Jeanette Miller, solicitor

Timely advice on the drink driving laws
Jeanette Miller, Senior Partner of Geoffrey Miller Solicitors

With the festive season upon us, the subject of drink driving is more of a hot topic than ever. However, it will probably also be the subject of debate amongst lawyers like me who specialize in drink driving law, due to the imminent closure of a government consultation to change the procedures involved in drink driving cases.

According to the government, we have a significant problem with the drink driving culture in this country. A whole host of (expensive) law changes to remove the “loopholes” that allow so many offenders avoid conviction are being proposed.

There are many issues that are, in my view, cause for concern but perhaps the most serious for the motorist are:

The proposed abolition of Blood or Urine Tests In Borderline Cases (The statutory option)

When arrested for drink driving, motorists are ordinarily taken to a police station to provide an evidential breath sample. Currently the roadside reading taken by the police is not treated as evidence to be used in court but is purely used as a trigger to arrest a driver on suspicion of drink driving.

When at the police station the motorist will usually be asked to provide two further breath tests on a Home Office Type Approved Device and the lower of the two readings at the police station is used in evidence against the driver.

The legal limit in England, Wales and Scotland is presently 35 microgrammes of alcohol in 100 mls of breath which equates to 80mg of alcohol in 100 mls of blood. (Most European countries including Ireland have a lower limit of 50 mg.)

Once the evidential breath test has been performed, if the lower of two readings is above 50 microgrammes, they will simply be charged with the offence of drink driving.

If the lower of the two readings is 39 or less, the police have discretion to allow a suspect to be released without charge.

However, if the reading is 36-50 microgrammes there is currently a legal requirement for the police to offer an option of replacing the breath reading with a blood or urine test.
When the breath test reading is this low it is considered borderline and for the sake of fairness, the suspect can have the option of electing for their breath reading to be replaced by either a blood sample or a urine sample.

The proposals currently being considered would abolish this process. It has been suggested by the government that by allowing the detained motorist the option of a more accurate reading, there is a loophole capable of being exploited in as much as the delay in arranging for a doctor or nurse to get to the police station to take the blood sample often means the suspect has fallen below the limit by the time their blood is taken.

Changing the evidential status of the roadside (preliminary) breath test

Under present law, if a police officer stops a motorist they can only request a breath test be provided in certain circumstances. The roadside sample is a preliminary sample used only for the purpose of establishing if the motorist should be arrested or not. The roadside breath test is often simply a “pass” or “fail” with no numerical value and is currently not used in evidence against a motorist. Instead, the roadside test is the trigger to allow the police to insist on an evidential test being performed at the police station.

However, the proposals seek to suggest that roadside tests be used in place of the police station tests. The government’s justification for this being to cut down the time it takes to transport a suspect to a police station and go through the procedures etc.

Whilst I can see the definite benefits of this from a resources perspective, again, this would, in my view, mean motorists were wide open to miscarriages of justice. When a suspect is taken to the police station, supposedly more accurate breath testing devices are used and there are a number of safeguards in place to protect the motorist. Stringent procedures must be followed in the formal setting of a police station often with CCTV recording the process. In the wake of the Hillsborough scandal, removing this safeguard and allowing officers to conduct evidential tests at the roadside, is a dangerous move.

There are other less controversial proposals relaxing the rules on who can take blood samples from suspects who have been hospitalized and who can perform impairment tests.

Drink Drivers Deserve What’s Coming To Them – Who Cares?

I am sure most people reading this blog will have strong views against motorists convicted of drink driving. Most of my clients share those views and never expect to be over the limit when they are stopped. Investing in education as opposed to slashing the budget for anti-drink driving campaigns would be a far better use of taxpayers’ funds. Streamlining the process will criminalise a significant number of otherwise law abiding motorists – Hardly a real solution in my view.

The government’s consultation is open for responses until 02 January 2013.

Jeanette Miller is the Senior Partner of Geoffrey Miller Solicitors, proudly supporting Charon QC UK Law Tour

Guest Post: Avoiding personal injury over Christmas

Avoiding personal injury over Christmas
Laura Wright

Christmas is approaching fast, and for many of us this means having time off work and the opportunity to let our hair down and celebrate. Combine the festivities with the longer nights and stress of dealing with busy shops and roads at this time of year, and it is unsurprising that accidents are at their peak.

If you are involved in accident over Christmas, whether it is on the road, at work or even on the street. If the accident was not your fault, you can claim compensation for any financial deficit you incur. For assistance with your personal injury claim, consult with specialist injury solicitors to ensure your case has the best chance of being successful.

The roads become especially dangerous this time of year. Icy and slippery conditions, or potentially intoxicated road users means extra care must be taken to avoid accidents on the road. If the roads become torturous this winter, be sure to take your time and fit extra-grip tyres to your vehicle to reduce the risk of being involved in an accident. Road accidents could potentially happen to anyone, whether in a car, on a bike or as an unfortunate pedestrian in the wrong place at the wrong time.

