Thursday, 8 May 2014

My APIL Presidential Address

Last week I had the honour of taking up the role of President for the Association of Personal Injury Lawyers (APIL), an organisation of which I've been a member of since 1995. I gave my first speech as president at our 2014 conference last Thursday at Celtic Manor which you can watch below as well as read the full transcript of.

As I explain in my address, taking up this role I hope to champion ethical reform to the legal system and continue to fight for the rights of injured people along with all the other members of the association.



Video of John Spencer's Presidential address at the APIL Conference 2014

Presidential speech at the Association of Personal Injury Lawyers annual conference 2014 - Celtic Manor, Gwent, Wales.


PRESIDENTIAL SPEECH TO THE APIL ANNUAL CONFERENCE
CELTIC MANOR, 1 MAY 2014


Thank you all for coming here today. We come together at the tail end of a barrage of reforms and battles which have left lawyers reeling and injured people the losers. But, while there are many in politics, the media and the insurance industry who probably wish we would roll over and give up, we have not given up and I know we won't.

We will stand united because, however much they may be maligned, or undermined or commoditised, injured people still need our help. As long as people are negligent, other people will be injured as a result. These people will always need our help. Who else can do what we can?

Injured people must have an effective voice. We must provide that voice, and no commercial incentive can ever be as inspiring. I know that from my own experience. Comparing my work as a commercial businessman and my work campaigning on behalf of injured people, I know what I find most motivating and gratifying. Being a member of this organisation is about one hundred per cent commitment to injured people - this is what we provide. After all, who else is going to fight for them? It's down to us.

We're having to adapt to survive in this tough new environment. We are adapting, we are surviving, and I know everyone in this room is still just as dedicated, just as determined, to help injured people who need us now more than ever before.

I'm passionate about the rights of injured people, and I know you feel the same. Sometimes it's easy to forget why we do this - why we did all those years of study and training. It's easy to be sucked into the business of the law, especially when our businesses are threatened. It almost happened to me.

When I started out as a trainee I conducted family, care, property, commercial and criminal cases as well as Persona Injury. I got on quite well and somewhere along the line I realised I'd majored on being a businessman. I became embroiled in ambitious plans for business growth and was so immersed in that, and so focussed on the daily work of making a practice grow and making a profit, that somewhere along the line I forgot what really mattered. But then I had an opportunity for a rethink - to stop and take stock. I knew I wanted to build something more worthwhile - a professional, ethical practice which put the vulnerable, the injured person, at the centre.

I'm pleased to say that now I am doing that, and doing it, not by focussing just on the rules and the daily practise of the law, but by pouring energy into what is truly professional, what is ethical and what is right. After all, we all know instinctively what is right, don't we? Politicians, doctors, lawyers, insurers - we all know what is right. What often appears to be difficult, though, is actually doing what is right rather than what is expedient.

Legal Reform


So in the next year I want us to redouble our efforts to persuade everyone who is involved with developing and delivering legal reform to do the right thing for injured people. Being injured by the avoidable fault of another is, in itself, bad enough. What injured people need is justice and care. This is the justice to which they have a right; it’s the mark of a civilised society.

I believe - and hope - the worst of this reform agenda is behind us. The time is now right to drive forward in a new gear, to work at proactive reform to help injured people. We must also continue to strive for the very highest standards of professional excellence so we can all be the very best lawyers we can be. And we must never allow ourselves to forget why we do this, and what APIL stands for in the first place - the legitimate rights of the injured person.

I think we can be forgiven if we have developed something of a siege mentality after recent developments. I know this is the moment to get out of the bunker and get back to focussing on our own campaign agenda, never neglecting our work to help members, and their practices flourish as businesses.

People talk a lot about rights these days - and that's good. So let's remember, injured people have rights. APIL's purpose has always been to fight for those rights, to campaign for fairness in the law, to prevent needless injury, and to make sure our members are the very best lawyers they can be, and to deliver the best service possible.

We have all seen the right to full and fair compensation eroded over recent years, while at the same time injured people are vilified in some media and public forums. The new mesothelioma scheme is a case in point. Why shouldn't people with mesothelioma who are forced to use the scheme because their insurers can't be traced have to give up some of their damages? They would have lost even more if the Government had not passed on administrative savings into the scheme.

Why can't insurers who've taken and invested profits from premiums over decades do the right thing and pass on some of that profit to ensure these people receive 100 per cent of their compensation? It should be socially unacceptable for them even to consider not so doing. Political debate during the passage of the Mesothelioma Bill made it very clear that 75 per cent was about the best 'deal' the Government could get from the insurers. But this shouldn't be about doing a deal. It should be about doing what's right. To deprive someone of any of the compensation to which he is entitled when he probably only has months to live is, in my view, unconscionable.

