Ban on PI adverts in hospitals 'unworkable'
Banning leaflets advertising personal injury lawyers and claims management companies from NHS hospitals is unworkable and counter-productive, the government has been warned.
Health minister Simon Burns last week told English NHS hospitals it was ‘not acceptable’ to display adverts for law firms. He said patients should be able to focus on treatment and getting better, without having to be ‘hounded’ by lawyers. His comments came on the back of an early day motion from Tory MP Andrew Bridgen, supported by 29 cross-party MPs, calling for advertising in hospitals to be forbidden.
But advertisers warned any ban would hit hospitals’ income and conflict with the 2006 Compensation Act, which allows businesses to operate in NHS trusts with the approval of the facility’s management.
In return for advertising space on NHS leaflets, claims management companies pay for bespoke, specialist equipment in the hospital. Payments can also be negotiated between the hospital trust and advertiser.
Anthony Mowatt, major shareholder in BOE Medical Publishing, which has deals with 170 hospitals and has a panel of solicitor firms on its books, warned of confusion between clinical negligence and patients seeking compensation after suffering a personal injury.
‘The contracts we have with hospitals forbid us from being involved in any claim on that hospital,’ he said.
‘In 99.9% of cases the patient is only given one of the leaflets when they are being discharged. They’re not being handed to people lying on their backs in A&E wards.’
Mark Boleat, former director-general of the Association of British Insurers, said ministers would open the system up to abuse if they changed the current rules on advertising.
‘[Before 2006] there was a problem with cowboys advertising in hospitals - some had to employ security guards to keep them out,’ he said. ‘Now it can only happen with the hospital’s agreement. If you took that system away you would still have advertising and marketing, only you would lose any control and drive it underground.’
Comments
Defend ambulance chasers
Typical, trying to use the law to peddle misery
Ambulance chasers and the compensation culture.
Perhaps the Law Society might now reflect on how this self serving and un-balanced article comes across to ordinary people and people outside of the legal profession.
http://www.lawsociety.org.uk/newsandevents/news/view=newsarticle.law?NEW...
They say the 'compensation culture' is a myth. Perhaps they ought to talk with a few people who through their work are unfortunate enough to deal with aggressive ambulance chasing solicitors and CMC's on a daily basis. Many of the claims made are generically presented or are outright fraud. This of course throws doubt on genuine claims.
They also say - CMC's serve no useful role. Well, they are right about that. But the very same thing might be said about solicitors. They also say that insurers if they believe a claim is based on fraud - should use the courts to dispute claims or prosecute.
Perhaps insurers should but it is same with many situations. The reality is that the insurer will make a commercial decision and in many cases will simply decide to ask for more proof from the claimant or settle up despite reservations. The same argument can be applied to the file sharing cases where solicitors wrote thousands of letters claiming money from members of the public for breaking copyright laws (many were innocent). Some members of the public defended themselves and others through vulnerability or feeling intimidated paid up. That's life in the real world which the Law Society fail to understand.
The Law Society, rather than passing the buck to the ABI and insurers need to look at the appalling behaviour of some of its members who are clearly out of control.
Should one ban coca cola from advertising in bars???
Bank robbers rob banks because that's where the money is. Coca Cola advertise in bars as that's where people buy drinks, and CMC / PI Lawyers want to advertise in hospitals because that's where the victims go after an accident. Simples.
Unlike the situation in 1991 when I launched the first national claims marketing brand in the UK, that became compensation.co.uk,, there are now proceedures in place to ensure that those wishing to advertise in hospitals do it in a sensible way, and these legal controls are absolutely necessary since the cultural changes caused by the combined effect of solicitors paying ridiculous sums for claims and the public getting used to the opportunity of money for nothing.
Boe publishing are correct in that these controls must remain in place if one is to keep any form of lid on the claims against hospitals and the NHS.
None of this would have occured had the government left legal aid in place for personal injury work, but the legal profession forced their hand through the practice of putting in green forms for every enquiry, whether a claim was made or not. Some of the most profitable departments within many law firms were manned by non lawyers that simply filled out legal aid forms all day and never processed a single claim, as the hourly rate in reality for form filling was much better than actually practicing law.
Instead of putting a stop to the initial interview payment, the government chose to cancel legal aid for the one area that did not lose or cost mony in most cases, as the third party repaid the money.
In 1993, after the professions became able to advertise, the LS underwrote Accident Line, a great idea to help firms generate work in the post legal aid era, except that every firm on the PI Panel recieved equal numbers of claims, regardless of whether they advertised the scheme or not - leading to all but a few firms pulling out as they were paying for their competitors to enjoy claims.
