5 ways restricting access to justice will hurt insurers

Photo of Kevin Donoghue, a solicitor who explains how restricting access to justice hurts insurers.
Solicitor Kevin Donoghue explains how restricting access to justice will hurt insurers.

By Kevin Donoghue, solicitor

A year ago I wrote to my local MPs. I explained why they should fight government proposals to raise the small claims limit to £5,000, which will potentially restrict access to justice to (up to) 95% of accident victims. Despite our best efforts, it seems that the government ignored these arguments, preferring evidence put forward by insurers that stand to profit from the change. In November 2016 the Ministry of Justice firmed up plans to raise the small claims limit. A short consultation period ended in early January, and formal plans are expected in spring. Insurers may be optimistic that the small claims limit will go up but, as the saying goes,

Be careful what you wish for; you may receive it.

Here are 5 reasons why insurers may regret their efforts to restrict access to justice for innocent accident victims.

They will lose:

1. Claimant solicitors as gatekeepers

Insurers hate to admit this, but claimant solicitors help them save time and money. How? By acting as gatekeepers. As qualified professionals, we are duty bound by a code of ethics to act in our clients’ best interests. Sometimes this means telling people something they don’t want to hear: that their claims are not worth pursuing. By doing so we protect our clients from the time, trouble, and cost of litigation. And we ensure potential defendants and their insurers are not troubled with unmeritorious claims.

The plan to increase the small claims limit to £5,000 means that this claims screening service will disappear for almost all personal injury claimants.

Without expert advice, most claimants will not know the strengths and weaknesses of their cases. They might be unduly confident about prospects of success and/or the value of their claim. And, because costs in the small claims track are very limited, the fear of losing financially will not deter people who simply want their day in court.

Insurers are process-driven, and will handle unmeritorious claims in the same way as they would any other case. This could mean paying lawyers to defend them in the small claims court knowing that, even if the insurers win, they will not recover anything close to their own legal costs from the losing claimant.

Alternatively, insurers may take an economic view and settle claims which otherwise would not be paid. Either way, it will drive up the number of claims made and cost insurers money to deal with and/or pay them.

2. Expertise on the claimant side which helps insurers handle claims cost-effectively

Claimant solicitors bring knowledge and experience to the claims process which enables defendant insurers to streamline their operations. Because solicitors like me have many years of training and practical experience we pursue claims efficiently and in accordance with the complex Civil Procedure Rules. We present only viable cases with winnable heads of claim. As we take cases to trial we plead them properly, file compliant court documents, attend hearings, meet deadlines, and represent our clients fearlessly, but properly, at trial.  By doing so we seek to present our clients’ cases in the professional manner they deserve.

As a result, insurers know that the claimant’s case will be properly presented and that they can deal with it in accordance with the Rules. This allows them to structure their departments efficiently, so that the right people are dealing with matters at the right time.

By contrast, cases brought by Litigants in Person or unqualified claims management companies are unlikely to be progressed with the same level of expertise or efficiency. Although it is true that anyone can pursue a claim at court, and if the small claims limit is increased many more will, the system can be challenging for the uninitiated. Without expert representation from a solicitor it is inevitable that some claimants will struggle. Judges will be expected to provide guidance and hand-holding, but can only go so far while remaining impartial. Defendant insurance representatives and their appointed solicitors will soon tire of direct contact with Litigants in Person, especially angry claimants who feel mistreated.

All this will increase time, money, and the stress on insurers’ claims handlers and lawyers.

3. Internal legal department profits

People usually contact their insurers immediately after a road traffic accident. This gives insurers early access to potential personal injury claimants’ details. In the past insurers took this information and passed it to preferred “panel” solicitors, for a referral fee. This was a highly lucrative business. For example, Direct Line made £21.1 million in referral fees in 2012. It’s easy to see why panel solicitors would pay so much. Liability in road traffic accidents is more straightforward compared to other areas of personal injury law. And, even if the insured driver was at fault, his or her passengers may be entitled to claim compensation.

But, for insurers, getting millions of pounds in easy referral fees wasn’t enough. When the Legal Aid, Sentencing and Punishment of Offenders Act (2012) (“LASPO”) came into force on 1 April 2013 it banned solicitors from paying referral fees.

Insurers quickly took advantage by taking claims in-house and setting up their own legal services divisions. For example, as this article explains, Direct Line insurance restructured the way they handled claims from both the claimant and defendant side to increase profits significantly.

Raising the small claims limit to £5,000 will hit insurers’ in-house legal services departments hard. Claimants will still want representation, and insurers will no doubt continue to offer it. But without the recovery of legal costs for most personal injury claimants, convincing accident victims to pay their own insurers to bring a claim will be a hard sell, and make it harder for those divisions to turn a profit.

4. Reputation and brand value

Despite a lack of evidence, insurers have effectively sold the government the “compensation culture” myth (read this to find out why). Justice Secretary Liz Truss described “a rampant compensation culture” when announcing the proposal to raise the small claims limit, singling out whiplash claims as “an easy payday”.

Some people may approve if raising the small claims limit cuts down on the number of whiplash claims. But these reforms go further. If the limit is increased to £5,000 genuine claimants in all areas of personal injury (not just whiplash claims) will be affected. This includes accidents at work, tripping and slipping accidents, and other accident claims. For example, someone suffering a broken collarbone after a fall at work might only be entitled to £4,290 compensation for the injury (from the Judicial College Guidelines, 13th edition). If they want compensation, the innocent accident victim may have to seek access to justice in the small claims court, and is unlikely to have expert legal representation.

Accidents at work can be complex. Claimants must navigate legislation, common law, and the claims process to seek compensation. Insurers routinely deny liability, often referring to technical points and case-law. They will be emboldened by the fact that they are dealing with claimant novices. They will fight claims that might otherwise have settled if the claimant had a solicitor.

But there’s a risk to this approach. In today’s connected world, insurers may find themselves on the receiving end of a social media backlash. In the example above it’s easy to imagine the innocent accident victim going on Facebook, Twitter, and Instagram, posting pictures of themselves in a sling, and holding a letter from an insurance company denying liability. Such posts could get plenty of likes, shares, and even mainstream media interest. It is unlikely that the insurer would get any sympathy.

