‘Litigious climate’ harming public services, says thinktank
The ‘destructive consequences’ of health and education-related litigation have been attacked by influential conservative thinktank the Centre for Policy Studies.
Co-authored by social commentator Frank Furedi, The Social Cost of Litigation aimed to ‘alert policy-makers and public to the non-quantifiable but nevertheless destructive consequences of litigation culture’.
The report’s authors believe ‘best practice’ in the NHS has become conflated with ‘litigation avoidance’. They also argue that the low number of clinical negligence damages ‘approved or set by the court’ (3.2%) is evidence that litigation benefits only ‘greedy lawyers’.
Evidence cited for the damaging effect of claims against schools for injury is more anecdotal. Information for claims in one year for injuries to children amount to £6.7m. Furedi is further critical of teacher unions’ support for injury claims where injury resulted from ‘normal’ activities.
In both health and education, he says that liabilities could affect the desired operation of outsourcing agreements with new publicly-funded providers.
Repeating points made in his previous paper Courting Mistrust, Furedi argues that compensation in the public sector should be separated from tort law. A scheme of no-fault liability would be central to such a change.
The Social Cost of Litigation concludes: ‘A litigious climate inexorably leads to the diminishing of the ethos of public service and a decline in the quality of care in health and in the education of our children.’
Comments
Funny that: "a litigious
Funny that: "a litigious climate inexorably leads to the diminishing of the ethos of public service"
A statutory emphasis on consumerism rather than the ethical delivery of legal services leads to a litigious climate - you reap what you sow?
In his report, Prof Furedi
In his report, Prof Furedi calls for a no fault system of compensating victims of medical negligence but makes no suggestion as to what this would cost or who would administer it.
Prof Furedi also calls for new curbs to be placed on the “culture of litigation and litigation avoidance” in Britain. He states , “We need to look beyond ambulance-chasers and greedy lawyers to the cultural conditions that have allowed litigious sentiments to flourish as common sense,” he said. “In particular, we need to challenge the expectation that professional ‘best practice’ in the public sector should be measured by the absence of complaints or litigation.”
In most successful modern private businesses ( e.g. Amazon / Ebay/ Tripadvisor) the satisfaction rate of past customers is a very useful way for prospective customers to measure performance.
I fail to understand how refusing to measure complaints or allow litigation is the way forward to improve patient care in the NHS . I do not feel that this report, with it's heavy reliance on anecdotal evidence and newspaper articles, has added to the general debate about improving patient safety.
Political claptrap
Same old political claptrap we have been seeing from the current government (and their bed-buddies the insurers) for the last 2 years.
It really is indicitave of the frankly rather dark agenda they have regarding the personal injury/litigation sector.
As for ‘destructive consequences’, what of the destructive consequences for those suffering negligence at the hands of somone they have placed their trust in yet are left unable to work, enjoy life and require round the clock care?
Bunch of flowers anyone?
No-Fault Compensation Bill in 1990
Interesting to see this back on the agenda, but disappointing to see the usual stuff about greedy lawyers. I don't do Clin neg or PI, but in my experience lawyers doing clin neg are among the least greedy lawyers.
Worth-while to remind ourselves of when this came close before:
http://www.lawgazette.co.uk/news/no-fault-compensation-bill-revived
As to cost, according to the article "the figure was put at £117 million a year by the Kings Institute in 1988".
Same old same old
The Right love using all this talk of " `elf and safety, red tape, greedy lawyers etc..." it serves to bridge the gap between the Corporate agenda and the unthinking masses who they need all the supine ideological acceptance from to keep raking in the megaprofits.
Its really the 250-year old practice of unrestricted Capitalism dressed up in new clothes, this time as hi-tech thinking.
What on earth has the colour
What on earth has the colour of the politics got to do with it?
I seem to recall it was NuLabour which was best at destroying an independent legal profession-but the Tories were a domned good second. The fact is that neither likes an independent profession and both will seek to destroy it.
Just thought of one of those
Just thought of one of those Blackadder comments about saving time during during the First World War by taking the British troops to one side and machine gunning them all down at once to save the trouble of the trip to the front line.
Why dont all lawyers now jump of the nearest cliff at once!
Here we go again!
Blame the victims and NOT the negligent
Wrong headed on so many levels
Just to echo what others have already said. The answer to all kinds of injury litigation, including clinical negligence, is to stop what are completely avoidable breaches of duties of care in the first instance, not blaming the victims for wanting redress.
And we remember the NHS
And we remember the NHS Litigation Authority predicted that the litigation cost to public authorities would rise as a result of LASPO. Legal aid funding has been very good at settling cases without litigation.