As I stand here addressing you in Newport, I am reminded of the fierce battle going on about who is responsible for asbestos in schools in this jurisdiction. The UK Government says asbestos management is a devolved issue, while the Welsh Government says it is the responsibility of the HSE. It is fair to say that until someone accepts full and clear responsibility for asbestos in schools in Wales, nothing will be put in place to manage the situation, and that is completely unacceptable.

This issue demands a proactive approach rather than the piecemeal short-term reactive approach we currently have, and it must be a co-ordinated approach for the whole of the United Kingdom. Organisations such as Asbestos in Schools are campaigning tirelessly on this issue and we fully support this work.

I've already touched on the fact that what I find particularly tough to take is the way justice often plays second fiddle to commercial interests. In this, injured people really are at the back of the queue. It seems that being injured - not through some simple accident but because someone just did not or could not be bothered to take proper care - can make a person a pariah in the eyes of the Government, the press, and business - largely, in my view, as a result of the ABI's cynical campaign to undermine the rights of injured people.

I believe it was a sad day when lord chancellors stopped being legally qualified. While there is no doubt that legally-trained lord chancellors haven't always got it right in the past, I find it hard to believe that a lawyer would have allowed the relentless de facto attack on injured people and indifference to access to justice we've seen over recent years. And I really find it hard to believe a Lord Chancellor with a legal background would ever countenance the suggestion that court fees should actually generate profit in civil cases, as has been suggested in a recent Government consultation. I hope this suggestion is allowed to run into the sand: justice for Government profit rather than justice at cost is a line which should not be crossed. The Government should be ashamed of itself for contemplating it.

APIL Campaigning


Turning now to our campaign agenda, we have already made a good start this year with the launch in Parliament of our campaign to help people who suffer psychiatric harm after the death or injury of their loved ones - a very timely campaign, coming as it does in the year of the 25th anniversary of the Hillsborough disaster. The law as it stands puts almost insurmountable obstacles in the way of the people who are already suffering so much and who need help and compensation to help set their lives back on track.

Why does the law only assume there is a close tie of love and affection between spouses, parents and children or fianc├ęs? What about brothers, sisters, grandparents, close friends? Why does the law prescribe that the cause of the psychiatric injury has to be 'shocking', and that the person who has suffered mental harm to be 'close in time and space' to the incident? Society has developed in the 25 years since Hillsborough, as has medical knowledge of mental illness - it's high time the law caught up.

Who could be more vulnerable than some patients in the care of the NHS? So how dangerous would it be to remove the protection the law provides for such vulnerable people? The Medical Innovation Bill, devised by Lord Saatchi, seeks to protect doctors from litigation when they use innovative techniques on their patients.

The Bill is being painted by the formidable Saatchi PR machine as a way to cure cancer through legislation. Anyone losing a loved one to cancer deserves great sympathy, and not least Lord Saatchi, but this cannot be a passport to bad law. What evidence is there that a cure for cancer has not been found because doctors are so afraid of litigation that they won’t use innovative techniques? Doctors are innovative all the time. I'm not aware of a doctor being sued for failing to innovate. This Bill went nowhere as a Private Members' Bill but is now the subject of Government consultation and an enormous amount of PR hype.

It has captured the imaginations of patients who have no idea that it is effectively a license for doctors to play God. Most patients wouldn't realise that there are already many checks and balances in the system to help protect them from any kind of malpractice. The Bill appears to make no sense to those who are informed about the issues involved yet the Government is picking it up and appears to be running with it. We can only wonder why. We are talking to others about what can be done to ensure that patient safety is not jeopardised by this Bill.

But it is just as important to use our knowledge of claims against the NHS to help in our campaigns to prevent needless injury. For example, between 80 and 95 per cent of pressure ulcers can be avoided if simple procedures are carried out by health professionals. Pressure ulcers are painful, debilitating, and completely avoidable in terms of human suffering and expense to the NHS and yet the level to which this issue is being taken seriously in the NHS varies wildly from Regional Trust to Regional Trust. Our campaign will seek to avoid this needless suffering by calling for a uniform system of care across the country.

When the worst happens and people are injured, they must have a fair outcome and we must continue our fight to put an end to shady, unethical deals which make the injured person doubly vulnerable. APIL's tenacious lobbying efforts have started to generate some good results here, and the Government appears to have been persuaded that pre-medical offers in RTA soft tissue injury cases should become a thing of the past. Our job now is to keep up the pressure and see this through to the end, as it continues to be resisted by the ABI at every turn.

