News Category 3
When an accident is just an accident: first judicial guidance on ERRA - Seema Bains, DWF
20/09/18. Cockerill v CXK Ltd & Artwise Community Partnership, High Court (QB), 17 May 2018 - Seema Bains Partner in DWF's London office and Nigel Lewers of 12 King's Bench Walk acted for an employer and their insurers, in what we believe to be the first reported case to consider the application of s.69 of the Enterprise and Regulatory Reform Act 2013. The claim involved a tripping accident which occurred somewhat serendipitously on 1 October 2013, the very day the new Act came into force. Seema outlines the findings and how the court applied s.69 in Cockerill v CXK Ltd & Artwise Community Partnership (2018).
Background
The claimant was employed by the first defendant as a careers adviser. The first defendant is a charity which had successfully bid to run a training programme for vulnerable young people.
To run one of their programmes in Kent, the first defendant hired from the second defendant, space within an old Victorian primary school building being run as a community centre. The first defendant relied upon the risk assessment of the premises as carried out by the second defendant
The claimant alleged that as she entered the main building, she noticed a 'Caution – Mind The Step' sign on the main door, which warned her of a step with a 7 inch drop into the property. It was stated that the claimant entered a dark/dimly lit cramped lobby which led to a kitchen area. A door between the lobby and the kitchen area opened out of the lobby into the kitchen area with a self-closing mechanism. It had a large glazed window in the upper part to about handle height. There were was clear signage on the lobby side of the door warning of the step that led from the lobby into the kitchen area. It was this step which had the 7 inch drop. The claimant alleged that the door had been propped open and therefore she was not afforded the opportunity of seeing the warning sign on the door, so that as she walked through the lobby area into the kitchen area she missed the step, falling to the floor.
The claimant presented a significant claim (pleaded in excess of £750,000) for damages on the basis that she had developed a chronic pain type syndrome.
The matter proceeded to a liability only trial in the High Court in March where the claimant's case came down to two issues:
Image ©iStockphoto.com/PashaIgnatov
McDermott v InHealth Limited - Adam Weitzman QC, 7BR
18/09/18. The Claimant in this case was a professional boxer licenced by the British Board of Boxing Control. He was obliged to undergo annual brain imaging in order to ensure that he was fit to fight. The imaging was arranged by InHealth Ltd, the Second Defendant (D2). D2 had also, with the help of a doctor, drafted the protocol under which the imaging process for licenced boxers took place. The protocol did not include an obligation to conduct axial gradient echo (“GE”) scans on boxers.
The Claimant attended the Third Defendant’s (D3’s) hospital to undergo the imaging. In addition to the required imaging – and contrary to the protocol – D3 conducted a GE scan. This revealed that the Claimant had an aneurysm on his brain. After he had received his licence to fight for that year, the Claimant received a blow to the head whilst sparring. Unfortunately this caused the aneurysm to bleed, resulting in brain damage and significant cognitive defects.
There was an arrangement in place by which D3 was supposed to send...
Image cc flickr.com/photos/worldseriesboxing/17209862765
Summary of Recent Cases, September 2018
15/09/18. Here is a summary of the recent notable court cases over the past month. You can also receive these for free by registering for our PI Brief Update newsletter. Just select "Free Newsletter" from the menu at the top of this page and fill in your email address.
Summary of Recent Cases - Substantive Law
Ecila Henderson (A Protected Party, by her Litigation Friend the Official Solicitor) v Dorset Healthcare University NHS Foundation Trust [2018] EWCA Civ 1841
This is the latest appellate authority concerning the implications of the Supreme Court's decision in Patel v Mirza [2016] UKSC 42 in the field of negligence. The Appellant suffered from paranoid schizophrenia and, during a serious psychotic episode, she had stabbed her mother to death. She pleaded guilty to manslaughter by reason of diminished responsibility and was subsequently detained under a hospital order, the sentencing judge having stated in his remarks that there was no suggestion that the Appellant should be treated as bearing a significant degree of responsibility for what she had done.
At the time of the killing, the Appellant had been under the care of the Defendant's mental health team. The Defendant accepted that the incident would not have happened but for its failure to respond to the Appellant's marked deterioration, and that its conduct amounted to a breach of its duty of care towards her. However, the judge at first instance decided that her claim against the Defendant (seeking, inter alia, damages for loss of liberty attendant on her detention under the hospital order, and for the loss of part of her inheritance under the Forfeiture Act 1982) was barred by...
