Five Ways to Cut Police Complaints

Photo of Kevin Donoghue, Solicitor, who suggests how to reduce police complaints.

Kevin Donoghue, Solicitor, suggests how to cut police complaints.

By Kevin Donoghue, Solicitor Director of Donoghue Solicitors

Yesterday, the Independent Police Complaints Commission (“IPCC”) published its Police Complaints Statistics for England and Wales Report for 2012-2013 and 2013-2014. (The IPCC is responsible for overseeing the system for handling complaints against the police.)

The report is grim reading. It shows that police complaints are at record levels, the system for dealing with them is broken, and that meddling politicians made things worse. Here I propose some practical solutions to improve things for the police, the IPCC, and the public.

IPCC Police Complaints Report

The main points from the IPCC’s report, which you can read in full here, are:

  1. There were 34,863 complaint cases recorded in 2013-2014, a record high since the IPCC was established in 2004.
  2. This number is 15% more than 2012-2013, and 52% more than 2004. 38 forces recorded an increase in 2013-2014 compared to the previous year. 37,032 people serving with the police were subject to a recorded complaint, an increase of 6%. 88% of them were police officers.
  3. As complaint cases can include multiple allegations (e.g. police assault, false imprisonment and neglect of duty) the number of allegations recorded was 61,694 in 2013-14, a 10% increase on the previous year.
  4. People mostly complained about police neglect or failure of duty (30% of allegations). After the vague “other categories” (29%), complaints about incivility, impoliteness, and intolerance were next (15%), followed by assault (10%), oppressive conduct or harassment (6%), lack of fairness and impartiality (5%), and lastly, unlawful/ unnecessary arrest or detention (also 5%).
  5. The figures are slightly skewed by the broadening definition of a complaint to include “direction and control” in 2013-2014. This accounted for 4% of all allegations, and includes complaints about general policing standards, operational policing policies, organisation decisions, and operational management decisions.
  6. The IPCC use an allegation rate per 1,000 police force employees to compare allegations across all forces. The average rate increased in 2013-2014 to 251 allegations (compared to 228 in the previous year). The range was 98 to 436 allegations per 1,000 employees.
  7. In 2012-13 the IPCC dealt with 6,203 appeals. In November 2012 the appeals process changed so in 2013-2014 the IPCC dealt with 4,079 appeals, and chief officers in the police handled 3,134. Overall, appeals increased 16%.
  8. The IPCC compared statistics on how chief officers and IPCC staff dealt with appeals. In 2013-2014 20% of all appeals dealt with by chief officers were upheld. The IPCC upheld 46%, more than twice the amount.
  9. In 2013-2014 men made up 64% of complainants. 51% were White.
  10. In the “Discussion” section of the report, the IPCC refer to their own research from a survey in early 2014. They found that more people came into contact with the police in the previous 12 months than in 2011 (23% compared to 20%), and that they were less happy with their interactions (66% compared to 76% in 2011).
  11. They reported that people were more willing to complain (73% in 2014 compared to 68% in 2011), which may partly explain the rise in figures. But they noted that ethnic minorities are 9% less likely to complain that the White population and that young people are less likely to complain than people over 25.

In summary, the IPCC report shows that police complaints are increasing, that senior officers are quicker to dismiss them, and that the public is more dissatisfied with the police.

Police Complaints Plan

Nothing will change without action, so here’s a simple, five-point plan to cut police complaints:

i. Scrap the Police Reform and Social Responsibility Act (2011)

This Act, which came into effect on 22 November 2012, radically changed the police complaints procedure.

Now, except in very limited circumstances, if the complainant is dissatisfied with the outcome of the initial investigation, a “Chief Officer” in the same force will deal with the appeal unless the complaint itself is about a senior officer, it would justify criminal and/ or misconduct proceedings or a breach of rights under Article 2 or 3, or the complaint is referred to the IPCC.

The IPCC’s report shows how the police abuse this set up. As I note at point 8 above, the IPCC uphold more than twice as many appeals compared to chief officers (20% compared to 46%). Or, to put it another way, you have a reasonable 1 in 2 chance of a successful appeal to the IPCC, but a pathetic 1 in 5 chance with a Chief Officer.

With odds like that, it’s no wonder that people’s initial complaints are routinely dismissed before appeal. Chances are, the Chief Officer will agree.

Changing this system by taking Chief Officers out of the equation will help to put genuine independence back into the complaints process.

ii. Replace the internal Police Standards Departments (“PSD”) with independent IPCC units

It is often said that “Not only must Justice be done; it must also be seen to be done.”

Allowing a police force’s PSD, or internal investigations unit, to investigate their own officers is a clear conflict of interest. By taking the complaints investigation process away from them and putting it in the hands of independent investigators from the IPCC:

  • the public will gain confidence in the system;
  • complaints and appeals will be properly investigated;
  • senior officers will take the complaints process more seriously; and
  • serial offenders in the police will know that they can’t get away with repeated police misconduct.

The police and politicians may say this would increase costs and bureaucracy. Not so. If the PSDs are replaced with equivalent IPCC staff there would be no net increase. And finding these IPCC officers would be easy. Retiring police officers with good complaints records and a positive attitude to complaints could do the job, provided they didn’t investigate their own forces or officers they know.

iii. Incentivise police forces through financial rewards/ penalties

The present system has no rewards or sanctions to deal with police complaints properly. Linking funding to (independently vetted) complaints targets means that Chief Constables will prioritise police complaints, and by extension improve the conduct of their officers, which ought to lead to fewer complaints and instances of police misconduct.

Chief Constables could extend this system to their staff, so that they consider a police officer’s complaints record when reviewing salaries or promotions. That way the officers with the best records would be rewarded, which in turn would lead to a wholesale improvement in standards as those officers get promoted and instill a positive attitude in their staff.

iv. Compulsory annual training for all police staff and officers on the law, conduct, and complaints

The IPCC report highlighted the main reasons for police complaints (see point 4 above). “Police neglect or failure of duty” is the most common cause for complaint. This can take many forms, including mistakes made due to ignorance of the law. In my practice I regularly help people who have been unlawfully arrested or otherwise suffered police misconduct because police officers don’t know the law, such as in breach of the peace cases. (I wrote a blog post to explain breach of the peace law to police officers a while ago. Despite this I still receive many enquiries from clients who have been unlawfully arrested for this offence.)

Training to maintain expertise is common among the professions. For example, solicitors undertake a minimum of 16 hours “continuing professional development” a year. By ensuring that all officers attend regularly updated training courses on the law, conduct, and complaints they would be better able to serve the public. Training should include “soft skills” like civility and politeness. This would help cut complaints about the police’s high-handed and arbitrary behaviour.

v. Senior Police Officers to lead a culture change

On Monday BBC Radio interviewed me about the IPCC’s report. You can hear it here:

The interview focused on the rights of people to complain and, where necessary, claim compensation, as often the two go together. I stressed that we must protect our fundamental rights, such as the right to liberty. But if the police abuse our rights we should have the right to complain and, if appropriate, seek justice in the courts.

I regularly hear from people who have complained to the police after mistreatment. Because solicitors do not get paid for dealing with police complaints, most people try to deal with the police direct. The police’s failure to treat them and their complaint properly often leads people to contact solicitors like me who specialise in actions against the police. In some circumstances, like in this case study, we discuss other options such as claiming compensation from the police and seeking a formal apology. Often, the police’s apology, which is free and could have been given before getting solicitors involved, is more valuable to my clients than the money.

After my interview, listeners heard from Deputy Chief Constable Veale of Wiltshire Police. He made some curious comments. The Deputy Chief Constable said that Wiltshire Police’s 23% increase in complaints was “anticipated” because they take an “overly cautious approach to recording complaints”. Despite the increase he said that they provide an “incredibly good” service. Surely, if they were doing such a good job, fewer people would have cause to complain so their complaints record would be better than the national average of 15%?

The Home Office reported that, as at 31 March 2013, there were 129,584 full-time equivalent police officers in the 43 forces of England and Wales. In organisations this large and complex culture change comes from the top. Senior police officers need to focus on the cause of police complaints not the symptom. If police officers act within the law and treat people with dignity and respect then the public have no cause for complaint.  Concentrating on this core principle will cut police complaints, compensation claims, and improve the public’s increasingly negative view of them.

