Ex Chairman’s Letter – January 2016 – William Flenley QC

Ex Chairman’s Letter

William Flenley QC

Dear PNBA Members,

As you probably know, on 6 December 2015 my term of office as Chairman came to an end and I was succeeded by Ben Hubble QC as Chair(man); Caroline Harrison QC was elected Vice-Chair(man).  I will leave it to them to decide whether they are Chair and Vice-Chair or Chairman and Vice-Chairman.  Victoria Woodbridge and Michel Kallipetis QC were re-elected as Secretary and Treasurer respectively.

I have, however, been asked to write a final letter for this edition of the newsletter.

May I, therefore, thank you, the members, for a very enjoyable period as PNBA Chair(man).  I’ll spare you any version of Tony Blair’s speeches on resigning, especially bearing in mind his fate since then, but it has been great fun to work with the committee to try to come up with topical and useful events relating to professional liability.  As well as the office-holders just mentioned, I would like to thank Lord Justice Jackson for his continuing and major support of the PNBA, and the committee for their help with organising events and responding to lots of consultations.  In particular I would like to thank Cara Guthrie and Danny Shapiro, both of whom decided to stand down from the committee in December.  Finally, I would like to thank Simon Hale for editing this newsletter.

In addition, I would like to mention three particular matters.

Consultation on Fixed Fees in Clinical Negligence Cases

First, the Department of Health is planning to launch a formal consultation in February on its proposals for fixed fees to be introduced in relation to clinical negligence claims worth up to £250,000.  You may think it significant that the consultation is being administered by the Department of Health, and not the Ministry of Justice.  The Department invited the PNBA to participate in a pre-consultation, which was sent out on about 1st August with replies due by 31st August.  I am very grateful to Caroline Harrison QC for writing our response to that, within a deadline which was not entirely convenient to barristers.

Caroline Harrison QC and Cara Guthrie will formulate our response to the formal consultation.  This consultation may well raise important issues relevant to most clinical negligence practitioners, and which may later become relevant to almost all civil practitioners.  So it is likely to be an important consultation.  Please give Caroline and Cara your views when it is launched.

Pilot Scheme for Adjudication in Solicitors’ Liability Claims

This scheme was suggested by the Professional Negligence Lawyers Association, which represents claimants.  The enthusiasm of insurers has not been quite as marked as that of the PNLA, though it appears that they do think that it may be a helpful addition to the armoury of ADR in appropriate cases.  The idea is to provide a fast method of adjudication, principally for solicitors’ claims worth up to £100,000, probably without an oral hearing.  It is modelled on the system of adjudications in construction law.

The pilot scheme was launched in February 2015 but to date parties have been able to agree upon adjudication in only one claim.  The scheme therefore appeared to be in danger of becoming an ex-scheme, but the Master of the Rolls has decided otherwise.  He has appointed Mrs Justice Carr and Mr Justice Fraser to oversee an extended pilot.  A meeting was convened in December.  The scheme is to be re-drafted to make it easier to use.  It is said that a careful examination of the existing law will reveal that unreasonable refusals to participate in adjudication may result in adverse costs orders; but in any event the two Judges are considering whether to make that more explicit in some way.  A re-launch event is being planned for April or May 2016.

It seems to me that it may be possible to reach a degree of agreement between some insurers and some claimants’ representatives on the circumstances in which this scheme might be helpful.  That, combined with further judicial support, might make it into a realistic tool for trying to resolve relatively simple disputes more cheaply than litigation and possibly more satisfactorily than mediation, which should be in everyone’s interests.  As a by-product, it might also create a source of work for senior barristers as adjudicators and junior barristers as advocates.  For these reasons, I hope you will consider recommending the scheme in some of your cases.

Upcoming PNBA events

The first event of the new year will be on 23 February when Michael Pooles QC and Adam Kramer will speak on the Court of Appeal’s recent decision on remoteness in Wellesley v Withers, and John Dagnall will speak on identity fraud and land registration.

Then in April the Peter Taylor Memorial Lecture will be given by Lord Justice Briggs, who as you may know is conducting a review into civil justice.

Book News

Lastly, may I recommend The Case Histories of Jeremy Hutchinson, by PNBA committee member Tom Grant QC.  Jeremy Hutchinson QC, who is still alive, was the leading criminal advocate of his day from the 1950s to the 1970s, appearing for example in the Lady Chatterley trial.  The book is currently available in hardback, though I understand that in February a new edition, involving one startling new piece of evidence relating to a former Lord Chief Justice, will be published in paperback.  Waterstone’s have selected it as their book of the month for February.  I can’t claim to be an independent reviewer, but my wife can, and she insisted on reading it before I was allowed to.  It’s a completely absorbing read, and a remarkable achievement for a practising barrister to have fully assimilated the historical background as well as the advocate’s perspective on the trials discussed.

Happy New Year.

William Flenley QC.