Insurance is built on trust. Avoiding genuine claims undermines it. It is easy to see how negative publicity could lead to reputational damage and loss of brand value.

5. Government support

Some insurers have convinced the government to propose an increase in the small claims limit with the promise of a £40 saving on motor insurance policies. (Note that this will not be written into law so can be easily ignored.)

This possible, but unlikely, saving to the public is not nearly enough to cover the increased costs to the country caused by the decimation of this legal sector if the small claims limit goes up. As well as

  1. making countless genuine claimants fend for themselves in already-stretched courts, and
  2. losing the Treasury an estimated £1 billion in revenue,

a recent report estimates that 35,000 people are at moderate to high risk of losing their jobs in the law. Contrast this with a “key assumption” in the government’s impact assessment that:

Those providing services (lawyers, medical experts, Claims Management Companies) are assumed to find alternative activities of equal economic value.

This is wishful thinking to say the least, and by coincidence, is the same number estimated to go from the financial services industry if the UK leaves the EU in a “hard Brexit”. The government seems determined to push Brexit through, but can the country afford to leave the EU if it also guts the personal injury sector?

The government will quickly realise that it has been sold a pup and target those responsible: the insurance companies that stand to profit.

Mutual Benefit in Protecting Access to Justice

There’s still time to put an end to this madness. Insurers could realise that they stand to lose out and approach the government to discuss alternatives. Viable counter-proposals exist.

And the government could look at the mess Brexit is causing and decide that, at a time of such uncertainty, raising the small claims limit and restricting access to justice is too much for the country to bear.

I sincerely hope so.

 

Kevin Donoghue is the Solicitor Director at Donoghue Solicitors, an award-winning law firm dedicated to providing access to justice.

 

A Solicitor’s Review of 2016 and Predictions for 2017

Photo of Kevin Donoghue, solicitor who specialises in actions against the police, who reviews 2016 and gives predictions for 2017.
Kevin Donoghue, solicitor.

By Kevin Donoghue, solicitor

2016 has been a tumultuous year for the country as a whole, and civil litigation lawyers in particular. But what does 2017 hold? Here I look at three issues which affected us this year and make predictions for how they will play out in 2017.

1.      The proposed increase in the small claims limit

What happened in 2016?

You might think that the immense task of implementing June’s Brexit vote would be enough to keep the government occupied. Sadly not. In November, the Ministry of Justice announced plans to raise the small claims limit for all personal injury claims, and either scrap “whiplash” damages completely, or introduce a cap of £425 for them. As I wrote in February about the small claims limit, at a time of great political upheaval the government’s plan will make it harder for genuine claimants to recover their rightful compensation. It is expected to:

  • cost the country at least £1billion of much-needed revenue
  • deny 85% of injured people legal representation
  • hasten the collapse of the professional legal sector leading to mass unemployment.

Announcing the proposals, the Lord Chancellor, Liz Truss, seems to have bought into the myth of a “compensation culture”. (I wrote about how wrong this is here.)

Prediction for 2017

As this article in the Law Society Gazette points out, instead of solving the (non-existent) problem of a “rampant compensation culture”, these plans will make it worse. By taking ethical, professional, solicitors out of the personal injury sector claimants will suffer at the hands of unscrupulous claims management companies (CMCs).It seems that the government has simply forgotten about the suffering caused to innocent accident victims by the collapse of Claims Direct and The Accident Group, two high-profile CMCs.

And it is naïve for the government to think that raising the small claims limit will cut spam phone calls and text messages. Solicitors are banned from cold calling; claims management companies are not. CMCs, and those who help them with bulk text-messaging and robocalls, must be thrilled with the proposed changes. Expect more of the same.

The Ministry of Justice gave interested parties, including claimant lawyers, a (deliberately?) short period to respond to its consultation. It announced the proposals on 17 November and expects responses by 6 January 2017. It will confirm what will happen in April 2017. Insurance company lobbying means that they are well placed to get the increase in the small claims limit they crave, leading to even bigger profits because insurers will no longer pay genuine lower value claims. If implemented, it is unclear if any of the proposed changes require secondary legislation. If not, the government will proceed with its plans in 2017/ 2018.

2.      Continued attacks on access to justice

What happened?

The proposed increase in the small claims limit joins previous government policies which limit access to justice. During the Article 50 Brexit hearings, the Lord Chief Justice said, “We have in this country a civilised way of dealing with things, and it is simply wholly wrong for people to be abusive of those who seek to come to the Queen’s courts. If this conduct continues, those who do it must appreciate that the full vigour of the law will be used to ensure that access to Her Majesty’s courts are freely available to everyone.”

In this blog post I noted that these stinging words could also apply to the government.

Prediction

Previous and current government policies, particularly:

  • the proposed raise in the small claims limit,
  • failure to extend Qualified One Way Costs Shifting to all actions against the police claims, and
  • keeping prohibitively high court fees

will make access to justice harder to obtain, especially for innocent victims of police misconduct.

3.      Failing Police Culture

Throughout 2016 I wrote about various issues which I come across in my work as a solicitor dealing with civil claims against the police. Among other things I:

There’s a common theme in these posts: concern at the police’s culture and its attitude to public scrutiny.

a)      Police Complaints Reforms

What happened in 2016?

Prime Minister Theresa May’s disgust at, what she described as the police’s “contempt for the public”, led to the Policing and Crime Bill. The Bill, which is one step away from becoming an Act of Parliament,

would implement many of the proposals in the Government’s Improving Police Integrity consultation. It would reform the system of police complaints in the following ways:

  • A major role for Police and Crime Commissioners (PCCs) in the handling of police complaints
  • Changes to the handling of complaints aimed at making the system easier to follow and more transparent
  • Changes to the role and powers of the Independent Police Complaints Commission (IPCC) to reinforce its independence from police forces
  • The introduction of ‘super-complaints’ to allow certain advocacy groups and charities to raise concerns over troubling systemic issues in policing.”

As I pointed out, senior police officers brought these changes upon themselves by deflecting blame and failing to take responsibility.