You would think that this would be obvious. But instead of getting their own house in order the police blame innocent victims of police misconduct. (I recently wrote about why attacking the non-existent “compensation culture” in police claims is nothing more than misdirection designed to deflect attention from the failings of the police themselves.)

DCC Veale’s answers, coupled with Norfolk’s Chief Constable Phil Gormley’s repeated blame of the “compensation culture” in this BBC interview, suggest that police management need to switch their focus. Chief Constables and their Deputies must stop blaming the non-existent “compensation culture” bogeyman, or patting themselves on the back for setting up committees, while ignoring the obvious criticism in the IPCC report and avoiding real change to the way they operate. It helps no one, especially the police themselves.

Effort

Public dissatisfaction with the police is higher than ever. It’s time to cut police complaints by addressing the way the police conduct themselves both before and after a complaint is made.

I appreciate that these five ways to cut police complaints involve a lot of effort, not least from politicians and senior police officers who have a vested interest in things staying as they are. But we, as the taxpaying public who are subject to the police’s conduct, deserve better. Let’s see if we get it.

 

If you want to claim compensation against the police contact me on 08000 124 246 or via my firm’s website. If you liked this article please click below to tweet it.[ctt tweet=”Kevin Donoghue, solicitor, suggests 5 ways to cut #police complaints (source: @donoghuelaw): http://ctt.ec/QHf21+” coverup=”QHf21″]

 

 

 

 

The Compensation Culture Trick

Photo of Kevin Donoghue, solicitor, who discussed the "compensation culture" on BBC Radio.

Kevin Donoghue, solicitor, discussed the “compensation culture” on BBC Radio.

By Kevin Donoghue, Solicitor Director of Donoghue Solicitors

Yesterday, James Whale of BBC Radio Essex interviewed me about the “compensation culture” and a Freedom of Information Act request showing compensation paid by Essex Police between 2011-2014. The BBC contacted me as I am a solicitor who specialises in actions against the police who has successfully sued Essex Police for compensation.

The interview focussed on why people receive compensation, how they go about claiming it, and whether there is a “compensation culture”. You can hear it here:

Mr. Whale followed a well-trodden path when he asked me about the so-called “compensation culture”, but to be fair to him, it was just one question in a wide-ranging and thought-provoking interview.

I pointed out that, by discussing the “compensation culture”, he seemed to be focussing on personal injury damages, which, despite the government’s efforts, are still promoted in cheesy adverts on daytime t.v.

The media, police, and government continue to trot out the idea that we are all a bunch of despicable compo-grabbers, claiming compensation for everything and anything, and taking money away from front-line services like the police in the process.

Only last year Norfolk’s Chief Constable Phil Gormley was interviewed on BBC radio about one of his own officers who was making a claim after getting injured at work. He repeatedly blamed the “corrosive compensation culture” for her decision to seek compensation, saying that “it generates a something for nothing attitude”.

As my analysis of the Essex Police figures shows, this is not only wrong, but misses the point and masks the true reasons for seeking redress in the first place.

Freedom of Information Act Data

Essex’s population is about 1.6 million people, served by 3,600 police officers (so the police make up only 0.225% of the total population). The BBC’s Freedom of Information Act request confirmed the following:

2011    Damages paid to members of the public £177,230.04

2012    Damages paid to members of the public £105,350.09

2013    Damages paid to members of the public £149,911.14

2014    Damages paid to members of the public £139,113.69 (to the 15 December 2014)

The following categories of claim are used to record information and payments could be made in any one of these categories: Unlawful arrest / False imprisonment, property damage / loss, dog bites, assault, negligence, breach of Human Rights, breach of data protection.

 2011    Damages paid to Police Officers or Police Staff £20,039.85

2012    Damages paid to Police Officers or Police Staff £135,682.13

2013    Damages paid to Police Officers or Police Staff £47,762.15

2014    Damages paid to Police Officers or Police Staff £241,464.50

The claims are recorded under the single category of Employer Liability Claim but will include : Injury at work claims, stress at work claim, damage caused to personal property whilst on duty, acts of negligence by police officers / police staff.

  • The figures do not include redundancy payments.
  • The figures do not include payments awarded in Employment Tribunal claims
  • The figures do not include ex-gratia and property damage claims
  • The figures do not include motor claims

 

Analysis of Data

These figures show the following:

  1. Between 2011-2014 the total for claims made by the public was £571,604.96. Police officers and staff received £444,948.63. The grand total for all claims paid was £1,016,553.59.
  2.  Essex Police officers and staff account for 44% of all compensation claims paid by the Force despite them making up less than a quarter of a per cent of the region’s population.
  3. Payments to the public over the four-year period were £0.36 per person. Compensation payments to the police and staff were £123.60.
  4. Compensation claims made by the public (all 1,596,400 of them) are broadly going down, so that in 2014 they recovered only 37% of the total paid out by Essex Police. By contrast the Force’s police and staff received the lion’s share of compensation in 2014: 63%.
  5. In the four-year period, compensation claims made by Essex police and staff against their employers have sky-rocketed, from a low of £20,039.85 in 2011 to £241,464.50, an increase of 1205%.

Over half a million pounds in four years looks like a lot of money paid out to the public.

But is it? Compared to police officers and staff, payouts to ordinary citizens are almost non-existent. Police officers and staff themselves claim almost as much money from their employers despite being a tiny proportion of the overall population.

Bear in mind that, according to the Freedom of Information request, the police’s compensation claims include, among other things, the same kinds of claims as the public. (ie. negligence claims by police officers/ staff, such as false imprisonment, unlawfully executed police warrant claims, malicious prosecution and misfeasance in public office claims, etc.)

Full disclosure: although most of our clients are ordinary members of the public, Donoghue Solicitors also represent police officers in these claims when they are treated as ordinary citizens instead of employees. Despite their jobs, police officers and staff can be victims of police misconduct too. It’s strangely comforting to think that the police don’t discriminate when abusing their powers.

And it is worth remembering that, regardless of who claims compensation, whatever money paid is well deserved. Police forces only pay out in actions against the police when they have to. Winning claims against the police is hard because they have statutory protections so they can do their jobs effectively without fear of prosecution. As a result, compensation is only paid in appropriate circumstances where police misconduct is clear.

Compensation Culture Myth

This official data shows that the public are making relatively few claims and being paid only in deserving cases.

I’ve written about this in the past but it bears repeating as the message doesn’t seem to be getting through: there is no such thing as a compensation culture.

The government, police, and media are wrong in focussing purely on compensation, especially in actions against the police. Why?

Because there’s more to making a claim than getting paid compensation.

Many of my clients want things that cost nothing like:

  • an apology
  • a promise of protection from future police harassment
  • an acknowledgment that the police made mistakes and a promise that they will put things right
  • an assurance that the police will receive training so others don’t suffer.

In short: they want justice.

A recent case of mine proves this point.

Essex Police made an error when they wrongly effected a police warrant at my client’s flat looking for drugs. He was held for 1 hour 20 minutes while they searched his flat and established that he had no drugs on the premises and was not a criminal.

They did not apologise at the time and, to make matters worse, Essex Police officers brought along a journalist from the local newspaper. The press published pictures of the flat door, showing the house number, and an arrested man’s face, which they blurred in the photograph. Anyone reading the paper who knew my client would have been in no doubt that he was a drug dealer, and not a respectable businessman.

My client was understandably upset and complained to Essex Police. He instructed me to make a claim because they ignored his complaint.

I helped him receive £4,000 compensation and costs but, more importantly for my client, he got an apology and offer to publish a retraction in the newspaper.

I suspect that he would not have claimed compensation if the police contacted him on the day of the raid and gave him an immediate apology, published a retraction, and re-assurance that they would not trouble him again. The fact that they did not offer that simple, and free, solution led to his compensation claim and a payment of thousands of pounds in compensation and legal fees.

Misdirection

I’m sure Essex Police were quietly happy that the Freedom of Information request did not also include a demand for details about whether police complaints had been made and/ or resolved before they received the compensation claims. The police have set the agenda so successfully that no one thinks to ask.

