Friday, 21 December 2012

The Government’s Proposed Changes to the RTA Portal are Wrong and Unjust

As the year comes to a close I'd like to look back and write positively about events in 2012. After all, this was the year in which Britain hosted - to universal acclaim - the Olympics and Paralympics, Bradley Wiggins became the first Briton to win the Tour de France and Chelsea, my beloved football team, scooped the Champions' League trophy.

Regrettably, the feel-good factor generated by sporting success is not matched in other sectors of society. As my recent letter to The Times pointed out, Britain is bedevilled by ethical lapses in politics, journalism and finance. We must try to rectify these and instil higher standards of professionalism across the board, but so too, as the long-awaited Jackson reforms come closer to reality, should we take a long, hard look at how well we serve victims of accidents.

Slashing Costs in the RTA Portal Scheme

I say this because of the unconscionable changes which the government has proposed to the RTA Portal scheme. Fixed recoverable costs for Protocol claims were negotiated between insurers and claimant representatives just two years ago, before the Portal came into being. The figures took into account the amount of work required by law firms to process claims, from inception to conclusion. The fixed costs agreed represented the average cost of cases rather than the lowest possible level. They are not exactly generous: typically, time spent on RTA cases far outweighs the costs recoverable at the conclusion of the claim.

But, emboldened by its ban on referral fees and in cahoots with the insurance industry, the government now seeks to slash fixed costs in Portal claims by £700. This proposal is contained in the Ministry of Justice's consultation document. Put boldly, it means that for RTA claims of up to £10,000 no more than £500 in legal fees will be recoverable.

In Cahoots with Insurers

It seems likely that this arbitrary reduction is a reaction to the perceived levels of referral fee that some PI solicitors are thought to be paying. Undoubtedly, the proposal comes on the back of an 'insurance summit' held between the government and insurers earlier this year - to which not a single claimant representative was invited. It also follows a relentless campaign by the Association of British Insurers to influence policy under the guise of reducing motorists' premiums.

On top of this, further changes are proposed. The government seeks to extend the Portal vertically, to handle claims up to £25,000. It intends to fix recoverable costs for such claims at £800 - which is a third less than the current recoverable costs on injuries between £1,000 and £10,000. That's not all. The horizontal extension of the Portal is also proposed, so that it will include employers’ and public liability (EL/PL) claims up to £25,000. Here the costs recoverable will be £900.

A Manifest Injustice

The proposals are manifestly unjust. An injury valued at £25,000 is very serious. It may be permanent; it will almost certainly be long-lasting. Such cases routinely require multiple medical reports, extended periods of treatment and often have a multitude of losses such as past and future loss of earnings, handicap on the labour market and considerable treatment costs. How can it possibly be right that injuries like this are dealt with for a total of £800? The number of hours of work required in such a case bears absolutely no correlation to the proposed recoverable costs.

The same is true of ostensibly smaller claims. £500 yields little of even a junior solicitor's time - unless that solicitor is paid the minimum wage.

When it comes to EL/PL claims, the proposals are no better. By their nature these claims are labour intensive. They do not sit comfortably within a portal regime. Again, though, lobbying by the insurance industry would see these claims shoe-horned into the Portal environment, despite the absence of any considered analysis of whether they are suitable and the correct level of legal fees for such work. Indeed, by way of a general point, Professor Paul Fenn (a leading expert in the interpretation of data from the RTA Portal) has concluded that it is simply too early to glean any meaningful data from the Portal. His suggestion that a further period is allowed for the Portal to settle is all the more compelling given the fact that some 50% of claims presently exit the Portal.

A Drop in Service

As I say, then, I wish I was looking back with a warm glow at 2012 – but when I think of the palpable injustice to victims of accidents that will flow from the proposed changes to the Portal I feel only anger and dismay. There is no doubt, if the changes are implemented, that the qualification and experience of fee earners handling Portal claims will drop. Just as depressing, from the client's point of view, is that many law firms will be forced to recover significant costs from injured peoples' damages in order to meet the massive shortfall in costs.

