Reflections on 2016

Iain Gould solicitorGreetings to all of you as we come to the end of another busy year; a time for reflection on what we have done and what we hope to achieve in the year to come. I trust that your year, like mine, has been a challenging but rewarding one and a healthy and happy one but if it has not, then here’s hoping that next year will bring you better fortune.

The major political upheaval of 2016, the “Brexit” vote has caused repercussions in the legal sector as we enter a period of great uncertainty ahead but this has not stopped the government’s intended plan to “reform” the Personal Injury sector in favour of the giant insurance companies who contribute so much to the war-chests of the Tory party. We are currently in a ‘consultation’ period which could see people stripped of the right to obtain legal representation in claims worth less than £10,000, and indeed significantly reduce or even bar the recovery of damages for certain types of ‘soft tissue’ injury.

This is clearly going to have a knock-on effect in the area in which I specialise, actions against the police, as it will add another line of argument with which Defendant police forces can try to (effectively) strip Claimants of their right to legal representation by seeking to get cases allocated to the Small Claims track of the County Court. This is something which Defendants in my experience are seeking to do with increasing frequency but which I am pleased to say I have successfully opposed on many occasions. This is because the monetary value of a claim is not the only factor which the Court will consider when it comes to deciding whether a case is suitable for the Small Claims process. Strong reasons why actions against the police Claimants should (in my opinion) always be allowed the benefit of legal representation include the importance of the actions themselves. These types of cases which revolve around not mere ‘accidents’ but often very deliberate abuses of police power including assault, false imprisonment and malicious prosecution, as well as the complexity of the legal issues and the number of witnesses/ length of trial which police claims involve.

So whilst ultimately the changes to the Small Claims limit may not prove a major obstacle to future claims being brought by my clients, other obstacles in the path of access to justice remain which have also been scattered there as indirect consequences of the government’s reforms over the last 5 years (which might also be characterised as their “war on personal injury claims”).

For example, the government’s abolition of the right to recover the costs of your legal expenses insurance policy as part of your claim continues to cause major obstacles to those who are wealthy enough not to qualify for legal aid (most working people) but who are not lucky enough to be amongst the top 1% of the country who could fund a legal claim out of their own pockets with no concern over having to pay tens of thousands of pounds to the Defendant if they lose. A mechanism to protect losing Claimants in personal injury claims – Qualified One Way Costs Shifting (QOCS) – exists and was specifically brought in to recognise the fact that otherwise thousands with valid claims would be ‘scared off’ making a claim if they did not have insurance to cover the other side’s costs if they lost (and the cost of that insurance outweighing their likely damages made it simply not economic to obtain). However, despite repeated calls from police claim lawyers such as myself and indeed the Civil Justice Council itself, the government appears to have no intention of extending ‘QOCS’ to cover those who have suffered significant wrongs (such as loss of liberty) at the hands of the police, but who may not also have suffered an injury. This leaves other claims which do involve injury allegations, but also other aspects including wrongful arrest, in a difficult ‘half-way’ house situation and it is dispiriting for me not to be able to advise my clients with certainty that they will have QOCS protection for their claims. As a result, I have seen clients with valid claims becoming ‘frightened off’ pursuing the matter because their inability to obtain practical insurance cover, coupled with the likely costs of paying the Defendant if they lose, makes it too risky an option for them financially.

One might cynically conclude that even if the government didn’t intend this side effect of its ‘root and branch’ reform of the personal injury sector, they are indirectly benefiting from it and are highly unlikely to change it for reasons of political expediency. If you are in the process of slashing police budgets (officer numbers down 20,000 since 2010) so as to cut central government costs, you are unlikely to enact a law to make it easier for valid claims to be pursued against the police (and by extension the public purse) even though it is undoubtedly the right thing to do.

Another side effect of the government’s anti- personal injury claims agenda has been to drive more and more accident claims practitioners to look for alternative sources of work. Lawyers without the specialist experience which I have in this area are therefore starting to ‘dabble’ in police claims which can have severe adverse consequences for their clients. You need somebody who knows what he is doing!

The government has also signalled intent to impose a system of ‘fixed costs’ across claims of all types and values which will also have an adverse effect upon access to justice for those who have been the victims of police wrongdoing. ‘Fixed costs’ really means ‘Capped costs’ and restricts the amount of legal costs a lawyer can recover from the Defendant even if all the work he has done to win his client’s case is entirely reasonable, necessary and proportionate. Inevitably, lawyers will be less willing to take cases on if they are not going to be fairly recompensed for the significant amount of time and resources they have to put into a legal claim against the police which are claims often fought ‘tooth and nail’ by police forces who have far more resources at their disposal than any single individual who has suffered at their hands. ‘Fixed costs’ will not prevent the police ‘throwing the kitchen sink’ at a clam if they wish to (exacerbating the ‘David v Goliath’ situation) which already faces anybody who wants to bring a claim against what is effectively a State institution. The resources available to a police force (financially and in terms of access to legal representation) are so much greater than those of most members of the public and the police very often adopt antagonistic attitudes towards claims, displaying a mentality of not wanting to admit wrongdoing. They may be prepared to ‘over spend’ in the defence of a claim to purposely ‘stringing it out’ by making the litigation process as difficult as possible so as to exhaust the financial resources (and more importantly the willpower) of the individual Claimant.

