Kerry Underwood

CIVIL LIABILITY BILL: THE ROAD TO NUREMBERG

with 8 comments


Today, 24 April 2018, sees the Second Reading in the House of Lords of the Civil Liability Bill which proposes a tariff for whiplash injuries in road traffic accidents.

Tariff is a weasel word. The Bill is an attack on the judiciary, the independence of the judiciary and the rule of law, as well as the poorer sections of the community, as a reduction at the lower end of damages affects the less well-off more.

Lawyers call this disparate impact.

Damages for such injuries will be reduced by between 62% and 87% if the government follows its previous proposals.

For example an injury of up to six months’ duration will now warrant an award of £450 instead of up to £3,630.

Damages for personal injury are already subject to extensive guidelines laid down by the Judicial College, an official body comprised of judges, academics and medics and they are regularly updated to take account of changes in treatment and the attitudes of society.

For example, damages for sexual abuse have been increased significantly.

The Judicial College Guidelines take into account damages for other types of wrong.

Judges determine damages at trial, normally at a hearing that just deals with how much an injured person should receive, as insurance companies nearly always admit that their insured caused the injury.

Insurers are extremely well-resourced and so able to fight any claim that they think is misguided or fraudulent, or where too much is being claimed.

Insurance companies already enjoy special laws as if any part of a claim is fundamentally dishonest, then the whole claim is lost, even if their insured was to blame. This does not happen in any other area of English and Welsh law.

Currently, judges make all of these decisions.

This bill destroys the work of the Judicial College and destroys judicial discretion and destroys judicial independence.

In reaction to a comment that this is an insane policy, the United Kingdom Association of Part Time Judges said:

Quite right. There is no reason to depart from the Judicial College Guidelines setting out fair compensation determined by judicial discretion.” (Underneath the Law Society Gazette 20 April 2018).

If this bill is passed, then the next target will be damages for injury to feelings in discrimination cases, where guideline damages are also set by judges and are known as the Vento Guidelines.

Unfortunately the legal profession has split into different groups doing different things and seemingly looking after their own interests.

Personal injury lawyers gave no support to employment lawyers fighting Employment Tribunal fees in the Unison case, and employment lawyers are giving no support here.

As both the physical courts and the civil and criminal justice systems crumble, “legal advisers”- civil servants – are set to replace judges in exercising 22 powers currently reserved to the judiciary.

Governments and ministers and ministries set a cultural tone.

At present it is a nasty and vindictive tone, as shown by the recent Windrush events.

This is not a party political point. The last Labour governments had a shameful record on all of these matters and did not oppose these measures in the Prisons and Courts Bill, lost due to last year’s General Election.

The endless attack by senior ministers on lawyers and the judiciary, and now the people they represent, who are least able to represent themselves, is extremely damaging to the rule of law and therefore society.

The rise in anti-Semitism and murder in London is a direct consequence.

This Bill should be voted down.

 

Without lawyers, judges and courts, there is no access to justice and therefore no rule of law, and without the rule of law, society collapses.

Lord Neuberger, Supreme Court President, 10 April 2015.

 

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Written by kerryunderwood

April 24, 2018 at 12:00 pm

Posted in Uncategorized

8 Responses

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  1. I think United Kingdom Association of Part Time Judges is a Gazette username only and it is very unclear if the individual is endorsing the view of the association.

    Hyxyay

    April 24, 2018 at 12:06 pm

    • How many judges in the country disagree with the sentiment expressed, or this blog?

      Kerry

      kerryunderwood

      April 24, 2018 at 1:17 pm

  2. Unfortunately, lawyers have only themselves to blame for this shambles. The whole area of personal injury claims has gradually become a cesspit over the last decade or so, largely due to the introduction of the `loser pays everything’ CFA. This was a licence to print money (I know, as I printed it along with everyone else) and it led to wholesale corruption, both amongst clients and the lawyers who encouraged them to make false or exaggerated claims.

    I got out of PI claims several years ago, when in order to obtain any work I had to start paying parasitical CMC’s for it, which I refused to do on principle. In retrospect, I’m very glad I did, as I’d reached the stage where I was ashamed to admit that I was a PI solicitor.

    The pendulum may indeed have swung too much in the other direction, but it’s a classic case of one greedy and selfish sector of what used to be a profession killing the goose that laid the golden egg.

    Pro Bono

    April 24, 2018 at 1:07 pm

    • Don’t disagree with much of that, but the Civil Liability Bill is all about attacking the public, not personal injury lawyers.