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Analysis Shows Increased Cash Flow Troubles for PI Firms - Norman Kenvyn, VFS Legal Funding
13/09/18. Running a personal injury law firm has never been so hard. With regulatory changes eating into profit and cash flow stymied by the slow billing process in cases, it is no surprise that many are reportedly teetering on a cliff edge.
Indeed, analysis of the UK top 50 law firms’ accounts by Smith & Williamson has revealed that over £5bn is owed by clients to law firms and nearly £2bn is sat on the books unbilled. In effect, law firms are missing out on nearly £7bn of additional cash flow. This year’s figures for amounts owed and unbilled matters represent a 9% and 6% rise respectively.
But the headlines of record-breaking revenues splashed across the pages of the legal press just serve to disguise the problem. As the old adage goes, turnover is vanity, profit is sanity and cash flow is reality. Even profitable companies go bust if they don’t have the cash flow to prop up the day to day running of the firm. Many firms do not see a widespread cash flow problem until it is too late.
These cash flow problems aren’t the preserve of the top 50. Indeed, the problem is acute in PI. The Government’s long-awaited reform to raise the small claims track limit has meant that cases worth less than £5,000 will not be viable for a law firm. Reforms have impacted heavily on cash flow for law firms and put them at real risk of failing. Some firms have already been forced to close or make redundancies as they have been impacted by the personal injury reforms.
It follows that speeding up access to the cash tied up in the cases PI firms do take on is paramount. According to the statistics, the time between a bill for work being issued and then paid for has increased to 122 days, a two day rise on the previous year on top of the two day rise the year before that. That’s in excess of four months for a bill to be paid!
Ultimately, PI firms need to be cannier around cash flow. At VFS Legal Funding we feel that firms shouldn’t settle for less – for instance using a cash advance facility to immediately get funds against a bill of costs as soon as it’s been drafted enables firms to release cash tied up in a bill and gives the financial muscle necessary to negotiate the right settlement level.
Where would a more predictable cash flow leave PI firms? A predictable cash flow enables a firm to better manage its needs, allowing investment in new initiatives and business expansion.
Needless to say, financial management is now imperative for firms that wish to adapt, grow and remain competitive, and a clear direction in business development needs to be complemented by a similarly focused approach to the bottom line.
Norman Kenvyn
Founder and CEO of VFS Legal Funding
Image ©iStockphoto.com/imagestock
Why transparency is more important than ever in the Legal Services Sector, especially in PI cases, and why we’re still not getting it right - Amanda Hamilton, NALP
29/08/18. In the last five years, within the current legal services sector, changes have been so radical that consumers are undoubtedly confused. It used to be that if you had a legal problem, you would automatically turn to a solicitor. Paying for the services of a solicitor was not given a second thought, especially if there was the possibility of legal funding (legal aid).
This has all been turned on its head. With the implementation of The Legal Services Act 2007, competition has been increased, all under the umbrella of ‘access to justice for all, at a reasonable cost’. Furthermore, legal aid has been withdrawn for all but the most urgent legal matters.
Of course, law firms, specialising in personal injury, have lived without legal aid for many years and are familiar with the process of working on a client’s case and only getting fees paid once the case has come to an end. Usually this will be on a ‘no win, no fee’ otherwise known as ‘conditional fee arrangement’ (CFA). Having such experience means that many PI firms are more open and transparent than others.
But consumers, who after all are the end-users of the services provided, will most likely not be aware of the changes to legal aid and how this may affect them. Some may decide to take on the burden of litigation themselves with devastating consequences for the court system. Litigants in person (LIPs) are causing the courts huge difficulties because they do not know what to do. Consequently, the courts are stopping cases to give LIPs assistance.
The unfortunate reality is, that throughout the changes that have been made to legal funding, implemented by the sector itself, no-one has considered how this has affected consumers, nor have they given a valid explanation to them for the changes. There has been no transparency.