By concentrating solely on compensation, the authorities are cleverly pointing the media and unsuspecting public in the wrong direction. They can paint genuine claimants as grasping opportunists to discourage:

  • legitimate claims;
  • criticism of their misconduct; and
  • questions about their methods when confronted with a complaint.

Instead of more nonsense about the “compensation culture”, surely this is issue politicians and media should investigate. The public have a right to know why the police are spending taxpayer money before offering free remedies. But this puts the spotlight back on the police, and they don’t like that one bit.

 

If you want help claiming compensation from the police contact me on 08000 124 246 or complete the form on my firm’s website.

 

 

A Police Claims Solicitor’s Christmas Wish

Photo of Police Claims Solicitor Kevin Donoghue.

Police Claims Solicitor Kevin Donoghue.

By Kevin Donoghue, Police Claims Solicitor and Director of Donoghue Solicitors

Can you believe it’s nearly the end of 2014?

As a police claims solicitor, this year I used the firm’s blog to highlight issues I came across in daily law practice.

As my blog posts show, there are lots of areas of concern. My Christmas wish is for 2015 to see things improve. Here’s why, and how this can happen.

Police Claims Solicitor Blog Posts

In January I suggested the police and their solicitors make three New Year’s resolutions:

  • Think of the police force’s money as your own
  • Treat people as you would want to be treated
  • Respect your opponent.

Unfortunately, this message was not heard. During the course of the year I repeatedly dealt with negative police tactics. They abused the court system to try to avoid responsibility for police misconduct.

When I defeated the police’s solicitors at court my clients benefitted as their claims could progress. But frustratingly the police solicitors’ actions caused delay, which helps no one, and the courts ordered the police forces involved to pay wasted legal costs. (In reality, you and me as taxpayers picked up these unnecessary extra bills.)

As I said nearly a year ago, this is plain wrong. The police’s solicitors should not misuse the legal process, and taxpayers should not have to foot the bill.

But seven months later I was compelled to remind the police’s own solicitors how ethics rules work. I urged them to remember their legal and moral obligations for the proper administration of justice. In 2015 I hope they will.

Breach of the Peace Solicitor Help

Turning to the “bobby on the beat” I asked if the police know the law in breach of the peace cases.

This piece came about because I received many requests for help from people who had been wrongfully arrested for “a breach of the peace”.  I explained the law in clear, simple language that a police officer on the beat could understand. I hoped that the police’s highly-qualified and expensive solicitors would read it too, to avoid wasting time and money fighting claims. Still the calls to represent people who had been unlawfully arrested for breach of the peace kept coming.

Police Misconduct Cases

I also sought a change in the police’s body camera policy as I disagreed with the proposal that the police’s cameras did not have to be filming at all times when they were on duty. The guidance that police officers could selectively use body cameras seems wrong to me. The police could abuse it to avoid filming incidents where they misbehave.

As I pointed out, it’s not just innocent people involved in episodes of police misconduct who benefit from the proper use of body cameras. The police get valuable protection from complaints and claims too. And it’s good for society. The widespread civil unrest caused by the fatal shooting of Michael Brown in Ferguson, USA, could be avoided here with body camera evidence removing doubt.

Fortunately, as many people have smartphones with video cameras, bystanders filming police misconduct became more common in 2014. In July I reviewed a police assault shown on Facebook and suggested that the injured man seek legal advice. I hope he has.

Taser assaults were in the news this year, which is not surprising when you consider that the police used Tasers more than 10,000 times in 2013 alone.

I reviewed the evidence and wrote about why the police’s policy with these potentially deadly weapons is wrong. I urged the police to agree ethical standards across all forces. Unsurprisingly, we’re still waiting.

Police Claims Funding Threat

As a police claims solicitor I worry that recent changes in legal funding could potentially have far-reaching consequences for our civil liberties. In November I asked the government to extend “qualified one way costs shifting” to cover all actions against the police, including those where the victim did not get injured. I’m hopeful that they will do this in the New Year, but as always with the current government when it comes to citizens’ rights, I won’t hold my breath.

Christmas Wish

On many occasions I asked for something that we have the right to expect: for the government, police, and their legal representatives to act responsibly and ethically.

If I have one Christmas wish this year it’s that they think about this seriously. These people are public servants, after all. There’s a clue in their name about whose interests they are meant to serve.

Thanks

In 2013 there were 129,584 full-time equivalent police officers in England and Wales according to the most recent government statistics. I fight against police misconduct daily but know that they’re not all bad. The majority are doing a good job in difficult circumstances. I am sure we all appreciate the hard-working and decent police officers who have carried out great work throughout the year.

On a more personal note I take this opportunity to thank all of our clients, contacts, staff, family, and friends for your support this year.

Thanks to you we’ve had a busy, but fulfilling, year at Donoghue Solicitors.

We‘ve been in great demand for our services in actions against the police, accident claims, and professional negligence matters.

We’ve won lots of claims for our clients, recovering hundreds of thousands of pounds of well-deserved compensation for people who have suffered through no fault of their own.

And along the way we’ve raised money for charity and helped in our local community.

Donoghue Solicitors would not exist without you, and I am deeply grateful to all who make this a successful firm. Helping people who have suffered through no fault of their own is my passion. I am fortunate to do that every day.

From everyone here at Donoghue Solicitors, I wish you a merry Christmas and a very happy 2015.

Kevin

P.S. If, like me, you have young children, you might enjoy this interactive Santa tracker from google. It’s fun, free, and will give the kids something to do while you’re wrapping the presents!

 

If you want help from a police claims solicitor, contact Kevin Donoghue on 0151 933 1474 or fill out the simple form on the website.

 

 

 

Without changes to QOCS, could Ferguson happen here?

It’s said that when America sneezes the rest of the world catches a cold.

If the government doesn’t take urgent action to change its policy on Qualified One Way Costs Shifting (“QOCS”), we might need to get an industrial-sized box of Kleenex® ready.

Kevin Donoghue, solicitor, explains why.

Photo of Kevin Donoghue, Solicitor, who explains why QOCS rules must change.

Kevin Donoghue, Solicitor explains why QOCS rules must change.

In August this year Darren Wilson, a white police officer, killed Michael Brown, an unarmed black man.

Despite taking place 4,000 miles away, the story is relevant here because there are similarities between our legal systems.

The killing in Ferguson, a suburb of St. Louis, Missouri, USA, sparked months of riots and protests across America about perceived racism in the police.

On Monday, 24 November, a grand jury convened by the state of Missouri decided not to indict Officer Wilson on charges of murder, manslaughter, or armed criminal action. He will not be prosecuted in the state’s criminal courts with these charges.

Michael Brown’s parents urged calm when the decision was announced, but their wait for justice continues.

So what can they do now?

Compensation Claim

The grand jury slammed the door on state criminal proceedings but a federal (government) investigation continues.

Even if that fails to bring Officer Wilson to justice, the family may still have the right to launch a civil claim against Officer Wilson (and St. Louis police) for wrongful death.

Taking actions against the police in civil court is an important part of the justice system. It steps in where criminal law fails.

It ensures that if Officer Wilson does not face jail time he, and the police force which employs him, could be made to pay compensation to Mr. Brown’s family.

Although compensation can’t bring their son back, a civil court judgment against the police might help the family achieve a sense of justice and closure.

Photo of a Ferguson protest.

People have been protesting about Ferguson since Michael Brown’s shooting.

Civil Claim Against the Police

Using the civil courts to seek justice mirrors my experience.

As a solicitor who specialises in civil actions against the police, I represent people who have been failed by the police, courts, and the criminal justice system.

For them, seeking justice is often more important than receiving compensation. An apology and/or court judgment can help ease the suffering they have endured and put the police’s misconduct in the past.

For example, my clients A.A. and H.A. initially received only a cursory apology from the Metropolitan Police after armed officers wrongly conducted a dawn raid at their home.

During the raid police assaulted both men. Afterwards they were afraid to be in their own home.  (You can read the full case study here.)

Feeling angry, upset, and mistreated; they contacted me as I am a solicitor who specialises in claims against the police.