Having an accident this time of year will certainly be stressful to say the least during the festive period. It is always better to not be in a situation where an accident is likely to occur, however you do not want to miss out on any public gatherings and festivities that you plan to attend. Accidents in public are commonplace and slips and trips are the most common accidents in public places and events. In order to avoid such accidents, be aware of the surroundings and do not take any unnecessary risks.

In the event you are injured, it is important to secure hard evidence of your injury in that location. If you are injured in a quiet street for instance, there may be no witnesses to back your claim. In this case, you will need other evidence to support your case such as photographic evidence of an offending item that caused your injury.

Avoiding any kind of injury is what we all hope for but if it does occur, be sure to claim for accident compensation to at least avoid the financial anguish that will be brought upon yourself and your family this season.

Guest post: Aviation Law – understanding the fast paced industry

Aviation Law – understanding the fast paced industry
ASB Law

Aviation lawyers work within one of the most complex and fast paced industries. As the industry continually develops, the law and regulations governing aviation law have to change and adapt. Due to the increasing regulatory demands on businesses within the aviation industry, as well as the numerous issues faced by all businesses, it is essential that aviation companies seek advice from experienced aviation lawyers who can provide the appropriate advice and assistance.

There are numerous types of businesses which rely on the advice of aviation lawyers. These range from travel companies to airlines and airports as well as private charter companies and fleet owners. The complexity of aviation law means that aviation lawyers often specialise in niche areas in order to provide effective legal and commercial advice from drafting and negotiating contracts to facilitating businesses transactions..

Although businesses often engage the services of aviation lawyers to facilitate business transactions, businesses also require aviation lawyers to assist them when disputes arise. If, for example, a company purchases an aircraft component and finds the quality is not as agreed, then they may require a specialist in aviation law to assist in remedying the situation. Enforcing the terms of a contract or defending a company when disputes occur requires specific legal knowledge as well as in-depth knowledge of the industry so clients are generally advised to seek the services of an experienced aviation lawyer.

Due to the nature of the industry, many business transactions are multi-jurisdictional. Aviation lawyers are aware of the international nature of the industry and how this affects the business both commercially and legally. For example, different jurisdictions may have varying regulatory requirements which must be adhered to. In addition to having legal knowledge and being aware of key industry issues, aviation lawyers also understand how laws and regulations in other jurisdictions may impact their clients are able to provide appropriate business and legal advice.

As well as facing sector specific issues, businesses within the aviation industry also face similar issues to other businesses. They often require legal advice and assistance regarding issues such as employment and avoiding employment relate disputes in addition to other commercial advice. Experienced aviation lawyers can assist companies with hiring an effective workforce and providing the appropriate documentation to meet their legal obligations. Aviation lawyers can also provide advice regarding appropriate business structure and whether corporate restructuring would enable a business to fulfil its commercial objectives. The wealth of knowledge aviation lawyers have enables them to provide specialist advice regarding aviation law as well as assist businesses in finding solutions to complex commercial issues. By engaging with specialist aviation lawyers, companies operating within the aviation industry can ensure they are operating legally and that they are fulfilling their regulatory obligations as well as maximising their success within the industry.

ASB Law’s aviation lawyers are passionate about anything to do with aircraft, engines and aviation. Whether you are buying, selling or leasing aircraft (commercial or corporate jets), aircraft engines or components ASB’s aviation lawyers provide specialist, practical legal advice.

ASB Law can deliver:

practical solutions beyond just legal advice
advice backed by a genuine passion and knowledge of the aviation industry
specialist legal advice on every aspect of aviation asset management
high quality, cost-effective service

For more information and advice, please visit ASB Law

Tour Report #17: The Jackson Reforms and costs with Sue Nash

Tour Report #17:  The Jackson Reforms and costs with Sue Nash

“Let there be no doubt about it, the reforms will come into force next
April”. 

“It would not be an exaggeration to say that from my perspective costs management is the key to the Jackson reforms.  If it succeeds the reforms will succeed.  If it doesn’t, then we run a risk that costs will unnecessarily and otherwise avoidably increase and the reforms will fail”.

“I do not want to give the impression that I do not have faith in the reforms.  It might seem that I am already expecting disaster.  That is very far from the case. But one has to be realistic”

Lord Dyson MR

Today, I am talking with Sue Nash of Litigation Costs Services at the offices of Kysen PR in London.

The Jackson Reforms – in particular the issue of costs and retainers.

1.  A brief overview of the main aspects of the reforms – Costs Management/Budgeting, Provisional Assessment, new proportionality rule, new/revised funding arrangements i.e. DBAs/CFAs and the referral fee ban
2. Costs management/budgeting – how it is supposed to work and what firms need to do to prepare for it – analysis of historic ‘data (work) and recording and planning future work – need for specialist input from costs specialists – using them as part of the litigation team/process.
3. Provisional assessment – likely impact will be to discourage firms from seeking oral hearings to dispute the PA.
4.       Retainers
5.       Round-up – all reforms supposed to be looked at together and taken as a package – overall impact on Claimant PI firms/departments likely to be a fee income reduction of between 25 and 50% over the next 2-3 years (higher value cases will be less affected).  Get in expert help and spend time now – they need to know if their current business models are viable going forward and if not need to change them.

