PP 2016/0117

REPORT OF THE SELECT COMMITTEE ON CIVIL LEGAL PROCEEDINGS 2015-16

REPORT OF THE SELECT COMMITTEE ON CIVIL LEGAL PROCEEDINGS

At the sitting of Tynwald Court on 12th February 2012 it was resolved -

That a Select Committee of three Members be appointed with powers to take written and oral evidence under Sections 3 and 4 of the Tynwald Proceedings Act 1876, as amended, to examine the reasons for delays and deficiencies in respect of case management with regard to Civil Legal Proceedings, and to report with recommendations to the October 2012 sitting of Tynwald Court.

The powers, privileges and immunities relating to the work of a committee of Tynwald are those conferred by sections 3 and 4 of the Tynwald Proceedings Act 1876, sections 1 to 4 of the Privileges of Tynwald (Publications) Act 1973 and sections 2 to 4 of the Tynwald Proceedings Act 1984.

Committee Membership

The Hon Steve Rodan SHK (Garff)

Mr Tony Wild MLC

(Mrs Brenda Cannell, formerly a member of the House of Keys, was a member of the Committee for most of the inquiry, until her resignation; She was replaced by Mr Steve Rodan SHK, Speaker of the House of Keys, who was appointed to the Committee on 17th November 2015; Mr John Houghton MHK was the Chairman of the Committee, but he was suspended from Tynwald on Tuesday 17th May 2016.)

Copies of this Report may be obtained from the Tynwald Library, Legislative Buildings, Finch Road, Douglas IM1 3PW (Tel 01624 685520, Fax 01624 685522) or may be consulted at www.tynwald.org.im

All correspondence with regard to this Report should be addressed to the Clerk of Tynwald, Legislative Buildings, Finch Road, Douglas IM1 3PW.

Table of Contents I. INTRODUCTION...... 1

II. THE INQUIRY ...... 3

THE EVIDENCE 3

SCOPE OF THE INQUIRY 3

III. “PADDING” CASES ...... 4

THE RESPONSES 5

COMMENT 7

IV. SCRUTINY OF CHARGING ...... 8

V. MEDIATION...... 9

VI. COMMUNICATION AND COMPLAINTS ...... 9

OPTIONS FOR PURSUING COMPLAINTS 10

Internal complaints ...... 10

Conciliation by the Law Society...... 10

Advocates’ Disciplinary Tribunal ...... 10

COMMENT 13

VII. CONCLUSION...... 13

VIII. ANNEX ...... 15

ORAL EVIDENCE ...... 17

4TH FEBRUARY 2013 EVIDENCE OF MR T J C BARKER 19

7TH FEBRUARY 2014 EVIDENCE OF MRS S CRACKNELL EVIDENCE OF MR K GOLDIE 35

2ND MAY 2014 EVIDENCE OF MRS JANE O’ROURKE, CHIEF EXECUTIVE OF THE IOM LAW SOCIETY 83

WRITTEN EVIDENCE ...... 113

APPENDIX 1 LETTER FROM MRS JANE O’ROURKE, CHIEF EXECUTIVE OF THE IOM LAW SOCIETY 30TH MARCH 2012 115

APPENDIX 2 MEMORANDUM FROM THE ISLE OF MAN JUDICIARY 21ST MARCH 2012 125

APPENDIX 3 LETTER FROM MR STEPHEN CREGEEN, CHIEF REGISTRAR 26TH MARCH 2012 141

APPENDIX 4 LETTER FROM MRS JANE O’ROURKE, CHIEF EXECUTIVE OF THE IOM LAW SOCIETY 15TH MAY 2012 147 APPENDIX 5 LETTER FROM MR JOHN KENNISH, SECTION MANAGER/COSTS OFFICER, CIVIL LEGAL AID & LEGAL COSTS SECTION GENERAL REGISTRY 11TH MAY 2012 151

APPENDIX 6 LETTER FROM WENDY MONTGOMERIE CERTIFYING OFFICER, CIVIL LEGAL AID 11TH MAY 2012 159 To: The Hon. Clare M Christian MLC, President of Tynwald,

and the Hon. Council and Keys in Tynwald assembled

REPORT OF THE SELECT COMMITTEE ON CIVIL LEGAL PROCEEDINGS

I. INTRODUCTION

1. This Committee was established as a result of reports of complaints made to Members, by constituents, about the legal process and the role of lawyers within the system. Its function was to examine areas where members of the public had expressed concerns which indicated a serious lack of confidence in the civil legal system, as result of the behaviour of advocates.