I sued the Metropolitan Police for:

  • assault,
  • negligence,
  • trespass,
  • false imprisonment, and
  • breach of the Human Rights Act (right to respect for private and family life).

The Metropolitan Police denied liability, saying they had acted lawfully. And they said that there was no evidence my clients had suffered injuries even though they needed medical attention after the police assault.

This only increased my clients’ sense of injustice.

I prepared the case for trial but, late on, the Metropolitan Police entered into sensible negotiations. I eventually settled both my clients’ claims for £18,000 plus full legal costs and, importantly for them, obtained a full apology from the police.

Both clients were happy that justice had been done and that the police accepted their mistake.

Civil Liberties Threat

Without an independent solicitor like me fighting in their corner, A.A. and H.A. would not have received justice or closure.

Why? Because solicitors who represent victims of police abuse are willing to take on the police when their clients have been abandoned by the Crown Prosecution Service or Independent Police Complaints Commission.

It matters to everyone, including the police themselves, that police misconduct is challenged.

We all benefit when brave citizens take on the State because:

  • police procedures and training are reviewed and improved;
  • individual police officers are held to account and “bad apples” disciplined or sacked;
  • government policy can be influenced; and
  • society sees that justice is done and the Rule of Law upheld.

This last point is crucial. The Ferguson, Missouri, demonstrations show what can happen when the public feel aggrieved.

With all these benefits, you would think that the government would be keen to support solicitors and their clients who bring actions against the police.

Not so.

In itself, civil law is complicated and actions against the police cases are hard to win. But recent government policy towards legal funding suggests that it is determined to make it harder to bring a civil claim.

By doing so, the government is eroding access to justice and, with it, our civil liberties.

Unfair QOCS System

I have previously written about the disastrous impact of the Legal Aid, Sentencing, and Punishment of Offenders Act (2012) (“LASPO”) which came into effect on 1 April 2013.

LASPO introduced Qualified One Way Costs Shifting (“QOCS”) costs protection in personal injury claims.

Even though actions against the police are civil liberties cases at heart, they have been lumped in with whiplash, tripping accidents, and other personal injury claims. This is because personal injury is often part of these cases. For example, there could be a police assault claim for injuries sustained when applying handcuffs during arrest.

The QOCS system has made actions against the police with personal injury claims harder to bring because:

1. QOCS could leave successful claimants short-changed

Pre-LASPO, if the successful claimant won, they recovered their full legal costs and insurance from the responsible party. If they lost, after the event insurance covered all costs except their own legal fees, which were usually covered by no win no fee agreements.

This gave the innocent victim of police misconduct peace of mind that they would not suffer financially as well as physically and emotionally.

Post- LASPO, successful claimants now have to pay their own lawyer’s “success fees” and after the event insurance (if obtained) from their damages. This could discourage claimants as it might leave them with less compensation than they would have received before April 2013.

2. Uncertainty about the extent of QOCS protection

The main advantage of QOCS is that, unless exceptional circumstances apply, a personal injury claimant who loses their case will not have to pay their opponent’s legal costs. And if they have a no win no fee agreement with their solicitor, they don’t have to pay their own legal fees either. As a result, they are left only with their expenses (“disbursements”) to pay. This is useful, but not as good as the old system which provided them with full costs protection either way.

The problem with QOCS in police claims is that it is unclear if it applies to the whole claim or just the personal injury part, and it does not apply at all to cases where no personal injury is claimed, such as trespass cases.

I ran H.A. and A.A.’s cases under the old system so they received 100% of their damages and legal costs.

Under the new QOCS system, because they suffered a police assault, my clients H.A. and A.A. might have received full protection for their entire claim, but I could not guarantee it. They may only have received costs protection for the police assault. In that situation, if they lost, the court might have ordered my clients to pay the Metropolitan Police’s legal costs relating to the rest of their claims for trespass, breach of Human Rights, and everything else.

Unfortunately, the rules are badly drafted and no court has made a decision which solicitors can rely on to advise their clients. This uncertainty about QOCS puts some people off making a claim.

3. Police take advantage of QOCS confusion

Finally, a consequence of the QOCS changes is that, in my experience, the police are more willing to fight cases to trial. They exploit the confusion and now see claimants as a soft touch.

QOCS Consequences for Civil Liberties

The government introduced LASPO to curb the so-called “compensation culture”. It has been proven that doesn’t exist and, even if it did, should our civil liberties be eroded by discouraging people from claiming compensation?

Parliament needs to recognise the consequences of LASPO and act now to extend QOCS costs protection to all actions against the police, even where personal injury is not claimed, so that people can feel confident when standing up for our rights.

Protecting the Rule of Law from abuse by the police must come first. Otherwise, what’s happening in the USA might happen here.

 

Kevin Donoghue is a solicitor who specialises in civil actions against the police. Contact him on 0151 933 1474 or through the Donoghue Solicitors website.

Image credit: Tony Alter on flickr.

 

 

 

 

 

Is the SARAH Bill an abuse of Parliament’s Powers?

Photo of Kevin Donoghue, solicitor, who considers the SARAH Bill.

Kevin Donoghue, solicitor, considers the SARAH Bill.

By Kevin Donoghue, solicitor

On the eve of Guy Fawkes Night it was fitting that the government showed that it was capable of blowing up respect for Parliament’s legislative powers.

On 4th November, the Social Action, Responsibility and Heroism Bill (also known as the “SARAH Bill”) received its second reading in the House of Lords.

The government wants the SARAH Bill to “make provision as to matters to which a court must have regard in determining a claim in negligence or breach of statutory duty”.

It is remarkably short, at just over 300 words. If you had a homework assignment to draft a bill and came up with it you’d get an incomplete.

During the debate Lord Faulks, the Conservative Minister responsible for promoting the Bill in the House of Lords, explained that the purpose of the Bill is to encourage volunteering and public spirit. If passed, it would give reassurance to people who are sued that the courts will recognise the context in which they acted.

He said the Bill was broadly drafted to apply to a range of situations and “bodies such as small businesses, volunteering organisations, religious groups and social clubs, as well as to individuals.”

Lord Lloyd of Berwick said that the Bill was unnecessary. He questioned if its true purpose was to send a message to the Courts instead of making new law. If so, that is not a proper use of Parliament’s legislative powers and it should not allow the Bill to become an Act of Parliament.

Was he right? Let’s look at the clauses in turn:

1. When this Act applies

This Act applies when a court, in considering a claim that a person was negligent or in breach of statutory duty, is determining the steps that the person was required to take to meet a standard of care.

The Bill deals with the consequences of compensation claims, which usually include personal injuries. They are based in either negligence, breach of statutory duty, or both.

Negligence is proven when a claimant can show that:

  • a defendant owed him/ her a duty;
  • the defendant breached that duty;
  • the claimant suffered loss; and
  • the loss was reasonably foreseeable by the defendant.

Statutory duties, where Parliament enacts laws to extend common law, include strict liability cases.

Before 2013 strict liability laws protected people in accidents at work because defendants could automatically be found liable without claimants having to prove negligence.

But in 2013 Parliament passed the Enterprise and Regulatory Reform Act, removing strict liability from most work accident cases. Now claimants must meet the (harder to prove) negligence standard of care.

As a result of both common and statutory law, the courts are already required to consider the steps taken to meet the required standard of care, so there’s nothing new in Clause 1 of the Bill.

2. Social action

The court must have regard to whether the alleged negligence or breach of statutory duty occurred when the person was acting for the benefit of society or any of its members.

This clause is also already well covered in both statutory and common law.

In 2003 Lord Hoffman said that the courts must consider the “social value of the activity which gives rise to the risk” in the House of Lords judgment of Tomlinson v Congleton Borough Council.

Despite this guidance binding on all courts which deal with compensation claims, in 2006 the government brought in the Compensation Act. This Act merely confirmed the common law approach stated by Lord Hoffman when it said:

Part 1 Standard of care

1 Deterrent effect of potential liability

A court considering a claim in negligence or breach of statutory duty may, in determining whether the defendant should have taken particular steps to meet a standard of care (whether by taking precautions against a risk or otherwise), have regard to whether a requirement to take those steps might—

(a)prevent a desirable activity from being undertaken at all, to a particular extent or in a particular way, or

(b)discourage persons from undertaking functions in connection with a desirable activity.