Guest Post: Making a successful personal injury claim

Guest Post: Making a successful personal injury claim
Ward & Rider

Whether you have suffered an accident at work, on the road or anywhere else that simply wasn’t your fault you are likely to be able to make a personal injury claim. These claims are usually handled on a no win no fee basis which means that in the case of an unsuccessful claim you won’t have to pay a penny. As long as you choose the best lawyers for the job the process is very simple.

First Consultation
You will begin the process of making a personal injury claim by sitting down for a first consultation with your lawyer. You will be asked to describe in detail the nature of the accident and for any evidence that you may have that another party was responsible. Any photos you may have of the site of the accident or witness that may be able to come forward to corroborate your story may be very helpful.

A letter of claim will then be sent to the defendant to make them aware of your intent to make a personal injury claim for injuries for which they are at fault. A medical expert will then be instructed to carry a full check of your health to determine the extent of the injuries caused by the accident. A schedule of loss listing is then prepared detailing the financial losses you are seeking compensation for. These documents will then be sent to the defendant asking them to pay.

An Accepted Claim
If the other party accepts the claim and liability for the accident your lawyer will then be in a position to negotiate the compensation you will receive. This can be a fairly lengthy process with both sides looking to get the best deal they can. Once you have agreed an amount the compensation will be paid along with the cost of your legal representation.

A Disputed Claim
If the defendant and their representation reject your personal injury claim or a settlement cannot be reached the claim will then be taken to court. Once both sides have made their cases the court will decide whether you are deserving of compensation.

If the court decides in your favour and compensation cannot be agreed they will fix the amount that you will receive in addition to lawyer’s costs. If you ultimately lose the case in court no compensation will be paid and you will not be required to pay a penny.

Is it right to bear arms?

Is it right to bear arms?
By Stephen Higham, Solicitor

Last Tuesday three people died at the hands of 22 year old Jacob Tyler Roberts in a shopping mall in Portland, Oregon, USA. Roberts, wearing a hockey face mask and using a stolen assault rifle, killed himself after the attack.

Three days later 28 people were killed by 20 year old Adam Lanza in the affluent suburban town of Newtown, Connecticut. Among the dead were 20 children from Sandy Hook Elementary School aged between 5 and 10, including 6 year-old Dylan Hockley whose family had immigrated to the US from Eastleigh, Hampshire in 2011. Lanza dressed in combat fatigues and took his mother’s guns, using them to kill her, before forcing his way into the school and opening fire with a semi-automatic rifle. He also killed himself.

Gun Laws Relaxed
Less than 60 hours after the Portland attack, and a mere 12 hours before the Newtown one, the State of Michigan’s Republican party- controlled legislature enacted Senate Bill 59, allowing citizens to carry concealed weapons to such previously restricted places as day care centres, schools, hospitals, churches, stadiums and bars. Although owners of these premises can post signs stating that they will refuse entry, the presumption is that concealed weapons will now be permitted on-site. The Bill has been handed to Republican Governor Rick Snyder for approval, who described its passage (among a raft of bills enacted that day) as promoting a ‘safer, healthier and more prosperous future for all residents’.

From the outside, Michigan’s relaxation of concealed weapons laws seems anachronistic, especially given the timing. However, a closer examination of the law and the culture of the country suggests otherwise.

American History
Americans place great faith in their written Constitution, and, in this context, the Second Amendment. This was enacted in the 1791 Bill of Rights and states:

‘A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.’

As with so much in the New World, the American Bill of Rights has its roots in England. The English Bill of Rights of 1689 confirmed that citizens could not be disarmed without the consent of Parliament. There is some argument about whether the Bill merely codified a natural right (being inalienable and universal so not contingent upon laws) or whether it provided a new legal right. Either way, the American Bill’s Framers considered it essential to preserve the young country’s citizens’ rights.

Supreme Court Rulings
It took over 200 years to test the definition of the right to bear arms. In 2008 the Supreme Court decided District of Columbia-v-Heller, which determined that service in a militia was not necessary to permit an individual’s right to possess a firearm. Applying to federal enclaves only (of which the District of Columbia is one), it was affirmed in 2010 with respect to the states in McDonald-v-Chicago.

Both decisions stressed that the right to bear arms is not unlimited so that restrictions including those to “prohibit…the possession of firearms by felons or mentally ill” and “laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms” can still be made at State or Federal level.

States Rights
This freedom of the States is again enshrined in the Bill of Rights (the tenth amendment).  It asserts that:
‘The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.’

Consequently, while the Michigan legislatures’ decision to allow concealed weapons on school premises may seem odd given the Supreme Court’s position in Heller and McDonald,  where it specifically referred to schools as ‘sensitive places’ where firearms could be forbidden, it is entirely consistent with the Bill of Rights.

Principles
So Americans right to bear arms is enshrined in federal law and, in states such as Michigan, extended with state laws. A more pertinent question would be ‘why do they want them?’