Prediction

With the Policing and Crime Bill due to become an Act in 2017 the police complaints system will be under increased scrutiny. Its success will depend on the police embracing cultural change from the top down.

b)     Body Worn Cameras

What happened?

A University of Cambridge report found that police body worn cameras had a positive effect on policing. The lead researcher said, “I cannot think of any (other) single intervention in the history of policing that dramatically changed the way that officers behave, the way that suspects behave, and the way they interact with each other.” Chief Inspector Ian Williams of West Yorkshire Police also praised the many benefits of the “excellent” cameras, including increased detection rate, less time at court, and avoiding the need for vulnerable victims to give evidence at court.

Despite this, the system for body worn camera use is flawed and undermines public confidence in three ways:

  1. Instead of using body worn cameras which are constantly recording when on duty, police officers themselves control when the cameras are activated. Also, body worn cameras on the market today have a 2 minute pre-record function, but UK police only use (at best) cameras with a 30 second pre-record period. It is easy to imagine a situation where cameras are used selectively.
  2. Footage is kept for a very short period due to data protection issues. But that law could be used to justify deleting incriminating evidence against the police.
  3. Police officers involved in incidents have the power to edit footage. Editing creates a new, shorter file for use in evidence. But if the original footage is erased, leaving only the selectively edited file, innocent people could be wrongfully convicted.

Prediction

More police officers will wear body worn cameras as the technology and data storage becomes cheaper. The public will expect to see full footage when incidents occur and question its absence and selective editing. To maintain public confidence, the police will need to address these issues and consistently deal with disclosure of footage when matters are “sub judice” (not yet judicially decided).

c)      Spit Hoods

What happened?

Despite some police forces, such as Sussex Police, using spit hoods for years, these “barbaric tools” appeared on the country’s radar after the Metropolitan Police cancelled a trial of their use in police custody suites after a public outcry.

During 2016 I wrote about spit hoods here on our blog, and discussed their use in radio interviews.I:

  • noted that many forces already use, and misuse, the hoods, on children as young as 11.
  • quoted a Freedom of Information Act response which found that none of the spit hoods used by the police have been tested or approved by the government, unlike other forms of equipment such as body worn cameras.
  • described the delicate balancing act between police and public safety, and explained what happened when things went wrong. (In a detailed case study we described how our client Paul Smith (details used with permission) received £25,000 compensation after being wrongfully arrested and spit-hooded.)
  • considered the approach taken by the police officers’ union, the Police Federation. The Federation is keen to see spit hoods issued more extensively, and uses the more neutral term “spit guard” instead of “spit hood”. But that clever bit of PR spin does not hide the fact that people have died after being spit-hooded.

Prediction

The Metropolitan Police is consulting again on the use of spit hoods. After the consultation, it hopes to pilot the use of spit hoods in five custody suites in north-east London. As only 1/3 of police forces presently use spit hoods, the rest will be watching closely to see how the public reacts.

The police were caught on the back foot by the public outcry. I expect they will continue to seek public acceptance of spit hoods (referring to them as “spit guards”) and minimise the risks.

Final Thoughts on 2016 and 2017

2016 will long be remembered for its low points: the rise in hate crimes after the Brexit vote and Donald Trump’s election, Syria, the refugee crisis, terrorist attacks, celebrity deaths, and many other issues. We start 2017 with a blank slate. I urge the government and police to take their responsibilities as leaders seriously, and put the public first.

 

Kevin Donoghue is a solicitor who specialises in civil actions against the police.

 

 

Why are Solicitors Against Raising the Small Claims Limit?

Kevin Donoghue, Solicitor Director of Donoghue Solicitors explains why solicitors are opposed to an increase in the small claims limit.

I recently wrote to my local MP, Peter Dowd, and Louise Ellman, MP (the MP for Liverpool Riverside, where Donoghue Solicitors is based) to ask them to consider the Government’s proposed reforms of the accident claims process, and in particular, raising the small claims limit.

Photo of Kevin Donoghue, solicitor. Raising the small claims limit could have devastating effects in Kevin Donoghue's opinion.
Kevin Donoghue of Donoghue Solicitors considers the implications of the proposed raise of the small claims limit.

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 changes.

The government proposals will:

  • Raise the small claims limit from £1,000 to £5,000
  • Change the law by preventing people from claiming compensation for soft tissues injuries (such as “whiplash”) in road traffic accidents.

What is the Small Claims Limit in England and Wales?

The small claims limit is a money value placed on contested civil claims when proceedings are issued at County Court. With accident claims in England and Wales, if the personal injury element is worth less than the current small claims limit of £1,000 the case will usually be assigned to the small claims track. (There are exceptions, e.g., for complex cases, and sometimes claims worth more than £1,000 will get allocated to the small claims track.).

When a case is allocated to the small claims track it means that the Court considers the matter to be of low value and/or straightforward. Either way, in the Court’s opinion, solicitors are not required unless the parties want to pay privately. Consequently very limited costs or expenses are payable. As a result, most people bringing small claims represent themselves as Litigants in Person.

I disagree that personal injury accident claims are suitable for the small claims track. They are complex matters that require expert legal help to identify the issues, prepare evidence, and recover appropriate compensation to put the Claimant in the pre-accident position. Already Litigants in Person are at a huge disadvantage in small claims because Defendants in accident claims are usually insured. Insurers routinely fight small claims using expert solicitors and barristers. As a result, the scales of justice weigh heavily in their favour. More innocent accident victims will lose out if the Government raises the small claims limit.

If implemented these proposals are likely to have devastating consequences for innocent accident claims victims, people involved in the legal profession, and the UK economy. Only insurers and their shareholders will benefit.

It is for these reasons that I have urged both MPs to act. My letters stress the economic impact because, unfortunately, some politicians still believe the insurer-peddled myth of a “compensation culture” and may be reluctant to intervene. (I have written about this bogus idea in the past. Even Conservatives like former Minister Lord Young dismissed it.)

For now though, I’m not interested in a PR battle over mere words. These proposed changes to the small claims limit are so significant for concrete reasons that I hope our politicians stand up and fight. We are all relying on them.

