Wednesday, 29 February 2012

Fernando Torres is still a world class player. He needs to keep going

Today I'm going to write about something completely different - something with no connection to the law. It's a topic that's very close to my heart. Readers, I can't take it any more: why oh why can't Fernando Torres score?

I've been a Chelsea fan since a few months before the FA Cup win against Leeds in 1970 I think it was!  I've been to more games at Stamford Bridge than I care to remember. I've seen the team plenty of times this season, and I've watched, in agony, as Torres - Britain's most expensive player - toils in vain to score a goal.

Between 2007 and 2011, Torres made a total of 102 appearances for Liverpool, scoring 65 goals. That's a fine strike rate in anyone's books, as is 'El Nino's' tally for Spain - 27 goals in 91 games. In a career that began, in 2001, with Atletico Madrid, the quiet and dignified Torres has reputedly amassed a £14m fortune. In the modern era, the 27-year old no doubt seemed good value to Roman Abramovich - himself not short of a bob or two - when Chelsea paid £50m for him in January 2011.

Form is temporary; class is permanent

When Torres arrived, there was a real buzz at Chelsea. I was far from alone in feeling excited by the thought of such a brilliant striker leading the line for the club, albeit that by then he had hit a run of less than brilliant form for Liverpool and Spain. But as the old football saying goes: 'Form is temporary, class is permanent'. Surely, Torres' undoubted class would resurface, and he'd be scoring for fun for the Blues in just a game or two?

The statistics tell a different story. In 35 appearances, Torres has netted just three times for Chelsea. Opposing teams' supporters show him no mercy, barracking him in every game, but professional footballers are used to this sort of thing. No, being on the receiving end of some cruel chants is not the reason for Torres' continued difficulty in front of goal. What, then, is up with him?

I believe that Torres is a truly great player. Analysis by the likes of Alan Hansen and Mark Lawrenson on Match of the Day has, at times, indicated that he may have lost a bit of pace, but I am not convinced. Certainly, he is a different proposition to Andriy Shevchenko, who definitely lost a yard in his spell at Chelsea. Torres still moves quickly enough, and his sense of the game is first class. He anticipates passes, sees things that other payers don't, makes excellent runs and has often been unlucky, rather than inept, in front of goal. Again, then, what ails him?

Torres needs to visualise the goals he's scored

I think Torres' woes are psychological, and they arise from a three steps forward, three back pattern which he desperately needs to break.  For example, he may score a fine goal - but then he will miss a sitter. He will play superbly, but then, the next game, he will be invisible. For example, against Swansea in September, Torres played everyone off the park, scoring in the first half, but he then managed to get himself sent off in the second half. The next day's papers were full of 'from hero to zero' headlines, and sadly they sum up what is going on with him: each misfire just sends his confidence plummeting again.

Is there an answer? I think so. Torres remains a world class player; it's just that his drought in front of goal has continued longer than most. What he needs to do is keep going. He needs to remind himself of the goals he's scored and visualise himself scoring them again. The drought will end - and when it does, it may well be that opposing teams are on the end of a deluge.

Wednesday, 22 February 2012

Driving down legal costs also means driving down standards of service

This week I’m going to talk about costs. Or rather, the preoccupation with reducing legal costs that seems to be so high on the government’s agenda – and which certain newspapers trot out without thought.

Ever since the Jackson Review of costs in civil litigation, lawyers’ bills have been under the microscope. Nothing wrong with that: it’s important to maintain checks and balances, and there is no doubt that some lawyers milk the system to the exclusive benefit of themselves, with their clients’ needs a distant second. But lately, the laudable aims of the Lord Justice Jackson seem to have been hijacked.

The present government’s crusade to attack what it pillories as the ‘compensation culture’ – a crusade which its spin doctors say is in keeping with the spirit of the Jackson Review – amounts to a dumbing down of legal services. The preoccupation with reducing cost is evident at every turn, as if by driving down costs all the ills of the personal injury market will be cured. This, though, is not the case. The situation, as with so much of life, is fluid and complex rather than black and white.

By squeezing the market ever more and pushing costs down to the lowest possible denominator, the government simply increases the prospect of unprofessional representation.  It cannot be in the consumer’s interest to suffer an injury – one for which compensation is properly payable – and yet discover that a barely qualified, inexperienced practitioner is the only person available to take the claim forward.

Moreover, this, the commodification of legal services, flies in the face of what is second nature to the true professional. It would serve the government – and us, the taxpayers – well if it were to bear in mind what it takes to act professionally, as stated in 1992 by Lord Benson. There were nine key principles, and I’ve set them out in full below. 

1. The profession [in this case, the Law Society] must be controlled by a governing body, which in professional matters directs the behaviour of its members.

2. The Governing Body must set adequate standards of education as a condition of entry and thereafter ensure that students obtain an acceptable standard of professional competence. Training and education do not stop at qualification. They must continue throughout the member's professional life.

3. The Governing Body must set the ethical rules and professional standards that are to be observed by the members. They should be higher than those established by the general law.