The United States is a country of 315 million people. It is estimated that there are 270 million guns in the country.  This puts gun ownership at the world’s highest levels per capita. Yemen comes a distant second. Many gun owners own multiple weapons, so the household numbers are significantly lower. Even so, it is not unusual to own a gun, especially in the rural areas which make up so much of the country where hunting and pest control is a part of life.

Belief in the Constitution (which as anyone who has ever watched protests when the Supreme Court is interpreting it will know) borders on the religious and mandates gun ownership in a way that does not occur in the UK.
The Second Amendment is routinely referenced by politicians and special interest groups such as the powerful National Rifle Association (‘NRA’). The NRA is vehemently opposed to gun control and considered by members of Congress to be the most powerful lobbying organisation in the country. Representative Jan Schakowsky recently complained that ‘as soon as they introduce anything you get some 300 members of Congress, without even reading the bill voting in favour of the NRA position.’

Rhetoric and publicity also play their part. During his time as president of the 4.3 million strong NRA, the Hollywood movie actor Charlton Heston made a catchphrase of holding up his gun and shouting ‘from my cold dead hands’. Popular magazines such as ‘Guns and Ammo’ are sold in convenience stores alongside Sudoku and lifestyle magazines.

Guns are freely available in supermarkets. Gun shows, where regulations on purchasing guns are relaxed, are routine events. Courses on using your weapon are promoted on Google offers alongside adverts for headphones and weekend getaways. Special offers on guns are promoted in flyers attached to the Sunday papers.
But perhaps the most important factor is the deeply ingrained belief that the individual is responsible for themselves.  In the context of gun ownership, this means that in the event you are subject to an attack, you can protect yourself and those around you rather than hope that law enforcement officials arrive on the scene to deal with the attacker.

Speaking after Bill 59 passed in Michigan, Steve Dulan of The Michigan Coalition for Responsible Gun Owners was quoted in the Detroit Free Press as saying, “We were fully behind it because what happens when you disarm law abiding people is there is nobody to stop the crazy people.”

Statistics
There is some support for Mr. Dulan’s position (and that of Dick Heller, who took the 2008 case to the Supreme Court) when keeping guns at home for protection from invasion.

According to this article in The Atlantic Gary Kleck, an academic at Florida State University, stated in 1991 that only 13% of burglaries in the USA occurred when the occupant was home. Compare this to the UK, where Kleck found that 45% of burglaries occurred in similar circumstances.

Moreover, a survey of 2000 convicted US felons in the 1980s concluded that burglars were more afraid of armed occupants than arrest by the police.

So, although the popular view of gun ownership to ensure self-preservation can be supported by selective statistics, it is just as easy to posit a contrary stance.

In 2010 in the USA, 9 people were killed due to firearms for every 100,000. By contrast in the UK, in 2011 0.25 people were killed per 100,000. The fact is Americans are 36 times more likely to die due to a firearm discharge than Britons.

And what Mr. Dulan and colleagues do not address is what happens in a Newtown situation where more guns are used in a confined area.

After the Legislature passed Bill 59 in Michigan, Genesee County Prosecutor David Leyton asked readers of the Free Press ‘Who in their right mind needs to carry a gun in a school, day care center or stadium?’ Adding, ‘It doesn’t make sense to me and many of us believe in the right to bear arms.’

Change
As ever, the political desire for change has to be there. President Obama said after Newtown on Friday that:

‘We’ve endured too many of these tragedies in the past few years… As a country, we have been through this too many times.

He followed up by saying, ‘We’re going to have to come together and take meaningful action to prevent more tragedies like this, regardless of the politics.’

So will things change this time? Will gun control be part of the legislative agenda? Will this have the effect of reducing gun ownership? President Obama may be emboldened by a second term in office but given the deeply ingrained belief in the Constitution backed by Supreme Court decisions, Republican- dominated state legislatures like Michigan, the strength of lobbying groups like the NRA, and the belief in self- preservation through gun ownership, I will not be holding my breath.

Guest Post:How to Make a Personal Injury Claim

Guest Post:How to Make a Personal Injury Claim
Christopher Vella-Bone

The number of personal injury claims being made in the UK rose by 18% in 2011 compared to the previous year. Therefore, if you have sustained an injury and are thinking about making a claim, you are not alone. Essentially, if you are injured in an accident that was someone else’s fault you could have valid grounds to make a personal injury claim.

The first thing to note about making a personal injury claim is that any claim must be made within three years of the accident occurring or injuries becoming apparent, whichever is later. Once this three year period has passed, you lose your right to make a claim.

Finding a Personal Injury Solicitor
Once you have decided that you would like to make a personal injury claim the first step in the process is to hire a solicitor who will be able to manage the claim. Solicitors vary greatly in terms of expertise and experience; therefore there are a few questions that you have to ask any solicitor who is potentially going to manage your claim.

Do they operate on a ‘no win, no fee’ basis? – If a personal injury solicitor operates on such a basis it means that should you be unsuccessful in your personal injury claim you will not have to pay any of your solicitor’s fees. However, you may be liable for the other side’s legal costs so be sure to ask your solicitor exactly what will happen if you don’t win. The last thing you want is a hefty legal bill at the end of the process.
How much court experience do they have? – The majority of personal injury claims are settled out of court and as a result, a number of personal injury solicitors have little to no court experience. It is recommended that you try to find a solicitor who at least has some experience in such an environment as should your claim go to court you don’t want to take a risk by it being your solicitors first time in the situation.

