Tuesday, 24 April 2012

A serious case of nerves ahead of Chelsea’s biggest game of the season so far

I confess to trepidation as I write this blog. However, please forgive me for a further confession: my nerves aren’t to do with the law.

Instead, they’re tied up in the fate of Chelsea FC, the club I’ve supported since I was a boy. I wrote a few weeks ago about Fernando Torres and his loss of confidence, a strange condition because while he continued to play well in other areas of the pitch when it came to a chance in front of goal he seemed to be suffering some kind of curse. Today I’m writing about a bigger subject than even the enigmatic Torres: the remainder of Chelsea’s season.

To lapse into football cliché, it’s all to play for. The sacking of Andre Villas-Boas in early March may have seemed harsh but it has resulted in a significant upswing in Chelsea’s fortunes. Roberto Di Matteo – who played for Chelsea 119 times between 1996 and 2002, netting 15 goals – has come in and done an excellent job, taking what the press had taken to describing as a misfiring team of ageing pros to an FA Cup final against Liverpool and a Champions League semi-final against Barcelona. Currently lying sixth in the Premier League, Chelsea also have a chance of a top four finish by the end of the domestic season.

But tonight’s semi-final second leg against Barcelona is what’s got me on edge. Chelsea go into the game in the ascendancy, after last week’s 1-0 home win. It would be amazing if we could return from the daunting Nou Camp with an overall victory against a team which contains the likes of Messi, Iniesta and Xavi, but aside from the mountain of a task ahead I can’t help but be worried by two things.

One, Di Matteo says that Chelsea will go into the game with the intention of scoring. This sounds admirable, but I hope the team doesn’t abandon its solid defensive principles in the process. I would have thought that a counter-attacking game was the best option at the Nou Camp.

Two, Torres has raised his head above the parapet and boldly stated that Chelsea can win. Granted, he cites Chelsea’s battling qualities as essential in this mission, but is the public confidence of a player who has generally been so cursed with hesitancy this season a good thing? Or is it tempting fate?

Time will tell. Happily, shortly after my last piece on footballing matters Torres ended his goal drought by scoring two goals in the 5-2 FA Cup quarter-final win over Leicester City. In truth, he wasn’t hugely impressive on Saturday’s in the 0-0 draw with Arsenal. Perhaps, then, the very act of writing will have an influence on tonight’s game?

I doubt it. Football fans the world over are prone to superstition, but cometh the hour, cometh solely Di Matteo, his team, the Nou Camp and the not inconsiderable task of prevailing over the best side in world football by far. I’ll be watching – nervously. 

Wednesday, 18 April 2012

Principles lost? The loss of professionalism in the personal injury system

In 1992 Lord Benson stated there were nine key principles of professionalism to which lawyers should adhere. Two, in particular, should be second nature to lawyers: the principle that ‘ethical rules and professional standards ... should be higher than those established by the general law’ and the principle that legal practitioners ‘must not allow themselves to be put under the control or dominance of any persons or organisation that could impair that independence’.

Regrettably, adherence to these principles is not always second nature, especially if we take a bird’s eye view of the personal injury sector. Here, as well as potentially referral fees – which the government intends to ban – there are a myriad of other practices which conflict with Lord Benson’s principles. Alternative Business Structures (ABSs) have been heralded as signalling a brave new world but they create a route to absolute ownership by insurers, who then effectively bypass the referral fee issue and achieve wholesale ownership of the entire process, from providing insurance as an indemnity insurer to solicitors making the claim against the third party. The government’s failure to any action given that ABSs will have this effect is symptomatic of a worryingly piecemeal and uncoordinated approach to the referral fee problem.

Some might say that the Legal Aid, Sentencing and Punishment of Offenders Bill (LASPO) will reform the personal injury sector. It professes to ban referral fees but, given the loopholes carved out in various places, is likely to be a paper tiger. Moreover, simply banning referral fees will not show insurers, CMCs and indeed some solicitors the error of their ways; in all likelihood, it is likely to push the practice further into the shadows. New practices will inevitably be devised which will share the detrimental and profit-driven features of referral fees. Some in the PI industry have already described to me the receipt of calls from CMCs offering to sell information with regard to prospective clients under the guise of ‘marketing information’ – a euphemism for ‘referral fee’. 