Small Claims Limit Letter

My letter to Louise Ellman MP is reproduced below:

Louise Ellman MP

House of Commons

London

SW1A 0AA

29 January 2016

Dear Mrs Ellman,

Economic Cost of Changes to Personal Injury Compensation Claims

I am writing to you as a solicitor who specialises in compensation claims, a small-business owner, and employer, to urge you to make representations to the Justice Secretary.

I believe that the Government ‘s plan to increase the small claims court limit to £5,000 for people injured through no fault of their own – and to abolish recompense altogether for almost all those who have suffered soft tissue injuries in road accidents, is wrong.

I am sure you have read and heard the insurance lobby and government talk about the (non-existent) “compensation culture” and “fat cat lawyers”. I am not going to waste your time refuting that unsubstantiated nonsense. Instead, I invite you to consider the impact of these proposals from an economic perspective both nationally and locally.

£1Billion+ Cost to HM Treasury

It is estimated by the Access to Justice Action Group (www.accesstojusticeactiongroup.co.uk) that

the Treasury is likely to lose in excess of £1billion from lower recovery of welfare benefits paid to the DWP from successful claims, and loss of VAT, Income Tax and Corporation Tax from the demise of law firms, their suppliers and contractors, as thousands of lawyers and their hard working staff lose their employment and end up on state benefits.

Liverpool will be disproportionately impacted by these proposals. The city is a legal powerhouse with firms of all sizes employing people involved in compensation claims work. Liverpool’s law firms contribute to the local and national economy through taxation, jobs, and spending. It has a thriving support sector of IT, telecommunications, marketing professionals etc. Law firms like mine occupy prime real estate in the city, which encourages development and generates business rates for Liverpool City Council.

The compensation claims legal sector is already struggling. Many firms have gone “to the wall” since the Legal Aid, Sentencing and Punishment of Offenders Act (2012) (“LASPO”) came into force in 2013. The impact of that, and the current proposals, continues to take its toll on firms of all sizes. Last week the AA pulled out of the personal injury claims business. One of the country’s biggest law firms, Slater and Gordon, recently announced redundancies. Closer to home, Water Street-based PCJ Solicitors, which posted a turnover of £5.5million in its 2014 accounts, entered administration on 19 November 2015. The firm will leave unsecured creditors hundreds of thousands of pounds out of pocket.

The Government’s proposals will accelerate the sector’s collapse and threaten the continued existence of many more law firms and support businesses.

The proposals will also affect the budget of the already-stretched court service. Court fee increases have risen dramatically over recent years, particularly in civil litigation, which including personal injury compensation claims. Claimants are often unwilling or unable to pay the fees, leaving their solicitors to cover the costs while litigation progresses. If solicitors are no longer involved to fund court fees the Government will be forced to take money from elsewhere, and/ or close courts leading to more redundancies.

Wider Economic Impact

Whilst a limited increase in the small claims threshold is appropriate (inflation would suggest the correct higher figure would be £2,000), the current proposals will result in injustice to ordinary honest people whilst creating excessive profits for insurance companies; and even more so, if the injured are banned altogether from receiving anything at all for their suffering and losses.

It is estimated that 85% of injured people will be denied legal representation. They will be left alone to face an unfair battle against powerful insurance companies. Most will not even bother; or will be exploited by claims management companies.  Others will accept woefully inadequate offers to avoid the stress of the Small Claims Court.

My own firm is typical in that we help people locally and throughout England and Wales. Compensation recovered by innocent victims directly impacts on the local and national economy through spending on essential items (like medical care and aids) and discretionary spending (e.g. buying a newer car after a road traffic accident). Failing to recover any compensation, or under-settling, will have serious ripple effects in the wider economy.

Insurers’ Profits Soar Amid Broken Promises

The Government say its proposals will reduce “fraud”. However, the evidence does not support this argument; and the Government has already introduced a long series of measures to deal with this anyway.

Savings can only come from denying people the compensation to which they are rightfully entitled. The Government’s proposals will codify this.

The insurers claim savings would be passed on to policy holders. However, they’ve said this many times before (for example, during the discussions about LASPO) – and each time failed to meet their promise. The Government have made clear they will not “police” this, either. Despite the insurers’ promises car insurance premiums have increased 9.2% in the 12 months to the end of September 2015, taking the average cost of a comprehensive policy to £569.

The insurance industry’s own Association of British Insurers (ABI) figures show that their costs of recompensing those hurt by their policy holders have fallen 29% since 2010. The amount paid out annually by motor insurers fell from £8.3 billion to £5.89 billion last year – a decrease of £2.41 billion. Yet savings from this multi-billion pound windfall have not been passed on.

In fact, this huge sum has gone to inflate the insurance industry’s profits instead. For example, Direct Line and Admiral have between them paid out £1.65 billion in dividends in the last three years – equivalent to £221 for each of their policy holders.

Innocent accident victims, the city of Liverpool, and the wider UK economy, should not be made to pay for the Government’s wrong-headed plan.

I would welcome the opportunity of discussing these issues with you.

Yours sincerely

Kevin Donoghue

Solicitor Director

 

 

 

5 Reasons Why We Don’t Pay a Staff Bonus

Photo of Kevin Donoghue, solicitor, who explains why Donoghue Solicitors doesn't pay staff bonuses.
Kevin Donoghue, solicitor, explains why Donoghue Solicitors doesn’t pay staff bonuses in this article.

By Kevin Donoghue, Solicitor Director of Donoghue Solicitors

I’m proud that, at Donoghue Solicitors, we do things a little differently.

It may be uncomfortable to hear, but like every other law firm, we are in business, not charity. Even though we spend a lot of time and money giving back to our community, being professional means that we often have to make commercial decisions.

We’re not being selfish.

Our regulator, the Solicitors Regulation Authority, demands that we run our business properly.

Rule 8 of the 10 mandatory SRA Principles says that all solicitors must:

run your business or carry out your role in the business effectively and in accordance with proper governance and sound financial and risk management principles

As a solicitor and member of the wider legal community, I approve of this. It does no one any good to see law firms go out of business, especially clients.

But it is possible to run a commercial outfit and still put clients first. This view led me to think early on about how I would recruit and incentivise staff. This matters because without good quality, motivated people working for the firm it would soon cease to exist.