With the opening up of competition in the sector, how can consumers know whether what is stated on a particular website is valid or even the truth? Since there is now plenty of competition to provide PI services, consumers have a choice to whom they turn. This includes Paralegal firms that are opening up at a speedy rate across the country. Since Paralegals can now gain ‘Licensed Access’ from the Bar Standards Board to instruct Counsel directly, there needs to be clear and transparent information on any website as to ‘who we are’ ‘what we do’ ‘how we may assist you’ and last but not least ‘our costs’.
It is very easy to try and get one over on your competition by making false claims on your website or at least comments that may be misinterpreted by the consumer. But any such claims and comments can be misleading at best, and possibly fraudulent at the other extreme. To mislead the general public is a dangerous path down which to venture. Not only can it be costly (and potentially terminal for any practice) it can also affect the reputation of legal services sector generally, which is what must be prevented at all costs in order to preserve the Rule of Law. Remember, even comments made in very broad terms can cause assumptions to be made – so care must be taken.
It is perhaps left to the individual end user to do their own research but, unless providers of PI legal services are totally transparent, how can a distinction be made between them?
For example: stating categorically that you are an independent paralegal practitioner and member of NALP with a licence to practise and that you have Indemnity insurance, or are an experienced solicitor will give the prospective client confidence. Stating that you can offer assistance in making a claim for personal injuries and explaining the steps, processes and possible costs involved will also inspire confidence. Making this clear and unambiguous on a ‘home’ page will give no chance for any doubts in the mind of the prospective client.
If you are a firm of solicitors specialising in PI, why not state that the bulk of the work will be carried out by a paralegal? The number of calls that NALP gets from the general public about the fact that they had gone to a solicitor to assist with their PI claim, and then found out later that the person dealing with it was a paralegal and not a solicitor. Why didn’t that individual introduce themselves in the first place as a paralegal? Why not be transparent about that from the start?
In my opinion there has to be no doubt about what is being stated and how it can be interpreted. It doesn’t matter whether there is an intention is to mislead or not.
Even by omission, for example not stating anything at all about the status of the individual(s) offering PI legal services, by saying ‘we offer legal services in the following areas…’ can be interpreted that the persons offering those services are solicitors. The intention may not be to mislead, but if it wouldn’t be unreasonable for a consumer to be misled by those statements – then this needs to change.
How can we expect the legal services sector to continue offering an excellent service to the consumer if PI providers, both regulated and unregulated, are not being transparent? Making statements on websites that are not strictly untrue, but knowingly making them in order to invoke assumptions on behalf of the reader that are obviously incorrect, is indeed misleading and possibly fraudulent. This is not transparency.
For example, it would be misleading to state that ‘we are a government recognised professional body’ when in fact the truth is that ‘we were incorporated by a government body - Companies House’. It’s clear how vague or disingenuous language can mislead in this real-life example.
Transparency must also include any potential conflicts of interest and any complaints procedure.
Failing to declare an interest in another organisation is an area where lack of transparency can mislead the consumer. For example, if an organisation were to say; ‘we are a standard setting membership body… as recognised by the unregulated legal services regulator’ or ‘we are the only body that is recognised by the voluntary regulator as having robust professional standards’ – and not state clearly that in fact the voluntary regulator and the body are owned by the same individuals, that would most certainly be a failure of transparency and could easily mislead a consumer who would not know or understand that the two bodies were related.
We, as an industry, need to ensure that all statements made on websites have clarity and cannot be interpreted by making assumptions. The difficulty is how to monitor and police such statements. If policing is not going to happen, then the burden lies with firms and organisations of integrity to be as transparent as possible and hope that the most important individuals within the sector, the consumers, recognise this effort and make the right decisions.
ABOUT THE AUTHOR
Amanda Hamilton is Chief Executive of NALP, a non-profit Membership Body as well as being the only Paralegal body that is recognised as an awarding organisation by Ofqual (the regulator of qualifications in England & Wales). Through its training arm, NALP Training, accredited recognised professional paralegal qualifications are offered for a career as a paralegal professional.
See: http://www.nationalparalegals.co.uk and http://www.nalptraining.co.uk/nalp_training
Twitter: @NALP_UK
Facebook: https://www.facebook.com/NationalAssocationsofLicensedParalegals/
LinkedIn - https://www.linkedin.com/in/amanda-hamilton-llb-hons-840a6a16/
Image: public domain
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