It was the proliferation of referral fees – and their associated, seemingly endless ancillary services such as car hire and medico-legal services – which have done so much damage to the PI system. Wedded to these are the advertising campaigns which CMCs and some solicitors have embarked upon. Not only do they sail dangerously close to inciting litigation, they cheapen the legal profession to such a degree that the title ‘ambulance chaser’ is not an entirely inappropriate label. Add the sale of personal data and underhand marketing tactics such as spam text messages, and we are faced wholesale systemic failure in this vital branch of the law.

If we want to grapple seriously with all the issues, we need wholesale cultural change. The government’s piecemeal, reactive approach is flawed. The interests of the public and victims of accidents must be the priority in the minds of all professionals, with profiteering stamped out.

Cynics might say such a utopian ideal for the PI system is unattainable. However, I would counter that it can exist if we rediscover and implement Lord Benson’s wisely drafted principles.

What underpinned Lord Benson’s approach is the notion that to be professional is to act in the public interest. The barometer by which he proposed to measure the standard of the profession is the degree to which individuals and their governing body act ethically. These principles should be the foundation of reform, and, even more important, practice. If the mindset of all the participants within the personal injury system is focused on acting ethically in the public interest, there will be no need for ‘catch-all’ regulation. Although a minority may still exploit loopholes in the system and evade regulatory oversight, they will eventually be stamped out by market forces. In fact if you speak to potential private equity investors in the profession, they see the value of retaining and emphasising professional standards.

Such a picture may seem uncharacteristically optimistic from someone who has written of his dismay about our industry and current efforts to reform. However, for every organisation or individual I have encountered who has displayed contempt for the public good, I have met dozens more who wish to do the best for their clients. It is because of this that I am certain that our profession and the industry can save itself from ruin and regain the principles which have been lost.

For any readers who are APIL members it is intended to publish a fuller article on this subject in the May edition of Focus, or if you are not and prefer please let me know and I will provide a full copy of the article.

Thursday, 12 April 2012

Whiplash caused injury is not a bogus condition

Whiplash never ceases to polarise opinions. On the one hand, there are those who say that whiplash is a synonym for an imagined condition, that it’s shorthand for ‘delusional and malingering’. Those who endorse this view tend to be insurers and/or members of the present government; the latter see whiplash as an example of ‘compensation culture’. On the other hand, there are many who argue convincingly that whiplash is a genuine and profoundly debilitating medical problem. Those who speak most persuasively from this corner are victims of accidents which have left them suffering from whiplash.

It is these people – the victims and sufferers – to whom we should listen most carefully. Insurers have a vested interest in scotching the existence, in medico-legal terms, of whiplash: they won’t have to pay out what tends to be an average of £2,500 per claim. The government uses whiplash for PR purposes, lambasting compensation culture at the same time as many of its members have financial interests in the insurance industry (even so, they might care to compare and contrast the UK position to the situation in Switzerland: there the average payout is in excess of €30,000 per claim).

Overseas jurisdictions aside, we need to consider whiplash on its own merits. That, in turn, means looking at case studies. Imagine, then, the following scenario.

A woman is on her way to work with a colleague, travelling in a line of traffic. Suddenly, she has to brake hard because the driver in front abruptly comes to a halt. Unfortunately, her commendable awareness is not replicated by the driver behind her, who collides with the rear of her vehicle. The scenario will be familiar: it happens every day on Britain’s roads.

But if it is commonplace, it is also traumatic. What, for example, if the woman’s car is hit by another vehicle travelling at speed? What if the impact occurs when the woman’s car is stationary but the other car is moving at a low velocity?