Have they successfully handled a similar claim before? – As with anything, with experience comes wisdom and knowledge. Consequently, it will strengthen your case to obtain the services of a personal injury solicitor who has successfully handled a similar claim before. They are likely to know the best course of action and should react well to any unforeseen circumstances that may arise throughout the claims process.

In addition to managing your claim, a solicitor will also be able to tell you how much compensation they feel your claim could be worth. However, in the meantime you can always use a compensation calculator to gain a rough estimate based the injuries you have sustained.

The Personal Injury Claims Process
Now that you have hired a personal injury solicitor and decided that you want to press on and make a claim, the claims process can be initiated. The first step in which is for your solicitor to write a letter to the other side notifying them of your intention to make a personal injury claim and how much compensation you expect to receive. They will then have three months to respond and either accept or reject your claim. If they accept the claim, a series of negotiations will take place until an agreeable amount of compensation is established; if such an agreement isn’t reached the case will go to court. On the other hand, if they reject your claim and don’t accept fault, the case will go straight to court and be settled by a judge.

On average, a personal injury claim will last between 8 to 12 months so make sure you understand that the process won’t be completed in a few weeks.

Injury Claim Specialists is one of the UK’s leading personal injury advice websites. We pride ourselves on offering easy to understand, plain English injury claims advice on a wide range of different injury related topics. There are also a number of extremely useful tools such as the Compensation Calculator, which can give you a compensation estimate in less than a second, and the Injury Claims Guide is at hand to answer all of your personal injury related questions.

Tour Report #16: On Human Rights law with Kirsty Brimelow QC and Francis FitzGibbon QC

Tour Report #16:  On Human Rights law with Kirsty Brimelow QC and Francis FitzGibbon QC

Littman, David G. (January 19, 2003). “Human Rights and Human Wrongs”. National Review (New York). “The principal aim of the 1948 Universal Declaration of Human Rights (UDHR) was to create a framework for a universal code based on mutual consent. The early years of the United Nations were overshadowed by the division between the democratic and communist conceptions of human rights, although neither side called into question the concept of universality. The debate centered on which “rights” — political, economic, and social — were to be included among the Universal Instruments.”

Human rights law is at the very foundation of our Rule of Law.  Today, I am talking to two of the leading crime and human rights lawyers – Kirsty Brimelow QC, the new Chair of the Bar Human Rights Committee and Francis FitzGibbon QC, both of Doughty Street Chambers.

1.   What are human rights and the importance of human rights – The Rule of Law – Lord Bingham’s famous question about which human rights would you like to lose.

2.  Overview of the European Convention and ECtHR work

3.  The HRA and coalition government plans for a ‘British Bill of Rights’

4.  Human Rights hard cases – Qatada et al / prisoner votes et al
5.  Press and public attitudes to the Human Rights Act

6.  The role of The Bar in promoting human rights – British foreign policy predicated to some extent on countries complying with human rights

Listen to the podcast

iTunes version of the podcast

#WithoutPrejudice podcast: Leveson – Gay Marriage – Justice & Security – Contempt – Finucane

Welcome to Without Prejudice recorded last night at the offices of Preiskel & Co LLP with Carl Gardner, author of the Head of Legal blog and David Allen Green, solicitor and  legal correspondent of The New Statesman.

UK Law Tour Report #15: podcast with Alex Aldridge, Editor of Legal Cheek

Tour Report 15: podcast with Alex Aldridge, Editor of Legal Cheek

Today, at the offices of Kysen PR in Covent Garden, London I talk with Alex Aldridge, editor of Legal Cheek, about his serious yet irreverent online ‘legal tabloid’ Legal Cheek and the role of law bloggers in observing the state of the legal nation.

Listen to the podcast

 

iTunes version of the podcast

Guest Post: The Can Do approach to business building

Guest post: The Can Do approach to business building
By ASB Institutional Banking

The capital creating capabilities of New Zealand’s corporate banking services
When it comes to doing business, New Zealand has an impressive string of accolades that make it one of the premiere locales for starting a business or investing in one. According to the World Bank Doing Business report of 2011, New Zealand ranked third in the world for ease of conducting business and first for protecting investors. Add to that the fact that it is one of the top two least corrupt countries on the planet (Transparency International, Corruption Perceptions Index 2010) as well as the premiere locale for lack of protectionism (IMD, World Competitiveness Yearbook 2010) then one can clearly see why New Zealand is lauded as one of the leading countries in the world for supporting capital development, research & development, and international investment.