The LS also release an ATE policy priced at less than £100, which was perfectly good for purpose, but few used it as the firms of solicitors could recievce commission from the policies sold by them (PI Lawyers) at £1000 (one thousand)
We were the first to advertise in hospitals, the first to advertise on TV, the first to advertise in the national press, the first to advertise on radio and the very first claims brand to advertise in the solicitors section of the yellow pages. Each of these innovations came with months of negotiatings and begging for permission from the law society, the advertising standards authority and many government bodies. All of these media worked to differing levels from generating claims at £2 per case up to £150 per case (very different from the £700+ per case today) because the uk public did not suffer the same "compensation culture" as found in the USA and seen on our TV sets each night.
Over the years, the compensation game has become so crooked that even a decade after leaving the industry I am sickened by the continued lack of integrity throughout government, the legal profession, the insurance industry and even the general public, as nobody really wants anything to change.
Those making exagerated or fraudulent claims are rarely the poor sods paying for insurance, they are (often but not always foriegn) scum, stealing from the hard beaten honest guy to feather their own nest regardless of consequence. The government don't give a damn about anyone not giving back handers, which insurers do daiuly, and the insurers simply keep increasing the premiums and pocketing the increased profits as the law demands that you pay for insurance if you want to drive a car or run a business.
I sold my business at a tenth of its value to one of the only firms I could find that play by the rules, generating claims for themselves rather than using CMC's, using insurance policies that do not radically increase the claim value, refusing any claim that looks dishonest regardless of its ability to win, and yet I see RJW (Claims Direct) selling today for over £50 million when the brand has been guilty of the most contrived swindle where over 250,000 claimants lost some or all of their award through lies and fraud - albeit prior to RJW buying the brand - and one feels that maybe this is simply another area where the little guy is going to get the shaft and nobody cares.
The solutions to the PI and premium boom are simple, and involve the establishment of a national claims register requiring identification of the claimant, the abolision of success fees in over 99% of cases, the requirement to register the transfer of a vehicle at police stations prior to transfer (at a fee) combined with mandatory 10 year sentences for car theft, and the capping of insurance commissions for ATE policies a 17% instead of 90% as it is at present in some cases.
Youth premiums could be drastically reduced, along with road deaths, by the introduction of local Tracks where young drivers can express their need for speed in a controlled environment and also undergoe much more in depth training and road safety education. The net cost of all these measures would be zero as all are self financing, but stupid politicians that know little about nothing are too busy grabbing headlines rather than learning to do the job properly, even the Hon Jack Straw had to be quiet recently after his public demands for abolision of referral fees was destroyed by the fact that the Labour Party enjoyed millions in revenue from law firms for the introduction of PI claims.
Just to top off the stupidity of the government in this and such matters, they now propose to allow CMC's to become or control law firms through ABS, so the tail can officially wag the dog as opposed to discreetly wagging the dog in the past.
the real solution - vote "None of the Above" at the next election and send the idiots a message that you don't want to have your affairs managed by morons and thieves any longer.
You've certainly set out the
You've certainly set out the problems correctly-not sure your solutions are right.
Not allowing referral fees, or ABSs would seem to be a good start.
Surely time to get back in
Surely time to get back in your box.
You know, if you read the article, you will see it says nothing about people who sit at home and download films for free that other people have to pay for. It also says nothing about on-line libel.
You know why? Because it has nothing to do with that - that's why!
Indeed, it has nothing to do with solicitors. The reason this article exists, is that a company (which if you read it, you will see is called "BOE Medical Publishing") sent a press release to the Law Society Gazette.
I am realy upset that the Law Society brought action against the Solicitors from Hell website, because it provided a forum for the keyboard surfers to sit there and hyperexcite themselves at each perceived transgression of the solicitors' profession. Now instead they come on here.
Being as generous as I can possibly be to you, I'll assume you have a business and employ people and are genuinely concerned about the points put in the article (although I doubt any of that is true). If you are inundated with claims for false accidents, then what you should do is fight the cases. If you are right, you will win. The solicitors will then not get paid, and will think again before pursuing a similar case.
(Even better, consider what it is you are doing that is leading your employees to have these greivances against you, and change your behaviour).
Simples.
Likewise, if you didn't download porn films at home hidden behind the perceived but non-existent security of your keyboard, then when the allegation is made against you, deny it! It isn't rocket science. And don't give me the rubbish about IP address evidence being unreliable. It is not, and indeed the Court of Appeal confirmed that it is strong enough evidence to sustain a criminal conviction beyond reasonable doubt for child porn offences.
