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This is the second of three articles recently written by Thompsons Solicitors for the Society of Labour Lawyers' publication Justice for All. If you would like to contribute an article analysing or commenting on a legal development from a left-wing point of view, please send submissions to administrator@societyoflabourlawyers.org.uk

 

Draft legislation on the discount rate is another attack on personal injury claimants
By Gerard Stilliard, Head of Personal Injury Strategy at Thompsons Solicitors

Recently the government continued their attack on those injured through no fault of their own with their draft legislation on the personal injury discount rate. There are significant shortcomings in the proposals, as discussed in the evidence we submitted to the Justice Select Committee.

The discount rate relates to the assumed rate of return which those receiving damages from a serious, long-term personal injury will be able to earn on their lump sum award. The rate determines whether victims receive the correct level of damages over the duration of their disability.

The (now twice-!, Ed) previous Lord Chancellor made an inevitable and long-overdue decision in March 2017 to amend the discount rate to ensure it was lawful. Until the recent correction, the discount rate had been far too high for many years, meaning that insurers were able to conclude injury claims based on an assumption of a return on compensation that bore no relation to the reality of the returns people were getting on their savings. Injury victims were getting short changed by insurers for years and there is nothing that those of us who represent the injured could do about it, because the rate was fixed.

Since March 2017 and under pressure from the insurer lobby, the government has acted in unseemly haste to introduce this draft legislation, which could be used to push the rate back up at the expense of seriously injured people.

The proposed legislation will mean that, in many cases, those with life-changing injuries will have to take greater risks with their investment and will be less likely to receive sufficient money to pay for the many years of healthcare, income support, rehabilitation and housing adaptations which their injuries have made necessary.

This is not acceptable. It undermines the fundamental and longstanding principle that those who are innocent victims of injury should receive full compensation for their losses. The government should look carefully at how seriously injured people in practice invest their damages. In our experience, those who come into funds after a traumatic injury are understandably cautious. Often they would prefer the security of a Periodical Payments Order (PPO), an annuity paid by the defendant/insurer – but insurers often refuse to make such payments, choosing to have the injured person bear the risks of investment.

Our evidence to the Justice Committee explained that the government’s approach to the discount rate is informed by the false assumption that the seriously injured are often ‘overcompensated’ for their injuries. In our extensive experience, this is a phenomenon which hardly ever occurs. We believe the losses suffered by injured people in the proposed changes will simply mean extra profit for insurers, and that is wrong. Any changes to existing legislation must always place the needs of the victims of injury at the heart of the assessment of damages.

Our three key messages to the Justice Committee were:

  1. Those investing a lump sum award of damages should not be expected to take any more than a minimal risk.
  2. The Lord Chancellor should continue to be responsible for reviewing the rate of return, but should do so on a more regular basis in order to be able to respond to significant changes in market conditions.
  3. Injured people who receive lump sum payments in damages must always be provided with the best investment advice. Mechanisms should be put in place to make sure no one is left to be captured by commercially motivated and loosely regulated financial advisors, whose best interests may not always be the same as their clients.

The bottom line for the select committee and the government must be to develop legislation that is appropriate for the victims of personal injury – those who have been injured, often catastrophically, through no fault of their own.

Another Attack on PI Claimants: Draft Legislation on the Discount Rate

This is the second of three articles recently written by Thompsons Solicitors for the Society of Labour Lawyers' publication Justice for All. If you would like to contribute an article...

This is the first of three articles recently written by Thompsons Solicitors for the Society of Labour Lawyers' publication Justice for All. If you would like to contribute an article analysing or commenting on a legal development from a left-wing point of view, please send submissions to administrator@societyoflabourlawyers.org.uk

 

More needs to be done to protect privately treated patients from malpractice
By Linda Millband, national practice lead for medical negligence at Thompsons Solicitors

 

In September 2017, the team at Thompsons Solicitors finally secured compensation for over 500 former patients of the disgraced former breast surgeon Ian Paterson. It was a cruelly and unnecessarily prolonged fight for women (and men) who were disgracefully treated by a man who in the words of one of our clients ‘played God’ with his patient’s lives.

Mr. Paterson carried out totally unnecessary surgical procedures and operations on patients both in the NHS and at hospitals run by private healthcare provider Spire. These ranged from invasive lumpectomies when biopsies would have sufficed, all the way through to full mastectomies on women it later transpired did not have breast cancer. A number of the injuries that he inflicted on his patients are very serious and there have been a significant number of fatalities.