4. The rules and standards enforced by the Governing Body should be designed for the benefit of the public and not for the private advantage of the members.

5. The Governing Body must take disciplinary action, if necessary expulsion from membership, should the rules and standards it lays down not be observed, or should a member be guilty of bad professional work.

6. Work is often reserved to a profession by statute – not because it was for the advantage of the member, but because of the protection of the public. Persons with the requisite training, standards and disciplines should carry it out.

7. The Governing Body must satisfy itself that there is fair and open competition in the practice of the profession.

8. The members of the profession, whether in practice or in employment, must be independent in thought and outlook. They must not allow themselves to be put under the control or dominance of any persons or organisation that could impair that independence.

9. In its specific field of learning, a profession must give leadership to the public it serves.

What underpins all of Lord Benson’s astute and sensible points is the notion that to be professional is to act in the public interest. The key factor, for Lord Benson, was the degree to which individuals in a profession and their governing body acted ethically.

It is this, allied with a holistic view of the PI market rather than a piecemeal approach, that will help lawyers provide the best value to clients. The government should take note. 

Wednesday, 15 February 2012

David Cameron’s proposals on whiplash are flawed and absurd

Picture this:  you’ve just parked your car, perfectly legally, outside a shop. You’ve just unclipped your seatbelt, and you’re about to open the passenger door to climb out of the vehicle, when a car shunts you from behind.

It turns out that the driver picked up his phone to take a call, and lost control of his vehicle. Thankfully, he was only travelling at about 10mph, so the impact wasn’t as bad as it could have been. But still, your body has been given quite a jolt. Fortunately you weren’t thrown through the windscreen, and yet more mercifully, nothing is broken. But within minutes of the incident your neck is hurting, and the following day it is worse. In fact, it hurts like hell, making your day-to-day activities thoroughly miserable. You struggle to turn your neck and move comfortably, so much so that you have to take time off work. Your car isn’t looking too pretty, either.

The injury takes a few weeks to settle down. Your doctor advises you that you’ve sustained whiplash. You’re self-employed, and have lost income as a consequence of another driver’s negligence. You don’t believe in what the government calls ‘compensation culture’ but you can’t help but feel fairly hard done by, so you go and see a specialist personal injury solicitor. This is what he says:

“I’m terribly sorry but there’s nothing I can do. For starters, you would need to see a panel of doctors and ensure that they agreed you’re suffering from whiplash, rather than just your own GP. This will make for delay, but in fact your claim doesn’t even get off the ground. This is because the vehicle which hit your car was travelling at under 15mph. Thanks to changes brought in by David Cameron, claims for whiplash injuries have become difficult per se – and impossible unless the incident happened at a speed of 15mph or over.”

To all right-thinking people, the above scenario will seem unfair and, indeed, absurd. However, it will come to pass if proposals announced yesterday by David Cameron to tackle ‘compensation culture’ are implemented. Making whiplash victims see a panel of medical experts and forcing their lawyers to incur extra costs in proving that an accident occurred at 15mph or over are precisely what the Prime Minister thinks should happen, following statements made at a summit of insurers at Downing Street yesterday.

Mr Cameron’s argument is that Britain’s reputation as ‘the whiplash capital of Europe’ forces insurers to raise their premiums, which, in turn, hits the wallets of the taxpayer. There are a number of flaws with this, not least the fact that medical understanding of whiplash is evolving rapidly and pointing squarely towards the fact that it is a genuine and debilitating condition. Moreover, what evidence is there to suggest that insurers will reduce premiums if the proposals are implemented? There is also considerable doubt that, all things considered, premiums are actually rising, least of all as a result of whiplash claims.

But perhaps the most insulting aspect of the Prime Minister’s proposals lies in their emphasis on the welfare of big business rather than the victim. To Mr Cameron, it is preferable to look after huge and wealthy insurance companies – and their shareholders – rather than think through the impact on the lives of people who suffer an injury such as that which I outlined above. 

Wednesday, 8 February 2012

Client data is sacrosanct. It shouldn’t be for sale

Like any busy solicitor, I receive a number of emails from all manner of people on a daily basis. Some of them are from clients who need help, while others are from the other side’s lawyers in a claim we’re handling. Still others fall in the networking category; some are even from old friends.

Fortunately, very few emails invite my firm to break the law. That, though, seems to be the effect of one particular email which a colleague received. I do not propose to identify the sender, and so I won’t even give an extract, but let’s just focus on one thing, for starters: the spelling! I am more forgiving than most of poor spelling. I have mild dyslexia, but in this instance it is indicative of a much deeper problem..

In fact this particular email – a round robin that many other law firms in the personal injury sector will have received – has more spelling mistakes than Fernando Torres has goals for Chelsea. In truth, the latter upsets me more. Torres is a great player but his inability to find the back of the net is a growing problem for my beloved Chelsea (although the less said about how the team threw away a 3-0 lead over Manchester United last weekend, the better).

