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Archive for May, 2016

British Telecommunications fined £600,000 after workers seriously injured in falls from height

British Telecommunications PLC has been fined after two of its employees were seriously injured in falls from height.

Significant points of the case

  • Two British Telecommunications (BT) Open Reach engineers had been given a job at BT’s Darlington Automatic Telephone Exchange.
  • One of the engineers was installing a cable through a hole on the first floor along a ceiling level cable tray to the Main Distribution Frame (MDF) on the ground floor. In order to carry out this work he was working on a stepladder in amongst the lighting system. He felt a pain in his right arm and fell from the step ladder. He was taken to hospital with head and back injuries.
  • The accident was not properly investigated and later that day the work was allowed to continue. The second engineer continued with the work himself, from a different ladder. However he too fell to the ground and was taken to hospital with serious skull and back injuries. He was blinded in one eye.
  • The work had not been properly assessed or planned, despite workers being exposed to such serious risks as working at height close to an electrical system.
  • Serious failings were also found within the electrical lighting system in that area, where workers were exposed to live metal parts, some at 240 volts. The system was poorly constructed and had not been properly maintained or tested. It is most likely that both engineers received electric shocks which threw them from the ladders.

British Telecommunication PLC was fined £600,000 plus £60,000 costs for a breach of section 2, HSW Act, for failing to ensure the health and safety of employees.


Money and the English legal system

Money and the English legal system

To understand the reality of the practical workings of the English legal system, and to comply with the professional duty to act in the client’s best interests, look first at money. The increasing use of terminology such as “funding”or “resources” may be seen as attempting to hide the reality of money control.

In the amended words of Bill Clinton: “It’s all about the money, stupid”.

In civil proceedings, money issues are crucial throughout the process. From the point of view of the potential claimant, money rules from start to finish.

First, a claimant may try to find a lawyer. In most cases, the lawyer will demand money up front to take an initial look at the case. It is not unusual for a lawyer to ask for £500 to look at the case documents.

Next, assuming that the lawyer has been paid, money for court or tribunal fees must be found. In this connection, the introduction of fees for employment tribunal applications has reportedly reduced the number of claims by more than half. There can be no clearer example of the influence of money over justice.

Next, if the case is resolved by settlement negotiations, the key issue will be the amount of money agreed to settle the case. The role of the lawyer is reduced to that of a financial negotiator.

If the case proceeds to a court or tribunal hearing, then money for advocates must be paid.

Finally, the question of costs arises. This is a purely financial matter. Claimants who lose cases may be bankrupted by the amount of the other side’s costs which they are ordered to pay.

It will be noted that the rights and wrongs, the strength of the case, questions of procedure and evidence, and least of all law, do not arise at all at any stage of the money-dominated process. If money can be found, then law, evidence and procedure can be analysed.

For a small minority of claimants, money obstacles to litigation are not a problem. The recent superinjunction/privacy case decided by the Supreme Court is a clear example. Legal fees have been estimated to exceed £1million, that is more than 100,000 hours work at the minimum wage.

Some claimants have trade union backing for their cases. Others may have legal expenses insurance. Others may have a sadly naïve trust in no win no fee deals. These are a very clear example of the key role of money. No win no fee deals involve, in essence, money calculations and the cost of after the event insurance.

In relation to criminal law, money matters are not so crucial, but there are many examples of the influence of finance. The use of fines, the cost of lawyers, and the disastrous introduction of the criminal charge, now abolished following the resignation of numbers of magistrates,  all illustrate the power of money in the legal system.

Complacent faith in the rule of law in England, in summary the often-unchallenged view that no-one is above the law, utterly fails to take into account the fact that there is one law for the rich and another for the poor. This, an ancient cliché, is the reality. It also means that the great bulk of English civil law, with its complexities and nuances, much beloved of legal practitioners and academics, is of complete irrelevance unless money is forthcoming.


BUPA Care Homes fined £400,000 for Cumbria care home bedrail failures

Care home company fined £400,000 for bedrail failures

Health and Safety Executive v BUPA Care Homes (CFC Homes) Ltd, Carlisle Crown Court, May 26

BUPA Care Homes (CFC Homes) Ltd has been fined over the inappropriate management of bedrails at one of its care homes.

Following an earlier guilty plea in Carlisle Magistrates’ Court the case was referred to Carlisle Crown Court for sentencing.

