Why Lawyers Need to be Creative

Photo of Kevin Donoghue, Solicitor, who discusses why lawyers need to be creative.
Kevin Donoghue, Solicitor, discusses why lawyers need to be creative.

By Kevin Donoghue, Solicitor Director of Donoghue Solicitors

 

A recent Telegraph Article got me thinking about creativity in the legal profession, and in particular, why lawyers need to be creative for themselves, their clients, and the economy.

As I explain below, lawyers must do their part by exploiting technology. And lawmakers need to adopt a two-pronged approach, by fostering creativity in one of the country’s major professions, and by resisting the temptation to interfere.

Why the UK Needs More Creative Jobs

Nesta, the innovation charity, says creative work takes place when:

tasks are highly interpretive, geared at ‘products whose final form is not fully specified in advance’, and when work task environments are complex.

Fostering this creative work is vital to the UK economy as the charity says that 35% of jobs could soon be fully automated with advances in technology.

Imagine a third of the working population losing their jobs in the coming years.

The worrying thing is, it’s been happening for years. We’re familiar with self-checkout at supermarkets and comfortable with riding on unmanned mono-rails and airport shuttles. And driverless cars are already a reality, if not ready (yet) for Britain’s streets. Don’t believe me? A car recently made a cross country trip of nearly 3,400 miles across the USA with a person taking over for only 50 miles of the journey. It won’t be long until computers, not people, are driving cars, buses, lorries, and trains.

In the legal profession, computers have brought massive changes to the way solicitors work. Lawyers’ use of computers has led to costs reductions and fewer roles for some people. 15 years ago high-street solicitors had their own secretaries. Now I don’t know of any such firm.

Secretaries have mostly been replaced by IT literate lawyers who produce their own work, some of which involves adapting precedents prepared by a more senior lawyer (like me!).

Despite these efficiencies, Nesta says in its report (at page 34) that “legal activities” have a 24.3% probability of computerisation. Less than the 35% average, but still worrying for a quarter of the profession, which in 2011 employed 340,000 people.

And we’re not the only ones. Much of a GP doctors’ work is routine practice management and compliance, police officers and teachers often complain about form-filling, and accountants use computer packages to pre-populate fields to do tax returns.

If we ignore this situation the burden on the state, which is already anticipating an increased demand on resources due to our ageing population, could be devastating. Estimates vary, but in this article the Institute of Directors say that the country’s debt could double, and that big businesses could collapse under the burden. And that’s without accounting for the increased cost to the NHS, social care etc.

Making More Creative Jobs

Nesta’s solution is for government to create 1 million creative new jobs by 2030 to make sure that Britain’s workforce remains employable and productive. Getting more, highly paid taxpayers into the working population is essential.

It recommends that the current focus on STEM subjects (science, technology, engineering, and maths) be widened to include art (making it STEAM).

So while the current focus is on the sciences, it should not be at the expense of the arts, especially those that involve critical thinking, persuading, socialisation, and reasoning. These skills are essential for the modern lawyer. It is no coincidence that the earlier definition of creative work perfectly describes a legal case, especially an accident compensation claim, where the issues are numerous and complicated, and the outcome is always uncertain.

Many people join the legal profession after honing these skills elsewhere, both academically and in other areas of life. For those who take a traditional route to qualification, it is quite common for solicitors to take an undergraduate degree in an arts subject (such as History, English, or Philosophy) and then take post-graduate courses in Law to gain the necessary qualifications.

At Donoghue Solicitors we have a number of people who did not go down the traditional university route of qualification. Instead, for some of our staff, learning on the job is being supplemented by evenings and weekends studying to become qualified. By avoiding university altogether and working in legal practice instead of a classroom, the breadth of experience, particularly in so-called “soft skills” such as negotiating and other people skills, can be far better. It is likely that these skills will remain highly prized, immune from computerisation, and should be encouraged.

The Current Impact of Computers

Increased automation at Donoghue Solicitors has led to better efficiency and, we like to think, better service. But while computers have changed many things for the better they won’t do away with the need for working people such as lawyers to use their brains creatively. As the Nesta report says at page 15:

While many creative occupations have undoubtedly been affected by computers, our findings show that computer–controlled equipment is unlikely to substitute for labour in creative domains. Rather, computers serve as a complement to most creative professions, making creative skills more productive. (my emphasis)

For example, in the case report of my client RL you can read how I had to think my way around a situation where the police wrongly raided my client’s flat and the story was publicised in a local paper and on the internet. Some of the creative issues were:

  • objectively assessing my client’s case and him as a witness
  • considering prospects and assessing risk
  • interpreting the law
  • developing the case, including identifying breaches and loss
  • persuading my opponent about the merits of the case
  • evaluating offers of settlement, and
  • advising, supporting, and working well with my client to ensure a satisfactory resolution.

