Legal Profession Unsure About Personal Injury Reforms

The government has announced a new raft of proposed reforms aimed to improve the personal injury sector, and specifically to reduce the number and cost of whiplash claims in relation to traffic accidents. While this goal has been generally welcomed by solicitors in the area, some quarters of the legal industry have expressed concerns about the nature of the specific reforms that have been proposed.

The government’s aim is to reduce the number of minor whiplash claims relating to traffic accidents, as well as the number of untrue or exaggerated claims – something very much in line with current goals within the personal injury sector itself. The initiative also hopes to bring down the cost of car insurance, with insurers having reportedly pledged to pass on the savings made from lower claims to consumers in the form of an estimated £40 annual discount on the average premium.

While these intentions are not objectionable, some solicitors question the government’s choice of methods. Some are concerned that the proposals simply outline the wrong way to reduce claims, while others fear the reforms could be more wide-reaching than it first appears. Either as a direct result of the current proposals or as a potential consequence of any further changes in the same vein, there are fears that claims for work accident compensation, medical negligence, and other areas of personal injury could be affected in a way that is much less justified.

A wide range of proposals have been suggested, including caps on the amount that can be awarded for minor claims, making medical evidence of injury an absolute requirement for receiving compensation, and an increase in the upper limit for the value of personal injury claims via the small claims court.

However, some of the proposals have been met a little more uncertainly by the legal industry. For example, efforts to eliminate the need for professional solicitors in minor claims have provoked a more mixed reaction. While some solicitors feel that their services are not strictly required for minor claims and would welcome a reprieve from keeping up with fast-changing legislation, others fear that eliminating legal professionals from lower-value claims is a mistake. This could leave people without the legal support they require, and could also eliminate the gatekeeper function that solicitors serve with more minor claims. Indeed, it has even been suggested that such a move could cause claims volumes and costs to increase rather than decrease, as people launch head-first into minor, frivolous, or poorly-supported claims that a solicitor might have prevented.

Other measures have raised concern that, if implemented, they could make it harder for people to bring legitimate claims for their injuries. For example, there are fears that a proposed reduction in claims time limits could lead to injured people missing their chance to claim the compensation they are due.

Labour Shadow Cabinet Justice Figures Resign

LabourA number of justice leaders from the Labour shadow cabinet are among those who have resigned. A number of resignations from the shadow cabinet have followed the vote in favour of leaving the EU last week, with a number of shadow ministers leaving in protest over the leadership of Jeremy Corbyn.

The most prominent justice figure to resign from Corbyn’s team is the shadow justice secretary, Lord Falconer.

Falconer is a prominent and experience figure in the field of governing justice. He was part of the former Labour government under Tony Blair, which he first became a part of in 1997. Acting as Lord Chancellor to the then-Prime Minister, he presided over the formation of both the UK Supreme Court and the Ministry of Justice. He became shadow justice secretary in May 2015, but announced his resignation from the role yesterday adding his name to a list that, so far, comprises five shadow ministers and 12 other members of the shadow cabinet to hand in their resignations.

The shadow attorney general has also resigned as part of the wave of shadow cabinet members stepping down in the wake of the referendum result. Karl Turner announced his resignation in a letter, in which he said he had taken great pleasure from being a part of the shadow cabinet. He said that the shadow justice team, in particular, had presented the government with “consistent and forthright opposition.”

In his resignation letter, Turner also said that during his time as shadow attorney general, he had felt “honoured to have been asked to help Lord Willy Bach in his Legal Aid Commission bringing together experts and witnesses from across the legal profession to take a proper look at the needs of the legal aid system and how we can put it on a more stable footing.”

Nonetheless, Turner went on to say that he felt the need to step down because it had become “increasingly clear that [Labour leader Jeremy Corbyn] does not hold the support of the shadow cabinet and the wider parliamentary Labour party.”

Corbyn has recently revealed his new, reshuffled shadow cabinet following the wave of resignations. The replacements for those members of the shadow justice team, however, have not yet been announced.

Corbyn’s leadership, and his handling of the EU referendum, seem to have split the Labour party quite markedly. Many members of the shadow cabinet have resigned and there were calls for a vote of no confidence. In reaction to this, however, thousands of protesters amassed in London on Monday in support of his leadership.

Plans to Tackle Court of Appeal Backlog

Plans have been unveiled by the Civil Procedure Rule Committee (CPRC) to tackle a “serious backlog” of cases waiting to be heard in the Court of Appeal. According to Lord Dyson, master of the rolls, the number of cases entering the Court of Appeal has increased by 59% in the past five years.