I trained to become a solicitor at a nationwide firm. Coming from a place where people are spread out and often have little to do with each other, I knew that I wanted to keep things small. It was, and remains, important to me that we focus on building long-lasting relationships with clients and staff. One way to do this was to recruit and pay people based on both their technical abilities and client care skills.

With this in mind, I decided to buck the trend of many law firms and pay my staff a salary without a performance-related bonus. Here’s why.

Staff Bonus Structures

Often law firms, particularly in the accident claims sector, pay “fee-earning” staff (solicitors, legal executives, and paralegals) a low salary which they can then supplement with a performance-related bonus. Solicitor’s firms have different ways of doing this, but they are all target-based.

  • Some pay bonuses on hours billed;
  • some on fees received;
  • others on cases opened or closed.
  • Some firms pay a bonus on annual performance;
  • some on monthly performance.
  • Some are individual based;
  • some department based;
  • others use complicated combinations of the above.

There are five consequences, all of them negative in my opinion, of paying staff performance-related bonuses in solicitor’s firms:

  1. The client suffers. This was the most important point for me when I decided against paying my staff a bonus. For clients, there are five main problems:
  • When deciding whether to take on a new client, lawyers could refuse to take cases which, on their face, are not guaranteed winners but might have arguable prospects. From the bonus driven fee-earner’s point of view, why should they invest time and risk their bonus on a case that might not win? This situation could result in genuine claimants being denied access to justice. (N.B. This is not the same as the reasons for declining a case on a “no win no fee” basis, which I have written about here.)
  • Harassed lawyers chasing bonuses might not have the time for proper client care, resulting in dissatisfied clients and poor instructions, which could result in things being missed, the claim being under-settled, and/or the client having to make a complaint.
  • Those same solicitors or other lawyers might leave the firm if they feel that the bonus system is unfair. They would be replaced by someone new, who has to spend time getting to know the client and the case. This is time-consuming, frustrating, and worrying for the client.
  • If the case is transferred from a lawyer who has left the firm, the client could be refused representation by another over-worked but appropriately skilled fee earner because they don’t have the time to invest in inheriting a former colleague’s case, or they think it doesn’t have good prospects of success. This might result in someone less qualified or able taking the case, which is a problem for the client, the lawyer, and the firm.
  • Finally from the client’s point of view, pressure on fee-earners to bill monthly or annually could result in a case being under-settled just to hit a bonus target. As a result, the client might get compensated sooner but they could lose out on the full amount of compensation they deserve. This could result in a professional negligence claim.
  1. It creates a “me first” culture. Lawyers may be reluctant to help their colleagues with cases, court hearings, meetings etc. as this takes away from their own time and bonuses. And, at the year-end, the person who received the help may get a bigger bonus and greater recognition for the following year, leading to resentment and jealousy. It also creates a toxic atmosphere at work which results in higher staff turnover, which as I mentioned above is bad for both the clients who have to work with another lawyer and the firm which has to replace them.
  1. Fee-earners can refuse to “share” clients with each other and across departments for fear of losing that client to a competitor within the firm. This helps no one, not least the poor client who could be missing out on quality representation and then has to go through the hassle of finding another solicitor elsewhere. Lawyers may also refuse to share contacts and potential referrers of work, leading to lost clients to other firms.
  1. Solicitors and other lawyers often spend time brainstorming ideas and cases to maximise their prospects of success. The law is a knowledge-based job, and knowledge is best shared. But bonuses create a culture of jealousy which limits sharing of ideas. This could lead to clients losing their cases, and making complaints and/or claims against the firm.
  1. Bonuses are difficult and time-consuming to manage. I attended a management course a while ago where a managing partner who had inherited a firm which had a bonus system said that, despite radically changing it, they still had to spend time refining it every year. They are a waste of everyone’s precious time and resources, which could be better spent helping the client (see point 1) and each other.

An Alternative to Staff Bonuses

Given all the problems with performance-related bonuses I have described it is a wonder to me that anyone uses them at all. Instead of this dysfunctional system, I decided when setting up the firm to make the client the focus of staff performance, not the bonus a lawyer could potentially take home. That way we all benefit when a client succeeds in their case, when we learn something which we share (staff training is continuous and thorough), and when we grow as a firm.

For example, my colleague Daniel Fitzsimmons recently settled a case for Mr. AN. A minibus driver knocked Mr. N off his bike. AN suffered personal injuries, property damage, and other losses. Daniel worked with Mr. N, me, and (trainee legal executive) Hannah Bickley to make sure that:

  • AN’s case was properly and fully detailed;
  • he got complete and accurate medical evidence from the right specialists; and
  • he was put in the position he would have been in if the accident didn’t happen. (This is the purpose of tort law in personal injury accident claims.)

Cases like this are all about teamwork, and Mr. Fitzsimmons treated AN as a member of the team. He involved him in decisions and took the time to discuss matters, demonstrating excellent “client care”. When it came time to settle, Dan negotiated hard and kept pushing for more when other lawyers on performance-related bonuses may have settled early to hit their targets.

Daniel recovered £4,600 for AN plus his legal costs, which was an excellent settlement. We’re proud of the job we did. AN was happy too. He was a helpful and co-operative client and has become a friend of the firm.

Photo of Daniel Fitzsimmons, a Chartered Legal Executive who works at Donoghue Solicitors.
Daniel Fitzsimmons a Chartered Legal Executive who works at Donoghue Solicitors.

Benefits

From a management point of view not dealing with bonuses (or the office politics they create) means that I get to spend more of my time

  • winning cases for my clients as I am a practising solicitor as well as the Director of the firm,
  • managing the firm’s growth, and
  • ensuring that we are progressing as a group.

I am proud of the fact that, since I started Donoghue Solicitors over four years ago, we have never lost a member of staff. Our clients and contacts know us all well and we have satisfying, long-lasting relationships.

And because we don’t pay performance-related bonuses we can invest more time in looking after our clients and getting on with the serious business of helping them win their compensation claims, which is what we’re here for after all.

 

If you want help with your compensation claims (actions against the police, accident claims, or professional negligence) contact us via the form on this page or call 08000 124 246.

 

 

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.

 

 

 

 

 

 

 

 

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.