Significant points of the case

  • At the Beacon Edge Specialist Nursing Home in Penrith, Cumbria, BUPA Care Homes (CFC Homes) Ltd failed to ensure that it managed the risk of bedrails through appropriate assessment and review of bedrail arrangements, and failed to train staff in the assessment of and safe use of bedrails.
  • The use of bedrails is common in care homes to help prevent vulnerable residents from falling from bed, but they should to be used appropriately, and staff must be trained in both their use and the process of assessment to identify suitable measures to protect individual patients from falls.
  • The court was told the company had a policy on bedrail management but it was not fully implemented as staff were not trained and assessments not conducted or reviewed when required.
  • The case related to the management of bedrails in relation to a vulnerable resident who died at the home. The company failed to ensure the patient’s bedrail assessment was suitable and sufficient, reviewed following falls and deterioration in health and that staff were trained in bedrail risk assessment.
  • The reviews of the bedrail assessment should have identified further measures to prevent the risk of falls, but staff that carried out the initial assessment and reviews were not adequately trained. Furthermore, measures identified to protect the resident where not implemented correctly and increased checks on the resident were not carried out as instructed by a medical professional.

BUPA Care Homes (CFC Homes) Ltd admitted breaching Section 3 (1) HSW Act 1974 and regulation 9 of the Provision and Use of Work Equipment Regulations 1998 (PUWER).  The company was fined £400,000 plus £15,206 costs.

An HSE Inspector is reported to have made the following comments after the case:

  • The need for adequate risk assessment and management of third party bedrails has been recognised in the healthcare sector for a number of years and guidance and advice has been published by the relevant bodies to this effect.
  • Bedrails are used to protect vulnerable people from falling out of bed but each patient should be assessed individually and appropriate measures taken to protect them from falls from bed. Staff working with bedrails must be appropriately trained in the use of bedrails and in the patient assessment process.
  • In this case there was a lack of appropriate assessment of the residents’ changing needs and review of the control measures in place to protect her. The measures that were in place were not used correctly in that the sensor pad which would have alerted staff to the resident’s being out of bed was not switched on.

The irrelevance of property law to the propertyless

Property law

For many people, their main contact with lawyers is dealing with the solicitor who handles the procedure of buying and selling houses. “Conveyancing” law is highly structured, sophisticated and sufficiently complex to deter all but the most determined house buyer or seller who aims to avoid giving large sums of money to lawyers.

Conveyancing is essentially about the exchange of money for property. It involves layer upon layer of professionals: solicitors, legal executives, paralegals, estate agents, surveyors, mortgage brokers and bankers. Networking between lawyers and their auxiliaries controls the conveyancing system.

This massively complex and sophisticated edifice of property and tax law, aimed at the preservation of property and the transfer of property rights, is simply irrelevant to those who have no property. Those of us whose family members have died, leaving literally nothing but the clothes they stood up in, are well aware of the reality of the irrelevance of property law in such circumstances.


Lithuanian worker killed in unguarded machinery: employer given suspended sentence

Crushing death: suspended prison sentence

Health and Safety Executive v Gordon Leach t/a RGE Engineering Company (2016) Peterborough Crown Court, May 13

Gordon Leach, trading as RGE Engineering Company, a plastics manufacturer, has been given a suspended prison sentence after a worker was killed in a printing machinery crushing incident.

Significant points of the case

  • In April 2012 a 23-year old agency worker from Lithuania was working in the company’s print room.
  • She entered the machine to apply thinners to the ink. The machine started. Her head was crushed between the printing pads and the printing table of the machine. She suffered fatal injuries.
  • The machine had no effective guarding system.

Leach was given a prison sentence of 15 months, suspended for two years. He was also fined £7,500 and ordered to pay £45,000 costs for breaching regulation 11, Provision and Use of Work Equipment Regulations 1998 (PUWER).


Individual and collective human rights

 

Individual and collective human rights

For an ex-miner in Blaenau Gwent, suffering from a terminal lung disease, who develops a raging toothache, and cannot afford dentistry, it is of great solace to know that a Queen’s Counsel in chambers in Lincoln’s Inn has worked night and day to ensure that he has freedom of religion.

