Claim for anything, as long as its not against a lawyer !

Reminding us all we can lodge claims for just about anything, as long as its not a claim of negligence against a member of the legal profession - or any other friendly profession to lawyers who happen to be insured by the same insurers !

The Scotsman reports :

Don't forget that the repeat players have a massive advantage

By Brian Fitzpatrick

IN THE early 1970s, US legal theorist Marc Galanter published Why the "Haves" Come Out Ahead.

Nowadays, his central thesis might seem obvious and his characterisations a bit simplistic. He says the world of litigation is made up of "one-shotters" and "repeat players". One shotters are the majority of ordinary citizens who rarely find themselves in a court case – perhaps a divorce or custody battle or suing after an accident.

Repeat players are those involved "in many similar litigations over time". Examples would be the prosecution service, insurance companies, commercial lenders and landlords.

One-shotters are generally individuals, have few resources and are litigating for immediate one-off outcomes. Repeat players tend to be relatively wealthy in scale and resources, and often "pursue long-run interests".

As seasoned litigators with deep wallets, repeat players enjoy what Galanter calls "advance intelligence" from going through similar litigations.

Professionals rather than enthusiastic amateurs, they can "structure the next transaction and build a record. It is the repeat player who writes the form contract, requires the security deposit, and the like".

As we look on at the behaviour of banks and finance houses who created the credit crisis and yet devolve its results on to more onerous and expensive obligations for individual customers Galanter's observations take on a current-day significance.

Northern Rock, amid all its problems, has little difficulty in repossessing homes at a rate outstripping its competitors and with much more chance of success than the debtor in financial straits, trying to keep a roof over his family's head.

The war-chest of experience built up by repeat players finds arms in expertise aided by an ability to access specialist lawyers and paid experts who service litigation.

The small-firm lawyer seeking to secure a report from a medico-legal expert might have to wait a while – the insurer who pays by return or instructs reports by the hundreds can secure a report in days.

The repeat player makes sure to secure the services of the highly expert major law firms. In turn those firms can access even more expert practitioners at the Bar while increasingly acting as vocal lobbyists for the interests of their clients, even if losing the odd individual case. The repeat player can bear the cost of losing cases far better than any individual. So, when negotiating, it can apply pressure the one-shotter might find irresistible.

If you are a spinally injured car accident victim with a claim of £2.5 million, a "final offer"of £2 million will make you think long and hard. The UK insurance industry, through huge investment in its case management system, knows better than any judge and most claimant lawyers just how much money is needed to see off a troubling claim.

It is not all one-sided. Here in Scotland expert claimant lawyers have, to some considerable extent, evened up the field. Asbestosis, deafness, white finger and other mass litigations would never have secured the sums achieved for thousands had there not been trade union-backed law firms trading blows with insurers.

Legal aid has also provided some measure of antidote, though, nowadays, with a legal aid certificate being somewhat more rare than the proverbial unicorn it represents more a case of providing some bandaging rather than proper even-handed access to justice.

The various equalities bodies have taken up cases and advanced the rights of women and ethnic minorities but with very straitened resources. Making sure that ordinary citizens can secure access, not just to the courts but to expert lawyers has to be at the heart of any debate on the future of our legal system.

Speaking recently in Edinburgh, Lord Rodger reminded lawyers that achieving justice between the parties "not just a result" was what our civil justice system should be about. As we discuss the next phase of Lord Gill's review of the courts we might bear in mind Lord Rodger's concerns that, when considering proposals to divert personal injury cases to the Sheriff Courts, account has to be taken of the potential of diverting work from a globally recognised centre of expertise. Gallanter would have smiled.

• Brian Fitzpatrick is an advocate in the Ampersand stable

Expenses changes in the Court of Session after personal injury claim success

Changes to the expenses regime in the Court of Session after a personal injury case in which the action was settled for £2,500, and the court then asked by the defenders to award expenses at the sheriff court scale.

The Scotsman reports :

Summary change to expenses

By JOHN ROBERTSON

THE case of Hylands v Glasgow City Council was no different from so many other personal injury actions, but it could turn out to be the claim which heralds an end to a blight on the country's supreme civil court.

Ann Hylands, a clerical assistant with the council, was not badly hurt when a partition fell and struck her back. Her case for compensation was straightforward, yet it was raised in the Court of Session, and gave fodder to those who believe that judges in the highest court should have their time and brains exercised by more taxing issues than low-value reparation.

The Court of Session has introduced simplified procedures for personal injury actions and made it a more attractive forum than the local sheriff courts. So, as long as the initial claim was for more than £1,500 – below which a case went to the sheriff court – lawyers from all over Scotland have headed to Edinburgh.