While computerisation certainly helped with these tasks, without creative and critical thinking, essential soft-skills, and the ability to constantly re-evaluate a case considering numerous variables, compensation claims such as RL’s would not succeed and innocent people like him would be denied justice.

Damaging Government Interference

While I support Nesta’s demand to see government policy encourage creative professions, this is only one side of the coin. As well as asking lawmakers to actively promote creativity, we should tell them to stop finding ways to discourage it.

Over the past 15 years or so there have been many attacks on the legal profession which have drastically changed how solicitors work and how they manage their practices.

Nowhere is this more clear than in the field of personal injury accident claims, where successive governments have chased easy headlines to cut costs, reward donors, and curb the so-called and non-existent (read why here) compensation culture:

  1. In 1999 the government completely changed the way civil claims, including personal injury claims, are handled when it replaced the Supreme Court and County Court rules (“the White Book” and ‘the Green Book”) with a new set of rules, the Civil Procedure Rules. Overnight solicitors were expected to know and interpret these rules and, where cases straddled both the old and new rules, flexibly apply the law.
  2. Legal aid was withdrawn from most personal injury cases and replaced by conditional fee (“no win no fee”) agreements in the late 90’s. These have been through numerous changes over the years. Initially, success fees (an uplift to reward the solicitor for taking the risk and delaying payment) were recoverable from the client. Then they were recoverable from the losing party. Now they are not, and the client has to pay them again.
  3. Legal costs in personal injury claims have gone from being dealt with applying flexible guidelines known as “scale costs”, to fixed costs, with no flexibility. These fixed costs have been greatly reduced since 2013 leading many personal injury firms to adapt, merge, or close.
  4. Referral fees were allowed in 2004 which led to claims management companies, some of which, like Claims Direct and The Accident Group, had a spectacular growth and even more dramatic decline, causing inconvenience and loss to many innocent accident victims. The government belatedly tried to remove these companies by banning referral fees in 2013. Some firms, which relied on referrals for their work, went bust as a result.
  5. Court fees have recently been increased by as much as 600% (up to £10,000), leading to fierce criticism from judges. Paying this much money to the government up front is likely to price many people out of access to justice. It could lead to a double injustice, where innocent accident victims suffer due to someone else’s negligence, and are then denied access to the courts to seek a remedy.

Creativity in this context means managing a business through unnecessary changes created by lawmakers. Lawyers are constantly frustrated and confused by government meddling so it is unlikely that a computer program could be written to make sense of it.

Lawyers a Part of the Creative Solution

Despite the note of caution in Nesta’s report and government’s best efforts to change it, people working in the law are creative by profession and the legal sector has thrived. According to a report in “The City UK”, legal services doubled in size to £20.9 billion in 2011. The English legal system is the envy of the world and continues to attract people due to its fairness and high-quality, creative representation.

If for no other reason, the money it generates for our economy means that the legal profession should be considered alongside Nesta’s campaign to focus government funding. Properly prepared in creativity, the next generation of future-proofed school leavers could contribute to it. In turn, they would support the country through tax revenue, employment, and avoid the risk of being replaced by a computer and becoming a burden on the state.

 

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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.

 

 

 

 

 

 

 

 

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.

 

 

Why taking a pre-medical offer could be an expensive mistake

Accepting a pre-medical offer could be a costly financial mistake. Daniel Fitzsimmons of Donoghue Solicitors explains why.

Photo of Daniel Fitzsimmons, Trainee Legal Executive at Donoghue Solicitors.

I recently represented a client from Birmingham who had been injured in a road traffic accident. After medical examination and negotiations with the other driver’s insurers, I settled her claim for more than three times the original offer.  What makes this claim interesting is that it highlights the dangers of accepting a ‘pre-medical offer’.

Pre-Medical Offer Definition

What is a ‘pre-medical offer’ and why should you care?

Pre-medical offers are proposals to pay compensation before the injured person has been seen by a medical expert. They are made by insurance companies in personal injury accident claims.