This 59% increase in case volumes has not been accompanied by any rise in available resources. As such, the Court of Appeal has become backlogged, and the result has been considerable delay for appeals waiting to be heard. A 75% increase in adjournments has previously been identified and blamed on lack of resources. This is a situation, Lord Dyson said, that Court of Appeal judges “do not regard… as acceptable or sustainable.”

A number of reforms have been proposed by the CPRC in order to clear the backlog and end the delays. These include raising the threshold for granting permission to appeal through the Court of Appeal’s civil division. Currently, appeals must be judged to have a “real prospect of success” for this permission to be granted, but this requirement could be raised to a “substantial prospect of success.”

This would make a difference that extends considerably beyond a matter of wording or individual judgement. The current requirement merely means that appellants must show their hopes of succeeding in appeal are more than just optimism. If the requirement were raised from “real” to “substantial prospects,” on the other hand, then they would have to show that it can be “seriously arguable” that the original judgement was made at least partly in error.

According to the CPRC consultation, “This change will better ensure that an appropriate share of the court’s resources is allocated to hearing full appeals in cases where it really matters, while taking in account the need to allot resources to other cases.”

Another proposed change relates to the rights of appellants when a request for permission to appeal has been denied. Currently, if the right to appeal has been refused following a review of court documents, a litigant has the right to an oral court hearing at which the refusal can be reconsidered. This, the committee suggests, could be changed from an absolute right to a decision that can be made at the discretion of the judge, thereby reducing the burden that the reconsideration of refusals places on the courts.

A proposal has also been made to refine and improve the civil Court of Appeal Practice Direction. The aim of this refinement, the consultation said, would be to make the document easier to use so as to keep the court from “drowning in paper.”

Civil Justice Review Supports Online Court Concept

Online CourtThe Briggs Review, a major review of civil justice in the UK conducted by Lord Justice Briggs, has supported the idea of creating an online court. The court in question would be used to handle claims with a value of up to £25,000, and would be intended to provide a simpler, more cost-effective route to settling such claims that did not require the services of a professional lawyer.

Briggs was initially tasked with carrying out the review in July, and at present the process is still ongoing. However, an interim report was recently published outlining the findings of the review so far, and this leant considerable backing to proposals that have been previously made which would see an online court created for claims at this level. Such a court would, the report says, “mark a radical departure from the traditional courts (outside the small claims track)” and be the first court in England and Wales to be specifically created to allow people to make claims without lawyers.

Online Dispute Resolution (ODR) would, the report claims, provide “effective access to justice without having to incur the disproportionate cost of using lawyers.”

ODR in the form of an online court has been suggested a number of times, and perhaps most notably by Professor Richard Susskind, in combination with the Civil Justice Council, last February. Susskind proposed an ODR system in his own report to the senior judiciary, and the Briggs Review’s proposal is for an online court very much in line with those suggestions.

As originally proposed by Susskind, resolving disputes through the online court would be a three-step process. The first step would be used to identify the issues at hand and would be primarily an automated process. The second step would see the matter passed to case officers for case management and conciliation. Finally, the third step would place the case in the hands of judges for a definitive resolution.

Judges might need additional training, Briggs says in his report, in order to equip them for what would be a “substantially wider caseload.” The report also identifies a number of questions that will need to be answered and decisions that need to be made before any such system can be rolled out. These include the question of which costs will be payable by which side, what provisions, if any, should be in place for appeal to circuit judges, and what types of claim might not be suitable for handling through the online process.

Why Opt for the Services of a Personal Injury Lawyer

A medical malpractice claim can be filed for if an individual finds himself or herself to have sustained personal injury due to a mistake made by a doctor or a medical professional during treatment. A medical malpractice claim is an extremely complex legal procedure because it is quite difficult to actually prove medical negligence. Furthermore, in order to file a claim, it must also be proven that the patient has sustained some sort of personal injury due to this negligence. As such, it is considered to be a good idea to seek the services of a medical malpractice personal injury lawyer in such cases, as expert attorneys have the required skill and knowhow to successfully resolve and settle claims.

Medical malpractice cases can be considered to be amongst the most complex of legal battles and which are also quite lengthy. Insurance companies and the defense will always try and prove that there was no negligence on part of the doctor. Moreover, claims need to be made within a certain period of sustaining the injury as a missed deadline will almost certainly lead to claims being denied. Given the high compensation amounts involved, it is best to always make use of the services of an attorney in cases of medical malpractice.

