Stacking the Deck – Again!

Stacking the Deck -Again!

Clinical Negligence Litigation Cost

Marek Bednarczyk , Partner, Personal Injury and Clinical Negligence, at law firm Hart Brown, comments on the lack of action regarding litigation costs

Earlier this year I looked at how changes to the costs rules since April 2013 had benefitted Defendants at the expense of Claimants. I pointed out that many had commented that successive governments had been increasingly pro-Defendant in their reforms.

The announcement earlier in 2016 by the then Health Minister, Ben Gummer, seemed to be consistent with that view insofar as Mr Gummer had announced that the government intended to bring in fixed costs for all litigation cases worth £250,000 or less, including clinical negligence, and these reforms were to be introduced in October 2016.

Well, the long awaited consultation on fixed costs initially set for the end of 2015, then put back to early 2016, is still nowhere to be seen!

However, recent news reports seem to suggest that the government has reviewed the idea of fixed costs for clinical negligence cases and now intends to set the level for inclusion in the fixed costs regime for clinical negligence cases of £25,000 or less (not £250,000).

What will actually happen?

The consultation paper is still awaited and the government will need to review the outcome of the consultation before proceeding to introduce their reforms.

The national Law Society has welcomed news of some reversal of thinking by the government, but the Law Society has highlighted the difficulties in imposing fixed costs in clinical negligence cases where complex medical issues are involved. Such a regime should only apply to modest value claims of £25,000 or less where liability has been admitted.

Equality before the law is a fundamental principle behind our justice system. Fixed costs will save Defendants money at the expense of Claimants. In cases against the NHS, the State is ultimately responsible for paying successful Claimants and for paying for the defence in claims against NHS Trusts.

The State has deep pockets. Hence, the playing field is not equal now and creating further costs obstacles for Claimants will make the current lack of equality even worse.

Let us not forget that legal aid for clinical negligence cases was removed in April 2013, save for a small minority of cases. No legal aid and the introduction of fixed costs – do you now wonder why I title this commentary, “Stacking the Deck – Again!”


About Marek Bednarczyk

Marek is an acknowledged expert in personal injury and clinical negligence claims having been involved in a number of high profile and ground breaking cases.

Marek is an active member of the AvMA (Action against Medical Accidents), Clinical Negligence panel and separately of the Solicitors’ Regulation Authority (SRA) Clinical Negligence and Personal Injury panels.  He is a senior litigator member of APIL (the Association of Personal Injury Lawyers) as well as being a member  of the Funding Review Panel of the Legal Services Commission and a Committee member of the Surrey Law Society.


One Can only marvel… Corbyn weak leadership now driving voters to UKIP

The Mirror reports: “A Labour grandee has warned that Jeremy Corbyn ’s weak leadership may drive more voters to UKIP.

Former Chancellor Alistair Darling said without an effective party of opposition, the UK could suffer a Trump-style populist revolt, driven by people sick of austerity.

Lord Darling said a lot of people voted for Brexit because they were fed up, adding: “Where do they go politically?

“There is no alternative being offered and that worries me greatly.

“We’ve seen what happened across the Atlantic and my guess is where there is no effective opposition the alternatives are not the conventional ones.”


One can only marvel at Mr Corbyn.  I have voted Labour for 41 years. (I won;t be going to UKIP – much as Mr Farrago and his fellow political clowns are amusing.) Mr Darling always struck me as a sensible, measured, politician. I really cannot be bothered with Mr Corbyn’s leadership or his thoughts on politics. Fortunately, he will never be PM and is unlikely, hopefully, to survive as Labour Leader for much longer – a new year ‘Labour Putch’ ? I have nothing against Mr Corbyn on personal terms.  He is, I am sure, a conviction politician and a decent man.  I just don’t agree with his ‘take’ on Labour and the future of the Party. One can only hope for a ‘Putch’. There are quite a few ‘former Labour voters’ I have met  in Perth fed up with Mr Corbyn.  I suspect that this is true throughout the UK and not just in Scotland where Labour – for the moment – has been wiped out by the very capable Nicola Sturgeon and her SNP.