Well, that is a rather
Well, that is a rather arrogant attitude. Is this site for solicitors only?.
I think the Law Society should be pleased with people from other professions coming on here to offer a different perspective.
I am not going to address you on the file sharing cases again except to say that the IP evidence was shown in some cases to be unreliable (if you do not believe this check it). You know my views and the cases were mentioned here to demonstrate that not everybody outside the legal profession wishes to take every dispute to court and there are other factors (such as economic considerations) before going down that route. That is what the legal profession and you fail to understand.
It is too simplistic to say that insurers should take every claim they have reservations about to court. In some marginal cases where there are some concerns which cannot be pinned down, I think most insurers would normally settle. Carrying out a thorough investigation of a claim in every case is just not feasible.
In cases where there is considerable cause for concern I think the insurer is entitled to ask the claimant/solicitors to provide further evidence to support the validity of the claim and not proceed until this is received. It is then up to the solicitors to decide whether to take legal proceedings and for the insurer to take a view on whether it is worth fighting. If insurers fought every case, the courts would be even more clogged than they are already and your insurance premiums would be even higher.
I agree that in an ideal world it would be good to see insurers investigate suspect claims more thoroughly and deal with genuine claims more quickly. But the problem also needs to be tackled at the roots. The Law Society need to support the SRA and the police in investigating law firms which have been implicated in possible fraudalent motor/PI claims. It is not up to the ABI and the insurers to do this work for you.
That is why the article in the link I posted was unbalanced, unfair and self serving.
One final thought
And please do not assume that just because someone not in your profession has a negative opinion about some law firms has come on here just because one consumer site has been closed down by the LS. I have opinions on a range of topics and contribute to many online debates including financial matters, world affairs and legal matters and much more. That's why I can offer a different perspective.
You on the other hand seem to spend most of your time here. I am sure it is not healthy.
Besides - I thought you would have been aware. This is the SFH replacement site.
http://solicitorsfromhell.net/
IP evidence
You say that "the IP evidence as shown in some cases to be unreliable" and invite us to check that comment. Can you cite the cases in which IP evidence was found, after a trial, to be unreliable? Having read the SDT's judgment in the Davenport Lyons case (in which the SDT heard expert evidence from both sides), I cannot see that the SDT concluded that the IP evidence was unreliable. Indeed, if evidence of this kind is unreliable, why did Parliament adopt as central plank of the Digital Economy Act 2010? Why was Ofcom content to rely upon such evidence in the draft Obligations Code which it made under that Act? On what basis are solicitors to be condemned for relying upon precisely the kind of evidence which Parliament is content to rely upon?
You talk about economic considerations for not taking cases to court, but I assume that you would be quick to condemn Davenport Lyons et al for making offers to settle in the online infringement cases.
IP evidence
This is a programme which (if I remember correctly) examined the hard drives etc of some of those accused and found how innocent peoples IPs could be picked up by the software. The other thing to note - particularly in the ACS Law cases was the very fact that the law firms did not want to test their evidence in court (Judge Birss picked up on this very point) simply because they knew it might be unreliable. The whole point was that this was a scam which relied on people paying up when they received the letters of claim. Therefore for these reasons I would imagine that very few cases got to trial and were decided on merits.
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Judge Birss....
“Whether it was intended to or not, I cannot imagine a system better designed to create disincentives to test the issues in court,” said the Judge. “Why take cases to court and test the assertions when one can just write more letters and collect payments from a proportion of the recipients?”
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http://www.youtube.com/watch?v=wLhb80vE8Cc
And without knowing all the ins and outs of police convictions etc I would argue that the evidence for convictions in child porn offences is probably alot safer as these offenders have often been convicted for repeatedly downloading this material to a point where it is very hard to plead that their IP address could have been compromised so many times. It is different in the file sharer cases as there were many people accused of downloading the odd film and the programme showed how an IP address could be compromised and indeed was.
Regarding economic considerations about going to court. There is a difference here depending on whether you are a defendant who decides not to fight a case for economic reasons or a law firm pursuing a weak claim which decides to try and settle with the defendant before trial or abandons it.
As I said above an insurer may decide not to fight a case for economic reasons. That is reality. An innocent member of the public accused of file sharing or libel may decide to settle rather than fighting for a whole host of reasons, economic, stress, employment reasons and it is the welfare of these people receiving these letters of claims which concerns me (and evidently the SRA ,Judge Birss and Judge Eady)
As far as DL or any other solcitors are concerned I would argue that because they are initiating the action through their client they have an overiding responsibility to
ensure that the cases have a reasonable prospect of success - particularly if they are pursuing cases on mass. They did not carry out the necessary research to ensure this and their letters of claim were woeful and threatening to the vulnerable.