The government is wilfully neglecting the rights and trauma of accident victims out of a shocking obeisance to the insurance industry. Join APIL, MASS, the TUC and the Law Society and others next year in campaigning to stop the changes becoming reality - and, in the meantime, have a happy and safe Christmas.

Wednesday, 12 December 2012

We Must Do More For Victims Of Spinal Cord Injuries

Earlier this year, at the end of June, I attended the AGM of the All Party Parliamentary Group on Spinal Cord Injury. It was held at Portcullis House in the House of Lords, and I attended as a guest, having been invited by the Motor Accident Solicitors' Society. I found the experience to be poignant and inspirational in equal measure, and had planned, at the end of November, to attend a subsequent meeting of the Group. I was unable to do so owing to care issues facing my father, but my colleague, Allison O'Reilly, went in my stead.

Allison returned from the meeting feeling every bit as moved as I was. It's fair to say that she was angry, too. Here's why.

"The statistics read out by Dr Brett Smith of Loughborough University were frightening," Allison told me. "Dr Smith spoke about Spinal Cord Injured (SCI) people and their experience of living in care homes. He revealed that some 60% of SCI people living in care homes have considered suicide. One of them succeeded in turning off his ventilator, only to be saved by staff. When they came to investigate what had happened, he was too scared to reveal what he'd done. Dr Smith's evidence was of SCI victims up and down the country feeling as if they'd been condemned to life sentences, so poorly cared for were they in care homes."

I recall hearing similarly disconcerting testimony at June's AGM. I discovered a lack of clarity in determining who should pay for the treatment of SCI people, with some parts of the country passing the buck to NHS Primary Care Trusts, others to local social services. In turn, the divergence in practice created misconceptions, not least the widespread beliefs that once a person is not in hospital, they have to pay for their care, and that care outside hospital is social (or personal) care. A related myth is that people in residential or nursing homes automatically have to pay for their care.

Six months on, and Allison was unable to tell me that things had improved. The question of who pays for the care of SCI victims is as much a matter for debate as ever. This, and the many tragic tales aired at the meeting, accounted for Allison's anger. However, just as I was inspired by the story of John Burns last summer, so too did Allison come away feeling profoundly moved by an individual SCI victim.

Mr Burns is a tetraplegic who was injured in a watersports accident. His courage was palpable when he spoke at the AGM. Allison heard the testimony of Roger Hearn, who has also suffered a severe spinal cord injury. Allison encountered a similarly indomitable spirit in   Mr Hearn: "Roger is a lifelong cricket fan who was injured in a road traffic accident while in India on a cricket tour. He is now in a care home. It was heart-rending to hear of his experiences when he first came to the home - he had to tell the staff what to do but then, no sooner had they got to know him and understand his needs, they would move on. Often English wasn't their first language and communication was difficult. He has suffered huge indignity as a human being."

Allison went on to tell me that Mr Hearn credits his wife with keeping him positive - and yet, in his care home, it is not possible for the couple to sleep in the same bed. His wife therefore sleeps on the floor, to be close to her husband. No wonder, as Mr Hearn also told ITV, "survival is often just the name of the game".

Like me, then, Allison was moved and inspired by the tragic story of an individual SCI victim, but like me she also believes that, as a society, we must do more. It is simply unacceptable in a civilised democracy such as Britain that SCI victims have virtually no option but to live in care homes. They are as entitled to a decent quality of life as everyone else, and should be able to live in their own family homes - suitably modified, and with appropriate care provided - post-injury.

As Allison also put it: "I came away feeling so moved by Roger's story, and yet, there in the august corridors of the House of Lords, I could sense political defeatism. Will things change for SCI victims? I hope so - but only if we can make their plight better known."

Friday, 7 December 2012

Treat journalism as a profession with its own ethical charter

The following letter by John Spencer appeared in The Times 5 December 2012.


Few people seem willing to confront the most obvious question the Leveson Report raises about public life in Britain: the systemic lack of professionalism in so many walks of life.