Rive Gauche: 2017 will bring a new Reich under President Trump


Tip du Jour: Go long on barbed wire and brick production companies.  There is no truth in the thought that Trump Tower will be used as a detention camp for anyone.

I recall that wonderful song in the film CabaretTomorrow belongs to me.

Although Mel Brooks’ Hitler Rap is probably closer to the mark?

Mind you:  “Springtime for Hitler’ from “The Producers” is also close to the mark for parody.

Scotland sees ‘significant increase’ in complaints about lawyers

There has been a “significant increase” in the number of complaints about lawyers made to the profession’s complaints body, particularly in relation to conveyancing and will writing, with the number of complaints having risen to 1,132 – up from last year’s figure of 1,009.

The Scottish Legal Complaints Commission (SLCC) has published its Annual Report which was laid before the Scottish Parliament, and covers the period from July 2015 to June 2016.  It reports on complaints made to the SLCC, Scotland’s gateway for complaints about lawyers.

SLCC Chairman Bill Brackenridge said: “There was a significant increase in the number of complaints made to the SLCC in the year (from 1009 to 1132).

“This may represent a small number considering there are now around 11,000 working lawyers in Scotland, but we know that these complaints have often arisen out of stressful times in people’s lives.

“I’m pleased that our Annual Report shows that we’re delivering effective redress – over £320,000 in compensation, refunds and fee reductions – when people have been provided an inadequate professional service by their lawyer.

“It demonstrates that the legal sector will put mistakes right, while the 13 per cent of complaints rejected as ‘frivolous, vexatious or totally without merit’ at our first stage shows that lawyers can be reassured that complaints with no substance won’t proceed against them.”

In addition to its role as a gateway for complaints, the SLCC’s work in the year included outreach and audit work to support improving complaint handling in the legal profession. There were also other achievements, including becoming a 50:50 by 2020 partner and gaining Living Wage accreditation.

Chief executive Neil Stevenson said: “We focus every day on the delivery of a fair, efficient and effective complaints service for consumers and lawyers.

“However, it is right we also look at how that work is sustained and improved in the future, and the publication of the four year strategy and our proposals for legislative reform are big steps we have taken in evolving our work.”

Angela Grahame QC, Vice-Dean of the Faculty of Advocates, said: “Complaints against advocates remain a tiny proportion of complaints to the SLCC. When one considers the number of advocates and the amount of work they do on a daily basis, it is heartening to find only two complaints were deemed eligible for consideration by the SLCC.

“Complacency can never be allowed, however, and the Faculty continues to work closely with the SLCC on improving our own procedures and assisting the SLCC where possible.

“We are committed to providing an extremely high level of service to the public and would wish to reassure them of our continuous efforts to maintain and improve standards. With this in mind, the Faculty has now introduced a quality assurance scheme for all members, which leads the way among lawyers in the UK.”

Lorna Jack, chief executive of the Law Society of Scotland, said: “Although there has been a rise in the number of complaints received, there has actually been a slight drop in those deemed eligible by the SLCC over the last year.

“We will be looking closely at this year’s report to understand the reasons behind the complaints and work to ensure that we provide the right  guidance and training for our members so that they can meet the high standards set by the Law Society and the needs of their clients.”

Who are the real innovators in the legal profession?

Who are the real innovators in the legal profession?

Nick Hodges, MD Oyez Professional Services

Steve Jobs once said that innovation distinguishes the leaders from the followers, but in the legal market how many firms are true innovators, and how many are just following the pack. How many really understand the needs of their clients, and are prepared to innovate to meet those needs and offer a top class service? Nick Hodges, MD Oyez Professional Services, assesses who are the real innovators in the legal profession.

Clients require a high quality, value for money service from their law firm, with good communication across multiple channels. However, past research has shown a lack of understanding by the legal profession on the relative importance of the different forms of communications. Two-thirds of law firms thought their clients preferred on-line communication, but only one third of clients said this was their preferred way of keeping in touch. Clients wanted to be able to track the status of their cases on-line, and for routine communication to be electronic, but still placed great virtue on face to face interaction, something clearly not fully appreciated by many firms.