I know of many such cases. The pattern is often the same as in the imagined scenario above. The driver whose car has been hit develops severe pain in the back of the head. Stiffness in the neck is also evident. Then come the headaches, nausea and dizziness – and they continue for a long time. In other words: the classic symptoms of whiplash. Sometimes, the victim will attend the minor injuries unit of his or her local hospital; thereafter, the local GP and an orthopaedic consultant. The medical profession will be unanimous in diagnosing injury. And yet, when it comes to making a claim for compensation –for injuries sustained through no fault of the victim’s – hurdles appear at every turn. Insurers dispute the speed, weight and direction at which the miscreant driver’s vehicle was travelling; they argue over the latent injuries that can arise; they hire expert witnesses to contend that the victim has manufactured his condition. They do anything but accept that the victim has suffered a genuine and serious injury.

Moreover, accidents are, by their very nature, traumatic. As I have previously written, cutting edge research indicates that even if physically verifiable trauma does not accompany whiplash, it is no less debilitating for its sufferer – precisely because of the psychological factors inherent in the kind of incident that leads to whiplash.

I am looking forward to a conference hosted by the Association of Personal Injury Lawyers on 15 May, whose title is ‘Whiplash: The Evidence’. I hope that in examining whiplash further, we will realise that the present system – which allows insurers to present evidence to challenge claims – is a fair and reasonable one.

It is neither fair nor reasonable to package up whiplash as a facet of ‘compensation culture’, so that victims become unable to claim compensation for genuine injuries that are not their fault.

Thursday, 5 April 2012

Changes to the RTA Portal need clarity of thought

This time next week I will be attending an interview. Well, not an interview in the traditional sense of the word, but an interview with Andrea Nicholls of College of Law Media. As part of a video series for Continuing Professional Development (CPD) for lawyers, Andrea will be asking me a number of questions about the RTA Portal, the electronic Portal put in place nearly two years ago to support the Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents.

I’m looking forward to this particular interview – and my good mood is not solely down to the fact that Fernando Torres has remembered how to score goals. I can’t help but be pleased by this development, not least as last weekend’s 4-2 win at Aston Villa has helped put Chelsea back in with a decent shout for a Champion’s League place, but I'd applaud the approach to the interview for another reason, and it can be summed up in one word: clarity.

Andrea Nicholls is a writer-presenter as well as an employment lawyer, and she has kindly sent through a list of pre-interview questions which are well expressed. Combined with further clarification in discussion hopefully Andrea will have ensured the session meets the objective, of practical and relevant advice to practitioners. 

Andrea tells me I can’t wear blue – apparently, I will be rendered akin to the Invisible Man if I do – but aside from this modest disappointment (see above: it’s a Chelsea thing) I couldn’t have been treated more courteously before a televised interview. I’m optimistic that we will, as Andrea hopes, end up having a relaxed and yet informed conversation rather than a stiff and stilted interview. But if Andrea’s questions about the Portal are a refreshing model of clarity, regrettably the same cannot be said of the government’s proposals for change in this area.

Here, clarity of holistic thought is sadly as absent as Torres’ goal-scoring for most of this season. This is especially so when it comes to the ABI inspired proposal to fix at £300/£400 the fee for low-value road traffic claims handled through Portal. This would amount to a dramatic reduction from the present fixed costs of £1,200.  In reality, the protocol requires over eight hours of work.  The danger is obvious namely that such a slashing of costs will encourage or even force cutting of corners; in any event, it can only prompt a lack of professionalism, perhaps even encouraging spurious claims and even fraud.

The Ministry of Justice has begun meetings with stakeholders over its plans to make changes to the Portal, a key limb of which is extending the Portal to a £25,000 limit (a £15,000 increase from the current cap). This, too, is fraught with difficulty, both in the apparent rush with which the MoJ want to see the changes implemented – within just a year – and the extension of the Portal to covering employers’ and public liability accident claims.

As with too many of the initiatives emanating from the government in the personal injury sector, there is a sense both of undue haste and that a bandwagon is being pushed headlong to an uncertain fate. What is required is a holistic approach and a sensible consideration of the practical workings of the Portal, so that such changes as are made are in the best interests of the injured person as well as the public at large.

If only the government could adopt some of Andrea Nicholls’ clarity of thought. Meantime, I will continue to look forward to next Wednesday’s interview – and albeit that I can’t wear blue, I will also hope that Fernando Torres sustains his return to form, particularly since I sit finalising this blog in the Aziz deli, round the corner from Stamford Bridge, and before doing battle with Benfica!