In the debate Lord Faulks tried to justify Clause 2 of the SARAH Bill. He said that replacing the “may” consider clause in the Compensation Act with the “must” consider clause in the SARAH Bill is a significant change.

It isn’t.

Lord Hoffman’s ruling established the current law. Neither the Compensation Act nor the SARAH Bill adds anything.

Moving on, “acting for the benefit of society or any of its members” is the kind of woolly phrase which only a non-lawyer like Chris Grayling, our current Lord Chancellor, could approve.

Can’t it be argued that we all act for society’s benefit, even if for purely selfish reasons?

Compare factory owners and Cub Scout leaders, both of whom benefit if this Bill becomes an Act.

A factory owner could just as easily take advantage of this phrase when making employees work without proper protective gear. Employers like factory owners keep people in work, pay taxes, support their communities etc. and benefit society that way. Cub Scout leaders help children grow as people. Who is to say which benefits society more?

If left in, defendants (or more accurately, their insurers) will abuse this unnecessary clause.

3 Responsibility

The court must have regard to whether the person, in carrying out the activity in the course of which the alleged negligence or breach of statutory duty occurred, demonstrated a generally responsible approach towards protecting the safety or other interests of others.

Here’s another Grayling phrase: “generally responsible approach”. What’s that? On what legal standard is it based? It’s an entirely new phrase with no legal precedent.

If introduced it will lead to expensive litigation and wasted court time while the courts, claimants, and their lawyers, try to make sense of it.

Right now all volunteering groups, businesses (small or otherwise), clubs etc. must put standards and procedures in place which have developed over years of common law and government made statutes.

To give them a new defence based on made-up language would undermine all that.

4 Heroism

The court must have regard to whether the alleged negligence or breach of statutory duty occurred when the person was acting heroically by intervening in an emergency to assist an individual in danger and without regard to the person’s own safety or other interests.

And there’s more: the court has to consider if “the person was acting heroically”.

What’s that? Not all heroic acts are dramatic.

In 1955 Rosa Parks refused to move to another seat on a bus and helped end racial inequality in America.  Nelson Mandela spent 27 years in jail and contributed to the end of Apartheid.

Both would undoubtedly be considered heroes, but, applying the wording of this clause, were they “acting heroically”? Arguably not; as there was no “emergency” or “danger”.

And this clause is potentially life-threatening for our emergency services, as it requires the court to apply the “heroism” clause only when it decides that someone was acting “without regard to the person’s own safety or other interests”.

It worries the fire service as they think  it will encourage people to go into burning buildings to try to save someone, only to need rescuing themselves.

Guidance from St John Ambulance and others stresses that you should make sure you never put yourself at risk. This clause undermines them all.

Lord Lloyd was right. There is nothing new in this ill-considered and unnecessary Bill.

 “Silly” SARAH Bill

Unsurprisingly, both Houses of Parliament had a field day with the SARAH Bill.

Even Conservatives criticised it, calling it “silly” and “utter tosh”.

So why bother?

As always, it comes down to money.

The Conservatives have been in hock to the insurance companies for years. The Guardian found that they had contributed £4.9 million to the Tories between 2005-2011.

Worse still, Lord Chancellor Chris Grayling received £71,000 from the founder of Direct Line Insurance to run his office when he was a lowly shadow home secretary.

This modest investment in our leaders is a bargain when you consider the breakneck pace of reforms to the legal sector, and in particular compensation claims:

  1. the Legal Aid, Sentencing and Punishment of Offenders Act 2012 greatly affected the rights of innocent accident victims by removing their right to recover fees and expenses from the person responsible. Bar Council Chairman Nicholas Lavender QC claimed in a speech on Saturday 8 November that this Act has denied access to justice for 400,000 people in the last year alone.
  2. the Enterprise and Regulatory Reform Act 2103 removed strict liability from health and safety regulations, making it harder for people to claim compensation after accidents at work; and now
  3. the SARAH Bill 2014, which, Lord Faulks freely admits, is designed to help “small businesses” and others (i.e. their insurers) fight claims. As he said in the House of Lords debate about Clause 3:

“It cannot be fair that such people feel pressured to settle speculative and dubious claims. So as well as giving that reassurance, we hope that this provision will give them greater confidence in resisting such claims and indeed—this is important—will help to deter such claims being brought at all.”

Solution

As I have shown, the SARAH Bill is a pointless waste of Parliament’s time. Rather than help heroes and volunteers, its true purpose is to:

  • help the Conservatives cosy up to their insurance company paymasters;
  • increase insurance company profits; and
  • deny the rights of innocent accident victims.

Unfortunately, Lord Lloyd withdrew his amendment to have the Bill killed at the second reading stage. It will now be considered on 18 November at a House of Lords Committee.

My suggestion: use it as kindling for a bonfire.

Only then will the government and their insurance company backers know that their cynical abuse of Parliament’s legislative powers failed.

 

If you have had an accident at work and want to claim compensation, call me on 0151 933 1474 or get in touch through my firm’s website.

 

 Thursday 13 November 2014 Update:

Labour MP Paul Flynn recently filed an Early Day Motion for a debate to “drop this lamentable headline-seeking example of crude populism.”

And in Parliament on Tuesday, Justice minister Shailesh Vara confirmed that:

The Bill will send a powerful message to the public that if they are acting selflessly in an emergency to help somebody in danger and something goes wrong, the courts will always consider the context of their actions if they are sued in negligence or for breach of statutory duty.” (my emphasis)

Lord Lloyd was right. The government blatantly state that the purpose of the Bill is to send a message, not to legislate. That is an improper use of Parliament’s powers. The government should withdraw this Bill immediately.

 

 

 

 

 

 

 

 

Our part in Halfords’ Christmas Advert

We have a star in our midst!

Our bookkeeper Vicky Kean’s 7-year-old daughter, Gabriella, is starring in Halfords’ Christmas t.v. advertising campaign.

The advert shows Christmas morning in the 70s/ 80s.

Gabriella plays a young girl watching t.v. before being drawn to the window where boys on brand new BMX bikes ride by.

It’s nostalgic and fun. Watch it here:

A nationwide t.v. audience will see Gabriella’s advert during ITV’s “The X Factor” on Saturday 1st November.

Proud mum Vicky says that Gabriella loves acting and that this shoot was especially fun as “she got to eat loads of cake!”

All of us here at Donoghue Solicitors are very proud of her and look forward to encouraging Gabriella’s acting career in the future.

Can Jogger Sue for Breach of the Peace Arrest?

Photo of Kevin Donoghue, a solicitor who helps people sue for breach of the peace arrest.

Kevin Donoghue, a solicitor who helps people sue for breach of the peace arrest.

By Kevin Donoghue, Solicitor.

Yesterday the BBC reported that Dean Farley, 28, accidentally ran into Prime Minister David Cameron while jogging in Leeds.

Tom Heyden of the BBC later interviewed me about the story as I specialise in civil actions against the police, including helping people to sue after unlawful arrests for breach of the peace.

Mr. Cameron’s security team:

  • arrested Dean “to prevent a further breach of the peace”;
  • detained him for an hour; then
  • “de-arrested” him after satisfying themselves that Dean was innocent.

Mr. Farley explained how the police manhandled, handcuffed, and held him in a police van while they checked his story. He said that he was jogging to the gym for a workout with a personal trainer.

As well as suffering physical injuries, Dean explained that he was “quite shook up” by the “harrowing” incident.

As Mr. Farley was held and detained  by the police he might consider asking a solicitor for help to sue for breach of the peace arrest.

But can he?

There are three things to consider:

  1. Was the arresting officer right to charge Dean with a breach of the peace?
  2. Was the arrest and detention lawful?
  3. Can the police justify Dean’s detention for an hour?

The Law in Cases Where People Sue for Breach of the Peace Arrest

The police charged Dean with a breach of the peace. Was that the right offence?

I have previously blogged about if the police know the law in breach of the peace cases as I worry that, all too often, they get it wrong.