Nobody could think that this is right; checks and balances between

a) the rights of individuals without major financial resources, and

b) richer and more powerful individuals or state agencies,

appear to be being systematically dismantled by the government’s ‘reform’ process. Checks and balances established over many centuries during which time our legal system grew to be one of the fairest and most admired in the world. But what now lies ahead?

So we are undoubtedly in the middle of an era of fundamental attacks to our justice system and in particular access to justice, changing fundamental tenets of the age-such as old Common Law of this country and including the right to recover damages for personal injury and to be put financially back in the position you would have been had the wrong against you not been committed in the first place. This situation is unlikely to improve if, as part of the Brexit process, the government abolishes the Human Rights Act (as it has previously threatened to do) stripping a whole layer of additional protections and civil liberties from the citizens of this country.

But the fight for justice will go on. There are obstacles but we can overcome them. The judiciary recently took action to disapply ‘fixed costs’ rules in personal injury cases where a Claimant beats a settlement offer he has previously made. This is certainly a step in the right direction and one which may be echoed by a higher court ruling in regards to QOCS to establish that the protection given to that law does apply to claims against the police even if only very minor injuries were suffered. After all, we do not live in an autocracy and regardless of the government’s agenda, the legal profession, (especially in the persons of the higher judiciary) can fight back to modify the law and establish new precedent to set parties back on a more level playing field.

And personally, I’ve fought against the odds on behalf of my clients before and won, and I believe we can continue to do so despite the obstacles in our path. The determination of the Hillsborough families in their 27 year campaign for justice shows that setbacks and obstacles are what they are, but are not the end.

This year I and my clients have celebrated several noteworthy victories in diverse, challenging and interesting cases:

  • 6,500 awarded to a London man arrested and incarcerated by the police despite voluntarily attending for interview at a police station
  • £35,000 for a man who was asleep in his bed only to wake to find himself under attack and being dry stun tasered by officers who unlawfully had invaded his home
  • £26,000 for a young mother who was falsely arrested on suspicion of sexual abuse of her own 3-year-old daughter as a result of a reckless police investigation
  • £17,500 for a Birmingham City Fan smashed in the head with a police riot shield
  • £13,000 for a young football fan bitten without cause by a police dog
  • £25,000 for a victim of domestic abuse groomed and sexually exploited by a police officer
  • £15,000 plus destruction of his personal data (including DNA sample and fingerprints) of a young man arrested without reasonable suspicion for rape (in my opinion, the police never suspected he was the culprit at all but reprehensibly wanted to use the ‘pressure’ of the arrest to make him provide them with a statement regarding the person they really suspected)
  • £22,500 for a disabled young Black man wrestled to the ground by two police officers after a ‘routine’ traffic stop (in my opinion, a traffic stop that was in the first place without any foundation other than that of ‘driving whilst Black…’)
  • £63,500 for a man who fled to this country to escape persecution at the hands of Robert Mugabe’s tyrannical regime in Zimbabwe, who suffered a severe beating at the hands (and feet) of British police officers after speaking up on behalf of another young man who was being assaulted by bouncers.

I continue to relish the challenge and the fight. I derive immense satisfaction from these victories which always go so far beyond ‘mere’ monetary compensation in what they give back to my clients such as the sense of justice, restored dignity, faith in society, personal satisfaction which they absolutely deserve.

Most of us aspire to do something meaningful with our lives, to serve something greater than them, to have something to look back upon with pride at the end of each and every year. I consider myself immensely privileged and fortunate to represent people who have been mistreated by the police; to be able to fight on their behalf and secure for them the vindication that they deserve and to help them hold the police to account for the greater good of the individual and society, to play my part in making the system fairer.

It goes without saying but deserves to be said at this time of year in particular, that I couldn’t do what I do without the bravery and determination of my clients who have overcome the trauma of their suffering at the hands of the police to come to me in the first place and have the strength of their convictions and the character to see through to the end what can often be a bitter and hard-fought but ultimately rewarding legal battle.

So at this time of year, as ever, I just want to say to all of my clients – past, present & future – that you have my utmost respect and I am proud to be continuing the fight for justice on your behalf into 2017 and beyond.

Author: iaingould

Actions against the police solicitor (lawyer) and blogger.

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