The practice of making a pre-medical offer in personal injury claims is described in the Association of British Insurers’ (‘ABI’) voluntary Code of Conduct. (The ABI is the trade body of insurance companies in the UK. It represents 300 member companies who cover 90% of the insurance market.) Their Code of Practice when approaching accident victims direct (where pre-medical offers are often made) states:

Offers on low value injuries

Where the injury is low value, i.e. typically only a few days in duration, insurers may offer to settle a claim without medical evidence.

The purpose of a pre-medical offer is to encourage early settlement of the claim. The insurer gets the claim off their books for a set amount; the injured person gets compensation quickly without a medical examination.

Sounds too good to be true doesn’t it?

It is.

As my client Mrs. B’s case shows, accepting a pre-medical offer could be a very expensive mistake.

Road Accident Compensation Claim

Mrs. B, a retired 68-year-old woman, was in her friend’s stationary car when another driver reversed into it. Although she was injured in the road accident, she got out of the car when she realised that the other driver was leaving. The responsible driver nearly ran Mrs. B over to make her escape. The police were called and details obtained.

Mrs. B received medical treatment for her injuries and contacted me a few days later to make an accident compensation claim.

I took full details and agreed to represent her on a ‘no win no fee’ basis.

After checking the information provided, including asking about her injuries as they were known at the time, I sent the claim to the responsible insurers and began preparing her case for court proceedings.

Just under two months after the accident I received a letter from the other driver’s insurers. They helpfully admitted liability, but also made a pre-medical offer to settle Mrs. B’s claim for £1,000 plus legal fees, based on the information I had provided some time earlier.

When I told Mrs. B about the pre-medical offer she said that she was still suffering as a result of the accident, so I recommended that we reject the offer and get an expert medical opinion. She agreed.

Following Mrs. B’s medical examination, the doctor noted that my client had many other health problems including cancer, osteoarthritis, and diabetes. He confirmed that she had suffered a cervical sprain to her neck, more commonly known as ‘whiplash’. In his expert opinion, the injuries she suffered in the road accident would take two years to recover.

As well as her personal injuries, I claimed compensation for extra care and help provided by family members, medication, travel to and from her doctors, and other things.

After negotiations, I settled Mrs. B’s passenger accident claims for £3,303, more than three times the pre-medical offer.

It took an extra four months to go through this process, but Mrs. B was very happy with the settlement and felt that the time was well spent.

If she had accepted the insurer’s pre-medical offer, she would have missed out on £2,303 compensation.

How to Beat a Pre-Medical Offer

Mrs. B’s case is not unique. I routinely come across similar cases where the insurers for the responsible person make a low pre-medical offer.

And these offers are not just in road accidents. Any personal injury claim can be dealt with this way, including accidents at work, or tripping/ slipping claims.

But is it right?

Again, referring to the ABI’s Code, it specifically says (emphasis added):

Offers and Settlements 

General Policy

All offers should be fair and reasonable and based on appropriate evidence.

This is impossible without medical evidence.

Where no medical evidence has been obtained, how would anyone, let alone an unqualified insurance company representative, know what a ‘fair and reasonable’ offer should be?

Also, Mrs. B’s case shows how the insurers can ignore their own Code of Conduct when it suits them.

In her case the responsible driver’s insurers ignored both the ‘general policy’, and the guidance on ‘offers on low value injuries’. They made a very low pre-medical offer which was not:

  • ‘fair and reasonable’;
  • ‘based on appropriate evidence’; or
  • for an injury of ‘only of a few days in duration’.

Unsurprisingly, insurers try to settle claims for less than they are worth. That’s their job, as they represent the interests of the responsible party and their shareholders.

Make no mistake: by making pre-medical offers they are looking after themselves, not the accident victim.

The only way to deal with a pre-medical offer and get the right amount of compensation for the injured person is to prove their personal injury claims to the standard required at court. This means:

  • obtaining medical evidence by a qualified doctor;
  • who is instructed by an independent firm of solicitors;
  • who represent the interests of the injured person, not the responsible party.

It may take longer, but as Mrs. B’s case shows, it’s worth it to avoid making a mistake that could cost thousands of pounds.

 

+Daniel Fitzsimmons is an accredited ‘Litigator’ practitioner member of the Association of Personal Injury Lawyers. Contact him for help with your accident claim on 0151 933 1474 or by completing the form on the Donoghue Solicitors website.

