Wednesday, 21 December 2016

Christmas, homelessness and Joe Strummer

I normally send my Christmas cards for re-cycling after 6th January. But one which I have always kept is the one with the image of the late Joe Strummer from The Clash giving to a homeless person in New York.

There is something particularly poignant about homelessness and Christmas. The classic nativity story is about a young couple with no place to go. Whatever one’s religious view the story of Jesus is inevitably wound up with the homeless and dispossessed, as seen in this sculpture from Timothy Schmalz which will shortly be arriving in Manchester.

All of which leads us to a story in this week’s Guardian about homelessness and access to justice

Huge numbers of people are losing their homes because they cannot get access to lawyers to help them challenge evictions. There has been a chilling rise of 53% in the number of evictions in the rented sector since 2010. These were the cases that got as far as eviction by bailiffs –

Whilst there can be many different reasons for evictions, it is becoming clear that many could be avoided if tenants were able to obtain affordable legal assistance to challenge the action taken. There has been a decline of nearly one fifth in those cases where challenges are made. The decline is attributable to a combination of factors including –

‘Deep cuts to other forms of housing legal aid introduced by the Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act 2012, bureaucratic obstructions and poor hourly rates have progressively driven most lawyers specialising in housing out of the market, leaving few practitioners.

It is the starkest evidence of the legal advice waste land that has been growing since 2013. 

Technically legal aid remains available to someone at risk of losing their home. But if the root cause of the problem is an issue such as benefits claims then there are fewer opportunities to ‘nip problems in the bud’. 

It is often too late to save the day by the time the tenant gets to see a lawyer. A justice system which focusses only on the last minute crisis is of little benefit to anyone.

This is a time of year when many people do great work giving up their time and money for the homeless.

But one thing we must resolve to do for the New Year is to all in our power to ensure that not one person finds themselves on the street because they could not find a lawyer to help them.

Tuesday, 13 December 2016

Responding to the MOJ Small Claims Proposal

Responding to -  Reforming the Soft Tissue Injury (Whiplash) Claims Process. 

This is perhaps the most misleading title to a consultation in the history of misleading consultations! It is obvious to anyone who has read it that it is really the biggest attack on access to justice for accident victims that I have seen in my 30+ years of practice. For anyone who has been on another planet in recent weeks, it includes the proposal to move all personal injury claims into the small claims court if they have a value of up to £5k. This in turn means that successful claimants pay their own legal costs even if they win.

These are some of the points that we have made in relation this wide sweeping proposal. I am limiting comments here to the general issue of small claims. These may help others in drafting their response–

1.     The general small claims limit is £10k. Personal injury claims were always treated differently. But this means that if a victim has a personal injury claim valued at say £4750.00 and vehicle damage at £5k this will be a ‘small claim’. This is equivalent to about 2/3 of the annual take home pay of a person who is ‘just about managing’ on the living wage. This is by any reckoning a significant sum.

2.     Paragraph 100 argues that legal assistance is not essential because there is help and support available for litigants in person. This may be so but is in fact little comfort to litigants who are trying to work their way through the complex maze of the CPR in a very alien world. It does not help them obtain appropriate medical evidence. Nor does it assist them in their dealings with highly sophisticated claims teams or the top end law firms who will inevitably be instructed by insurers.

3.      The consultation says that there has been no increase in the limit for 25 years. A quick visit to the Bank of England’s Inflation Calculator shows that in today’s figures the £1k limit from 1991 is now worth £1936.50. So an increase to £2k might be justifiable. A 500% increase is neither rational not justified,

4.     Paragraph 17 of the consultation argues that moving cases to the small claims track ‘would mean that claimants would now have a direct financial interest in decisions about pursuing their claims in that they would be responsible for their own costs’. This was exactly the same argument that was used in 2013 to justify removal of the right to recover success fees from the losing party. Claimants have a stake in the claim already. They stand to lose up to 25% of their damages for injury and past losses. They will also have to pay for any insurance out of their damages. Claimants who can recover no legal costs against someone who negligently injures them simply cannot afford to pay for legal costs that would at least wipe out the value of the claim. Either they will not bother or they will act in person, with all of the complications which that can bring.

Two other general points are worth a mention. Kerry Underwood has pointed out the serious error in the consultation in relation to the suggestion that a claimant should need permission to discontinue a claim within 28 days of trial or risk having to pay other sides costs – something which is already provided for in the rules –

It is also worth persevering to page 78 and paragraph 6 which invites views on the assumption that 85% of savings will be passed on to consumers! One wonders why this final piece of humour is buried right at the very end of the document.