This the judge's comments on another recent 'mass claim' against many vulnerable members of the public. Judge Eady says this:
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46.This is a most unsatisfactory state of affairs. Not only, yet again, did Mr Smith and his legal advisers fail to comply with the defamation protocol, but they failed even to identify what he is alleged to have said – over a year later. It is possible that the solicitors, being engaged on a conditional fee agreement, were trying to keep down costs by not exerting themselves beyond the bare minimum. If so, that is a philosophy which does not serve the interests of justice or of fairness to these multiple defendants.
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Whether DL may have decided to settle cases with some individuals before rather than take them to court is besides the point. The cases should not have been pursued in the first place both in terms of the merits and the potential holes in the evidence and the oppressive way the cases were taken forward starting with the letters of claim.
And one more thing. Even Andrew Crossley criticised Davenport Lyons.........
http://acsbore.wordpress.com/2010/09/27/acslaw-davenport-lyons-were-rubb...
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In a startling email between Andrew Crossley and Andrew Hopper QC (concerning collaborating with Tilly Bailey and Irvine), Andrew Crossley dismisses Davenport Lyons efforts (Which he based his whole practice on) as “.. a little bit rubbish at doing this work” and adds “….to arrogant”
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I will say again - the majority of the public condemns these practices and so does your regulator as evidenced by the six charges found against DL. All these law firms should make amends by giving back all the money they extorted from members of the public. Until they do, I suspect the fallout from this will go on and on and on.
Anyway - I think we have gone slightly off topic here and file sharing is best discussed on the LS forum.devoted to the subject.
Kelly, if claims were
Kelly, if claims were fraudulent, and the insurers fought them and won, they would not pay claimant costs or compensation, and their costs would be paid by the complainant's ATE insurance, which 90%+ of cases carry. All research and the government's own reports show the compensation culture is a myth. Insurers always need something to justify raised premiums.
Few years ago it was the floods. No floods so have to change from that. Then it was lack of fixed costs in PI cases. Fixed costs have been in for a while now for the majority of cases - any reduction in premiums? No. Now for the first time I have heard - premiums are going up because the economic climate is resulting in more vehicle crime. There will always be a reason, the insurers just want to maximise profits and take the heat off their own actions.
No-one seems to complain about solicitors being there to get the compensation required when their family member has been crippled in a road traffic accident, or left brain damaged at birth by a negligent doctor.
There are some false claimants. They should be weeded out. The way for that to happen is for the insurers to fight it. That is what the system is set up for. However the insurers simply want to pay out less or nothing for everyone, the majority of whom are genuine.
Me
What I invited Kelly to do was cite the cases in which IP evidence was shown to be unreliable. Kelly has failed to do that and, instead, has fallen back on generalised comments. In fact, there are cases in which IP evidence of precisely the kind in question has been accepted as reliable (including, for example, Cinepoly v Hong Kong Broadband [2006] HKCFI 84). The case in which evidence of this kind received the most scrutiny was EMI v UPC [2010] IEHC 377, where (at paragraph 34) Charleton J concluded that such evidence is "highly accurate".
That being so, it is not clear to me how solicitors can be criticised for writing letters of claim based upon evidence of this kind.
Kelly describes the claims in question as a "scam" and asserts that money was "extorted". These seem to me be serious comments to make, because they imply dishonesty on the part of the solicitors. There was no finding of dishonesty against Crossley and no allegations of dishonesty were made in the Davenport Lyons case.
Kelly also says that the cases should not have been pursued in the first place, "both in terms of the merits and the potential holes in the evidence". The problem with that comment is that every solicitor who pursues cases does so in the knowledge that the outcome cannot be guaranteed. Pursuing a weak case is not professional misconduct and almost every claim will have some hole or other in the evidence. If a solicitor committed misconduct every time he ran a case which failed, there would be no litigation solicitors left in practice.
Context, Context and Context
Me
I have replied to you also on the appropriate forum and I suggest this continues over there.
I would just say that I believe that you are knitpicking with some of the stronger words I have used here and I would just ask you to try and step back for a moment and consider them in the proper context rather than from a solictor's mindset.
The evidence (unless I posted in invisible ink) can be found on the link above. This evidence was gathered by computer experts and showed how an IP could be compromised in certain circumstances. My comments about the differences between police prosecutions for illegal porn etc and the file sharing cases I believe are valid.
Should a solicitor take on a weak case?