Britain has become a country whose relationship with sound ethical principles has become, at best, ambivalent, and, at worst, non-existent.  Perfectly sensible laws exist to criminalise phone hacking, and yet they were routinely ignored. The reason is not that the laws lacked force, but that our culture has mutated into one which puts profit before duty.

This was evident in the MPs' expenses scandal, and it has been clear to see in the arena of personal injury litigation, where spam text messaging and unscrupulous behaviour by insurers and others continue to proliferate.

The solution to the issues highlighted by Lord Justice Leveson is not statutory underpinning, still less any form of more invasive legislation, but a wholesale reinvigoration of the notion that duty comes before profit. While the duty of the professions is to serve their clients, the media's duty is to serve the public. The two things are one and the same. They would not be problematic if it were the case that all those involved acted in accordance with the highest of ethical principles.

John Spencer
Director, Spencers Solicitors 

Wednesday, 5 December 2012

Natalie Sharp, our determined young boxer

This time last year, almost to the day, I wrote about boxing. I wondered whether the case against boxing was too strong to ignore, not least because of the views of the likes of Peter McCabe, the chief executive of Headway. For Peter, the case against boxing was clear-cut: "Repeated blows to the head causes chronic brain injury," he told me. "Anyone taking up boxing is needlessly risking their health."

Since then, though, Britain has hosted the Olympics, and many of us were inspired by the efforts of our pugilists. Haringey-based Nicola Adams especially put a smile on many faces when she became the first woman to win an Olympic boxing Gold medal. Her joy and enthusiasm were truly infectious.

I've also encountered boxing closer to home, too. One of Spencers' employees, Natalie Sharp, is a dedicated boxer. By day, Natalie is a litigator in our Chesterfield office; many nights a week, she trains at the renowned Unity ABC in Wincobank, Sheffield. Chief coach Brendan Ingle has a reputation that goes beyond boxing, so much so that even people who aren't so sure about the noble art - like yours truly - have heard of him. His gym, which produced Prince Naseem Hamed and Herol 'Bomber' Graham, is a byword for hard work, discipline and success.

Natalie has some serious ambitions. "I want to compete in the next Olympics in Rio, and I want to be the first female professional boxer to come out of the Ingle Camp," she tells me. To fulfil her dreams, Natalie trains at least three nights a week at Unity with Jon Keeton, a former cruiserweight professional boxer. "I love the atmosphere of the gym," she says, "and Jon is a great trainer. I've got a huge amount of respect for him." And when she's not in the boxing gym, Natalie is out running and working on other aspects of her fitness. "All in all, I train six nights a week, minimum," she says.

Before she took up boxing Natalie was a karate expert. She took up Wado Ryu when she was eight, and became a black belt, third dan. She also learnt how to kickbox before, two years ago, switching exclusively to boxing. Now 23, Natalie's previous martial arts experience means that she has it tougher than most when it comes to competing in Amateur Boxing Association (ABA) bouts: "Because I've got a lot of martial arts experience I've had to fight opponents who've already got quite a few fights under their belts rather than novices," she reveals. Due allowance should be made for this in looking at Natalie's record of two wins and two defeats from four ABA fights. "One of my opponents had had 10 fights, another had had 16," she tells me.

But Natalie doesn't bemoan her fate. She chalks up each contest as invaluable experience towards the fulfilment of her goals. She's a determined young woman who exudes a quiet and steely confidence as much as she is clearly athletic and physically very capable.

So, has Natalie, Spencers' very own boxer, changed my mind? Am I now a convert to the world of southpaws, rope burns and TKOs?

I don't think so. On a personal level I know that boxing isn't for me, and I continue to have reservations about it in a wider sense. But so long as it remains lawful, I would always respect an individual's decision to lace up a pair of gloves and step up to the mark. I think, as a society, that we should respect the rights of others to make their own choices. And when I think about just how hard Natalie works at realising her ambitions, in this toughest of arenas, I also take my hat off to anyone who's made of the same stuff.

I'll write about Natalie's progress from time to time, so do check in to see how she's doing.