 

 

 

 

 

How Police Taser Use is Failing Us All

Is the current police taser policy working? A few recent reports about the police’s use of tasers in the UK suggest not.

Picture of police Taser claims solicitor, Kevin DonoghueBy Kevin Donoghue, Solicitor

In 2013, police tasers were deployed 10,380 times across England and Wales. The weapons, which discharge an electrical charge said to be 50,000 volts, cause temporary paralysis. As a result, a police taser can be an extremely effective tool to ensure compliance.

But because the weapon can cause serious injury, the Association of Chief Police Officers’ (“ACPO”) own guidelines state that a police taser should only be used where:

  1. the police officers face violence; or
  2.  when they are in a situation where the threat of violence is so severe they need to use force to protect the public, themselves, and/ or the person they are dealing with.

 

Police Taser Use in the News

 

Despite that clear guidance from their own leaders, these recent reports suggest that the officers armed with police tasers are not sticking to their bosses’ rules:

  1. A BBC report states that in the South of England taser use has doubled, leading Amnesty International to express concern about whether they are being used in minor situations instead of the life-threatening or serious violence ones they were introduced to deal with.
  2. Staffordshire Police taser use is three times more than the neighbouring West Midlands Police. The force has the highest level of police taser use per person in the country, and is being investigated by the Independent Police Complaints Commission (“IPCC”) about it.
  3. Lincolnshire Police are using police tasers more than twice as much as neighbouring forces such as Nottinghamshire.
  4. The IPCC questions the point blank use of police tasers.  It notes that the police are officially no longer trained to use the technique of ‘drive stun’, where the police taser is discharged while being held directly against the victim’s body rather than fired from a distance. Despite this, officers are shown that the technique exists and use the police tasers in this way in 16% of cases. The IPCC said that showing officers the option existed but being told not to use it was ‘counter intuitive’. The IPCC commissioner also said that using the taser in this way ‘is purely a means of pain compliance’ which often made the victims of the police taser assaults more resistant.

 

Police Taser Defence

 

With all this recent negative publicity (the oldest story in that group is from 8 April 2014) you might expect the police to go on a charm offensive. But instead of re-assuring the public that the ACPO guidelines are followed, that training will be reviewed, and that the controversial ‘drive stun’ technique will be discontinued, all these reports were defended by the police for various reasons:

  1. Chief Superintendent Paul Morrison head of operations command at Sussex and Surrey police, justified the rise in police taser use by saying it coincided with more officers getting the weapons, and when discussing a case involving the police taser assault on a 14-year-old girl, said “Taser was a low level of force, if you use restraints or baton strikes… they could have led to injuries.”
  2. The Staffordshire Police and Crime Commissioner said police tasers were often used as a deterrent.
  3. Lincolnshire Police Force’s assistant chief constable, Lee Freeman, said that Lincolnshire’s large rural area is a factor in their comparatively high police taser use; that more of their officers were trained in taser use; and, according to the BBC report, “he said tasers were usually used in circumstances when someone [is] threatening to use violent behaviour.” (my emphasis).
  4. ACPO said that the controversial ‘drive stun’ technique is still shown during training because it could be needed in an emergency. They also questioned the statistics, suggesting that ‘angled drive stun’ (which they said is a ‘viable tactic’) was confused with ‘drive stun’ (the pure ‘pain compliance’ method.)

 

Photo of a police Taser Weak Arguments to Justify Increasing Police Taser Use

 

My thoughts on these responses are:

  1. Ch Supt Paul Morrison’s argument that more tasers equals more use has merit, but to then suggest that police tasers are ‘low level’ weapons undermines his argument. If they are so innocent, why are police tasers being issued to so many officers? Why is Amnesty International involved? Why are the IPCC criticising the police for using them for “pain compliance”?
  1. Staffordshire Police’s point that the tasers are often used as a deterrent is also justified according to the IPCC statistics, but that doesn’t explain why they are using the weapons so much, especially when compared to near neighbours like West Midlands Police, who have a comparable blend of cities, towns, and rural areas to police.
  1. Lincolnshire police say that being a rural force means that they must use their tasers more. This is disingenuous. England and Wales has lots of rural areas where other forces are able to deal with dangerous situations without resorting to the use of police tasers. Derbyshire, for example, only used the weapons 83 times in all of 2013, less than a third of Lincolnshire Police’s total. What did Lincolnshire do before they got their hands on police tasers? Simply let criminals and others they wanted to apprehend get away?

No doubt like Ch Supt Morrison of Sussex and Surrey Police, they would say that if they had to use a truncheon or fist instead that could also cause injury. Perhaps, but often not to the extent of incapacitating someone, who may then fall to the ground and suffer serious secondary injuries, which can be worse than the initial taser shock.

 I am also troubled that, according to the Assistant Chief Constable of Lincolnshire Police, police tasers are “usually” but not always used “in circumstances when someone [is] threatening to use violent behaviour”. The ACPO guidelines above say that the weapons should only be used when the officers or others face violence or the threat of violence. When and why did Lincolnshire Police disregard official ACPO policy? What other circumstances now justify using a police taser?

  1. ACPO’s response to the critical IPCC report on ‘drive stun’ is to defend the tactic, saying that it could be needed in an emergency, e.g when the initial firing missed its target. Are we expected to believe that happens in 1 in 6 incidents? Can’t the police shoot straight?

They also questioned the statistics, suggesting that ‘angled drive stun’ (a ‘viable tactic’) was confused with ‘drive stun’ (the pure pain compliance method). This, to me, seems to be little more than deflecting blame and trying to change the subject to one of how the report was prepared, rather than dealing with the issues raised.

As a solicitor who deals with civil actions against the police on a daily basis, I am not surprised that the police’s responses were defensive. Their mantra when dealing with compensation claims seems to be: deny, deflect, and disrupt. They appear to be taking the same approach with the media.

Police Taser Abuse Defended

 

Tasers can be deadly weapons and, as ACPO themselves state in their guidelines, should only be used as a last resort when faced with violence or a severe threat of violence. The alarming rise in police taser use, the continued use of the painful “drive stun” technique, and Assistant Chief Constable Lee Freeman’s comments suggests this is not happening.