To rely on a charge of breach of the peace, the arresting officer must have had:

  • reasonable grounds to believe that Dean had done (or threatened to do) an act which;
  • either actually harms a person or his/ her property; or
  • is likely to cause such harm.

The BBC report says that Dean Farley did not make contact with David Cameron. Even so, in that moment, it is understandable that an officer would think that there was a threat of harm to the Prime Minister or one of his protection team.

So the charge of breach of the peace appears correct.

False Imprisonment

To claim for false imprisonment, Dean Farley would need to show that the police detained him without lawful authority.

The legal definition, from Clerk and Lindsell on Torts, describes detention as:

“Complete deprivation of liberty for any time, however short, without lawful cause”.

Dean says the police arrested and detained him for an hour.

The burden of proof then shifts to the police.

To prevent Mr. Farley being able to sue for breach of the peace arrest the police must show that they had lawful grounds for the arrest.

Grounds for Arrest

Sections 24 and 28 of the Police and Criminal Evidence Act (1984) (amended by the Serious Organised Crime and Police Act (2005)) describe the following conditions for a lawful arrest:

  1. the arresting officer honestly suspected the arrested person was involved in the commission of a criminal offence;
  2. the arresting officer held that suspicion on reasonable grounds;
  3. the arresting officers’ reasons for effecting an arrest amount to a reasonable belief that the arrest was necessary, usually to allow the prompt & effective investigation of the offence or of the conduct of the person in question;
  4. the officer informed the arrested person of the fact & grounds of arrest as soon as reasonably practicable; and
  5. the arresting officer’s exercise of his or her discretion to arrest was reasonable in public law terms because PACE confers a discretion, not a duty, to arrest.

Applying these tests to Dean Farley’s case, the arresting officer would say that he had an honest suspicion that Dean had harmed, or threatened to harm, David Cameron or a member of his protection team, so committing a breach of the peace.

Watching the video footage Dean’s conduct could certainly be viewed as potentially threatening, although we now know that he had no such intent to harm. So objectively, we can agree that the officer’s suspicion was reasonable.

The arresting officer would also say that he had to arrest Dean to investigate the alleged offence.

Again, viewing the footage, it seems reasonable to take the police’s side.

The arresting officer promptly told Dean that he had been arrested “to prevent a further breach of the peace” so the fourth condition was satisfied.

Finally, there does not seem to be a public law reason to challenge the arrest.

Justified Detention for Breach of the Peace

It appears that the initial arrest was lawful so, on that basis, Dean cannot sue for breach of the peace arrest.

But  the police have to defend the continuing detention on a “minute by minute” basis. As the then Master of the Rolls, Lord Donaldson, said in the judgment of Mercer v Chief Constable of Lancashire (1991):

“what may originally have been a lawful detention may become unlawful because of its duration or of a failure to comply with the complex provisions of the Police and Criminal Evidence Act 1984.”

So Dean could still sue for a breach of the peace arrest if he can show that the police held him longer than necessary.

He told the BBC that the police kept him for an hour while they checked his story. Mr. Farley was then released without charge.

It is unlikely that a court would criticise the police for holding Dean for this time. It seems reasonable to conduct the enquiries he described such as checking his story with his boss, the gym etc. given the high-profile nature of the incident.

There may be other evidence which comes to light later, but on the information from the BBC report and video alone, it seems that Dean’s arrest and detention for breach of the peace were justified.

Unlike some of my other clients, I would not advise him to sue for breach of the peace arrest.

 

If you want help to sue for breach of the peace arrest contact me on 0151 933 1474 or complete the online form on my firm’s website.

 

 

 

 

 

 

 

 

 

How Co-operating Helps You Win Your Compensation Claim

 

Photo of Daniel Fitzsimmons who specialises in compensation claims.

Daniel Fitzsimmons specialises in compensation claims.

By Daniel Fitzsimmons

My daughter, Olivia, loves watching old episodes of “Sesame Street” on YouTube.

I grew up with the show and, as a parent, appreciate the way the writers combined education and entertainment. Recently we watched a song about co-operation. Enjoy it here.

As the song says, “sometimes there is a job so big, if we want to get it done, we’ve got to bring those birds together and all work as one, and that’s co-operation…”.

In compensation claims I couldn’t agree more.

After the merits of the case, co-operation between legal team and client is the most important factor in winning your compensation claim.

Without it, you might lose your claim completely due to missing court deadlines or failing to get crucial evidence.

Even if you co-operate half-heartedly your claim will take longer, be harder to win, and might be worth less.

For me, winning a compensation claim is as much about being a project manager as it is about legal skills.

I need to assemble and manage a team including experts, barristers, witnesses, my colleagues, and, most importantly, my client.

Only when we all work together can we achieve a successful result.

Compensation Claim Management

An example of co-operation in practice is my client Alan N’s case. Alan received £3,600 for his compensation claim. His claim might have failed if we hadn’t worked together so well.

Alan, a newly qualified pharmacist, was riding his bike to work when he was hit by a van. He suffered various injuries, including cuts and bruises to his elbows and right knee and a puncture wound to his left thigh.

As well as his personal injuries he lost earnings and damaged his bike.

Alan instructed me to pursue his bike accident compensation claim against the van driver. Alan told me that he was on the major road when the van pulled out of a side road and hit him.

I agreed to take Alan’s claim on a “no win no fee” basis. I found the van driver’s insurers with help from the DVLA and sent them details of Alan’s compensation claim.

The insurers failed to admit liability so, at this point, we had a choice to make.

Fight on, all the way to trial if necessary, or abandon the compensation claim.

I explained to Alan that, despite what people tell you, there are no guarantees of success with compensation claims. If you go to trial the other side’s lawyer is equally confident. If they weren’t they would settle before court.

It was a risk he was willing to take.

Compensation Claim Preparation

Alan was sure he was in the right and I agreed, so I put a team together to issue proceedings.

To prepare Alan’s case I asked him to be a willing member of the team. Alan understood this and played his part. He:

  • responded promptly to my phone calls, emails, and letters;
  • provided information quickly so that I could preserve crucial evidence to prove liability;
  • attended a medical appointment on time and gave clear evidence for the doctor’s report;
  • gave a site inspector information to prepare a report to help show that his version of events was correct; and
  • met with me at his home and our offices so I could progress his compensation claim. This involved preparing schedules of losses, court pleadings, witness statements, and other items essential for court proceedings.

The experts I instructed helped by keeping appointments and providing usable reports on time.

And my colleagues at Donoghue Solicitors ensured that I was able to reply to every phone call, letter, and email, and provided me with advice and support when I took the important decision to back Alan’s case.

Court Proceedings for Compensation

After I issued court proceedings the driver’s insurers filed a defence.

They said the accident was not their driver’s fault. They claimed Alan was cycling on the wrong side of the road and he crashed into the van, not the other way round.

As his claim proceeded towards trial we spoke and met regularly to review:

  • the defence;
  • evidence both sides intended to produce at court; and
  • witness statements.

Alan agreed to free up his diary and booked time off work to give evidence at court.

Fortunately, less than two months before trial I was able to use the evidence we had prepared to convince the van driver’s insurers to admit blame. I then negotiated settlement of Alan’s compensation claim.

When I entered into negotiations it was important that I had his co-operation to keep the pressure on. We were in constant touch by email and phone.

By working together to settle his claim Alan received more than double the amount he would have recovered if we took our chances at court.

Compensation Claim Team

By readily co-operating Alan received excellent compensation and ensured that the claim process was a good experience.

It was also a powerful motivator for the rest of the team.

The group I assembled worked well with Alan’s help. We were all committed to the goal of helping him recover the most compensation possible.

This joint effort and expert help ensured that I could present Alan’s case in the best possible way, and at the right time, so that his prospects of success and compensation were greatly increased.

Without this level of communication and co-operation Alan’s case would not have progressed as quickly or as well, if at all.

That’s well worth remembering when dealing with your own compensation claim.

 

For help with your compensation claim, contact me on 0151 933 1474 or through the Donoghue Solicitors website. I am an accredited “Litigator” practitioner member in the Association of Personal Injury Lawyers.