Regarding value for money, the cost of creating forms, documents, e-mails and correspondence is a necessary cost, but one with a real impact on efficiency and productivity.  It is hard for a firm to impress, and compete with the fixed price offerings of local, national and on-line competitors while using inefficient office systems that can take many times longer to complete a task than necessary.

Spotting valuable new ideas and implementing them quickly is vital for any successful business. However, one of the reasons that law firms fail is by not grasping the nettle quickly enough to make changes when needed. Most firms put a lot of time into creating and perfecting their business models, so when things get tough the natural reaction is to ‘wait and see’ rather than acting quickly and making changes.  There are many reasons why ideas don’t get off the starting block and many of these have to do with avoiding risk. Implementing new ideas in business is often thought to be risky; naturally many people do not wish to back taking risks that might make them look bad if they fail. This is especially true in law firms where the professionalism of the brand could be seen to be threatened.

Suppliers to the legal industry are aware of these trends, and the natural wariness of the profession to embrace change, and have been leading the way in supply side innovation and investment.  Data centric CRM (customer relationship management) systems are becoming widely available which allow staff in a firm to quickly access the information they need to ensure good quality communications with clients.  On the cost side speech recognition systems are generating a lot of interest, becoming part of our everyday lives, greatly reducing the time taken to produce letters and file notes, with a significant impact on costs. A wide assortment of documents can now be produced by fee earners by using only their voice. 

Digital dictation, one of the fast growing cloud services on offer, provides a service which was previously inaccessible to many firms due to the cost and complexity of deployment. Now dictation can be completed while authors are on the move and dictations are instantly accessible from any location. It’s a great solution for firms of all sizes because it is flexible, secure and completely scalable to match the size of the practice.

But how quickly has the legal industry been taking up these new technologies? The pace is quickening and those who have made the move to future-proof technologies report that they really are reaping the benefits of greater efficiency and savings. The process will accelerate as the economy continues to strengthen and more legal firms look for the new technologies that will allow them to move service and efficiency to the very centre of their approach.


Rive Gauche: The Great Trump – Farage ‘farrago’…

One can only marvel.  I suspect I will be marvelling quite a lot when President Trumpenstein ‘governs’ America before he manages to get himself impeached. .

What is Farage going to do now that UKIP is actually a ‘real irrelevance’ now?

Former Ambassador to the US sums it up rather well and accurately.

I seem to recall that there was a song “Send in The Clowns’…seems appropriate here?

The i-Newspaper notes: “Donald Trump’s Nigel Farage ambassador tweet is ‘not normal – ‘”Donald Trump’s tweet suggesting Nigel Farage as a candidate for Britain’s future ambassador to the US is “completely abnormal” according to an international relations expert. Dr Jacob Parakilas, the assistant head of the US and the Americas Programme at Chatham House, told i Mr Farage did not have the relevant experience and the mere suggestion could further complicate the relationship between Mr Trump’s administration and the UK Government.

President-elect Donald Trump tweeted that the interim Ukip leader would do a “great job” in the role earlier on Tuesday. Downing Street issued a blunt statement dismissing the prospect.

But that’s not the only thing that makes Mr Trump’s endorsement irregular. First, the US President does not pick foreign ambassadors. Second, Mr Farage does not have the traditional experience for the role.”


I think that is a fair assessment.



UK’s top judge unveils plan to make supreme court more diverse

Lord Neuberger, who retires in 2017, says flexible working will be offered for new appointees to white male-dominated bench

The Guardian: “The UK’s most senior judge, Lord Neuberger, has announced he will retire next summer and signalled the launch of a judicial appointments process that could – through offering flexible working practices – improve diversity on the supreme court bench.

Confirming his departure, Neuberger, the president of the court, who is now 68, said that six new justices would be appointed over the next 18 months.