I would encourage everyone to respond. It is highly unlikely to make a great difference to politicians who do not want to listen. But that does not mean that we should not make ourselves heard as loudly as possible.

If anyone would like a copy of our answers to the consultation question please let me know. The more responses the better!

Friday, 9 December 2016

Let's get Law Students to fill the justice gap!

One consequence of the cuts in Access to legal advice has been the growth in the number of DIY litigants, those who represent themselves in court because they cannot afford to get anybody else to do it. I can remember when a Litigant in Person was a rare phenomenon, often a person who had fallen out with a series of legal advisers. Everything has changed. The numbers are growing by the day. We all knew that such litigants had become a major feature of our courts’ system when they became LiPs. Once you have an acronym you have arrived!

The problem is that for most people, our justice system is a strange and scary world. 

This leads to litigation which takes longer, is less certain and which carries a far greater risk of injustice. That is particularly the case where one side, say an insurer in an accident claim, is represented by top lawyers and the other side is battling alone. In view of the recent proposal by the government to bring most accident claims into the small claims court, we will see an explosion of LiPs.

The problem has been highlighted today by Lady Justice King who referred to a case involving litigants in person and which saw a - ‘slew’ of emails from both parties to the judge and the court, which made the case ‘nearly impossible to case manage effectively’

She called for there to be powers to curb the activities of such litigants. There is a risk that out justice system could become log jammed and ultimately a laughing stock.

The need to address this is recognised by most lawyers and judges. 

One of our most senior judges talked about the problem earlier this week. Sir Terence Etherington, Master of the Rolls acknowledged the real need to improve access to justice in the face of deep financial cuts. His suggestion was that law graduates could fill the gap. He called for a joint initiative involving universities and pro bono agencies enabling students who have passed their exams to assist litigants in person. 

‘They would do so as trainees registered with the university or pro bono advice centre, but only following training akin to that already given by such organisations. And they would be supervised by lawyers – permanent employees of [advice centres] or other lawyers provided pro bono by law firms or chambers.’

This sounds promising, but in reality it is a hopeful fantasy. Universities already do a sterling job trying to fill the justice gap. One such initiative is the Legal Advice Clinic run by Liverpool John Moores University. They provide free advice in relation to Family, Employment and Wills/Probate. The students provide a high quality service with help from volunteer lawyers. It is a demanding project. Students have to be carefully trained and supervised. Resources are stretched to the limit. To suggest that they could take on full responsibility for advising hundreds of litigants in person is simply not realistic. This is not to diminish the value of law students. We have all been there. Even Lord Pannick QC was once a student! But they and their teachers cannot be expected to fill the massive gaps in access to advice. Not without far greater resources. Those resources could just as easily go to funding established advice agencies.

Universities will do what they can.

Pro Bono lawyers will do what they can.

Underfunded advice agencies will do what they can.

But until justice is seen as a political priority we are really just maintaining the deck chairs on a sinking ship.

Friday, 2 December 2016

Where there is no legal aid - lawyers do it for free

I was honoured to be asked to give the opening address at last week’s Pro-Bono and CSR Match Making for the Legal Sector organised by Liverpool Law Society. The event was attended by lawyers from the smallest of Law Centres to the Head of Pro Bono at DLA Piper – one of the biggest firms in Europe.  In addition there were volunteers from various agencies offering free legal advice and charities who support Access to Justice. These included  CABx , Law Works, North West Legal Support Trust, Law Centres Network and Liverpool’s two biggest Universities. The idea was to bring together those firms who offer Pro Bono legal work and those who desperately need such support.

My talk focussed on the changing attitude towards Pro Bono work in the profession in the face of huge areas of unmet need. So here is a summary of what I said!

‘This is the first event that I have ever attended which contained the words ‘match making’!

If we are going to talk seriously about Pro Bono work we need a definition. This is from the Law Society’s 2015 Survey of The Pro Bono work of Solicitors –

Legal Advice or representation provided by lawyers in the public interest including to individuals, charities and community groups who cannot afford to pay for that advice or representation and where public funding is not available. Legal work is Pro Bono legal work only if it is free to the client, without payment to the lawyer or law firm (regardless of the outcome) and provided voluntarily by the lawyer or his or her firm’.

In order words it is free!

