John Hyde's blogs

Journalists are sometimes accused of misquoting people (not me, you understand, just in case Lord Justice Leveson is reading). So let me give Jonathan Djanogly an opportunity to be quoted in full, without amendments.

Here is the justice minister, speaking in the House of Commons, on 17 April. He was asked why mesothelioma cases could not be exempted from reforms in the Legal Aid, Sentencing and Punishment of Offenders bill, as an amendment tried to do.

Cue Jonathan…

‘Amendments would create inconsistency and damage the wider goal of our reforms - to restore sense to the costs of litigation, which have been substantially increased by the way in which no win, no fee cases operate, largely to the detriment of defendants.’

It was clearly a resounding message, for it bounced across the central lobby of parliament into the Lords a few days later.

There, fellow justice minister Lord McNally was resolute, declaring that ‘to exempt mesothelioma cases wholly from our reforms would be to retain the status quo, undermining the package of reforms and allowing cases to drag on’.

Yet within 24 hours of these words, mesothelioma was exempted, plucked out of the bill and sent into the long grasslands of further consultation.

The government now wants a report into the effect of LASPO, though these is no indication how long it will take or who will be asked to contribute.

It is now almost a year since the Ministry of Justice published its consultation on LASPO, having listened to a variety of opinions for more than six months. What more can we possibly learn about the effect of this bill? The government wants more time to consider the implications of a Fund of Last Resort - rumoured to be coming this summer - but this has been on the cards for two years. Did it not cross the mind of the MoJ to take account of it in LASPO?

The irony is the claimant lobby should be happy to have secured one exemption, albeit perhaps only a temporary stay of execution. But the overwhelming feeling will surely be of exasperation that this debate had to be fought so hard. It always seemed ludicrous - bordering on offensive - for the government to lump mesothelioma cases into the compensation culture, with Djanogly only last week describing solicitors involved as operating a ‘racket’.

The government, at least, had showed some backbone in fighting its corner, arguing for the ‘all or nothing’ policy in the face of fierce opposition. To then U-turn at the last moment smacks of a lack of conviction and uncertainty - perhaps even doubts about the reforms of LASPO themselves.

And of course the government’s original position was right, in a way. Why should the mesothelioma sufferer be treated differently (in terms of right to keep their compensation) to a victim of gross clinical negligence? How can one person’s suffering be differentiated from another’s, simply because of the root cause?

Ultimately for the claimant lobby, there will be the feeling of a pyhrric, unfulfilling victory. The government has played the part of Mr Bumble, offering a few breadcrumbs long after most of the children have grown up and left the orphanage. An exemption will be welcomed, but it’s too little, if not quite too late.

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Let’s cut to the chase: the best part about conferences is the freebies.

Solicitors suddenly turn into scavengers when there’s a free pen or teddy bear in sight, walking away from the venue looking like some wildly unambitious looter. One thing’s for sure, there were be some underwhelmed wives and husbands receiving gifts this weekend as delegates returned from the Association of Personal Injury Lawyers conference in Newport.

They certainly won’t be bringing back many smiles, for this week has been the moment of realisation for personal injury lawyers. The countdown to change has begun.

There is no more lingering hope of a government climbdown on LASPO. Justice minister Jonathan Djanogly is not for turning (indeed, he wasn’t even for turning up, having cancelled his scheduled appearance at the last minute). Lords amendments were a ray of hope for the claimant lobby but will likely turn out to be a stay of execution - the game is up and it’s time to prepare for the future.

Indeed, the conference has felt like that period in a disaster film between seeing the wave on the horizon and the world being obliterated. It’s the moment when Will Smith or Bruce Willis takes charge and guides his family to safety, whilst hysterical extras flail about until they meet their doom.

Personal injury lawyers have to get to high ground and see this storm out - because, make no mistake, this is a perilous time for many. Income is about to take a nosedive and firms will have to decide their policy on success fees, which will no longer be recoverable from unsuccessful defendants.

Small-scale cases will be largely unaffected, particularly claims involving road traffic accidents, where insurers will still be unlikely to contest cases and the speed of the settlement makes the success fee largely immaterial.

But for complex, lengthy claims that need medical reports and painstaking analysis, it may be a cost the law firm can’t afford to take on. Firms will have to break it to victims of clinical negligence or industrial disease that without a near-certain chance of success (and it would be a brave lawyer who predicts that) the case is simply unaffordable. Those who continue to advertise themselves as ‘no win, no fee’ will probably have to include small print in the contract warning that fees will have to be charged if the case gets complicated; certainly one for the regulators to keep an eye on.

The irony of the government’s stance on personal injury is that, in trying to tackle the supposed compensation culture, it will have little impact on the types of cases it imagines form that culture.