Moving swiftly on... Perhaps its errant spelling is symbolic of how not all is right with this particular email. Certainly, if it were to be assessed for its linguistic elegance alone, it would come up wanting. But such things are small beer compared to what is really wrong with this email, which was sent by a large claims management company (CMC).

The email seeks to acquire personal injury claims which have stalled, for whatever reason, so that they can be placed with one of the CMC’s panel of solicitors. The incentive is a referral fee which, on the face of it, is far from insubstantial. In fact, it’s some £400 to £500 per case referred.

The problem with this is simple, and it’s to be found in the Data Protection Act 1998 (the DPA). The DPA contains eight data protection principles, which apply to anyone who processes personal data. Law firms and CMCs are governed by the Act, which, among other things, stipulates that data must be processed fairly and lawfully, in accordance with the data subject’s rights and for limited purposes. ‘Data controllers’ – again, for present purposes, law firms and CMCs – must be open and honest about how data is used, ensure that nothing unlawful happens with it, and handle it only in ways that are reasonably expected.

My question is this. Is it reasonable for a client of any law firm to expect that his or her data will be passed on to a CMC, in return for a referral fee? Bear in mind that ‘sensitive personal data’ has an additional level of protection under the Act; it would include matters of health, which, by definition, is what is in issue in a personal injury claim.

It seems to me that what this particular CMC is doing is soliciting a breach of the DPA. Of course, properly conducted law firms will baulk at the suggestion and refuse to play ball, but there are bad apples in every walk of life and some may be tempted. As such, this initiative goes to the heart of the malaise presently afflicting the personal injury sector.

Interestingly, however, harsher penalties are expected for data protection breaches following a review and new proposals by the European Commission. It is proposed that fines are to be linked to annual worldwide turnover of up to 2% (this could be a huge sum, depending on the size of the organisation), or may be as high as one million Euros for serious breaches. It is also proposed that the new law will apply to non-EU companies who market to or collect data about individual citizens based in the EU. Moreover, compulsory notification of data breaches is to be required: the Information Commissioner’s Office must be told of data breaches within 24 hours and the individuals affected without undue delay.

These and other proposed changes mean that data protection law may yet bite those who refuse to take it seriously.

Wednesday, 1 February 2012

The LASPO bill and the insurance industry: too close for comfort

Earlier this week the House of Lords voted on measures in government's Legal Aid, Sentencing and Punishment of Offenders bill (the LASPO bill), that which is intended to implement various reforms to the civil justice system proposed by Lord Justice Jackson. Fortunately, the vote resulted in a decision to delay implementation until April 2013.

As Lord Wallace of Tankerness put it, the drive to make radical and necessary changes has to be balanced against the need for thoroughness: "We believe that these are important measures and we want to implement them as soon as possible in order to control the costs of civil litigation. We wish to make sure that we get the details of these regulations and rules right, and that will inevitably take some time."

There will many observers who will have breathed a sigh of relief at the announcement by the Lords. Rushing through legislation is rarely a good idea. Time and thought are necessary to ensure that changes are fair, sensible and workable. At a time when a holistic approach is needed to resolve the problems in civil litigation and, especially, the personal injury sector, the LASPO bill, in its present form, is none of these things.

But just as I welcome the delay in LASPO's implementation, I cannot but be concerned by revelations of the cosy relationship between the government and the insurance industry. As The Guardian reported on Monday, insurers were given extensive access to the civil servants charged with drafting LASPO. The result is a bill that seems dangerously slanted towards insurers, benefitting the industry to the tune of hundreds of millions of pounds.

Thanks to a request under the Freedom of Information Act, it appears that the head of civil litigation funding and costs at the Ministry of Justice and the official in charge of the Jackson reforms, and his team gave the Association of British Insurers (ABI), the industry lobbying body, a great deal of information on their plans. This seems to have occurred with such regularity and willingness that Desmond Hudson, the Law Society's chief executive, described LASPO as "legislation for the insurance industry, by the insurance industry."

Naturally, the ABI rejects the charge of collusion. A spokesman said: "We have not said anything in private that we have not said in public and we have nothing to hide. We make no apology for providing evidence to policymakers to tackle the compensation culture and help reduce motor insurance premiums. The ABI, unlike the claimant lawyer lobby, has provided the evidence and analysis to support our public policy positions rather than rely on rhetoric and anecdote."

But, as the ever-readable Left Foot Forward blog says, "40 Conservative MPs, including the prime minister, chancellor, and minister of justice, have or had interests in the insurance industry." Chief among them would seem to be Jonathan Djanogly, the Justice Minister, whose shareholding in Aviva PLC amounts to a £97,000 conflict of interest. Evidently he is far from alone: the Central Conservative Party office and constituencies receive financial donations from a range of figures in the insurance industry and business connected to the insurance industry.

This week we have also seen Sir Fred Goodwin stripped of his knighthood. The Forfeiture Committee's decision to pour such ignominy on the man who played so large a role in the near collapse of the Royal Bank of Scotland has been welcomed by David Cameron. It seems to me, however, that the Prime Minister would do well to look closer to home. The government's house, when it comes to the insurance industry, is not in order.