With its noticeably strong banking sector, which emerged from the recent global economic crisis fairly unscathed, New Zealand offers many local as well as foreign enterprises the opportunity to start, build and grow their businesses in a corporate-friendly environment. New Zealanders pride themselves on their ‘Can-Do’ attitude, and when it comes to their approach to building and growing businesses their corporate finance sector is no different. Due to the fact that there are no restrictions imposed on the flow of capital or earnings of a New Zealand business to overseas investors, meaning that profits, dividends, interest, royalties, or management fees can be moved freely either into or out of the country, many businesses find themselves in need of corporate banking services that can be tailored to best move their specific business objectives forward. This being the case, it becomes pivotal for any business to forge a partnership with a bank that has both the local appreciation and awareness of the domestic business climate as well as the international clout of one of the bigger banks in order to be able to provide their clients with all the capital, logistical, technical and strategic wherewithal to see their financial objectives into fruition.

In a nutshell, corporate banking relates to the services and products that banks provide to their corporate clients. So, from short-term finance, trade finance or cash management services to the far more complex services such as advising and facilitating large transactions, mergers, acquisitions deals, IPO’s and specialist lending, corporate finance services cover a wide array of products and services that are all geared toward expertly helping businesses optimally set, define and achieve their business objectives on both a domestic and international level.

Essentially the corporate finance services and products offered by New Zealand’s leading banks can be broken down into five key areas of expertise, these being; loan markets, structured asset finance, acquisitions and leverage finance, securitization and project finance.

Depending on the particular size and needs of a business, be it a short-term bridge loan to invest in an expensive piece of machinery or the more complex, strategic and comprehensive alliance of banking services and products required to facilitate a ‘buy in’ or’ buy out’ of another company, the need for practical, expert support and guidance in the form most seasoned corporate financial advisors are trained to provide is crucial. New Zealand’s corporate financing sector is well established to provide this level of support to virtually any size business owing to its stable and globally competitive economy. Furthermore, all but one of the five banks with the largest presence in New Zealand are owned by larger Australian banks. What this equates to is a banking sector that is able to provide far more leverage and expertise when it comes to meeting the capital needs of businesses.

Although New Zealand is a relatively small country, it is still a relatively heavy hitter on the economic front. It boasts a banking sector that is stable, well-regulated and proficient at executing corporate finance solutions to businesses across a wide range of industries. Corporate banking services in New Zealand afford businesses access to global markets, global transaction banking, capital markets, debt facilities, risk management and advisory services on par with any banking sector, anywhere in the world. This coupled with its corporate friendly environment, lack of corruption and absence of restrictions imposed on the flow of capital make doing business in New Zealand just about as appealing as living there.

Guest post: A Guide to Human Rights: Legislation & Making a Claim

Guest post: A Guide to Human Rights: Legislation & Making a Claim
By Barlow Robbins

Britons often learn about human rights when complex legal cases reach the highest courts in the land; for example, when a suspected terrorist fights an extradition order in the Supreme Court. The issue of human rights, therefore, is often portrayed by the media with a considerable degree of negativity. The tabloids have somehow managed to blend human rights, health and safety and political correctness into the same issue; an issue that many people use to explain what has gone wrong with the country. The problem is that few people are actually aware of their basic human rights, what they mean and when they can rely on them.

Legislation

People in the UK are subject to three important bodies of law on human rights: the Universal Declaration of Human Rights (UDHR); European Convention on Human Rights (ECHR); and Human Rights Act 1998 (HRA).

UDHR is a charter for all men, women and children in the world. The 30-article declaration covers fundamental rights and freedoms such as the “right to life, liberty and security” (Article 3) and the right to be recognised by the law (Article 6). UDHR provides the basis for all human rights legislation in the world.

ECHR, which came into effect in 1953, is a far more compelling document. The convention outlines 18 articles on human rights, including those pertaining to life (Article 2), torture (Article 3), servitude (Article 4), liberty and security (Article 5), fair trial (Article 6), privacy (Article 8) and discrimination (Article 14). Article 3 often gains a mention in the news as suspected terrorists who fight extradition orders tend to argue that they might face torture abroad.

HRA serves to entrench the articles of ECHR into domestic legislation. In doing so, however, Parliament left open the provisions to interpretation. Privacy laws, for example, are notably weak in the UK, so Britons who expect this as a fundamental freedom can encounter difficulties in court. HRA also implements human rights laws as prescribed by decisions of the European Community (though this area of the law is far too convoluted to explore at this opportunity). What matters is that the human rights of Britons are protected by international, European and UK law, but what exactly does this mean?

Making a Claim

The remedies available for a breach of human rights legislation in the UK are much the same as they are for other types of claim; for example, head injury compensation can be awarded in a workplace accident or clinical negligence case, while damages may also be available if human rights laws are breached. The problem is that any such breach must involve the HRA, which was passed by Parliament and is open to the interpretation of the domestic courts. Thus, if a person suspects that his fundamental human rights have been breached, he must initially rely on UK law to provide a suitable remedy. Because the HRA is not a word-for-word copy of the ECHR, problems sometimes arise.

A domestic court can submit a Section 4 (HRA) declaration of incompatibility if UK legislation is deemed to be incompatible with the ECHR, but the claimant is unlikely to be awarded a remedy in this scenario. Claims are often appealed in the domestic courts until they are passed to the European Court of Human Rights for clarification, but claims can also be submitted to the Court of Justice of the European Union, which can compel Member States to honour their European Community obligations. Whatever route is chosen, the process of defending fundamental human rights can be lengthy, complicated and expensive.