Oh dear.
So let me get this straight; the people who were (presumably) paid to produce this document are 1) the author of "Courting Mistrust: the hidden growth of a culture of litigation in Britain" and 2) "Standing Up to Supernanny".i.e. two people who have repeatedly published anti-litigation/risk-aversion material. I am not being funny but if you commission Elmer Fudd to do a paper on hunting you are not going to get a very balanced view.
Once I lose my job and cannot feed my family because the Government and Insurance companies only like to take money off people rather than paying it out I will become a researcher. I think my first study will be a paper on how the Government can save money by stopping paying researchers loads of cash to research things we already know or don't care about.
Well done David your a
Well done David your a diamond geezer or as one programme once it why pay for a treatise on the bleedingly obvious
Actually best read the
Actually best read the report.
The point it is making is that the proliferation of rules and regulations (instigated to provide the paper trail necessary to counter complaints/litigation) has led to the provision of that paperwork being the main effort, rather than the actual provision of the service.
In other words, exactly what we solicitors (rightly) complain about with regard to the volume of SRA rules.
The social cost is that professional judgment gives way to box ticking. The report does not suggest that thoe injured by negligence should not be compensated. It suggests that professionals should be allowed to do what they are trained to do.
There is a good precis on The Commentator website.
You may be right Anon, but....
... the overriding message coming across is that Prof Furedi and his colleague think that we greedy lawyers can afford to fund speculative claims without merit. The research seems very sloppy and the authors don't seem to have understood that disbursements (such as the issue fee for the writ) are on the whole now carried by the solicitor and not paid by the client.
Once again, this monologue warning of the dangers of the “compensation culture” is founded on misunderstanding and ignorance of the way a legal business has to operate and serves only to feed the very fear of litigation of which the authors complain.
If the claim is without merit, it will fail. If it is obviously without merit and headed for failure then no solicitor could possibly have any motive for “issuing a writ” the cost of which will not be recoverable from the defendant and will typically come directly out of the firms own funds.
I was taught by Professor Frank Furedi at the University of Kent and I have a lot of respect for the man and his opinions – which appear however to have shifted rather across the political spectrum since I knew him – but I have to disagree with him on this occasion.
It is the fear of litigation and not litigation itself which is crippling this country and the Professor is feeding those flames.
Julie Carlisle is quite right
Lawyers just cannot afford to pursue cases unless there is a very high chance of success.
Spurious or clueless?
'Lawyers just cannot afford to pursue cases unless there is a very high chance of success'
Silly me - there was me thinking that the litigation culture was caused by solicitors and CMCs chancing their luck by taking on countless speculative and spurious complaints and claims.
So - if I have got this right, the many totally worthless cases in a range of areas of law which have been pursued over the last few years is actually because the lawyers conducting them made a mistake and thought there was a high chance of success when their was none?
Kelly
Can you point to the "many worthless claims" please?
In PI at least we pay for disbursements (medical report, issue fee, release of medical records etc) in the expectation that we will be able to recover them from our opponents when the claim succeeds.
If we feel that the claim has low prospects of success then we would be fools to take the case to court. Bankrupt fools as well.
The litigation culture is a concept propagated by those with an interest in limiting the damages paid out to the person injured by anothers negligence. I am not going to comment on CMCs with whom I have had no involvement, but once a speculative claim reaches a solicitor it stops.
Why would we throw our own money into supporting it? It really is that simple.
Exactly, Those that comments
Exactly,
Those that comments that there 'should be an end to spurious/fraudulent claims' do not work in the industry yet feel qualified enough to comment.
Why do they not have a think about how illogical it would be for a solicitor to put forward fraudulent/spurious claims and still stay afloat!
The trouble is that some take what they read in the paper as gospel without thinking about why it is there and who really benefits from 'the message'/
Quite how it has become a consensus that there are 'too many claims' or 'lots of fraud about' without any evidence is baffling.
The other line that I read
The other line that I read time and again from the uninitiated is that it is "too expensive for insurers/business to defend claims". Having worked in the industry for nearly ten years (on both defendant and claimant sides I should add)
I don't know whether to laugh or cry when I think of the amount of time I spend trying to point out to certain insurers (particularly those that claims 'handle'(!?) on behalf of local authorities) how ill-conceived their defence only to be told that they are 'maintaining their position'.
Harry Potter's Law Society Gazette?
Anonymous.
As I said to Jenny, I'll post up some stuff later. And it is not based on newspapers or media. To be honest I could not actually believe Jenny's comment when I read it and I initially thought we may have been talking at cross purposes. However, you seem
to agree with her, so I'll check back and comment later when I have more time.