 

5 free tools to find out if your personal injury solicitor is an expert

Picture of Kevin Donoghue, Personal Injury Solicitor and Director of Donoghue Solicitors.
Kevin Donoghue, Solicitor Director of Donoghue Solicitors.

By Kevin Donoghue, Solicitor

How do you know if your personal injury solicitor is really an ‘expert’ in accident claims?

When you first speak to him or her you may only get their name and title.

You might feel awkward about asking them for their professional qualifications, so that without any further information you have no idea if they are truly capable of dealing with your personal injury claim, or if they are specialists in another area of law.

Luckily, the internet has come to the rescue. By using these five free tools you can quickly and easily check your personal injury solicitor’s credentials, and give yourself peace-of-mind. Ready? Here we go.

 

1.                 The Law Society’s ‘find a solicitor’ service

The Law Society, the representative body of solicitors in England and Wales, maintains a register (or ‘roll’) of solicitors through its regulatory arm, the Solicitors Regulation Authority.

To see if your personal injury solicitor is included on the roll, meaning that they are professionally qualified and properly regulated, go to the Find a Solicitor service (click on this link) and enter the solicitor’s last name. If you also have it, enter their first name, firm, and location.

You will be taken to a page where you can find their roll number, admission date, firm details, areas of law they specialise in, and details of any accreditation schemes.

This is a good place to start your research as it confirms basic details of your solicitor, but you will want to find out more.

2.                 The Law Society’s Personal Injury Accreditation Scheme search

 

Once you know that your legal representative is a qualified solicitor, how can you find out if he or she is an expert in personal injury law?

Answer: ask the solicitors’ own representatives, the Law Society.

According to the Law Society’s website, solicitors who have been appointed to the Law Society’s expert Personal Injury Panel:

‘go through rigorous examination and testing to demonstrate that they have a high level of knowledge, skills and experience in dealing with personal injury cases.’

Getting appointed to the Personal Injury Panel is hard. Less than 1,000 of all practising solicitors (over 130,000 in 2013) have been accepted to this expert group, which the Law Society calls a ‘community of excellence’.

To find out if your lawyer is a member of this élite group of personal injury solicitors, try these free tools:

i)             Review your personal injury solicitor’s entry through the ‘find a solicitor’ service (see 1. Above). You’ll find out if they are a member of the Personal Injury panel by checking if ‘Accreditation schemes: Member of the Personal Injury Panel’ is shown. If this is not listed under ‘Areas of law’ your solicitor has probably not been appointed to the Panel. (See below for why you can not be certain.)

ii)            Download the list of members from this page and see if your solicitor is among them. (Warning: this is a long .pdf document which is updated monthly, so if your solicitor has been appointed to the Personal Injury Panel more recently than that they may not show up on this list.).

iii)           go to the Law Society Approved website and type in the postcode of your solicitor’s office. If the firm’s name comes up, you will know that someone there is appointed to the Personal Injury Panel (but it might not necessarily be your solicitor).

3.         The Association of Personal Injury Lawyers (‘APIL’) Accreditation Scheme Search

 

In a similar way to the Law Society, the APIL accreditation scheme show details of personal injury solicitors (or other legal professionals) who have been independently assessed by APIL as having sufficient experience, ability, training, and commitment to the rights of accident victims.

APIL is a group of around 4,500 specialist personal injury lawyers who are dedicated to personal injury claims victims.

The APIL accreditation scheme has been in place since 1999. Members must commit to 16 hours of specialist training in personal injury law each year, and their levels of experience are reflected in their status within the organisation. For example, Senior Litigators must have at least five years’ experience, be capable of running cases without supervision, and be prepared to take cases to trial. They can also provide training and supervision to others within their own firm.

You can check if your personal injury solicitor is a member of APIL, and their status, by clicking here and entering their details.

4. The APIL Accredited Practice Search

APIL also have accredited practices.

They are law firms which are assessed and approved by the organisation and have at least one lawyer of ‘Senior Litigator’ status or above.

The firms must:

  • be regulated by the Solicitors Regulation Authority;
  • show a high standard of ‘client care’;
  • be committed to training and development;
  • have low supervision ratios;
  • have a documented quality assurance procedure; and
  • agree to have their performance monitored by APIL to make sure standards are maintained.

You can search APIL’s database of accredited firms here by entering the name of your personal injury solicitor.