While hiring an attorney is always considered to be a costly affair, most medical malpractice attorneys charge fees on a contingency basis and they only need to be paid if claims are successfully resolved. In case the desired results are not obtained, only litigation costs, court fees and other expenses will need to be reimbursed, without having to pay fees to the attorney. Moreover, some attorneys also offer free consultation up front and can review medical records so as to determine the chances one has at winning damages in the court of law. As such, one should never hesitate from approaching an attorney in case of medical malpractice injury claims.

Before hiring a legal expert, individuals must ensure to hire one who is experienced in medical malpractice and also has a track record of success in claim resolutions. Attorneys will also have to deal with large insurance companies and this makes it important to hire an articulate lawyer. In case a settlement cannot be reached out of court, the attorney will also need to represent clients in a trial. Given all of these, it is essential that only the most seasoned and expert legal attorneys should be approached in cases of medical malpractice. The best way to search for such expert professionals is by going through word of mouth recommendations and also by looking though public directory listings.

Professional help can greatly improve the chances of success in cases of medical malpractice. An expert lawyer helps level the playing field against doctors and insurance companies. Any individual to have sustained a personal injury due to medical negligence or malpractice should opt for the services of a personal injury lawyer.

At Work Or Not At Work When Injured In A Workplace Accident?

The law is often a mixture of ambiguous, vague and tenuous legal rules and principles, whilst at the same time being very definite and precise. While this is often necessary to allow the law a degree of flexibility, it is welcome when a verdict is handed down that clarified and defines an area of law.
One example of a legal clarification was a personal injury case before the High Court this May- Vaughan v MoD [2015] EWHC 1404 (QB). The case was an injury at work claim brought by Spencer Vaughan, 27, from Wales, and of the Royal Marines, against the Ministry of Defence (MoD).

In 2010, Marine Vaughan and others had taken part in a sailing expedition around the Canaries. On the last day of the voyage, with there being little wind, the experienced skipper delayed their departure from Puerto Mogan marina in Gran Canaria. Expecting the wind to pick up later that day, the skipper told the party of Marines under training that they had free time until that afternoon. Upon being told that, Mne Vaughan and his comrades went to the beach at Puerto Mogan for the morning. Whilst there, Mne Vaughan, waist deep in water, attempted a “Baywatch style” dive into the sea. Whilst doing so, he struck his head against a sandbank, and ultimately sustained “a fracture of his cervical spine.”

Mne Vaughan subsequently started personal injury proceedings against the Royal Marines. Claiming that he suffered his injury as a result of a breach of the duty of care that the MoD had towards him, he argued that he was on a “training exercise” at time of the accident. Therefore, the MoD owed Mne Vaughan the same duty of care as any (civilian) employer would for an accident sustained at work. In May the case appeared before the High Court, where Mne Vaughan gave evidence from his wheelchair, and Mr Justice William Davis ruled on the very issue of the liability of the MoD in this case.

According to Judge Davis, the key matter here was the question as to whether the Royal Marines did owe the Marine a duty of care for an adventurous training expedition, and a similar duty of care for the incident at Puerto de Mogan beach that caused his accident. After all, the Marines had clearly been told by the skipper that their time was their own that morning despite still very much being under military authority and control. Adventurous training (such as sailing), although not mandated, is considered an important part of military training and development. It could be plausibly argued (as Mne Vaughan did) that he was still ‘on duty’ and ‘under training’ at the time of the accident. Mne Vaughan would therefore be covered and protected by employer’s liability for his accident (at work).

After considering just this point, and the employer/employee relationship, Judge Davis was careful to unpick the obligations owed to employees when not directly working for their employer. Unsurprisingly, there was none found. It is clearly evident that the MoD does indeed owe its employees exactly the same obligations and duty of care as any civilian employer (saving the exemptions granted to the MoD under combat immunity). However, it was uncertain whether those rules applied here, as the Marines were not ‘working’ for the MoD at the time of the accident, despite absolutely being under military authority and a chain of command during the sailing expedition.

The key phrase and issue present was whether Mne Vaughan, in the sailing expedition, was performing duties “reasonably incidental to his work.” Mr Justice Davis found (unsurprisingly) that this was not the case. Therefore, Mne Vaughan’s injury at work claim failed.

Vaughan v MoD adds to the lengthy canon of personal injury case law. Although not ground breaking, the case is indeed useful for the personal injury solicitor. The obligations, duty and liability of an employer to an employee are again quite clearly set out and defined- as is the legal duty of an employer to an employee who is engaged “in the execution of their duties.”