 

 

Will Paul Gambaccini sue the police?

Photo of Kevin Donoghue, a solicitor who helps people sue the police.

Kevin Donoghue, a solicitor who helps people sue the police.

By Kevin Donoghue, solicitor

On Friday 10 October the Metropolitan Police told Paul Gambaccini they will not be proceeding in their investigations over historical sex allegations.

The police arrested Mr. Gambaccini on Tuesday 29th October 2013 and released him under police bail. They did not charge him with any offences.

The broadcaster described his “12 months of horror and trauma” and has supported Home Office plans to limit the time suspects can be bailed without charge.

Speaking to the BBC, Human Rights barrister Geoffrey Robertson QC criticised the Police for the “unnecessary and unlawful” arrests that have been made during the Metropolitan Police’s “Operation Yewtree”.

If Mr. Robertson is right, Paul Gambaccini might consider taking a civil action against the police for:

  • false imprisonment;
  • psychological trauma;
  • damage to reputation and; if provable
  • lost income.

But will he sue the police?

Paying to Sue the Police

On 1 April 2013 the Legal Aid, Sentencing, and Punishment of Offenders Act (2012) (“LASPO”) came into force.

The coalition government pushed the Act through apparently to save money and please their insurance company donors.

In the 18 months since it has been in force it has had a profound effect on funding all compensation claims, including cases where people sue the police.

This is why.

Every working day I receive many enquiries from people asking me to help them sue the police.

As a solicitor and Officer of the Court I take my duties seriously. My priority is to act in the best interests of my clients. So I think about how they are going to pay for their cases before going any further.

Contrary to popular perception, claiming compensation isn’t free. The claimant is responsible for their own legal costs. Only if they win can they claim some, or all, of these back from their opponent.

Because of this costs risk, dealing with funding is as important as considering the merits of the claim.

If Mr. Gambaccini came to me I would tell him that there are four potential methods of funding:

  1. Legal Aid
  2. “Before the event” insurance or union backing
  3. Conditional Fee Agreement (also known as a “no win no fee” agreement) with/without “after the event” Insurance
  4. Private Client.

I’m guessing that Mr. Gambaccini won’t be eligible for legal aid. (He probably does not receive qualifying state benefits, or is on a low-income with little or no assets.)

He may have before the event insurance (so-called because it is insurance in place before the claimable incident occurs) or union-backing. In my experience these rarely cover actions against the police. This is because police claims are complicated, high-risk, and often of relatively low value (many are worth less than £5000).

He might ask if I would take the case under a conditional fee agreement. If so, I would only get paid if he won his claim. For taking the risk of not being paid, and delaying payment even if successful, my firm would receive a “success fee” uplift on top of our base costs.

Before LASPO no win no fee agreements allowed me to represent clients with a guarantee that they would recover 100% of their compensation if they won; and walk away scot-free if they lost.

This was because, if my clients won, their losing opponent paid the success fee and, if obtained, the cost of an after the event insurance policy. With no fees to pay, my clients received every penny of their hard-fought damages.

(After the event (claimable incident) insurance provided valuable protection as it would pay for all of my clients’ expenses (called “disbursements”) and the other side’s legal costs if they lost their claims.)

By using pre- LASPO no win no fee agreements my clients did not have to pay legal fees out of their own pockets as private clients. This was a better deal than option 4, which would be the last resort for most.

 “Compensation Culture”

The conditional fee agreement system worked well before LASPO, but the government was determined to stamp out the perceived “compensation culture”, even though study after study showed that it does not exist. In 2010 the government commissioned Lord Young, the Conservative Party former cabinet member, to prepare a report which you can read here. He said:

“The problem of the compensation culture prevalent in society today is, however, one of perception rather than reality.”

He wasn’t the only one who thought that the compensation culture was bogus. Lord Dyson MR, the Master of the Rolls and second most senior judge in England and Wales, said in a 2013 lecture:

‘I doubt very much whether we are likely to see – in the medium term at least – any reduction in news stories expressing concern about our compensation culture. It is something of a mystery to me why the media find the compensation culture such a fascinating subject.’

LASPO Impact

Despite knowing that the compensation culture was a myth, the government’s determination to force through changes led to LASPO.

LASPO removed the innocent victim’s right to recover success fees and after the event insurance when using a no win no fee agreement.  Now winning claimants must pay for those things themselves.

The new rule affects people who bring no win no fee claims of any kind, including civil actions against the police.

If they lose they can avoid paying their own solicitor’s fees with a no win no fee agreement, but must still pay their disbursements and the other side’s costs, as LASPO has forced after the event insurers away from actions against the police.

And it doesn’t just affect people who have no win no fee agreements with their solicitors. Private clients also have to worry about paying for their own disbursements, and more importantly the police’s legal fees, if they lose.

Often cases that go to trial can rack up legal fees of over £50,000.

That’s enough to make even apparently well-off people like Paul Gambaccini think again before deciding to sue the police.

Qualified One Way Costs Shifting Uncertainty

A possible solution to this problem is for the government to extend Qualified One Way Costs Shifting (“QOCS”) to include cases where people sue the police.

QOCS came in at the same time as LASPO and applies to personal injury cases only.

It allows the accident victim to claim compensation knowing that, unless certain exceptions apply, they will not have to pay their opponent’s costs if they lose. They will only have to pay their own legal fees (unless they have a no win no fee agreement) and their disbursements (unless covered by after the event insurance).

(In accident claims after the event insurance is still available because claims are generally easier to predict and the market is much bigger than actions against the police.)

Actions against the police are different to accident claims as, in many cases where people sue the police, they do not suffer injuries, so QOCS would not apply.

But, in theory, it does apply to people who sue the police where they are also claiming personal injury, such as handcuffing injuries to the wrists, police assault injuries, and diagnosed psychological trauma.

Conveniently for the police, over a year and a half on from when LASPO came into force, we still don’t know if QOCS covers the personal injury element alone, or the entire claim.

This uncertainty means that there is a costs risk for the claimant if they suffered an injury, but more so if there is no injury claim.

Rights Under Attack

If Paul Gambaccini is a victim of police abuse and wants to sue the police his decision to go ahead may come down to funding. If he finds a solicitor willing to take his case on a no win no fee basis he may have protection for his own costs, but will still be exposed to significant costs risk if he loses.

He will then have to decide if suing the police is worth the risk.

Don’t misunderstand me. I take on new claims against the police every month.  In the right cases, I am comfortable acting under a no win no fee agreement, knowing that there is a risk I will not get paid. My practice is thriving because police abuse is routine and, provided my clients are comfortable with sharing the risks, worth fighting against.

I am dedicated to helping people sue the police because these cases impact us all. When brave victims of police abuse stand up to the State and seek justice, we are protected. By holding the police to account they improve their conduct, training, and policies. We all benefit, including the police themselves.

But without cases being brought by these determined people and their lawyers, the police are free to abuse the law.

 

If you want help to sue the police contact me on 0151 933 1474 or through my firm’s website.

 

Why won’t a solicitor take my no win no fee claim?

Photo of Kevin Donoghue, Solicitor, explains why a solicitor won't take a no win no fee claim.

Kevin Donoghue, Solicitor, explains why a solicitor won’t take a no win no fee claim.

By Kevin Donoghue, solicitor

You’ve decided to claim compensation, researched which solicitors’ firm to use, and got in touch with a lawyer.

But the solicitor you contact says they won’t represent you, even using a conditional fee agreement (also known as ‘no win no fee’) agreement.

If you’re in this position and find yourself asking “why won’t a solicitor take my no win no fee claim?” let me give some insight.

Funding Options, including No Win No Fee Funding

Funding for legal cases is something which all solicitors are under a legal duty to consider with their clients at the outset.

As you may know if you’ve read our page about how much it costs to make a police compensation claim, the page on our site about no win no fee accident claims, or the professional negligence no win no fee section of our website, we try to be clear and straightforward in our explanations of the various funding options available. These include:

  • legal aid;
  • paying for your case privately;
  • using before the event or union funding; and lastly
  • no win no fee agreements.

That way you know what to expect when you speak to us, or any other solicitor, about your claim.