Workplace Health & Safety


Workers who suffer at the hands of employers who are more interested in profit than the safety and health of their employees are also incredibly vulnerable. This is now a greater concern following the introduction of the Enterprise and Regulatory Reform Act. At a time when HSE inspections are subject to swingeing cuts, the Act is a charter for rogue bosses who may be tempted to flout regulations in the double comfort of knowing that they are both unlikely to be prosecuted and that it will now be easier for them to avoid meeting their responsibilities to injured workers under the civil law.

We need to start thinking about real deterrents to persuade employers to take health and safety seriously and to understand that a safe workforce is an efficient, motivated workforce. And when employees are injured through no fault of their own, they should have the comfort of knowing that they can make a claim without the fear of losing their jobs, or of being placed under pressure by their employers not to make a claim.
   
Research we have commissioned has shown us that 80 per cent of those asked think the system for payment of bereavement damages is fairer in Scotland than in England and Wales. This is another issue which we have already broached with the Government and which we will be developing over the next year and beyond. With these issues, it will always take time to achieve results. We know that from experience. We also know that it will be necessary to negotiate, and sometimes to take things step by step. But we will be resolute and tenacious.

We must remember, too, that it is not just practitioners and injured people in England and Wales who are subject to fundamental, far-reaching and potentially damaging reforms. Colleagues in Scotland have been involved in a monumental battle against Government plans to increase the jurisdiction limit of the sheriff court from £5,000 to £150,000.

There is much in the Scottish Government's broad sweep of proposals which we can support, but removing almost all personal injury claims from the Court of Session isn't one of them. There are genuine fears that the Court of Session - the very court which gave us the first instance decision in Donoghue v Stevenson - will effectively end as a court of first instance for personal injury and that the system which remains will not be properly resourced, leaving injured people - again - the losers.

Last year in Northern Ireland, the county court limit was increased from £15k to £30k and we're already hearing that this has decimated the High Court in terms of its quota of personal injury cases, and  county court judges are struggling to get up to speed. Injured people and their representatives right across the United Kingdom are facing similar problems so it is really important that we all learn from each other, and that we stand together.

Putting injured people at the heart of everything we do


I spoke earlier about the need for help and compensation. Putting injured people at the heart of everything we do means more than providing them with the financial resources they need to get back on their feet. We must do a lot more to promote the use of rehabilitation, and to defend its use in the face of insurance industry attacks, whenever necessary.

Early rehabilitation, especially in catastrophic injuries, can make a huge difference to a patient's recovery, which should be what everyone wants - lawyers, insurers and the NHS. It is certainly what the injured person wants. Rehabilitation obviously costs money, which is why some insurers are so reluctant to proceed. But the prospect of paying less in damages if the injured person makes a good recovery should provide the necessary incentive, even if the prospect of just doing what is right does not.

And why should the NHS and local authorities, and ultimately the taxpayer, often end up picking up the tab for rehabilitation when the wrongdoer should pay for it? The recoupment of costs in this field is in need of urgent reform which is long overdue. Rehabilitation in hospitals is designed only to get people to the point of discharge, which is a long way short of full recovery. It can then be far too long before local authorities step in to help, by which time the patient’s progress may have stalled. Reform to ensure the wrongdoer pays to get the injured person back on his feet through a combination of both early rehabilitation and compensation has to be the way forward.

In addition to all these areas to which we will now turn our attention we will, of course, see to the end the work we have been doing to improve the efficiency of our system for bringing mesothelioma claims; to improve medical reporting and diagnosis of whiplash claims, and to develop a system of data sharing to help fight fraud.

So, let us do what we do best. Let's make sure our businesses are in the best shape they can be so that we can fulfil a truly unique purpose - helping injured people through our knowledge of the law. Let's make sure injured people receive from APIL members the very highest standard of professional representation.

APIL's accreditation scheme has been running now for 15 years. Only recently it received very high praise from the Legal Services Consumer Panel. It is one of the best accreditation schemes available for lawyers who want to improve the way they work and to help injured people recognise the level of service and expertise they can expect from an APIL member. It is an accreditation scheme to be proud of. It is well supported by our members but I would like to see every member of this organisation getting involved and committing to raising their professional standards even higher.

As an association, we will pursue without apology the right course for the injured person at every turn. We will continue to engage with other organisations with similar interests because we know that together, our voices can be stronger. As individuals we will be the best we can be for the people who need our help.

Professionalism


Professionalism is not about rules and regulations, or even compliance. At its heart it's about integrity and complete commitment, which is never more important than when representing an injured person. We will never cease to make this point at every opportunity. We will never cease to expose every shoddy agenda which puts profit before people.

Being a member of APIL is a badge of honour. Let us wear it with pride.


John Spencer
President, Association of Personal Injury Lawyers

Photo of John Spencer inaugural APIL President speech
John Spencer inaugural speech - Photo by Cheryl Abrahams on Twitter