Written on behalf of Barlow Robbins who also offer support and advice relating to charity law 

Guest post: Will New Private Parking Law Cause More Confusion than Good?

Guest post: Will New Private Parking Law Cause More Confusion than Good?
By Denver

Members of the British Parking Association (BPA) have expressed concern over new laws governing parking on private land in England and Wales. Bundled with numerous other rights and obligations in the Protection of Freedoms Act 2012 (hereafter referred to as the “2012 Act”), which came into force earlier this year, the revised provisions were drafted in part to make wheel-clamping an offence in the UK. Has the 2012 Act achieved this objective, or will it merely serve to confuse motorists and landowners?

Vehicles Left on Land

In October, BPA chief executive Patrick Troy noted the concern of his organisation’s members by claiming the 2012 Act would inevitably confuse motorists.

Mr Troy argued that the regulations are neither compelling nor comprehensive, noting that some sections of the 2012 Act would not apply to all operators. The BPA chief added that a ban on wheel-clamping could not be considered to be a substitute for proper industry regulation.

One purpose of the 2012 Act was to provide motorists with protection from wheel-clamping. Of course, the rights of landowners could not be ignored by the Act, so separate provisions were drafted to define the various ways in which landowners could recover charges or damages from motorists who legally or illegally park on their land. The BPA’s concern is likely to focus on the grey area that exists between these competing rights.

Section 54 of the 2012 Act outlines the new offence of immobilising vehicles. Subsection (1)(a) states that a person commits an offence when he uses an immobilising device to render a vehicle inoperable, unless that person has legal authority to do so. Subsection (1)(b) further prohibits a person (specifically landowners and parking operators) from moving or restricting the movement of a vehicle “by any means” to prevent its removal by the driver or owner (or whoever is entitled to remove it).

Subsection (2) adds that lawful authority is not established if the person who is entitled to remove the vehicle expressly or impliedly consents to the restriction, immobilisation or movement. Whether or not such consent is legally binding is irrelevant for the purposes of the 2012 Act.

Fixed Barrier

Thus, motorists should not expect their vehicles to be clamped or immobilised under any circumstances described above, regardless of whether or not they consented to the immobilisation. Landowners should not even be able to restrict the movement of such vehicles. This ought to come as a relief to the majority of motorists in the UK, many of whom have had to increase their car loans to pay for clamping fines and associated penalties in the past.

Although the 2012 Act would appear to impose strict liability on landowners, there is an exception. Subsection (3) states that consent to restrict the movement of a vehicle “by means of a fixed barrier” constitutes lawful authority provided that the barrier was present (but not necessarily in position) when the vehicle was parked.

Section 54(3) is likely to cause confusion among landowners and motorists. Though (unlawful) immobilisation of any kind is prohibited by the 2012 Act, subsection (3) does provide an opportunity for landowners to effectively immobilise vehicles by restricting their movement and perhaps those of their owners or drivers.

A fixed barrier need not be lowered for express or implied consent to the immobilisation, movement or restriction of a vehicle to be constructed, so motorists need to take care when parking on private land. Motorists should also note that Schedule 4 of the 2012 Act outlines new powers for landowners to recover unpaid parking charges.

Written on behalf of Fincar. Click here for more car related news and advice

Guest Post: Marriage, the State of the Economy and the Divorce Time Bomb

Guest Post:  Marriage, the State of the Economy and the Divorce Time Bomb

Rob Killeen, family barrister and finance broker at Capital Fortune examines declining marriage, the incidence of UK divorce and the state of the economy and considers whether we can import any lessons from abroad to avoid a growing time bomb.

This week saw research published by the Eurostat statistical office confirming Britain has the highest divorce rate of all member countries within the European Union. The incidence of UK divorce now stands at 2.8 per 1,000 of the population compared to Luxemburg at 0.6%. In simple terms, this equates to nearly 5 times more couples getting divorced in the UK than a country situated less than 300 miles away.

The scale of the ‘epidemic’ has not gone unnoticed. Sir Paul Coleridge, a High Court judge, not previously known for outspoken views, agreed last week with judicial watchdogs, to keep a ‘lower profile’ following his public references to marital breakdown being one of the “most destructive scourges of our time.”

There remains an obvious lag in the reporting of official numbers, but latest figures from the Office of National Statistics show a 4.9% increase between 2009 and 2010, despite worrying wider reports that the economic climate is causing many couples to postpone break-up plans.

Women in their late twenties and men in their early thirties were found to be amongst the most likely candidates to divorce with the gender gap narrowing for both men and women in the 40-44 age bracket. The average length of a UK marriage is now 11.5 years and whilst we may become de-sensitised to facts and figures, it is important to note that 50% of divorcing couples have a least a child of the family.

The cost is not only emotional and personal. The Relationships Foundation has estimated that the financial impact of marital breakdown costs the British taxpayer some £42 billion per year.