      Kerry

      kerryunderwood

      April 24, 2018 at 5:58 pm

  3. Wise and perceptive as ever.

    Thank you Kerry for expressing so well your legitimate concerns for the rule of law. I suspect that your views are shared by many independent legal professionals, myself included.

    I was interested to see that the Association of Part Time Judges endorsed the view that the government’s policies are ‘insane’. I appreciate that was is probably meant as a rhetorical flourish. If so, it is an effective one, as it forces us to ponder what is the rationale behind these ill-conceived, unconstitutional and unjust proposals.

    If not insanity, what else might explain them? I don’t think it is an aberration either as it is merely one in a long line of profoundly anti-social policies introduced by successive governments. Is it corruption then? Clearly not of the kind that involves discrete conveyance in brown envelops but underhand and essentially dishonest in nature nonetheless. Perhaps it is best categorised as an abuse of power but I view that as a form of corruption. It is certainly the action of a callous and unprincipled government: one that is prepared to perpetrate institutional injustice at the behest of the cartel of corporations it licences to exploit the state conferred monopoly of the £15bn market for compulsory motor insurance. As you say, it is not a feature of any one party. However, one is reminded of the bigotry and misinformation that accompanied the abolition of strict liability for breaches of statutory health and safety regulations under Section 69 of the Enterprise and Regulatory Reform Act 2013.

    Returning to the Civil Liability BilI i think the reference to the Windrush scandal is apposite. It is galling to recall the gushing tribute paid by the prime minister to social justice in her inaugural speech in July 2016. The mistreatment of these citizens was vicious and callous in equal measure and it was entirely her doing.

    I expect that I am not alone in wondering what our professional associations intend to do. If the Law Society and the Association of Personal Injury Lawyers stand for anything then they must surely act decisively. Both institutions left it to a small underfunded road safety charity (to risk the costs exposure) and a courageous campaigning law firm (to act pro bono) to challenge the longstanding and systemic illegality that permeates the UK provision for compulsory third party motor insurance in the RoadPeace judicial review last year. Long experience of government consultations indicate that they are no more than window dressing: designed to legitimise covert decisions with the government’s ‘strategic partners’, all too often at the expense of the public weal. It was the judicial review that forced the government to introduce major reforms to both MIB compensation schemes and forced an unsympathetic judge to make declarations of EU law incompatibility; not the sham 2013 consultation on the MIB agreements. Bleating for tea and sympathy at the doors of government simply doesn’t work and it fools no-one. Actions, not words, are what is required.

    Kerry, you’re a treasure. Keep up the good work.

    Nicholas Bevan

    April 24, 2018 at 2:54 pm

    • Nicholas

      Thank you very much for this and for your kind remarks. Pretty much agree with everything. I live in hope that people will eventually see through the current madness of knowing the price of everything and the value of nothing.

      Kerry

      kerryunderwood

      April 24, 2018 at 3:19 pm

  4. “The rise in anti-Semitism and murder in London is a direct consequence”

    The Civil Liability bill is a transfer of wealth from those who suffer whiplash to those who cause it. Since most causers of whiplash have mandatory car insurance, the benefits of reduced whiplash claims will be socialised across the driving community. So in effect what’s happening is that the Government has decided to reduce compensation for certain injuries, in order to reduce the average insurance bill by approximately £35 p.a.. It’s true that a function is being taken away from the Judicial College, but the Government is also competent in determining the attitudes of society towards certain damages. And also accountable for its decisions. And a good deal more transparent.

    What is not happening is:
    -Nuremberg
    -An attack on the rule of law
    -An increase in antisemitism caused by Government’s attitude to personal injury law
    -People in London deciding to murder one another after reading the Hansard discussion of the Civil Liability Bill.

    What will happen will be:
    -A reduction in damages for whiplash injuries
    -A consequential drop in the number of claims
    -Personal injury lawyers will lose approximately £300m a year (MOJ Impact Assessment, para 5.120)

    I can’t help but think that the last point is colouring your attitude to the remainder.

    Economist

    May 1, 2018 at 10:57 am

    • You are welcome to your views and that is the whole point of blogs, but one factual point.

      I am not a personal injury lawyer and although my firm does do personal injury work, it is under 10% of our turnover, so my views are not influenced by any personal loss of income.

      The Supreme Court President was not personal injury lawyer either.

      Kerry

      kerryunderwood

      May 1, 2018 at 11:20 am


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