 

Watching the reaction to publicity on this case was astonishing and profoundly moving. Every time Mr Paterson was featured in the national press – with whom we worked closely - more claimants came forward from all parts of the UK, and even from abroad. Even though he only operated from two private hospitals in the West Midlands (as well as one NHS Trust), as the news got around more and more people started questioning what it had never occurred them to question before – did they really need to have gone through what they went through, did a surgeon (described as ‘charming’ by some) whom they trusted operate on them purely to get more money?

 

It is deeply shocking how many people have been affected by his actions.

 

While working on the case and analysing the issues, it seemed to us that there is a flaw at the heart of the private healthcare industry. Paterson was able to continue operating for far too long; Spire’s monitoring and auditing of his activities appeared lacking and there was no effective system to review his work.  He pulled the wool over the eyes of his patients but he appears to have done the same to Spire too.

 

This is why we developed our Patients before Profits campaign. The NHS put their hands up and moved swiftly to deal with Mr Paterson when his abuse began to emerge.  We need legislation to ensure private healthcare providers take the same responsibility for surgeons who operate within their hospitals and have the same high standards of governance and audits as the NHS.  It cannot happen again that a patient the victim of clinical negligence can be told as one of our clients was by an employee of Spire that Spire had no responsibility for Paterson as they 'only rented him a room.'

 

And there needs to be adequate insurance cover in place in case things go wrong.

 

Paterson only had £10m worth of insurance cover. It cannot be acceptable that whereas the NHS picks up the bill for the malpractice of their doctors, private consultants whose actions can equally destroy or take lives and in whom it could be said people place greater trust as they are paying privately for their care have insurance that wouldn’t cover major catastrophes such as this. £10m wouldn’t cover even one catastrophic brain injury case.

 

Spire also had a policy which covered £10m, however they didn’t agree a settlement until five weeks before the civil trial, years after we started pursuing him.

 

In December 2017, the government announced that from January 2018 there is to be an independent, non-statutory inquiry into the medical negligence of Ian Paterson.  We welcomed the Inquiry needs to be detailed and swiftly concluded.

 

We have previously expressed doubt in the current government’s political commitment to take on and tackle failings of the private health sector. Our concerns are reinforced given that the recommendations of this inquiry will not be binding and it could simply ‘kick the can down the road’.

 

There are steps we have called for that could, with political will, have been taken by now. There is nothing to stop the government immediately insisting on for parity between private healthcare providers and the NHS so that private hospitals have to take the same responsibility for surgeons as the NHS and are required to adhere to the same high standards of governance and audits as the NHS. 

 

It has been an honour to act for the victims of Mr Paterson and to assist in bringing about a settlement. For the sake of those whose lives have been devastated and to ensure that no one else needlessly suffers in the same way, there needs to be real change and we will continue to campaign alongside our clients for that. 

Ian Paterson Case - Malpractice in the Private Health Sector

This is the first of three articles recently written by Thompsons Solicitors for the Society of Labour Lawyers' publication Justice for All. If you would like to contribute an article...

A History of the Society of Labour Lawyers, as delivered by Sir Ross Cranston at the Society’s Annual General Meeting on 4 December 2017 in his speech on ‘…And Access to Justice’

 

The AGM is a good time to reflect on the history, achievements and mission of the Society of Labour Lawyers, particularly as we are coming up to the 70th anniversary of the Society in 2018. 

 

The Haldane Society split in 1948 over an issue of whether membership of the Labour Party was a pre-requisite. The Haldanes included Communists such as Denis Pritt QC (if, like me, you trawl through commercial cases 1920s you will know he had a huge practice and appeared in many great cases. He tried to be a [Labour] MP in 1930 but failed, then became involved in supporting the National Council for Civil Liberties and the National Unemployed Workers’ Movement, continuing to support good causes through to the 1950s. But he had a massive blindspot. He went to the Soviet Union in 1936, saw the Moscow trials and said that this was ‘fair justice’. He became persona non grata to the Labour Party after the Second World War)

 

In the Haldane Society’s Annual General Meeting of 1948, Gerald Gardiner QC, Chair of the Haldanes, moved a motion that only Labour Party members should be permitted to serve on the Executive Committee. This story is told in splendid accounts by Nick Blake and Harry Rajak. In short, that amendment was lost. So Gerald Gardiner and a number of prominent members left and formed the Society of Labour Lawyers, its membership confined to members of the Labour Party.