When my own father was dying, and no ambulance could be found to take him from hospital to a hospice, so that I had to pay a private ambulance to travel fifty miles, it was most reassuring for me to know that it was unlawful for me to be discriminated against on the grounds of my ethnic origins and that this right would be protected by a coterie of London QCs.

 

The rights protected by the Act of 1998 are generally recognised as civil and political rights, largely aimed at the protection of individuals. Social and economic rights are not covered. There is no right to work and no right to healthy and safe working conditions.

 

While the current trend towards the protection of human rights in relation to, for example, freedom of speech and the right to a fair trial, is without doubt desirable, progressive and moving towards human emancipation and social justice, these are essentially individual civil and political rights. They do not address social and economic issues. It is, for example, of little comfort to those living in the most deprived circumstances that liberal lawyers from London are willing to earn huge sums to protect their right to freedom of religion.

The human rights industry in England is rarely criticised from the left. It is normally selected for abuse by populist politicians and journalists. But this does not mean that it is beyond criticism. It should be realised that there is a substantial body of academic opinion, particularly in developing countries, which is highly critical of the Western emphasis on individual civil and political rights.

This has been described as the little magic territory of human rights which is just civil and political. It has also been pointed out that before people get to political rights they want to know what to do about Aids and what to do about food and water.

In 1986 Tony Gifford made the following points:

  • The most profound injustices in our society stem from political and economic, rather than legal causes.
  • Legal rights can do little to enrich the lives of those who have no jobs.
  • If no money is spent on building new homes, then the theoretical rights of homeless people and slum dwellers are not of great value.

 


Law Centres: needed more than ever?

Law Centres

The original concept of the Law Centre was a service of salaried solicitors and legal workers who would be able to devote themselves to people’s needs, choosing priorities which reflected the seriousness of the need rather than the profitability of the case. The staff were accountable to a management committee representing locaal organisations and interests. When the movement started, it was described by the Law Society as a means of stirring up political and quasi-political confrontation.

In 1979 the Royal Commission on Legal Services commented as follows:

The impact of law centres has been out of all proportion to their size, to the number of lawyers who work in them and to the amount of work it is possible for them to undertake. The value of work they have attracted shows how deep is the need which they are attempting to meet.

A spokesperson for the Law Centres movement is reported to have commented that the most important thing to know about Law Centres was that they did not just do casework. Their philosophy was that they promoted legal solutions to the problems of poverty, discrimination and social exclusion. The role of Law Centres was to campaign for wider social justice by doing strategic work, including education, test cases and group actions.

Gifford stated in 1986 that the issues dealt with by Law Centres included:

  • Taking on agencies which had been a major source of oppression and injustice: uncaring central and local government departments, slum landlords and autocratic employers.
  • Acting for groups of people suffering a common grievance.
  • Educating people about their legal rights.
  • Helping people to organise in tenants’ associations and trade unions.
  • Tackling acute problems which lawyers ought to be involved in but rarely are.

In terms of financial problems, one in three Law Centres are currently reported to be on the critical list and are only surviving by cutting back on more complex, time-consuming cases. Cities like Birmingham and Leeds have been left without Law Centres


Claims management services: parasitism encouraged by the rich financial rewards of the law?

Claims management services

Since the introduction of conditional fee agreements (“no win no fee”) in England, many claims management companies, formed to profit from such agreements, have been heavily criticised for high-pressure sales techniques and the high cost of their services, which can significantly reduce the amount of compensation received by claimants.

 

In 1995 English lawyers were allowed to take on cases on the basis that, if they lost, they would not charge. If they won, they would charge a success fee calculated as a percentage of costs to recompense them for the risk of not being paid.

In April 2000 personal injury cases were taken out of the legal aid scheme and replaced with conditional fee agreements.

Between 2000 and 2004 there were, reportedly, 130,000 references to the Citizens’ Advice Bureau related to rogue claims management companies and poor legal advice.

Part 2 of the Compensation Act 2006 responded to these criticisms by introducing strict regulation of the claims management industry.

 

The Act states that all claims management companies must be registered. They are obliged to comply with detailed rules which are designed to protect consumers. For example, the Act makes it unlawful for representatives of such companies to visit accident victims in hospital to encourage them to make claims.

