Prophet and loss
Jonathan Wheeler highlights how recent developments reflect issues he’s pondered here through the year
Looking back at my musings in the Solicitors Journal throughout 2019, it struck me I must be some sort of prophet given recent developments (no impostor syndrome here – bear with me!).
Mindfulness in a charter
In January, I wrote about the growing realisation that secondary traumatic stress (known in America as ‘vicarious trauma’) can affect the lives of professional advisers whose clients’ trauma impacts their own mental health.
I also questioned whether the irascibility of some judges could be seen as a direct consequence of them being exposed to a torrent of traumatic accounts from the cases that cross their benches each day – at least, on the days when the courts are open.
Since then, I was introduced to the Mindful Business Charter which was set up at the start of this year by Barclays, Pinsent Masons and Addleshaw Goddard. Ostensibly an initiative between commercial clients and their law firms, it seeks to ensure bilateral respect for the mental health of clients and service providers in the instruction and provision of legal services.
This is fine for business-to-business firms with professional clients anxious to protect the health of their workforces and the people contracted to work for them externally; but not so easy for business-to-consumer firms like mine where clients are members of the public – many of whom are traumatised by the issues on which they are instructing us.
My firm has been inspired to create its own mental health charter as one of various measures we are taking to promote and protect the mental health of everyone who works with and for us.
Clients will also be encouraged to read it. I am also heartened to learn that the Bar Council has invested in artificial intelligence (AI) to assist its members in the anonymous reporting of bullying and harassment at work through its Talk to Spot app. I wonder whether the same judges will be named time after time…
Then in February, I considered vulnerable witnesses in the civil courts and the need for the enactment of special measures allowing them to give their best evidence (as is already the case in our criminal and family courts). So I was delighted to welcome the Civil Justice Council’s (CJC) consultation on this subject in September.
At the fore of the CJC’s thinking is the importance of the civil court identifying at an early stage any vulnerability in parties and witnesses, and having a raft of measures at its disposal to assist.
Discount rate wait
In April, I considered the state of play in the personal injury market. I didn’t quite get the new discount rate spot on, but I think the whole industry was surprised it went up to -0.25 per cent in August as opposed to the widely expected 0 to 1 per cent.
What was predictable was the insurers being up in arms, darkly muttering about judicial review and (of course) premium rises for all. But this bluster obscured the real story that with any increase in the discount rate, claimants need to gamble their awards on the investment markets to deliver returns to ensure their funds don’t run dry.
Scotland – a far more enlightened jurisdiction in many ways – got it right when it refused to change the rate from -0.75 per cent after its own review on 30 September.
Innovation and tenacity
My advice in April was to “be more speed boat than oil tanker”. “Change breeds innovation,” I said. Without innovation, more personal injury firms will wither on the vine. Without the ability to be nimble, they cannot change quickly enough. So I was particularly saddened to learn recently that Thompsons Solicitors, a titan in the area of personal injury law for so long, was having such a bad time that its own staff were threatening to strike over pay.
In the past, I undertook personal injury defence work for a large manufacturer with factories nationwide, its workforce highly unionised. Of all the claimant lawyers I dealt with, those at Thompsons were streets ahead in their tenacity and technical know-how; and they earnt my respect.
I wonder if the firm’s woes result from being too big to be flexible enough to alter their business model, as the requirements of their referrers changed against a backdrop of limited costs recovery.
A professional services firm is only as good as its staff. A public spat about wages isn’t going to help retain or attract the best talent necessary to sustain itself. I hope Thompsons’ troubles are short lived.
In June, I wrote about the crippling delays and the appalling service in the civil courts, for which my clients (read ‘my firm’) have to pay exorbitant court fees. The court estate itself appears to be at breaking point in places, with court closures leading to justice ‘deserts’ in the regions.
The closure of many courts is likely to mean justice becomes less accessible (geographically at least) for all court users, and this particularly affects the vulnerable. The Ministry of Justice (MoJ) says the court closure programme goes hand in hand with improvements to the courts that will remain open.
Ensuring the court building can physically accommodate the likes of specialist waiting areas for vulnerable witnesses; separate entrances and exits; the ability for witnesses to give video evidence remotely or from within the court building; and providing screens around the witness box (for example) will be key to ensuring the practicalities mirror the ideals behind these proposals.
Funding switch cases
Then in September, I talked about the pre-Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) funding switch cases – from legal aid to a conditional fee agreement (CFA).
In light of the Court of Appeal’s ruling in Surrey v Barnet & Chase Farm Hospitals NHS Trust  EWCA Civ 451, more nuanced cases were getting short shrift from the Supreme Court Costs Office. On appeal, decisions were going both ways. So I am pleased to report that my firm has been granted permission to appeal Justice Jay’s ruling in the case of XDE v Middlesex University Hospital NHS Trust  EWHC 1482.
Granting permission, Lord Justice Lewison said: “The thrust of the argument is that a CFA-lite is always superior to legal aid (absent special factors); and that therefore a litigant’s decision to switch from legal aid to a CFA-lite will ipso facto be reasonable.
Whether this argument is precluded by Surrey v Barnet and Chase Farm Hospitals is open to serious debate. The point raised is an important point of principle or practice, and has a real prospect of success”.
We understand the appeal is likely to be heard in March 2020. It will give us a platform from which to explode the myth that is legal aid – the funding shibboleth of an old world order – and show that a CFA lite was eminently fit for our client’s purpose. Oh, to be able to predict the outcome of that case.
Of course, I don’t know whether we will win – I know I’m not a prophet. Impostor syndrome? I think I’ve been found out.
Jonathan Wheeler is managing partner at Bolt Burdon Kemp boltburdonkemp.co.uk