Reading the reports above I am struck that the various police forces respond to challenges by defending their techniques, denying wrongdoing, and challenging the statistics.

This is a systemic issue. Instead of excuses, we need solutions.

It matters because police forces are meant to serve the public, not the state, and an escalation in the use of police tasers suggests that things may have moved too far in the direction of control and compliance.

If the police are to win back public confidence, they need to learn lessons from the seemingly out-of-control increase in police taser use and their bungled media response to it. They could start by properly training police officers using agreed ethical standards which apply to all forces, avoid blaming others, and stop trotting out excuses.

 

Kevin Donoghue is a solicitor who specialises in civil claims against the police. You can contact him via his firm’s website, www.donoghue-solicitors.co.uk, or on 0151 933 1474.

 

Image credit: Marcelo Freixo CC licensed

 

Why Electronic Tag Compensation Claims May Increase

Things are about to get more complicated for anyone wearing an electronic tag, and a lot more expensive for Capita PLC.

Picture of Kevin Donoghue, Solicitor Director of Donoghue Solicitors, specialists in helping people claim against the police.
Kevin Donoghue, Solicitor Director of Donoghue Solicitors

Kevin Donoghue, Solicitor Director of Donoghue Solicitors, explains why.

 

New Electronic Tag Contract

 

This week the Guardian reported how Capita, the public services outsourcing company, has been awarded a six-year contract to fit and monitor the electronic tags worn by about 100,000 offenders a year.

Capita has replaced G4S and Serco, who both lost their lucrative government contracts after overcharging allegations led to them repaying nearly £180 million.

I have previously blogged about the consequences of electronic tag failures. Then, because of my experience of representing people who claimed compensation for false imprisonment after electronic tag errors, I urged the government to think long and hard before entering into any security related contracts with G4S and Serco.  Fortunately for the public, as part of the electronic tag renewal process, the two companies were barred from bidding.

But Capita, the company that won the contract said to be worth £400 million, does not inspire confidence either, having also failed to fulfil its obligations under existing government contracts.

Only three months ago the publicly listed company (‘PLC’) was bailed out by the taxpayer when it failed to clear a backlog of medical assessments for payments to tens of thousands of people with terminal illnesses or disabilities. Presumably Chris Grayling, the Justice Secretary who awarded the electronic tag contract, was aware of this before awarding it to Capita.

Conflicts of Interest

By entering into the electronic tag contract, there are two sets of conflicts of interest in play:

  1. The conflict between the government and Capita; and
  2. The conflict between Capita, who hold the contract, and their suppliers.

1. Capita’s failure with the medical assessments contract highlights the fundamental flaw in the government’s decision to outsource the electronic tag contract: Capita, like G4S and Serco before it, is a PLC. As such, its duty is to make money for its shareholders, not to protect the public or those fitted with an electronic tag.

With its very recent history of failure, what makes Chris Grayling think that Capita will manage the electronic tag contract any better than its predecessors?

2. It seems to me that the way Capita have set up the contract is a recipe for disaster. In particular, I question the reasons for outsourcing fulfilment of the technical parts of the contract while retaining overall control.

No doubt with the interests of their shareholders in mind, Capita has partnered with three other companies to provide the electronic tag services:

  • Capita will manage the contract;
  • Steatite will provide the GPS tracking tags;
  • Airbus Defence and Space will do the satellite mapping; and
  • Telefonica will supply the network.

I expect that Capita’s explanation for partnering with these specialist companies is to save money and avoid investing in resources themselves by outsourcing the supply of technology and services.

But, as I pointed out in my earlier blog post about electronic tagging, equipment malfunctions by one company alone can give rise to unlawful arrest compensation claims against the electronic tag supplier (Serco in the case I described). The chances of errors giving rise to compensation claims with four companies involved are far higher.

Electronic Tag Claim Against G4S and the Court

As Mr. W’s case in the earlier blog post proved, paying thousands of pounds in compensation and legal costs is inevitable when the electronic tag equipment fails to do its job and a wrongful arrest is made.

But, and this is where things get worse for Capita, even if the electronic tag equipment works as it should, the company could still be liable for compensation claims for process failures. In a case I am presently pursuing for Mr. D, he will shortly receive compensation from both G4S and the Court Service for wrongful arrest and detention due to administrative failures.

Mr D was granted conditional bail at Leeds Crown Court on a curfew which allowed him to be away from his home only between 12pm-2pm every day. G4S installed the monitoring equipment at his home and fitted his electronic tag.

With such a short period of free time during the day, it was inevitable that there would be a problem at some point. That day came when Mr. D was given a hospital appointment which meant he would have to be out of the house outside of his normal hours. His criminal solicitors got a variation in the curfew from the Court. Mr. D notified G4S, went to the appointment the next day, and called the company when he returned home.

Three days later officers from South Yorkshire Police arrested Mr. D at home for breach of bail conditions for breaking his curfew. He was kept for over nine hours before being released once the Magistrates Court was satisfied that no breach of bail had occurred.

G4S accepts that it was responsible for the error due to a failure in its processes, and will pay compensation and legal costs for Mr. D’s wrongful arrest and detention.

(Mr. D’s case is interesting as it shows that the Court Service can also be liable for electronic tag claims. Despite explaining what happened to the police and Magistrates when he was first arrested, Mr. D was then arrested the next day, and again on the following day.

The Court Service will also pay compensation, as a staff member unilaterally changed Mr. D’s curfew hours, from 12pm-2pm to 1pm-3pm, causing the second and third arrests. This was not requested by Mr. D’s criminal solicitors, who merely sought to change the curfew for the day Mr. D had a medical appointment, and was not communicated to Mr. D or his lawyers. Negotiations are continuing and I will get Mr. D his compensation shortly.)

Electronic Tag Costs

Capita executives may be satisfied with their latest government contract, but as the experience of G4S and Serco shows, getting it wrong can be an expensive business.

People wearing electronic tags suffered wrongful arrests and justifiably made compensation claims against the two companies, who received bad publicity and had to pay out.

Capita will need to be confident that its own internal processes are watertight and that its outsourced companies and their equipment are working effectively. If not, more electronic tag wrongful arrest compensation claims will be made, and those Capita executives will only have themselves to blame.