There are normally 12 members of the supreme court. Only one, Lady Hale, the deputy president, is a woman. All are white. Only two of the present justices were not privately educated.

Criticism of the composition of the judiciary has been mounting due to the fact that there are still relatively few senior female judges and only five high court judges from ethnic minority backgrounds. The justice secretary, Liz Truss, has pledged to introduce measures to improve diversity on the benches.

In a speech to the Bar Council on Monday evening, Neuberger confirmed that he and Lord Clarke, another supreme court justice, would step down next summer. Lord Toulson retired in July but has not yet been replaced. Lords Hughes, Mance and Sumption will leave in 2018.

In an attempt to improve diversity, Neuberger said there would be half-day “insight sessions” offered to prospective candidates where they would be given a tour of the court, allowed to spend time observing proceedings, and offered a private meeting with a current supreme court justice….

Read the rest of the story here

Britain’s love-affair with mass surveillance began under the Labour government…

“Britain’s love-affair with mass surveillance began under the Labour government, but it was two successive Conservative governments (one in coalition with the Liberal Democrats, who are nominally pro-civil liberties) who took Tony Blair’s mass surveillance system and turned it into a vicious, all-powerful weapon. Now, their work is done.

The Snoopers Charter — AKA the “Investigatory Powers Act” — is the most extreme surveillance law in Europe, more extreme that America’s Patriot Act and associated presidential orders and secret rulings from the Foreign Intelligence courts. Snowden nailed it when he said it “goes further than many autocracies.”

The fact that these new spying powers — which conscript tech companies to do the collection and retention of materials for use by the government, usually in secret — comes even as the ruling Conservative Party is barely holding itself together after the Brexit vote and the rise of nativist, racist, pro-deportation/anti-migrant movements who are working their way into the halls of power. Needless to say, any project of mass roundups and expulsions will rely heavily on the legal and technical capabilities for surveillance that the British state has just claimed for itself.

Surveillance powers outlast the rulers who create them. We are one click away from totalitarianism.

Jim Killock, the executive director of Open Rights Group, said: “The UK now has a surveillance law that is more suited to a dictatorship than a democracy. The state has unprecedented powers to monitor and analyse UK citizens’ communications regardless of whether we are suspected of any criminal activity.”

Renate Samson, the chief executive of Big Brother Watch, said: “The passing of the investigatory powers bill has fundamentally changed the face of surveillance in this country. None of us online are now guaranteed the right to communicate privately and, most importantly, securely.”

Boing Boing Cory Doctorow


‘Extreme surveillance’ becomes UK law with barely a whimper [Ewen MacAskill/The Guardian]

(Image: Vladimir Putin and Theresa May,, CC-BY)

Boris (Foreign Secretary) has left the country in an imperilled and intolerable situation

The story in The GuardianBoris Johnson is many things: a narcissist, a liar , a thug and an impostor. But he isn’t a fool. When he said last week it was “bollocks” to think freedom of movement was one of the European Union’s fundamental principles (and how refreshing it is to have a foreign secretary with a classical education), serious people made the mistake of not taking the new right seriously. What a joke our foreign secretary is, they snorted. The over-promoted clown does not know the EU enshrined freedom of movement in the Treaty of Rome of 1957. He’s either an embarrassment or light entertainment, but he’s clearly too stupid to matter.

Writing before Donald Trump’s victory, the Russian-American journalist Masha Gessen warned that too many liberals lacked imagination. They could not imagine that Trump would win and threaten American democracy’s safeguards, even though authoritarian nationalists were winning across the world. The British elite could not imagine Brexit and only a handful of academics and journalists imagined Vladimir Putin would move to control Russia’s media, suppress opposition and invade his neighbours. Stuck in a familiar past, they do not believe change for the worse can happen, even when it is happening in front of them.

Our current imaginative failure lies in our inability to understand the secret fears and bottomless opportunism of our new masters. Demagogues who have fooled the electorate know better than their opponents that the public can turn on them. For no one is more frightened of a revolution devouring its own than the men who lead it on.