Before I go - can I just check that this is Law Society Gazette and I am not on some Harry Potter LS blog?
How could you make such a
How could you make such a comment!
Worthless claims!
If you are looking for examples of apparently worthless claims, can I suggest you look at those relating to Right to Buy property work; a handful of law firms have issued thousands of "no win no fee" claims against other law firms that have handled such work, making completely spurious allegations, which are being strongly challenged by insurers (apparently senior counsel has advised that the claims have absolutely no merit)!
What are you?
Can a person tell me what a thinktank is and how it does work?
Ha!
Excellent question! More pertinently, what is a centre-right think tank doing publishing work by Frank Furedi?
Hmmm. Seems Prof Furedi has
Hmmm. Seems Prof Furedi has come a long way since his Revolutionary Communist Party days. He has written this article (as he did an earlier one peddling the same basic corporate agenda) for the Centre for Policy Studies, a thinktank headed by Aleksander Kwasniewski (as in former President of Poland) who is himself a member of the shadowy Bilderberg Group (he says so on his ACPO profile - somewhat unusual as most Bilderbergers just flat out deny any association). Bilderbergers are pro globalisation, pro big business, pro liberalism, and essentially ideologically against anyone or anything that interferes with corporate profits eg scruffy little people making claims against big businesses (and their insurers - including insurers of public service providers) that hurt or harm them. They would love for limits to be placed on the accountability of big business. What better way than to promote the introduction of systemic obstacles to bringing negligence claims? By the way, check out those in government who have been peddling the recent contentious litigation funding reforms - fascinating to see how many of them are also in the Bilderberg club, or at least beholden to them.
The real issue that is abhorent and that should be looked at is those people who are not harmed or hurt but who exploit the limits in the system, especially at the lower end of the scale, to bring spurious claims that, in isolation, would cost more to defend than settle. This is the kind of thing that does bring litigation generally into disrepute because no one respects people who are on the take and the impression (/reality?) is that this applies not just to claimants but also to lawyers and other vested interests.
There is much that could be done to deter meritless and spurious claims, eg requiring claimants to accept some modest personal financial risk or expense in obtaining expert medical report as a means of deterring those who get cold called by the claims farmers to whom the paying insurer sells your details after a parking speed bump (itself a staggeringly bizarre arrangement to my mind) to chuck in a whiplash claim with the promise of zero downside under any circumstances.
Of course, this is not what Prof Furedi is being paid to look at. He is only concerned with repeating the mantra and pushing the agenda of his paymasters and subtly, gradually, inexorably building the impression that people in the UK are a bunch of dishonest, money grabbing, litigious society-wreckers on the lookout for a free bung from some innocent corporate or its insurer and that they should mostly be barred from bringing any claims.
Depressingly, the counter proposition (ie that society and the silent majority would be better served if the legal system was simply revised to remove perverse incentives but otherwise left intact for those whose needs are legitimate) does not have the long established, well funded organisational advantage of those behind the emotive propaganda nonsense typified by Prof Furedi.
A parting thought for any doubters (well, there might be one or two) that Prof Furedi and his ilk might be making up the idea that we the people are a bunch of money grabbing try on addicts who must be stopped, consider this: why is the obvious and shocking lack of correlation between the supposed justification for, and the inevitable result of, the type of reforms this bunch are pushing for never addressed in their own articles/"research"?
This articl
This is ridiculous
"the Centre for Policy Studies, a thinktank headed by Aleksander Kwasniewski (as in former President of Poland) who is himself a member of the shadowy Bilderberg Group (he says so on his ACPO profile - somewhat unusual as most Bilderbergers just flat out deny any association). Bilderbergers are pro globalisation, pro big business, pro liberalism, and essentially ideologically against anyone or anything that interferes with corporate profits eg scruffy little people making claims against big businesses"
Interesting, except you seem to have looked up the wrong Centre for Policy Studies - probably a Polish-based version - Kwasniewski has nothing to do with the London CPS for which Furedi writes.
Response to Julie
Julie
I never ceased to be amazed by what I read on here but I think you genuinely believe what you have just said. I beg to differ that a speculative claim stops with a solicitor and I'll try and answer your post later as informatively and concisely as I can.
Speculative claims
This discussion had already been had lots of times on this site. If the solicitor believes the client has an arguable case, his job is to argue it, if that is what the client instructs him to do: see Richard Buxton v Mills-Owens [2010] EWCA Civ 122. Examples of solicitors being penalised or disciplined for running hopeless cases are extremely rare, because (as the Court of Appeal has put it) it is not the solicitor's job to impose a "pre-trial screen" through which the claimant and his claim must pass (Orchard v SEEB [1987] QB 565).