A matrimonial survey published by Grant Thornton found that the highest number of divorce proceedings were brought between 11-20 years of marriage. The report suggests evidence of a divorce time bomb, given 82% of survey respondents, indicated separation had been delayed, due to the lack of value and liquidity of some assets and the state of the UK economy. In addition, it found that within a third of all divorces, the average value of the party’s assets, available for distribution, was between £500k and £1m. When the stakes are so high, it is understandable why many litigants rush to the arms of lawyers.

The national statistics are disappointing particularly as 80% of couples now ‘try before they buy’ and cohabit together for a considerable period, before tying the knot. The trend towards cohabitation may account for the decline in marriage numbers. In contrast, only 1% of couples lived together in the 1950’s prior to marriage, when to do so was deemed ‘socially deviant.’ The increased social acceptability of cohabiting raises an interesting paradox as with few people choosing to marry, fewer people should be getting divorced. This may indicate an overall more fundamental and worrying trend given the change in societal values towards marriage and for those that do, a greater propensity to divorce.

A move towards cohabitation has produced its own studies which found that of all couples living together on their 10th anniversary,  only half had married, 40% had split, with one in ten remaining content with the situation.
There still remains enormous support for the institution of marriage despite the long term decline in the numbers choosing the altar. Recent Government proposals and David Cameron’s personal support to extend marriage to same sex partners, whilst likely to be divisive, may at least turn the numeric tables.

The implications of both marriage and divorce can be significant and it is clear that as well as the underlying human and emotional commitment, there are the current and future financial ties between the parties. London Mortgage Brokers Capital Fortune have recently reported a fourfold increase in their court report service, used by family solicitors seeking to resolve disputes over the independent mortgage borrowing capacity of the husband or wife. The demand for these reports may indicate that the financial implications of separation on an individual’s own mortgage borrowing, in the current economic climate, is less than clear.

The future of UK divorce trends does not make easy reading whether through official statistics or the glossy pages of Hello! magazine.  The incidence of celebrity divorce is in fact worse with high profile marriages, twice as likely to end in tears than for us mere mortals.  Perhaps the time has now come to learn some lessons from our Luxemburg brethren given their close proximity. With EU nations receiving some 75% of Luxemburg’s exports perhaps a little of their understanding on marriage may not go a miss.

Guest Post: John Spencer on How Britain’s Legal System will be affected come April 2013

John Spencer on How Britain’s Legal System will be affected come April 2013


Civil Procedure Rules Committee (CPRC) member John Spencer explains reasoning behind two key protocol extensions

In April 2013 two new protocols are to be introduced; one extending the existing low value Road Traffic Accident PI protocol from £10,000 to £25,000 of damages, and the other covering employers (EL) and public liability (PL) cases, subject to some proposed exceptions, again up to £25,000 of damages.
I am part of the CPRC sub-committee which is drafting the changes, as a claimant director of Portal Co – this blog is an update on progress.

Road Traffic Accidents
The changes necessitated by the limit increase in low value RTA cases from £10,000 to £25,000 will reflect the principally evidential requirements necessitated by injury cases of greater severity.

 
Employer & Public Liability Cases
Damage limits have been extended to the same bracket of £25,000 and, for consistency, the employer’s & public liability protocol is expected to run parallel to that of the RTA.  However, there likely will be unique elements to these cases that need incorporating, for example different time frames and new definitions.

There are also plans to exclude contributory negligence from the EL/PL protocol which is for admitted cases only.  ‘Contributory negligence’ applies when it is alleged that a claimant is at some fault for causing their own injuries (i.e. slipping on a wet floor because they were reading a text message and not looking forward).  It has been removed because there is no feature that matches the ‘seat belt’ provision in the RTA protocol in terms of simplicity of evaluation.

Possible exception cases to the protocol:
Some disease cases
Clinical negligence cases
Abuse cases

Ministry of Justice’s Role
Although the CPRC and its sub-committee are tasked with drafting the protocol extensions, both parties have no part in the policy making behind the changes – this duty rests with the Ministry of Justice (MoJ).

April 2013 is the deadline month for the MoJ to implement protocol changes which has always been and remains a very challenging deadline, even more so with the protocols still not finalised and approved.  Professor Fenn of Nottingham University Business School has urged the government to reintroduce and extend a clear link between damages and legal fees.  He has previously expressed concern that terminating the link has seen damages levels reduce an average of as 6% with the result that injured people are seeing lower levels of compensation on average.

What next for Portal Co?
Portal Co is responsible for developing and providing the electronic portal for these protocols.  The portal will need to comply with both protocol changes.  The existing RTA portal suppliers, CRIF Decision Solutions, have been reselected to develop new software changes.

CRIF are contracted to provide support on the portal until 2015 and will be working alongside MIB MSL, who manage the portal on behalf of Portal Co.  Although all developments cannot be installed until the protocols are finalised, CRIF continue to work to a deadline that will enable implementation in April 2013, providing there are not significant changes required to the draft protocol.

About the Author

John Spencer is a senior personal injury solicitor whose practice deals with all types of personal injury cases including road traffic accident claims. He is a Claimant Director of the RTA Portal company board and an Executive Committee member and fellow of APIL.  He is also a former Chairman of the Motor Accident Solicitors Society (MASS).