One way of discouraging the trend would have been to award only sheriff court expenses in cases where the sum ultimately recovered, by an out-of-court settlement or an award by a judge, was small by Court of Session standards, and more in keeping with the sheriff court.

However, judges in a number of cases, where the sums recovered had been between £1,450 and £3,400, found themselves unable or unwilling to impose the expenses sanction. How could you blame someone, they asked, for taking advantage of the Court of Session's procedures, often resulting in a quicker outcome?

Now, the Hylands case has seen a reversal in thinking. The action settled for £2,500, and Lord Drummond Young was asked by the council to award expenses at the sheriff court scale.

He said: "The level of expenses in a (sheriff court) summary cause is substantially less than that found in the Court of Session. The clear intention underlying the legislation increasing the privative jurisdiction and the financial limit for summary causes is that claims of small value should proceed as summary causes in the sheriff court and not in the Court of Session.

"In my opinion, those changes have important implications for the level of expenses that may be recovered in the Court of Session … the expenses awarded to a pursuer who recovers a sum significantly below the limit of the privative jurisdiction should normally be modified to the summary cause scale without certification for counsel."

Lord Drummond Young said exceptions would exist, and he found that, in the Hylands case, the Court of Session summons had been prepared before the increase in the sheriff court limit, and served just after the new limit came into force. He refused to modify the expenses.

"I would emphasise, however, that that decision is made on the very specific circumstances of the present case. If similar facts were to occur in future, I am of opinion that in the absence of special circumstances, it would be appropriate to modify the pursuer's expenses," he added.

Scottish Law Commission recommends 5 year limit for personal injury claims

The Scottish Law Commission has recommended in a recent report that the time limit of personal injury cases which currently must be proceeded within a three year window from date of incident should be extended to five years.

You can read the Scottish Law Commission's report here : Report on Personal Injury Actions: Limitation and Prescribed Claims (Scot Law Com No 207) (pdf)

The Scotsman reports :

Commission's recommendation will help those 'time-barred' from justice

DAVID SHORT

CONTRARY to public perception, many claims relating to personal injury in the workplace do not involve people being crushed by overturned forklift trucks or falling great heights from warehouse roofs.

In reality, they come about after the pursuer has developed a long-term medical condition directly as a result of spending many years working in conditions that his or her employer should not, in law, have permitted to exist.

This is why the recommendation by the Scottish Law Commission, announced last week, that the limitation for raising personal injury actions should be extended from three to five years (after the diagnosis of illness or injury) is so welcome, because it gives hope to one sector of society that has been "time-barred" from justice.

Although the recommendation relates to several areas, the commission rightly points out that it will be particularly welcomed in cases involving claims for occupational diseases, where gathering evidence to bring an action can be both difficult and extremely time-consuming.

It notes that, in particular, this applies to people who suffer from industrial diseases, which require intensive investigation before proceedings can be brought. For example, before an action can be raised, the injured person's employment history has to be looked into, records obtained, former colleagues traced and statements recorded.

Paradoxically, what exacerbates the problem is that most of the "victims" tend not to be the type of people who complain easily and they are certainly not litigation-conscious: in fact, quite the opposite.

Despite the loss of so much British, and Scottish, heavy industry over recent decades, there are hundreds of thousands of people living today - both still employed or retired - who are suffering, or may yet still suffer, from a medical complaint brought on by working conditions during the 1960s, 70s and 80s. These complaints include deafness, vibrating white finger, or breathing difficulties brought on by long-term working with asbestos materials.

But because these people tend also to be mature, and stoical, members of society, the very persons who do not "throw a sickie" at the drop of a hat, the three-year time bar on raising personal injury actions has adversely affected them more than most.

One case, despite being almost 20 years old, encapsulates the situation. In 1989, a man in Aberdeen eventually visited his GP after being constantly told by his wife that he watched television with the volume turned up too high. He was then referred to an ear, nose and throat (ENT) surgeon who, after consultation and investigation, informed the man he was officially deaf and the condition was most likely caused by working for many years in an over-noisy environment.

However, when the man contacted his trade union about making a personal injury claim, the employer's insurers would not pay up and because, by then, the three-year limit on personal injury pursuits had passed, he was not able to raise an action through the courts.

Extending the limit from three to five years will not help every worker, or former worker, with a current - or future - medical complaint for which compensation could be available. But it should certainly help level the playing field in favour of people who, up to now, are being "timed out" from justice through no fault of their own.

I hope the commission's recommendation forms the basis of a Bill and a change in the law.

• David Short is a partner in Lawford Kidd.