Letters roundup - 28 October 2019

Clin neg costs questions

The Civil Justice Council report detailed in ‘Claimant and defendant sides fail to agree clin neg fixed costs levels’ (21 October) leaves so much unanswered. It pays lip service to issues of access to justice and does not address the patient safety impact of the changes. I see nothing to allay my concerns that low-value, more complex cases will simply not be brought as law firms find that they are financially unviable to run.

 

Proposals for sequential sharing of expert reports will mean that claimants are required to submit all of their evidence first, before they have seen the results of defendants’ own investigations. This gives defendants a further unfair advantage in what is already a skewed playing field. There is also a considerable risk that defendants will deny liability and drive up costs, forcing claimants to drop their cases. 

 

Agata Usewicz
Head of clinical negligence, Hodge Jones & Allen, London NW1

Brutally unsympathetic to the vulnerable

 

Usually the Civil Justice Council brings fresh air to debates on difficult legal issues. To wit, the opening of the consultation paper Vulnerable Parties and Witnesses within Civil Proceedings: ‘Access to justice, just procedures and fair hearings are essential elements of our justice system. To ensure the system works properly such elements need to cater for parties and witnesses, who by reason of mental or physical disability/disorder, impairment of intellectual or social functioning, fear or distress, are vulnerable.’

 

Who could possibly disagree?

 

The trouble is, whatever rhetoric may preface the wish-list for change a small step back into the past will tell you that for decades the civil justice system has been brutally unsympathetic to those persons whom the CJC now declares to be vulnerable. This embedded ethos pervades civil justice.  

 

Of course, it is right to seek a better way to balance the pragmatic necessity to make justice happen, and the social necessity to enable those with difficulties to seek legal remedies to which they are entitled. 

 

However, over the last 15-20 years the civil justice system has done little to facilitate access to justice by the vulnerable.  

 

Rather than redefining the routes to civil justice to encourage access and to encourage articulation by those who find articulation a challenge, the reverse has happened. Rules have been streamlined into digital portals; the courts have been the subject of cost-cutting to such an extent that it is rare for a trial not be adjourned because of lack of judges; and, above all, fixed costs rules have led to such deskilling that in most civil departments, especially personal injury (always the driving force of civil justice), qualified solicitors are scarce. 

 

Paralegals do not consider whether a prospective claimant who might seem a bit slow requires help with their speech. Stage 3 assessment of damages has no time to encourage court or lawyers to ask whether the claimant is a vulnerable party. And within months, the low-end PI business will be taken over by the claims management sector.  

 

So, what of the CJC’s consultation paper?   

 

While it may be an excellent proposition that the vulnerable party provisions set out in the Family Procedure Rules should be transposed into the Civil Procedure Rules, who pays? Who will ask the right questions? Train judges, yes, but where is the court time to consider issues?

 

The CPR has been under siege from cost-cutters, proportionality obsessives and insurance company lobbyists, during which time the government has had a pig-headed disinclination to engage with the entire claimant sector.  

 

If the CJC really means to redefine the core duties of the civil courts to enable greater access to civil remedies by the vulnerable, it may have no choice but to rewrite the recent history of Ministry of Justice policy.  

 

If the CJC is not prepared to acknowledge this, and to act accordingly, waving the flag to prove the CJC’s understanding of the vulnerable will further expose the failure of the civil justice system to find a practical way to deliver the CJC’s recommended solution. 

 

John Holtom

Consultant solicitor, Legal Solutions Partnership (a trading name of Freeman Harris Ltd), Dunstable 

‘No fault’ divorce

We are pleased the Divorce, Dissolution and Separation Bill was included in the Queen’s speech. Divorce law in England and Wales has not changed in over 50 years and 42% of marriages now end in divorce. 

 

Divorce is a highly stressful experience. The current requirement either to prove a fault-based fact or spend years still legally married only exacerbates tensions between separating couples. For parents, this can make it even more difficult to focus amicably on addressing the needs of their children. 

 

Introducing a ‘no fault’ divorce would allow couples to separate as painlessly as possible, citing irretrievable breakdown as the sole reason for ending their marriage.

 

This reform is long overdue. We urge the government to introduce and progress legislation without further delay.

 

Simon Davis
President, the Law Society

Margaret Heathcote
National chair, Resolution 

Nuisance value

As a conveyancer, I was not sure if I should take offence or a secret enjoyment on receipt of the latest MBL flyer for a webinar entitled ‘Nuisance and Conveyancers’. We do our best.

 

 

Rupert Morton-Curtis

Godwins Solicitors LLP

Winchester 

War on plastic 

Recently, I read about Unilever pledging to cut back on their plastic use primarily to ensure that they ‘remain relevant for years to come’. Although the legal profession presumably does not use as much plastic as Unilever, perhaps the time has come to consider whether it is appropriate to place a clear plastic sheet on our engrossments. I opened my post today to receive engrossed consents from a well-known firm. The consents consisted of three pages of text, a page of card, two pages of clear plastic and a plastic binding comb.

 

To my mind these are unnecessary pieces of plastic that are probably going to be binned in a few years when somebody decides they only need the electronic version in any event. And for such a small document, does the binding comb really add anything more than a staple or two?

  

Jennifer Harris

Senior property solicitor, Anglian Water Services Limited, Huntingdon