In the context of whiplash claims, it would be next to impossible for a solicitor, being unqualified in medical matters, to know whether his client (the claimant) was faking his symptoms. The solicitor has to rely upon the opinion of a doctor.
If the client told the solicitor that the claim was false, the solicitor would obviously have to cease acting. However, the mere fact that a solicitor might have concerns about his client's credibility does not mean he cannot act, though it might well affect his assessment of the claim's chances of success. If he says to the client "there are inconsistencies in your account and I am concerned that a court will reject your claim" and the client says "I understand, but I'm instructing you to pursue the claim anyway", the solicitor's role is to pursue the claim.
So far as I recall, Kelly's examples of vexatious claims typically involve (i) file sharing allegations, (ii) defamation claims made by a tennis player and (iii) defamation claims arising out of posting on an internet forum. The only one of those categories which resulted in penalties for the solicitor was (i).
Kelly
Quite right too. Don't expect a sensible evaluation like this from Kelly though. She has made her mind up.
Thanks to other posters we now know why she argues in the way that she does.
Psst!
I think Kelly could be a man!
Speculative claims
It's instructive to see how the Law Commission of New Zealand puts the position in this document, at para 5.32(e)-(g):
http://ip29.publications.lawcom.govt.nz/Wasted+costs+in+civil+proceedings
Answers to some points
Yes - these discussions have taken place many times on this site - probably in part because some contributors still refuse to accept that they have responsibilities beyond the interests of their client - despite what the regulator says and the fact the Law Society recently updated its website to ensure their members are aware of a line not to cross (perhaps this was updated after reading some of the comments here)
See guidance below this next paragraph:
Solicitors are correct in pointing out that there is a potential conflict between the duty to the client and 'duties' to others. However, the fact remains that both sets of guidance and principles apply and it is up to solicitors to balance the two. Personally I do not think it is too difficult if one tries. I would suggest that the rules exist partly to try to discourage speculative and vexatious actions and generally promote the concept of conducting litigation fairly.
........................................
http://www.lawsociety.org.uk/advice/practice-notes/litigants-in-person/
3.1 Taking 'unfair advantage'
Taking 'unfair advantage' refers to behaviour that any reasonable solicitor would regard as wrong and improper. That might include:
bullying and unjustifiable threats;
misleading or deceitful behaviour;
claiming what cannot be properly claimed;
demanding what cannot properly be demanded.
Such conduct is likely to be penalised if identified by a judge or upon complaint.
Conversely, knowing and using law and procedure effectively against your opponent because you have the skills to do so, whether that be as against a qualified representative or an unrepresented LiP, would not in itself be deemed to be either taking 'unfair advantage' or a breach of the SRA Code..
...........................................................
As for speculative claims stopping with solicitors - here are just a few which seem to have 'slipped' through the system - to answer Julie's question. Some are single claims and some dozens or more within each case but they are high profile, recent and conducted by large law firms which should know better. As 'Me' has indicated some are libel claims - an area particularly open to abuse - or perhaps the solicitors concerned did not understand libel law. They probably just represent the tip of the iceberg when you consider financial products/scandal issues which have been conducted on mass by many other smaller law firms lately (e.g - payment protection insurance - PPI)
1) One claim in this 'litigation orgy' was described by the judge as 'simply nonsense' and all of the 30 claims within this high profile case were dismissed. A Civil Restraint Order was also felt necessary to protect the public and the courts.
http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/QB/2008/1797.html&query=smith+and+v+and+advfn&method=boolean
2)The judge described the behaviour of a comany director in pursuing this claim as 'vexatious'
http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/QB/2009/2838.html&query=lenigas+and+v+and+sprague&method=boolean
3)This one a good example of speculative scattergun litigation - as confirmed by the publishing of dozens of cheque settlements on the claimant's website. The judge dismissed the nonsense when one newspaper stood up to his well known libel lawyers.
http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/QB/2010/924.html&query=dee+and+v+and+the+and+telegraph&method=boolean
4)Another totally misguided libel claim by a celebrity whose case was booted out...
http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/QB/2011/3472.html&query=NANCY+and+DELL%27OLIO&method=boolean
5)This action taken by ex members of a 1980's pop group against their lawyer concerning payment of royalties - described by the judge as 'entirely speculative'....