If the firm is accredited, a box will appear confirming that it is an ‘Accredited Personal Injury Practice’.

 

5. Online reviews and personal recommendations

The above tools will give you great information about your personal injury solicitor’s qualifications and accreditations. But what are they like to deal with? To find out the answer to that, ask for personal recommendations from friends and family.

If they are not available, reading reviews on sites like www.google.co.uk can help.

The firm’s website, blog, Facebook, twitter, and LinkedIn profiles may also help you by giving you details of your personal injury solicitor, their professional accreditations, and any legal articles they have written which demonstrate their knowledge.

Why an expert Personal Injury Solicitor is a good choice

It’s worth taking the time to research your solicitor before instructing him or her. After all, you will be relying on them to look after your accident claim and may be working with them for some time.

Note that these tools may not be accurate or up to date. If in doubt, ask your personal injury solicitor directly. Gaining qualifications and accreditations is hard work, so they will be more than happy to tell you.

I hope that by showing you these free tools you will choose the right personal injury solicitor to look after your accident claim.

 

If you want to speak to an expert solicitor about personal injury claims, contact me, Kevin Donoghue, on 0151 236 1336 or via my firm’s website, www.donoghue-solicitors.co.uk.

 

Donoghue Solicitors set to help Brunswick Youth Club

Picture of Kevin Donoghue, Principal Solicitor at Donoghue Solicitors, and Keith Lloyd of Brunswick Youth Club.
Kevin Donoghue of Donoghue Solicitors and Keith Lloyd of Brunswick Youth Club shake hands on the new scheme.

Leading Bootle law firm Donoghue Solicitors has entered into a pioneering arrangement with Brunswick Youth and Community Centre (‘Club’), the registered charity based on Marsh Lane, Bootle, Merseyside.

The accident claims specialist law firm, owned and run by local resident Kevin Donoghue, is promising to pay £250 to the Club if successful new personal injury clients mention that they came to Donoghue Solicitors through ‘The Brunny’.

Kevin Donoghue, Principal Solicitor, has been a long-time supporter of the club, having previously been involved in leading youth groups on ‘awaydays’ and helping at the Club in other ways.

He explains, ‘I have enjoyed going to ‘The Brunny’ since I was a boy, and wanted to do something more to help out. This initiative gives me and our clients the chance to help the next generation.’

He continues, ‘As the payments are donations to Brunswick Youth Club by Donoghue Solicitors the money will not be deducted from client damages. Our clients will receive 100% of their damages, and the Club will benefit greatly.’

The scheme applies to all new personal injury clients of the firm, and can be used by clients based anywhere in England & Wales.

Interested potential clients should contact Keith Lloyd at Brunswick Youth Club, or go to Donoghue Solicitors’ website https://www.donoghue-solicitors.co.uk/about-us/working-with-brunswick-youth-club/ .

Donoghue Solicitors are based in St. Hugh’s House, Stanley Road, Bootle, and are happy to see new clients at their offices or at client’s homes in the Merseyside area.

Will accident claims be stopped by the Ministry of Justice?

By Kevin Donoghue, Principal Solicitor, Donoghue Solicitors.

Kevin Donoghue, Principal Solicitor at Accident Claims Specialists, Donoghue Solicitors
Kevin Donoghue, Principal Solicitor at Accident Claims Specialists, Donoghue Solicitors

Today I e-mailed the UK Ministry of Justice to ask them to re-consider their proposed reforms of the accident claims process.

As an Association of Personal Injury Lawyers (‘APIL’) Senior Litigator, who runs an APIL corporate accredited practice, I represent many innocent accident claims victims. I am deeply concerned by the potential impact of the reforms.

Briefly, the government proposals will:

  • ban referral fees, which many solicitors pay instead of marketing/ advertising to reach out to injured accident claims victims
  • reduce fixed fees in road accident claims by £700 in the average case, down from £1200
  • increase the value of road accident claims within the ‘portal’ to capture all cases worth up to £25,000
  • extend the regime where fixed fees will be paid, via an online ‘portal’, in road accident claims to include all cases up to £25,000
  • include other types of accident claims, such as work accidents and in public places, within the fixed fee scheme
  •  potentially include complex ‘multi- track’ cases within the fixed fee scheme.

The proposals are due to be introduced in April 2013.

If implemented in full they are likely to have devastating consequences for innocent accident claims victims, people involved in the legal profession and those they support in their local communities. Only insurers and their shareholders will benefit.