I think many people outside of the profession would say not but I take the point you make. However, if a solicitor takes on a weak case, he does take a big risk if he pursues it so relentlessly to the point his integrity is questioned and people query whether he is attempting to gain an unfair advantage of others and is motivated by greed.
As for making comments about these claims being a scam - again I think most right minded people would agree it was a scam. I stand by that comment.
The SRA may have dropped the allegation of lying to the court against Crossley.
However, think of the charges which were brought against all of the file sharer firms. There might not have been a specific allegation of dishonesty but when all the charges are considered as a whole, do you really think they were acting with integrity?.
Again I think most people would consider their actions as not very honest and unethical - particularly when their letters sent on mass were designed to intimidate people (some of whom were vulnerable and innocent) into paying them money. Indeed I think the word greed was used by the SRA.
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Davenport Lyons: Greed clouds judgement and results in £20K fine
SRA Update Issue 20 – September 2011
The SRA's investigation revealed that the concerns of those who had received letters and protested their innocence were ignored. The SDT found, in effect, that Mr Miller and Mr Gore became too concerned about making the scheme profitable for themselves and their firm. Their judgement became distorted, and they pursued the scheme regardless of the impact on the people receiving the letters—and even of their own clients.
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Perhaps my use of the word 'extort' to describe this behaviour might be considered in relation to this charge.
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6) Used his position as a Solicitor to take or attempt to take unfair advantage of other persons being recipients of letters of claim either for his own benefit or for the benefit of his clients.
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So, Me - do not play on words and their dictionary meanings and take them out of context. If any of the file sharers think my words are actionable - they can go ahead and sue. But I would predict a very similar outcome and exchange to this real life scenario recently heard in the High Court.(see below) The complaint was also about the use of the word 'extort' to describe someone's behaviour on a forum and just one part of hopeless libel proceedings against dozens of people.
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Claimant: "he defamed me!"
Judge: "No he didn't - he called you a dickhead"
Claimant: " He accused me of trying to extort money out of people"
Judge: " Well, you were!"
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In another libel case about comments made on a blog/forum heard in the High Court very recently, the barrister for the defendant opened his submissions to the judge in this way. (something like this anyway)
"Our case relies on three main points - context, context and context"
And finally if there is still any doubt over the seriousness of any remarks here made about the file sharer offenders may I refer you to this observation made by the Judge Eady in another case:
.........
"Yet the remarks on the bulletin board by these multiple defendants were not simply made in a vacuum. Any reader would know the context and recognise the conduct on Mr Smith 's part which was being characterised as "appalling" and be able to form his or own view of it. This means that Mr Smith 's reputation in the eyes of such a person is likely to depend primarily on what he himself has done, and is known to have done, rather than on what others are saying about it".
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Anyway - apologies for the long post - but I hope that makes my position a little clearer for you regarding the subject under discussion and clarifies my 'serious comments' about the law firms concerned.
Me
It does clarify them, but it adopts the "scattergun" approach which you have criticised in others and does not deal properly with the authorities which I cited. This is not "nit-picking": it is how lawyers analyse things.
Most of the comments I have read on the file-sharing cases ignore all authorities which do not suit their point of view. Cinepoly is ignored, EMI v UPC is ignored, the reliance upon the relevant evidence in the DEA 2010 is ignored. Instead, the comments stem from a dislike of the cases and conclude that the solicitors involved must have committed misconduct in pursuing such dislikeable cases, without any proper analysis of a solicitor's duties. It seems to me that the same can be said of the Tribunal's judgment in the Davenport Lyons case.
Yes, of course the same can
Yes, of course the same can be said of the SDT-but it is not a true judicial tribunal in any meaningful way.
It is merely an instrument of political control, manned by those sufficiently in favour, and of the "correct" outlook to be granted that status. Independence is not one its attributes.
Yes, you're right there. In
Yes, you're right there.
In fact I was naive (not like me at all) and thought it was a proper tribunal as part of the Tribunals Service. In point of fact, if you go on their website, it is a limited company, limited by guarantee and to all intents and purposes a subsidiary of the Law Society.
There is an ironic reference in a judgment referring to ILEX's supposed tribunal, about how strange it is that the amount awarded in costs (in that case) happens exactly to be the amount claimed by the prosecutor. Yet the same seems to happen in the SDT all the time.
In fact, most cases in the SDT seem to be brought almost solely for the purposes of claiming "costs" against the solicitor (which are always awarded in extortionate and ridiculous amount).
Being the "prosecutor" is
Being the "prosecutor" is very nice work-easy and overpaid. The SDT never find anyone not guilty.