http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/Ch/2012/735.html&query=Seaton&method=Boolean
6) Just one of the copyright file sharer cases - commonly described as 'speculative invoicing' . These cases were mentioned by 'Me' above but there were at least four well known law firms who were disciplined by the SRA for sending thousands of speculative claim letters and breaching the rules in the process.Some cases did proceed to court.
http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWPCC/2011/10.html&query=acs+and+law+and+andrew+and+crossley&method=boolean
7) Vexatious litigation pursued by a trade union leader against the Mayor of London about an election poster. A clearly hopeless claim in its context.
http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/QB/2012/1982.html&query=crow+and+v+and+johnson&method=boolean
The above are just a few examples - there will no doubt be many more. So, I would ask Julie - were these law firms simply a bunch of fools for taking on the cases? Perhaps to some degree they were but the other theory is that they used the threat of litigation to try to obtain settlements from defendants without any regard to the overall merits of the case.
Indeed there was some success in this strategy as some defendants paid up early on. The behaviour of one solicitor in the above cases was described by the judge as not consistent with the interests of justice and fairness and there was a danger of bringing the administration of justice into disrepute if the claims proceeded further. So, in my opinion speculative threats and claims are commonly pursued by some solicitors because they think the financial benefits outweigh the risk because they think people will not stand up to them. Problem was though in the cases above, people did and I think with hindsight the above law firms regret going beyond threat stage. This does raise the question of how many people we do not know about who have paid settlements to law firms who have felt intimidated by threats of litigation. Quite a few if the above cases are anything to go by.
RE: Me's comments on whiplash claims:
I take the point that to some extent that you have to rely on medical reports. However, you have to consider this in the context of insurance fraud which insurers are faced with on a daily basis. Of course insurers use experts such as motor engineers, medical experts etc but they identify fraud by reviewing a list of possible fraud indicators and databases on past claims and individuals.
There is also something called 'gut feeling' which an experienced claims investigator uses to identify cases for further investigation. Gut feeling is not a basis to decide fraud - merely a reason to check the claim more thoroughly. I am not saying that solicitors should undertake the same level of investigation when taking on a client but don't tell me that experienced PI lawyers have no way whatsover of distinguishing between an honest claim and a possible dishonest one.
Also, as the LSG article published last week about whiplash shows, there seems to be some disagreement between solictors commenting about fraud. One commentator in the profession was quoted in the article saying that he was unhappy because motor insurers would not share information with the legal profession on suspected fraud. However, the contributors to the blog about the article (all solicitors I assume) seemed to think there was no responsibility on them to flag up a potentially fraudulent claim in any event. So, it begs the question that if insurers agreed to share information with the legal profession, whether it would be used in the right way or not.
Sorry for the long post. Just thought I'd answer several questions and points made in one go.
Thanks Kelly
Most of the cases you quote don't seem to relate to PI though - is that right? Furedi's report is concerned with the threat of litigation within the public sector and specifically with PI claims as far as I can tell. My response was as a PI lawyer and my point was that if a very persuasive client comes to me with a speculative claim, happy to speak to him/her, but when it comes to the crunch I won't/can't offer a CFA as I won't get the insurance to cover it. The deciding factor is sometimes more economical than ethical!
What I should probably have said is that in PI the speculative claim stops at the point at which court proceedings have to be issued, again because we PI lawyers can't afford to fund them.
This, to my mind, undermines the premise of the report which is that teachers and other public sector workers are crippled by fear of PI litigation - they shouldn't be! And if Furedi and his ilk stopped banging out poorly researched scaremongering pieces like that then they wouldn't be.
I know nothing about speculative libel (thank God)
Litigious Climate
How many times have we heard politicians, insurers, consumer groups, enlightened lawyers, and yes mediators like myself saying 'there must be a better way'. Not that I suggest that mediation is any sort of panacea. Prof Furendi does have a point in that perfect justice or the aspiration towards perfect justice comes at a price, and that sometimes we need to alter our sights to adjust the process in line with the desired or probable outcome. Encouraging people to make genuine claims can be interpreted as fueling the 'litigation culture' whist we lawyers see it as widening consumers access to justice. That is fine and understandable. What isn't right surely is the imbalance between costs and the benefit - 93p costs per £1 of damages was assessed by the ABI for small claims. Poor adherence to protocols and slavish devotion to litigation as the only alternative to failed negotiations really doesn't help the consumer much. Mediators see far too many mediations where the costs imbalance makes good settlements less attainable. Perhaps lawyers should learn to adapt to a brave new world where they are perceived as healers and not hired hands. That way we could say that a new Dispute Resolution Climate benefits public services rather than a Litigation Climate damaging it.