Law firms have a year to get their business plans together and work out the boundaries for taking on cases, but they’re stabbing in the dark. Incoming president Karl Tonks was right to say his members need clarity on what qualified one-way costs shifting, the 10% uplift on damages and part 36 will mean in practice. If the government wants to implement LASPO in April 2013, as it promises, these are issues that have to be addressed.

It wasn’t not all doom and gloom in Newport but neither were people walking with the joys of spring. This is the calm before the storm - and there is uncertainty over how the landscape will look when APIL reconvenes next April.

The biggest interest in the freebies, amongst the teddies and baseball caps on offer from exhibitors, was the incongruous sight of complimentary handcuffs on one table. Many lawyers in Newport may soon feel they’re wearing them.

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Sitting on a jury seems an increasingly precarious business.

Janet Chapman this week joined the growing list of jury members who have taken the short jump across to the dock. Her crime was so ridiculous it reads like a rejected Shameless episode. Chapman had faced three weeks of a trial in Preston before she decided she’d had enough.

The enterprising jury member went to her doctor’s, got a sick note for a back complaint and hopped on the first flight to Malta.

From there she called in sick, leaving the concise message: ‘Hello, ‘This is Janet Chapman Juror Number ***. I won’t be attending court for a period of up to two weeks. I have got to return to the doctor next Tuesday. I have got sciatica. Thank you. Bye.’

Alas, the long arm of the law was in no mood to say goodbye to her, slapping on the handcuffs the moment she’d touched back down in Blighty. Recent months have seen a number of jurors hit with contempt charges as the court system tries to get a grip on unruly members of the public.

In December, a teenage student was sentenced to two weeks at Her Majesty’s Pleasure for choosing the musical Chicago over sitting on a jury. Earlier this year, Theodora Dallas’ inquisitiveness got the better of her and she was jailed for Googling the defendant. Last June, Joanne Fraill was sentenced to eight months for befriending a defendant on Facebook and bringing down a multi-million pound drugs trial.

Chapman was a fool, undoubtedly, and wasted an awful lot of time and expense, not least during the day she went AWOL before her holiday call-in. But her crime was against the state, a state that will now spend around £3,000 on incarcerating her.

Would her penance not have been better spent on a community sentence rather than taking another space in our overcrowded jails?

Chapman’s sentence is obviously a case of sending a message to the wider public, but with so many contempt cases in the headlines recently, the message isn’t getting through. Nobody is suggesting what she did was right, or even excusable. But this sentence is harsh, and smacks of a court system taking revenge on someone for daring to undermine it.

Let’s save jail for the real criminals - and order the likes of Chapman to do something constructive to pay their dues to society.

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So how was it for you? The announcement we’ve all been waiting for, the culmination of near-on a decade of debate and argument.

The moment when the Solicitors Regulation Authority finally told us who the first alternative business structures (ABSs) will be. Drum roll please… Co-op, John Welsh & Stammers and Lawbridge Solicitors. I’ll be honest: the initial office reaction was, in this order: ‘No surprise there,’ ‘Who?’ and ‘Seriously, who?’

The Co-op is the eye-catcher that will gain all the attention. It is the Tesco in sheep’s clothing, the so-called ‘game changer’ that will send a shudder through every high-street solicitor with a branch next door. Make no mistake, the Co-op’s move into reserved legal activities is a huge moment in the history of the legal profession in this country. There is not a single existing law firm with half the brand awareness and reputation it can boast and, combined with the trust the British intrinsically feel about the Co-op, it’s an incredibly powerful entrant.

Of course, with such an entrance comes significant danger. Selling groceries is the easy part, maintaining a reputation when you’re dealing with complex and often divisive legal issues is a different matter entirely. There will be people actively fighting against the Co-op brand, people who lose custody of their children as an (indirect) result of the Co-op brand. Being the first and comfortably the biggest new player also means you’re under the most scrutiny.

As for the two other new ABSs, they are inevitably likely to be treated as an afterthought by the national media, but their inclusion is fascinating in its own right.

The SRA is acutely aware that liberalisation of the market is not popular with thousands of solicitors. It is regarded as dangerous both to the profession and to the firms it regulates. The successful applications of two high street, local firms is a chance to counter those fears. This is the SRA urging the profession to come out from behind the sofa, to embrace revolution rather than fight it.

For these two firms, the change is relatively minor, simply altering the name badges of their practice managers. For the SRA, their licences are a plea to the profession that everyone is invited to the brave new world.

All the arguments about delays are over for now. We have woken up this morning to a new era. Now is the time to decide whether to get out of bed and embrace the day, or press the snooze button and go back to sleep.

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