In August 2009 the Ministry of Justice reported that 100 claims management companies had lost their authorisation to provide services since the Act of 2006 came into force. The reasons for the disqualifications included:

  • Criminal convictions for fraud.
  • Misleading marketing.
  • Some companies targeted consumers who were in debt.
  • There was a trend towards high pressure cold calling from call centres, including making unsubstantiated claims and encouraging people to hand over fees on the spot.

Claims management companies are now prohibited from advertising in hospitals and doctors’ surgeries.

These companies can be seen as an example of the parasitism encouraged by the rich financial rewards of the law. They are a clear example of commercial enterprises calculating and making profit from the misfortunes of others.


No win no fee: is the reality no fee no win?

“No win no fee”

“No win no fee”, in reality, is a grotesque over-simplification which reflects the naïve innocence of clients. It has developed into an impenetrable jungle of regulations and procedures, mostly concerned with insurance premiums and payments. There is also a significant body of case law dealing with CFAs and their insurance implications.

In outline, a solicitor assesses the chance of success in a case and decides on a success fee to be paid on top of normal fees if the claim succeeds.

This includes the cost of an insurance policy to cover costs if the claim fails.

The introduction of CFAs is another example of the commercialisation of legal practice. CFAs make it less likely that poor claimants with cases which are not overwhelmingly likely to succeed will be able to find professional representation. Claims with a significant risk of failure are not taken on.

 

In 2009 a study by Oxford University concluded that the use of CFAs in defamation cases (essentially, libel) made such cases 140 times more expensive in England and Wales than in other European countries. Defendants who lost defamation cases faced a doubling of reasonable costs against them. Media outlets were being forced to settle claims because of the financial risks of fighting such cases. CFAs in defamation cases enabled lawyers to charge up to twice their normal fees of up to £800 an hour. The study made the point that media companies were being forced to self-censor because they had no economic incentive to defend defamation claims. Where the claimant had the benefit of a CFA, there was no longer any incentive to control the amount of work being done. This distorted the normal costs control mechanism and potentially breached Article 6 of the European Convention on Human Rights (the right of access to justice) and Article 10 (freedom of speech).

Compensation in libel cases assesses a person’s reputation as if this was a commodity. The valuation of a person’s reputation in money risks undermining the very thing which the law seeks to restore, namely the intangible good name of the injured person. The law of defamation is fundamentally geared towards financial compensation.

English law imposes a monetary value on injuries. Although there are a number of non-money remedies available in the employment tribunal, they are rarely ordered. Employment tribunal claims, like the vast majority of civil claims, are mainly about money.

What is the client’s ultimate aim? If it is financial compensation, then the system functions. If it is otherwise, for example to “obtain justice” or to “have a day in court”, the procedural aspects of the case become highly problematic.


Conditional fee agreements: a gimmick to secure justice on the cheap?

Conditional fee agreements (CFAs)

In April 2000 legal aid for routine personal injury cases was abolished and replaced by “no win no fee” agreements, involving the recovery of insurance premiums and success fees from the losing party. These schemes are borrowed from the United States.

It has been commented that there are growing concerns that these arrangements may not always be operating in the interests of justice. This appears to be a mastery of understatement.

It is generally recognised that solicitors will not take on a case under a CFA unless they estimate that there is a 70 per cent chance of success.

In 2005 the Citizens’ Advice Bureau made the following comments about CFAs:

  • Consumers were being misled by the term “no win no fee”.
  • They often found that the system cost them more than they gained.
  • They were subjected to high-pressure and aggressive sales tactics from non-lawyers employed by claims management companies.
  • Those companies were paid a fee by solicitors to whom they referred cases.
  • Consumers were not clearly informed of the financial risks involved in legal proceedings.
  • They were misled into believing that the system was genuinely “no win no fee”.
  • The reality was that consumers had to take out insurance policies to offset legal expenses incurred if they lost the case and had to pay the winning side’s costs. They were encouraged to take out loans to pay for these policies.
  • Private insurance companies charged according to risk. Clients with uncertain cases could face very high insurance premiums.
  • Legal expenses could be artificially inflated by claims management companies.
  • It frequently happened that injured persons did not benefit from the compensation they were awarded.
  • For example, the CAB dealt with a case where a woman was left with £15 from a £2150 compensation award, and another where a man received £1250 compensation but owed £2400 for insurance policies.

No win no fee can be described as “another gimmick to avoid state responsibility and to secure justice on the cheap”.