 

To make an electronic tag unlawful arrest claim, call me on 0151 933 1474, or complete the online form on my firm’s website www.donoghue-solicitors.co.uk.

 

Are Breach of Peace Compensation Claims Worthwhile?

Photo of Kevin Donoghue, Solicitor Director at Donoghue Solicitors, experts in police harassment compensation claims.
Kevin Donoghue, Solicitor Director at Donoghue Solicitors.

By Kevin Donoghue, Solicitor Director at Donoghue Solicitors

I have just settled Miss B’s compensation claim for unlawful arrest due to an alleged breach of peace. This is the fourth such claim she has pursued against the police.

It is interesting because unlawful arrest breach of peace cases are quite unusual and, as Miss B’s case shows, claiming for breach of the peace is worthwhile financially and personally.

Breach of Peace Claims

The police arrested Miss B on six occasions between August 2010 and March 2011.

(You can read a case report about her first arrest here.)

So far, I have recovered over £14,000 in compensation for her for:

after the police arrested her for alleged breaches of the peace relating to four of the arrests (she is not claiming for the other two). Details of these four arrests are provided below.

Breach of Peace Arrest

The right to make a compensation claim began in August 2010 when a neighbour called the police in the early hours of the morning complaining of an alleged disturbance at Miss B’s home. When they got to the house the police found no evidence of a disturbance.

Despite this, the police went into Miss B’s home (which she shares with her mother), arrested her, and took her to a local police station where she was charged with a breach of the peace.

Miss B was injured in the arrest by the police’s handcuffs. At the station the police took her fingerprints and DNA. She was humiliated by having her clothing removed and given a ‘safety gown’.

The police kept Miss B in a cell overnight. After 10 hours she was taken before the Magistrates to face a charge of breach of peace. She denied it and promised to fight the case.

Later, the Crown Prosecution Service dropped the charges.

The next time Miss B was arrested, in November 2010, her mother needed urgent medical attention at home. Miss B called an ambulance. The ambulance staff contacted the police.

Miss B, wary of how the police treated her in August, refused entry to the police but invited the ambulance staff in. The police ignored Miss B’s clear instruction not to go into her home, and again went inside and arrested her for a breach of peace.

This time she was arrested and detained for about 30 hours.

In mid-December 2010 Miss B was called upon by the police to investigate an alleged disturbance. Yet again she was arrested for a breach of peace. This time she was detained for 27 hours.

Two days later she was arrested and detained for another alleged breach of the peace. This time the police forced entry into her home by using a battering ram.

Miss B was taken to the same police station and Magistrates’ Court as before, but sensibly the proceedings were discontinued there and then.

Compensation Claim for Breach of Peace Arrest

Parry Welch Lacy, Miss B’s criminal solicitors who represented her professionally throughout, referred her to my firm, Donoghue Solicitors, after the last arrest.

(We often receive referrals from other solicitors because we specialise in compensation claims against the police and are experts in dealing with police compensation claims.)

I reviewed all of Miss B’s arrests with her. It was not difficult to conclude that she was eligible to claim unlawful arrest breach of peace compensation.

Each time she was arrested for an alleged breach of the peace her version of events was never accepted. The police simply came into her home, despite clearly being told not to, and arrested her.

Miss B is a ‘night owl’ who became known to the police. It seemed that, once the circumstances of her first arrest were made out, the police simply repeated the pattern.

Picture of 'Justice' at the Old Bailey. Donoghue Solicitors helped a client get justice for her breach of peace compensation claim.

The Law in this Breach of Peace Claim

Unfortunately for the police, the law was not on their side.

To justify the arrests for a breach of the peace the police had to satisfy the test described by Lord Justice Watkins in the 1982 case of R v Howell:

‘We are emboldened to say that there is a breach of the peace whenever harm is actually done or is likely to be done to a person or in his presence to his property or a person is in fear of being so harmed through an assault, an affray, a riot, unlawful assembly or other disturbance. It is for this breach of the peace when done in his presence or the reasonable apprehension of it taking place that a constable, or anyone else, may arrest an offender without warrant.’ (My emphasis)

There is no evidence that harm was being done, or likely to be done, on any of the occasions described above.

So the police did not satisfy this test each and every time they arrested Miss B for the alleged breach of the peace.

The case of Liversidge v Anderson (1942) made it clear that every arrest by the police is unlawful unless they can justify it. This puts the burden of proof on the arresting officer.

I took the view that because the police could not satisfy the Howell test Miss B had good claims for false imprisonment.

Once false imprisonment is established it follows that the police assault (using handcuffs and taking DNA), detention, trespass, and prosecutions were also not justified.

I also argued for aggravated and exemplary damages given the police’s conduct when time and again they ignored established law.

These damages are meant to compensate the victim of police misconduct for injury to feelings and to punish the police for their arbitrary, oppressive, or unconstitutional behaviour.

I argued that this pattern of arrests over the course of 7 months went beyond reasonable conduct.

(You can read more about the types of damages I claimed on Miss B’s behalf here.)

Reasons for Claiming Compensation for Breach of Peace

Miss B was reluctant to pursue a compensation claim against the police but the police’s conduct gave her no choice.

She instructed Donoghue Solicitors to:

  1. claim compensation from the police, and
  2. to try to stop the pattern of repeated arrests for breach of peace.

So far I have recovered over £14,000 compensation plus full legal costs for Miss B.

She did not have to appear in court to take her civil actions against the police and the police’s conduct seems to have improved after Donoghue Solicitors got involved.

The police officers in her area are no doubt aware that Miss B will fight any future arrest and detention, and that we will aggressively pursue a compensation claim against the police on her behalf.

Because of this, they will think twice before arresting her and hopefully they will have received more training on grounds for arrest, particularly for breach of the peace.

I know that she is happy with the outcome and considers that making a compensation claim against the police was worthwhile.

 

If you want to claim compensation for an unlawful arrest due to an alleged breach of peace, contact Donoghue Solicitors on 0151 933 1474 or fill out the online form on this page.

 

 

Image: cc licensed ( BY ND ) flickr photo by John Linwood: http://flickr.com/photos/johnlinwood/352842329/

 

 

 

 

 

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.