What is useful about Judge Davis’ verdict is that he brings clarity to the on duty/off duty nature of employment, and to the incidents and accidents that can easily occur in that ‘grey area.’ Quite often employees may not necessarily be working for an employer, but still be acting in association for an employer- for example, team training, a work event, team building, representing them at a conference, etc. Vaughan v MoD is ultimately quite useful as it helps to clarify that distinction between on duty and off duty.

Doubtless the phrase “reasonably incidental to their work” will enter the general lexicon of the personal injury lawyer subsequently.


Medical Malpractice Dissected

There are a number of things that people need to know about medical malpractice. For instance, were you aware that the third leading cause of death in the United States was reported as medical malpractice in 2012?

In fact, the only two causes of death more prominent, according to the Journal of the American Medical Association, were cancer and heart disease, both natural during the course of some people’s lives.

What’s Medical Malpractice?

With medical malpractice costing an estimated $3 billion in payouts in 2012 and patients being injured daily when they’re meant to be getting better, it’s important to know when medical malpractice has taken place and what to do if you’ve been victimized. It happens when a health-care provider doesn’t meet the standard of care that’s required by the medical community. For instance, if a patient goes to the doctor for the treatment of acne and walks out with a prescription for anxiety, the doctor has made an error that can be considered malpractice if it’s not caught before the patient is injured.

Medical malpractice claims can be made if the negligence that took place resulted in injury to the patient involved. That’s not to say that every negative outcome after a medical treatment is malpractice. Treating a disease properly and not getting the outcome wanted isn’t necessarily the fault of the doctor, but failing to treat a disease and letting it progress due to negligence would be.

A Statute of Limitations

When a patient is injured by a doctor’s negligence, there is a certain amount of time when he can make a claim against the doctor. Once that time passes, the statute of limitations is enforced, and the claim can no longer be made.

There are various deadlines across the United States, but in Oregon, medical malpractice claims need to be made within two years from the date of injury. Sometimes, patients don’t know right away, so there is a clause that states that no case can be filed over five years from the date of the negligent act, no matter when a patient discovers he’s been injured. An Oregon medical malpractice attorney would be versed in this kind of case and could advise patients on when to act. Usually, the sooner a patient files a claim, the better.

Caps on Damages

Sometimes, there are caps on the amount of damages a patient can receive. Part of the reason for this is to help medical professionals be able to afford insurance premiums; if medical malpractice payouts get too high, then insurance premiums could reach amounts that no doctor could pay. This would limit patient access and increase costs for health care. The problem with this is that the caps can lead to a patient not receiving enough money to cover an injury and future medical care.

In Oregon, the only cap on damages is in the case that the medical professional’s malpractice played a role in a patient’s death. While many states in the United States have passed caps on how much patients can be awarded, Oregon only has a cap for non-economic damages in wrongful death cases from medical malpractice. That cap is set to $500,000. This is good news for patients who are injured, because there is no limit to the compensation they can receive for lost income, loss of financial support, pain and suffering, and medical treatments in the past and future.

Calls for Law to Recognise Same-Sex Adultery in Divorce Cases

Spouses, divorcees and legal professionals are calling for the law to recognise same-sex extra-marital affairs as adultery. Currently, if one partner in a marriage – whether the marriage be same-sex or opposite-sex – has an affair with somebody of the same sex the law refuses to recognise this as adultery.

Many feel that the failure to accept same-sex relationships as a form of adultery is outdated and inappropriate, especially now same-sex relationships have been eligible for the institution of marriage itself since last year. However, there is also an important practical difference which could leave wronged spouses in both same-sex and opposite-sex marriages worse off when pursuing a divorce from a partner who has had a same-sex affair.

If one partner in a marriage has an affair with a person of the opposite sex, then this adultery is the grounds on which their partner can seek divorce. If the affair is with a person of the same sex, then since the law does not recognise this as adultery the wronged partner must instead pursue the divorce on the much broader and more generic basis of “unreasonable behaviour.” Settlements in divorces on these grounds tend to be noticeably less favourable for the partner pursuing the divorce than those cases where adultery is the basis. As such, some spouses whose partners have cheated on them could be left significantly worse-off than others after divorce because the letter of the law fails to class the extramarital affair as a form of adultery.

A spokesperson for human rights organisation the Peter Tatchell Foundation said that the Foundation considers this distinction problematic. While the organisation believes that the modern state of family law makes the whole concept of adultery somewhat outdated, failing to recognise same-sex affairs in the same way as extramarital dalliances “ is not equality.”