It is for this reason that I have urged the government to re-consider.

My e-mail is reproduced below:

Subject: Request to the Government to reconsider their proposed MOJ reforms

Dear Ms Kebirungi

I refer to the MOJ’s letter to stakeholders of 19 November 2012, a copy of which has been passed to me.

I note the request for input by 4 January 2013. Please consider the following:-

Background

I am a sole practitioner in Bootle, Liverpool. Bootle is an impoverished area, with many under-educated and otherwise disadvantaged people.

I set up my firm in December 2010 to provide a personal service to clients I considered was lacking.

I live in Bootle and recognised the need to represent local clients, many of whom rely upon me and my staff to provide a one-on-one service given the complexities of the law.

I am a Senior Litigator with the Association of Personal Injury Lawyers.

I, and my colleagues, deal exclusively in civil litigation. A significant part of my practice relates to claimant personal injury work, of which virtually all is ‘no win no fee’ conditional fee work.

I maintain low overheads and have a small staff (including my wife, and colleagues with young families). We are not ‘fat cat lawyers’.

I am actively involved in my community, charity work etc.. My firm sponsors and supports local charities, such as Brunswick Youth Club, where Liverpool and England footballer Jamie Carragher learned to play.

We also provide ‘pro bono’ services to our community.

Referral Fees

Although not solely reliant on referred work for personal injury claims, we do source some work that way and pay referral fees in various amounts.

As I understand the proposals, the RTA portal fees will be reduced by £700, seemingly to reflect the anticipated referral fee paid at present, which will be subject to the ban in April 2013.

It appears that the government believes that referral fees are paid by defendant insurers in addition to legal costs in successful cases.

This premise is fundamentally wrong.

Referral fees are NOT paid to claimant solicitors by defendant insurers in successful cases. They are absorbed as a marketing fee. In losing cases, not only is the referral fee not paid, but the legal costs incurred have to be written off too.

Solicitors have had to compete in a marketplace with claims management companies and insurers for some time. We, like them, must market ourselves (by advertising, paying referral fees etc.) to get work.

If the proposed reduction in fees is approved, the Government will create an anti-competitive situation where solicitors are unable to compete with others (in particular insurers).

We will be denied the opportunity to operate in a free market.

This cannot be fair or right and, I anticipate, will be subject to a legal challenge.

Fixed recoverable costs in RTA/EL and PL portal cases

The proposals will drastically affect many small practices such as my own. The personal service we currently provide to our clients, especially the disadvantaged and under-educated, may suffer.

I have seen no report or evidence that the current figures have been costed. The existing portal figures were calculated following ‘big tent’ meetings organised by the CJC. They were intended to be reviewed (upwards) at some point.

On what basis is the Government now seeking to reduce them?

We take our duties to our clients, regulators, bankers etc. seriously. There is a fixed amount of work which must be done on every case to comply with our obligations. The currently proposed figures do not accommodate this.

The Claimant has no say in how much work must be done to win their case.

Depending on the defendant insurers’ approach, we may have to undertake many hours additional work, such as obtaining witness statements, site reports, preparing for trial, etc.

If fixed fees are introduced, there will be no incentive on the defendant insurers to conduct a thorough pre-action stock take and attempt to narrow the issues, as required by the CPR.

This will have the effect of increasing the number of court issued cases, putting an increasing strain on the court system.

The introduction of fixed costs without reforming the process by which defendants deal with claims will result in a widening gap between (rich) defendants and (poor) claimants.

Value of claim and allocation to track

I am not sure from the letter if the fixed fees are to apply to multi-track cases. If so, this would be a mistake.

I personally have dealt with numerous multi-track cases, one of which recovered only £1,500, but were rightly kept in the multi- track due to complexity.

It is a fallacy to think that any claim worth up to £25,000 should be treated as ‘simple’. Multi- track cases are allocated by the court on the basis of experience, and actively case managed by judges to ensure costs are kept under control.

There is no place for a ‘fixed fee’ regime here.

Defendant’s costs

Nowhere have I seen proposals for limiting defendant’s costs. Without similar costs sanctions, the inequality of arms mentioned above with respect to fixed fees will be stark.

Impact on the communities

As explained above, I work closely within my local community of Bootle. Me, my staff and their families all live nearby.

We provide a valuable service which is at risk if the proposals are implemented.

These proposals are unjust and unfair to the vast majority of the population.