To close the possibility of going from today’s popular heroes to tomorrow’s enemies of the people, they must ensure that, whoever is held to account for Brexit turning rancid, it is not them. Everywhere you look on the right, you can see the politicians who ran the Leave campaign shuffling off responsibility, like actors casting off their costumes.

Unlike so many of their opponents, they can imagine the future. They can see the possibility of Britain in 2018 heading for hard Brexit. Instead of being involved in the easy break they promised, we will be at the start of exhausting trade negotiations with the EU and dozens of countries that will drag on into the 2020s. A Conservative government, committed to reducing the state, will have to employ tens of thousands of civil servants to undertake the most energy-sapping task since the Second World War. Real wages will be failing to keep up with inflation. Investors will be looking elsewhere.

The 17 million who voted Leave won’t remember every item of the false bill of goods Johnson, Michael Gove and Nigel Farage sold. But they will remember the vision of an economic future so bright the NHS would receive an extra £350m a week. As Brexit drags the public finances ever further into the red, it already looks a straight lie. By 2018, it could sound as false as Neville Chamberlain’s promise in 1938 that appeasement would bring “peace for our time” sounded as the bombs fell in 1940.

Our former allies were baffled by Boris Johnson’s assertion that it was “bollocks” for Europe to say Britain could not remain a member of the single market if we would not accept EU immigration. The Italian economic development minister replied: “No way” when Johnson told him: “I don’t want free movement of people but I want the single market.” The Dutch finance minister accused Johnson of “offering to the British people options that are really not available”.

So he is. But they failed to understand that Johnson was raising false hopes for the British to escape the blame he so richly deserves. Johnson knows the European treaties. It’s not just that he’s now foreign secretary. He was one of the founders of post-truth journalism during his time as a hack in the 1990s, when he was an unashamedly mendacious Brussels correspondent for the DailyTelegraph.

As a dismal decade of low growth drags on, the right wants to be able to say that we could have enjoyed the economic benefits of the single market, and had the immigration controls it had promised, if only vengeful Europeans had not intervened. As Johnson was speaking, Gove, a politician who can match him for intellectual dishonesty lie for lie, brushed aside the vast problems of rewriting 40 years of legislation and negotiating with half the world. We could have a “quickie divorce”, he maintained, if only the civil service were not preventing it.

Dominic Cummings, Gove’s former special adviser, at least had the grace to admitBrexit would be the “hardest job since beating Nazis”. I have just two caveats. Cummings never told the electorate about the vast complexities when he ran the Vote Leave campaign. For, if he had been honest, Leave would have lost. Then, like his master, he blamed the civil service for a mess that he and his friends had created. Conservatives are the first to tell the poor, the unlucky and the feckless that they must take responsibility. But “special snowflakes” that they are, they are also the first to embrace the “victim culture” and push the blame on to others when their failures find them out.

This is not the “usual rough and tumble of politics”. There are 3 million European Union migrants living in this country and 2 million British citizens living in the EU – the hostages of the Brexit negotiations. When Johnson and the Conservative press invent stories about Europe denying an entitled Britain a deal they know is impossible, they are consciously increasing the chances of reviving the attacks on EU migrants with which British goons “celebrated” our supposed declaration of independence.

Think on this, too. The promises of the Leave campaigners may have been unscrupulous, but their language was relatively restrained. Whatever complaints you had about posters of refugees and outright falsehoods about millions of Turks coming to Britain, they did not paint Hispanics as rapists and murderers and all Muslims as potential terrorists, as Trump did. They did not promise to deport millions of illegal immigrants, as Trump did. They did not justify assaulting women, as Trump did. They did not threaten journalists who crossed them with retribution, as Trump did. They did not use antisemitic imagery, as Trump did. Not one of them, not even Nigel Farage, was endorsed by the Ku Klux Klan, as Trump was.

If you can at last imagine how nasty the British right will turn as its failures mount, imagine how much more vicious the American right will become when Trump’s promises are revealed to be so many lies.