In 2014 I wrote a blog called –

I acknowledged the huge amount of free work done by lawyers. But the main argument was that people should not have to go looking for a generous lawyer who will take their case on for nothing. This could not be expected to plug the gaping hole left by the devastating cuts in legal aid. The danger was that cynical politicians could look on this area of free work and say to themselves – ‘job well done – we have got rid of legal aid and the legal profession are doing the work for us’.  I was saying that this should never be seen as a substitute for a properly funded legal aid scheme.

I still believe all of that. But things have also moved on. 

There are now whole areas of the country and whole areas of legal need and work that are rightly described as waste lands. There are increasing numbers of people, particularly the most vulnerable, who simply cannot access legal help because they cannot afford it. That is the stark reality that faces us. Someone has to do it or people will be deprived of justice.  A few years ago there was a similar argument about food banks – ‘why should we feed the hungry because the state has let them down?’ the answer soon became apparent – ‘because if we don’t how will they eat?’

 If a person cannot gain access to justice then justice itself becomes worthless

So the point has been reached in relation to justice where we have to set aside the political rights and wrongs. If a person cannot gain access to justice then justice itself becomes worthless. This is why many of us became lawyers in the first place. The needs of the vulnerable must outweigh our discomfort with political rhetoric.

Which bring us to the point of today. How do voluntary agencies identify lawyers with appropriate expertise and who will assist clients for no payment? How do lawyers who want to offer free legal work identify where such work will be used most effectively? The purpose of this event is for both sectors to meet each other and come up with a formula for resolving unmet need most effectively. Part of the morning will involve presentations but the most effective use of the event will be networking and pooling of resources.

I won’t say 'enjoy the sessions' but I do hope that it will be useful and ultimately those in the greatest need will benefit.’

It was a very useful event all round.

Time will tell how effective it will be.

But I would encourage lawyers in other cities to consider doing the same and/or hear the experiences of other who might have done it already...

Thursday, 1 December 2016

Justice Matters to us all

This is the first post under the new Justice Matters banner.

As it says on the label, the entire focus will be on Access to Justice for all. My hope is that it will be more than a regular rant but a forum to facilitate lobbying and action. The obvious first question is – why does justice matter?

It is good timing therefore that we have just seen the publication of – The crisis in the justice system in England and Wales from The Bach Commission. This is the work of the group set up by the Labour Party under the leadership of Lord Bach. A full copy of the report is available here –

I don’t intend to review the entire report. But it raises important issues that will hopefully set the scene. The foreword reminds us why this is such an important topic –

‘The rule of law is the basis of order and just conduct in our society. Without it people can have no trust in their institutions or the free associations they form with one another. Maintenance of the rule of law depends on the ability of all people to have basic equality of access to the law. If some cannot access justice because it is beyond their means, then the rule of law everywhere suffers.’

The report identifies a number of features that undermine this access. One, in particular, jumps off the page –

Fewer people can access financial support for a legal case

The decline in the availability of legal aid has been like a roller coaster in reverse! From a high of about 80% in the 1980s the numbers eligible had dropped to 29% by 2008. This then fell off a cliff in 2013 when LASPO saw the removal of whale swathes of work from scope – including housing, welfare and debt i.e. those affecting the most vulnerable.  As a consequence it is virtually impossible for some to get early and effective legal advice and representation. This is starkly illustrated by benefits appeals. The success rate in appeals against findings that claimants were fit for work was about 80% in cases where claimants were represented. Most agencies can no longer give this support.

The Bach Commission report says that the number of not for profit legal advice centres fell from over 3200 in 2005 to about 1400 by 2015. Most agencies reported that they had to turn clients away due to lack resources or expertise.

The excuse of course is that times are tough, money is tight and we are all in it together. Interestingly CAB reports that for every £1 of legal aid spent on benefits the state saves £8.80. The report cites an example from the Mary Ward Legal Centre. The cuts in legal aid mean that early advice and help on the circumstances leading to possession proceedings is no longer feasible. People are not able to access advice until there is a court hearing by which time it is often too late.
It is right that this is described as a crisis. Something has to be done.

One thing we can do is provided evidence to the commission ahead of its final report in 2017.

We should also be relentless in highlighting injustice. If any readers of this blog want to mention specific areas of need please send brief details to -           
It is tempting to give up the struggle as the odds are stacked against those in need.

But we really have no alternative. If one person loses their home or income because they cannot access rights given by society then that is one person too many.