They will result in an erosion of access to justice, especially to the disadvantaged.

Moreover, there will be a significant impact on local communities, such as Bootle, with (likely) unemployment in the legal and support sectors, as well as reduction in support for charity and other ‘pro bono’ activities.

I urge the government to reconsider these proposals.

Kind regards
Kevin Donoghue
Solicitor – Principal

 

 

The End of the World for Accident Claims?

By Kevin Donoghue, Principal Solicitor at Donoghue Solicitors

Picture of Kevin Donoghue, Principal Solicitor, Donoghue Solicitors

As you may know, tomorrow the Mayan calendar moves in to a new cycle.

Some people have predicted that this will lead to the End of the World.

I don’t think so, and leading academics say that the Maya never intended their calendar to be interpreted that way.

However, there are potentially devastating changes to those involved in civil litigation which, if introduced, will fundamentally change the way personal injury accident claims are dealt with after April 2013.

I’ve just written a guest post on the Charon QC law blog about this.

Please read it by clicking on the link, and feel free to comment on that site or via twitter.

 

 

Donoghue Solicitors is a specialist law firm dealing solely with personal injury accident claims and actions against the police.

Now insurers call the tune

 

By Kevin Donoghue, Principal Solicitor, Donoghue Solicitors

Picture of Kevin Donoghue, Principal Solicitor, Donoghue Solicitors

Yesterday the government confirmed the amount of money that accident victims will receive to pay their solicitors’ fees following personal injuries in a car, at work or in a public place, if proposals slated for April 2013 are introduced.

For Road Traffic Accidents dealt with using an online ‘portal’ introduced in 2010, they will only recover £500 if their claim is valued at up to £10,000. Previously, the fees were £1200 (+ 12.5% if the solicitor was acting under a ‘no win no fee’ agreement). If more than £10,000, the fees will be increased to £800. Currently these fees are not fixed, being agreed by negotiation between the parties or set by a judge at court.

For public liability claims (which include tripping and slipping accidents) and employer’s liability claims (accidents at work) the fees paid to the accident victims will be £900 for cases worth up to £10,000. If the case is worth more than £10,000, the injured person will receive £1600. Previously, as with road traffic claims worth more than £10,000, fees were not fixed.

For cases that fall out of the ‘portal’ system a new regime is being proposed, meaning that for the first time, contested cases will be dealt with using a fixed fee system from start to finish, regardless of complexity or time spent pursuing the case.

Insurance company manipulation

The downward pressure on fees has been led by insurance companies, principally those in the competitive motor insurance market. They have convinced the government to reduce legal fees paid to accident victims (which are then passed on to their solicitors), to ban referral fees and to extend the types of cases dealt with using the online ‘portal’. They argued that by doing this the government could help them reduce the cost of insurance premiums, especially in road traffic accident ‘whiplash’ claims, often using emotive, inaccurate and derogatory language. For example, Director General of the Association of British Insurers, Otto Thoresen  referred to solicitors as ‘ambulance chasers’ who ‘manipulate the system’. As a personal injury solicitor, I take great offence to such comments, which are designed to deflect attention from his members’ own sharp practices.

As a recent report by the Association of Personal Injury Lawyers (APIL) pointed out, the ‘compensation culture’ cited to justify the reforms is a myth.

Not only are the number of whiplash claims falling year on year, almost half the people who sustain the injuries do not claim for them. 

Most surprising of all, almost 30% of claims are encouraged by the insurers themselves, who usually sell the claims they obtain on to their own panel solicitors in return for a referral fee, some for as much as £10,000. As such, insurers are the second highest cause of ‘whiplash’ claims being made, after the injured victim deciding to pursue the claims themselves.

Advice deserts

Insurers convinced the government that there was too much money being paid to ‘ambulance chasing’ solicitors to represent accident victims. As the fees in lower value road traffic accidents alone will be reduced by 60% or more, it is likely that this will result in a great many ‘high street’ solicitors turning away this type of work from next April.

‘Advice deserts’, where people are unable to find local solicitors to represent them, could become commonplace.

This is because solicitors are heavily regulated by the Solicitors Regulation Authority and pay large amounts for Professional Indemnity Insurance. As a result, the time and money spent on compliance and overheads to maintain law firms mean that lower fee work may not be taken as it may not be profitably done to the high standards required to satisfy regulators and insurers, let alone clients who have come to expect excellent service from independent solicitors on a ‘no win no fee’ basis.