 

For a while, the SLL manifesto continued to be ‘The Reform of the Law’ edited by Glanville Williams and published in 1951 under the auspices of the Haldane Society, having been authored before the split. The twenty authors were not identified and only one was female, but their proposals were quite radical then and even now. For example, they proposed the abolition of the QC system and achieved some compromise. One major proposal was for a Ministry of Justice, echoing a call from Lord Haldane. One major aim of that Ministry was to keep the law up to date. ‘The Reform of the Law’ called for publications to train judges, to unify the professions, reduce costs of entry for students, extend civil liberties and reform employment law: ending dismissal without notice and granting maternity leave. Many of these legal amendments were implemented, although not until the Labour Government took office in 1964. Gerald Gardiner (who was to become Harold Wilson’s Lord Chancellor) and Andrew Martin (Dr Martin was a Hungarian who was called to the English Bar: he became a Professor at Southampton University and the right hand to Gardiner) edited ‘Law Reform Now’, published in 1963. Martin came up with the notion of the Law Commission, which was created in a 1965 Act. As things turn full circle, the present chair of the Law Commission is a former treasurer of this society, Lord Justice David Bean. 

 

Other proposals, in both the 1951 book and the 1963 book included Legal Aid being touched upon, but not in great depth. In 1951, there was concern that only lawyers were on the Legal Aid Committee, not consumer representatives. In 1956, we proposed widening Legal Aid in criminal cases and an extension of legal aid to tribunal proceedings. But that was about it.

 

More radical contributions came in 2 pamphlets published by the Fabians (one published in 1968: ‘Legal Services for All’). To give a flavour of the content of these booklets, proposals included: strengthening and expanding Law Centres, raising the means test threshold, allowing for some Legal Aid above that threshold, funding lawyers in Citizens’ Advice Bureaux, an increase in the duty solicitor scheme and encouraging public interest law firms. This was all developed in a sophisticated, historical and comparative way. Long term, we proposed a new Legal Services scheme, with legal rights to be enforced at public expense. This was later developed to include the Office of Fair Trading, who could take action on behalf of consumers, and Royal Commission recommendations. All came to nothing with the election of Margaret Thatcher in 1979.

 

Like clockwork, we issued another manifesto prior to 2005: ‘Law Reform for All’ edited by David Bean; and again proposed a radical regime of reform. In many areas the Labour delivered or went further, setting up a Judicial Appointments Commission (following Glanville Williams’ earlier recommendations), rationalising the tribunals service, incorporating the European Convention of Human Rights into British Law, strengthening Freedom of Expression, the Equalities Act and creating new Environmental Rights; all chapters in ‘Law Reform for All’.

 

But with Access to Justice, the story has not been as rosy. One obvious problem is money. Another problem is that the Legal Aid budget was crowded out by criminal law and some Human Rights. When my Dudley North constituents had consumer problems, they weren’t able to access Legal Assistance. In Professor Roger Smith’s contribution in 2005, he said there are ‘no easy choices’ in Legal Services Policy. Restrictions on spending mean that money will run out: this is a problem facing all countries. He returned to the subject in 2015 and identified the use of technology as a way forward, applying lateral thinking to add to the work of our pamphlets in the 2000s.

 

As we have mentioned, we have got the Bach Commission, with its ambitious agenda for a Right to Justice Act, a Justice Commission, Legal Education and an Online Court offering advice and information. Their proposals have deservedly won wide support. But I say, with respect (genuinely, not as this is sometimes said to judges!), that the Bach Commission does not mean that the task is done. Firstly, the reach of Commission is heavily law oriented. In the past, the Society has been seen as involving non-lawyers and solutions proposed have not necessarily involved leg institutions: perhaps there could be ombudsmen. Secondly, there is the task of campaigning for the Commission’s recommendations. In the past the Society has argued that expenditure on Access to Justice can be as important as health and Education. We have used Dame Hazel Genn’s argument of a ‘cascade effect’ – that providing early legal assistance can prevent, for example, housing problems that have cascading effects on people’s lives. But, always, the competing demands on the public purse can drown out Access to Justice.

 

The Society of Labour Lawyers have achieved a great lot in its 69 years. There have been much done to deserve praise. But there is still much to achieve!

 

 

A History of the Society of Labour Lawyers and Access to Justice

A History of the Society of Labour Lawyers, as delivered by Sir Ross Cranston at the Society’s Annual General Meeting on 4 December 2017 in his speech on ‘…And Access...


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