According to the official website of the government, adultery is defined as when “your husband or wife had sex with someone else of the opposite sex, and you can no longer bear to live with them.” This definition applies in England and Wales, while Scotland and Northern Ireland have their own laws on the matter.

There are support groups in existence specifically for those who find themselves in this situation, who are quick to point out they feel no less wronged than those whose partners have had extramarital affairs with members of the opposite sex. According to one woman, who could not use adultery as the basis for leaving her twenty-year marriage even though her husband had engaged in a number of affairs with other men, said that it “completely cuts underneath you sense of yourself, your sense of marriage.”

Higher Courts’ Time Being Wasted, says Senior Judge

Sir Terence Etherton, a senior judge who serves as chancellor of the High Court, has criticised the way in which the time of the higher courts and most qualified judges is being wasted. According to Sir Terence, the higher courts are having to handle a large volume of comparatively minor hearings that could actually be dealt with perfectly well in the lower levels of the court system.

Etherton called for greater amounts of investment in courts at lower levels, most particularly at the level of county courts, to enabled greater amounts of work to be filtered down to them.

Speaking to a London conference held earlier this week, Sir Terence said that judges the High Court and the Court of Appeal, in particular, were having to spend their time dealing with cases which could have been handled fully and competently by a lower court. However, while lower courts are perfectly well-equipped to handle those cases in principle they do not currently have the ability to deal with the full volumes in practice. Devolving matters from higher courts to lower ones would therefore involve both judicial and administrative investment, Etherton said.

“A High Court judge,” Etherton told the conference, “is a valuable and expensive commodity; even more so a judge of the Court of Appeal.” Yet, he said, much of the work handled by Court of Appeal judges involves dealing with applications for permission to appeal, both on paper and online. This, along with some of the work that falls at the feet of High Court judges, means they must waste time and energy on matters that “do not warrant their level of expertise.”

He concluded: “It is wasteful, inefficient and costly to deploy a higher level of judge than the case requires.”

Sir Terence’s criticisms are somewhat timely. This very week, the levels of “waste and inefficiency” that are “inherent” in the UK’s justice system came under fire from Michael Gove, who was appointed Lord Chancellor following the recent election. There is, Gove contended, “overwhelming” reason to bring about reform.

Etherton also claimed that improving the efficiency of the UK’s court systems could prove vital for the domestic economy. For commercial cases, he said, the UK was facing growing levels of competition from the likes of Hong Kong, Dubai, Singapore and New York.

He said that considerations such as “Cost-effectiveness and efficiency… may be decisive in attracting business and financial international work, which creates considerable wealth in this country, not just for lawyers but for allied professions, including accountants and actuaries, and the financial sector.”

40% of all Divorce Petitions Have Errors

At a briefing earlier this week, it was claimed that 40% of all divorce petitions contain errors and must be returned to solicitors for correction. Solicitors are now being aimed to check over petitions more carefully in order to eliminate these errors before submission.

The briefing session in question related to a new central hub to handle a significant portion of divorce work in London and the South East. It is planned that this new hub will be able to handle 40% of the total workload relating to divorce cases in the region. Cases will only be passed on to the preferred court of the people involved if a hearing is required.

The new hub is to be based in Bury St Edmunds. There are a total of 45 divorce courts throughout London and the South East, and transfer of work from these courts to the new hub is taking place on a phased basis. So far, 28 of the courts have successfully completed this handover. The plan is for work from all of the courts to be passed over to the new centre. It is hoped that all work relating to undefended case, with exceptions made in cases of urgency, will fully be handled in Bury St Edmunds instead of in the courts. Work from London courts is likely to be transferred over in July. This was previously slated for June, but it is now unlikely that the original schedule will be met.

According to Tony Roe, a solicitor and the individual who announces the location of the new hub, the task will be a large one and this must be properly appreciated. However, he welcomed the start of open dialogue between family legal professionals and the HM Courts and Tribunals Service (HMCTS).

He said: “HMCTS hopes for economies of scale, not to mention a better service. Indeed, the service said that there was a backlog of 600 petitions in Brighton and Guildford going back three months and it was decided to transfer the work of those courts to Bury St Edmunds now.”

However, it was also Roe who raised concerns over the high proportion of divorce petitions submitted by solicitors with errors, some of which were very basic. Roe said that “HMCTS has quoted an alarming 40% of petitions which have to be returned for correction to solicitors’ firms owing to errors in drafting or procedure, for example failure to enclose issue fees, lack of signature or missing/incorrect details.”

This, he warned, had the potential to seriously slow matters down and it would therefore “pay practitioners to check and have someone else double check all petitions they plan to file.”