No more ‘no win no fee’

Under the present system, most of the time the legal fees paid to the accident victim are passed on to their solicitor, in return for which the solicitor agrees not to deduct any money from the compensation paid. As such, ‘no win no fee’ becomes simply ‘no fee’.

It is anticipated that accident victims will be reluctant to pay any money out of their damages to meet the gap between the cost to the solicitor to pursue their claim and the amount paid by the responsible insurers.

Given their resources, it is likely that the insurers themselves, under the guise of Alternative Business Structures, will keep the claims work ‘in-house’ at out –of-town call centres, so ensuring that they still get to profit from the fees paid. In the event they suffer a shortfall, they can just increase insurance premiums and more aggressively fight claims. Solicitors have no such option.

The personal service from a local lawyer may well be lost to all but those willing to pay legal fees out of their compensation, leaving them worse off than before the accident.  As the aim of tort law, by which personal injury claims are governed, is to put the innocent victim in the pre-accident position so that they are no worse off than if the accident had never happened, the government’s policies will result in a fundamental change in the law which favours insurers and big business over innocent accident victims.

What lawyers like Donoghue Solicitors are doing

As an accredited firm with the Association of Personal Injury Lawyers, we are fully behind APIL’s campaign to draw attention to the potentially devastating consequences of the changes to innocent accident victims.

APIL have written to the government demanding a review of the way in which they extended the limits of the road traffic portal, the fee reduction, and the introduction of new portals for non-RTA claims. In the event the government does not respond to APIL’s letter before claim by 23 November, judicial review proceedings will be taken. As there is also to be a consultation on the fee structure in which APIL are involved, there is still time for the government to reconsider.

Trust

The government has overlooked an important group when reforming legal services and costs: accident victims. The APIL report noted that, of the 4,000 people surveyed, almost twice as many people would trust a solicitor to look after their interests if they submitted a compensation claim than an insurer. And yet, if these costs changes are introduced, the public may well be at the mercy of the insurers, with no local solicitors to protect them.

The government has swallowed the insurers’ line about cutting excesses within the personal injury market and intends to drastically reduce the amount paid to accident victims by way of costs in the process. In doing so, they have satisfied insurers and their shareholders.

However, this will be done at great personal cost to their constituents, who include not only innocent accident victims, but the thousands who work in and for law firms who now find themselves in an uncertain professional position. It remains to be seen how much of an impact these proposals will have come election time. The Conservatives, who received £4.9 million from insurance company firms between 2005-2011, may come to regret taking the insurers’ easy money in return for letting them set the agenda.

 

Kevin Donoghue is Principal Solicitor at Donoghue Solicitors, a law firm which specialises in accident claims.

 

What the ‘Litigator’ award for Daniel Fitzsimmons of Donoghue Solicitors means for our clients

By Kevin Donoghue, Principal, Donoghue Solicitors

Photograph of Kevin Donoghue and Daniel Fitzsimmons on Donoghue Solicitors
Kevin Donoghue (right) and Daniel Fitzsimmons of Donoghue Solicitors

I am delighted to say that my colleague, Daniel Fitzsimmons (pictured with me here), has today been confirmed as a ‘Litigator’ with the Association of Personal Injury Lawyers (‘APIL’).

You can see Daniel’s details on the APIL website by clicking here.

APIL is a campaigning organisation with over 4,700 lawyer members which represents its members at the highest levels, fighting with them for victims’ rights.

Its members have to promise to provide the very best service to accident victims who seek full and just compensation. APIL grades members based on experience and ability, using a panel of fellow solicitor members to assess each application individually.

Becoming a ‘Litigator’ is a significant milestone for any APIL member. It proves that you are experienced enough to pursue personal injury cases yourself; select cases and assess risk; work well within in a team (essential for law firms these days); and that you have good client care skills.

It also shows that Daniel is well respected among his peers who also practice personal injury law.

All this is good news for Daniel’s (and the firm’s) accident claims clients, who will continue to receive excellent service from him as an experienced and knowledgeable professional.

Although Daniel is a worthy ‘Litigator’ who deserves great credit for this award, I am sure he will not rest on his laurels as he pursues even more successful compensation claims on behalf of his personal injury clients.

If you want an experienced professional to deal with your accident claim, call Daniel Fitzsimmons on 08000 124 246 or complete the online form on this page to get in touch.