Talking about how your case will be funded is important because starting a compensation claim (especially on a no win no fee basis) is a big decision, not least because of costs.

Prospects of Success and Costs

Unfortunately, there is never one simple explanation to answer the question “why won’t a solicitor take my no win no fee claim?”, but some common reasons are:

1.      The solicitor who reviewed your case is not confident it will succeed.

This is the most important reason, as solicitors only take cases on if they are confident that there is a reasonable prospect of winning.

It applies regardless of the method of funding used, even with private clients who pay their own legal fees, legal aid, and union- backed cases.

For a solicitor to:

they must have absolute confidence in the client, their case, witnesses, evidence, and many other things.

Solicitors want happy clients who win. Getting the maximum compensation for clients to help them get their lives back on track is what gets lawyers like me out of bed in the morning.

Losing benefits no one, especially the client, who will have wasted their time and effort in claiming compensation.

So the reasons for declining to act, especially on a no win no fee basis, are not purely selfish.

Of course, solicitors want to be paid for the work they do. (Law firms are not charities; they are businesses. In business, who doesn’t want to earn money?)

And losing a no win no fee case means that the solicitor would not get paid their own costs, which can run into the tens of thousands of pounds and put strain on the firm’s finances.

But there’s more to it than that.

Solicitors are under a duty to act in the best interests of their clients, who are called “claimants” in civil compensation claims.

And changes in the rules which came into force on 1 April 2013 mean that taking a legal case is now a more risky proposition for claimants.

Why?

Because the Legal Aid, Sentencing and Punishment of Offenders Act (2012) abolished the right of innocent claimants to recover “success fees” and after the event insurance from the losing defendant, or more usually, the defendant’s insurance company.

Success fees uplift the claimant’s solicitors’ fees to compensate for:

  • the risk of taking the case and losing; and
  • delaying payment.

After the Event insurance provides protection for the claimant’s own expenses, such as court and experts’ fees (called “disbursements”), barrister’s fees if necessary, and the other side’s costs.

Being able to recover success fees and after the event insurance from the losing defendant (or their insurers) meant that, before April 2013, the winning claimant would usually receive 100% of their compensation.

(This is why people commonly think of “no win no fee” as free legal representation, when in fact the term means that if you win, there is a fee. It’s just that, before 1 April 2013, that success fee was paid by the losing defendant and not the successful claimant.)

The system in place before April 2013 ensured that the winning claimant’s solicitor could get paid a fair rate (legal costs plus a success fee).

And the after the event insurance protection meant that, if the claimant lost their case, they would still be able to walk away “scot-free” as their solicitor would honour the no win no fee agreement and waive his or her fees, and the insurance would pay for the rest of the claimant’s expenses and the defendant’s costs.

But, since 1 April 2013, if the claimant loses they are only protected for their own solicitor’s fees (under the no win no fee agreement) unless “qualified one way costs shifting” applies. Now they have to pay for their own disbursements, barrister’s fees (unless also working under a “no win no fee” agreement), and the defendant’s costs out of their own pockets unless they can get after the event insurance and agree to pay for it out of their damages (if they win).

Since 2013 the market for after the event insurance has shrunk considerably, so that it is very difficult to get in some areas of law, such as actions against the police.

Without it, taking a case to court and losing could cost the innocent claimant thousands of pounds. Defendants and their insurers don’t instruct cheap lawyers and experts, court fees for running a case to trial alone can exceed £2000, and if you need an expert or two to prove your claim (most cases do), then you are responsible for their costs too. (Experts can’t work on a “no win no fee” basis because their duty to give an impartial opinion means they can’t be influenced to find in either side’s favour by the risk of not getting paid.)

Imagine taking a case to court, losing, and being left with a judgment debt for thousands against your name? You would have to find the money to pay the debt and deal with the impact on your credit score. All because you wanted to make a compensation claim.

For this reason alone, being told that your solicitor will not take your claim on a no win no fee basis, as a private client, or any other way, can be a good thing.

2.      Your claim is of low-value

The small-claims limit, below which legal fees are not paid, is £1,000 in personal injury cases, and £10,000 otherwise.

In principle, this means that most personal injury cases would be eligible for costs if successful.

But not all.

Minor injuries, limited psychological upset claims, and cases where the claimant makes a quick recovery, can mean that costs will not be paid even if the claimant is successful.

As a result, the claimant’s own solicitor’s fees and disbursements would have to be paid out of their damages. In practice, this means that the claimant would be left with nothing.

In other cases where personal injury is not claimed, such as many data protection breach claims, even recovering £9,999 would mean that costs do not have to be paid. Again, the winning claimant could end up with nothing once his or her own legal fees, disbursements, etc. have been met.

Going back to the discussion on After the Event insurance, even if the claimant is willing to pay for the insurance out of their own pockets, the fees can be extremely high, and often more than the total compensation the innocent claimant might expect to recover. So, in the event that the claimant succeeds in their claim, they might end up paying all of their damages over to their own insurer before also having to pay out of their own pockets for court fees, experts’ fees etc.

And that’s before paying the 25% success fee (or more with some firms, not Donoghue Solicitors) to their own solicitor.

With that in mind, why bother claiming at all?

This assessment is known as “the costs/ benefit analysis” and is part of the solicitor’s job of ensuring that they act in the best interest of the client.

Winning, but being left with nothing but debt, is clearly not in their best interests.

3.      Pressure of work

Solicitors are the most heavily regulated professionals in England and Wales. More than doctors. More than accountants. More than anyone.

The hoops they have to jump through to satisfy:

  • the Solicitors Regulation Authority;
  • their professional indemnity insurers ;
  • the Legal Ombudsman;
  • the Information Commissioner’s Office;
  • the Courts (solicitors are Officers of the Court, unlike barristers, and have specific duties to perform there); and
  • many others

mean that running cases is just one part of the job.

Failure to keep the governing bodies happy can result in serious consequences, including being struck off the roll of solicitors, having to close the firm, and bankruptcy.

It is no surprise then that many solicitors will limit the amount of clients they take, even if those people have potentially good claims, because they do not want to risk failing in their duties to their existing clients, governing bodies, staff, creditors, and others.

4.      Personality Issues

Making a compensation claim can be an uncertain business. When clients ask me “how long will it take?” the answer is always: it depends.

It depends on:

  • how much co-operation I receive from my client;
  • how quickly I receive the information I need to decide what to claim for, if at all;
  • if we have funding issues to deal with;
  • how quickly the defendant responds to the claim, if at all;
  • if the defendant fights the claim, and why;
  • if there are witnesses to track down and interview;
  • if we have to issue proceedings to force the defendant to produce evidence;
  • if we have to issue full court proceedings to take the case to trial;
  • if there are settlement negotiations;
  • what court delays we experience;
  • if we go to trial, and if a jury is involved; and
  • if we get paid, and when.

With all this in mind, compensation claims can take anywhere from a few months to many years. It is not uncommon for cases to take two to three years to reach trial.

Having a good working relationship between the solicitor and the client during the time a case is running is vital.

People work best with people they like.

It is for this reason that clients should make sure they have a good fit with a solicitor they like and trust before agreeing to start the relationship. After all, the solicitor will be making demands on their client’s time, resources, and potentially finances.

Solicitors think about whether the client is a good fit too. We can’t win cases on our own. We need our clients’ full, helpful co-operation.  And smart clients know that the solicitor needs to be left alone to do his or her job, that’s what the client is paying for after all. Constant emails, phone calls, and other interruptions not only increase the bill but result in a strained relationship, which is bad for both the lawyer and the client.

What to do if a solicitor won’t take your case on a no win no fee basis

Solicitors are generally free to decline to represent whoever they like. They don’t have to give reasons or enter discussions about why, but the reasons are likely to involve some or all of the issues above.

If the solicitor you approached won’t take your case there is nothing to stop you enquiring with another lawyer. There are over 140,000 solicitors practising in England and Wales so there are plenty of options.  The Law Society’s find a solicitor service is a good place to start.

 

Kevin Donoghue is the Solicitor Director of Donoghue Solicitors, a specialist law firm dealing with compensation claims against the police, personal injury accident claims, and professional negligence claims.