2. The Chairman of the Committee, Mr Houghton, claimed that he had over the years received a range of complaints from constituents about costs and delays.

3. In February 2012 Mr Houghton moved a motion to establish the Select Committee. He asked for a Committee:

…to investigate the principal reasons why so many delays and difficulties occur in case management with civil legal proceedings, which regularly leads to many years of wasted time, and […] unnecessary additional cost. Such costs are incurred in the legal process, long before a case reaches the steps of a court and usually involves many hours of an advocate’s time, at great expense. […]

I have assisted many constituents while they pursue civil legal cases over the years as, indeed, I know many other Hon. Members have done likewise. I have monitored the real frustration people have been faced with, whilst they

1 have been traumatised during the course of many years, and have paid advocates tens of thousands of pounds, which has duly led to financial hardship and left many of them in poor health as a result.

In one recent case, I followed a constituent’s legal case, which has concluded after 10 years’ duration. The legal costs alone amounted to £60,000. I am quite sure that the respondents’ costs in the same case will have amounted to a similar figure also. What I am absolutely certain, Madam President, is that had this case been managed in a more proactive and efficient way, the case could have been resolved within 12 months, rather than 10 years and the legal costs would have amounted to a fraction of the final total. This particular case, as I have already stated, and many others, was settled out of court. It appears that when the evidence is finally established and/or proved, even in the simplest of scenarios, settlement is reached out of court. I have seen this frustrating situation repeated time and time again in dozens of cases I have been involved with.1

4. The Committee was appointed with the following remit:

That a Select Committee of three Members be appointed with powers to take written and oral evidence under Sections 3 and 4 of the Tynwald Proceedings Act 1876, as amended, to examine the reasons for delays and deficiencies in respect of case management with regard to Civil Legal Proceedings, and to report with recommendations to the October 2012 sitting of Tynwald Court.

5. Mr Houghton was elected Chairman at the first meeting of the Committee. The Committee met on eight occasions.

6. Unfortunately, one member of the Committee (Mr Wild) was seriously ill in 2014 and the work of the Committee had to be suspended. Subsequently, another member of the Committee (Mrs Cannell) was bereaved and resigned for personal reasons. Mr Speaker was elected to the Committee on 17th November 2015. Mr Houghton was suspended from Tynwald on 17th May 2016. The Committee therefore finds itself unable to deal finally with all the issues which it planned to cover and in the circumstances it makes this report without recommendations. Mrs Cannell was not part of the process of agreeing this report, but we wish to recognise her work throughout the inquiry and thank her for her contribution.

1 Tynwald Hansard, 22 February 2012, p612

2 II. THE INQUIRY

The evidence

7. An important part of the role of advocates is in managing expectations of clients and in explaining to them often unwelcome news, which may well be the result of complex technical arguments that are difficult to explain in simple terms.

8. The Committee received a range of submissions from members of the public, many of whom were known to the Chairman. Many of these related to cases which were either “live” or were matrimonial issues – and some of these family cases involved young children. For this reason, we have not published them or taken oral evidence on them. The Committee did, however, use the evidence to inform itself of the overall views among lay users of the court system about the advocates employed.

9. The Committee was careful when taking oral evidence to avoid running the risk of rehearing court cases or raising expectations about solving complaints in ways that are outside its powers.

10. We publish a list of those who have submitted written evidence in the Annex to this Report.2 We extend our thanks to all those who gave oral or written evidence.

Scope of the inquiry

11. This inquiry was not intended to be a root and branch examination of the civil legal system. That is a technical matter which is outside the intended scope of this Select Committee. Instead, the Committee focused on the major complaints about the legal process, namely delay in achieving justice which, in turn, creates additional cost. The Committee approached its remit from the point of view of the general public and decided that its task was to identify the main areas of complaint both in the formal evidence and informally, by way of contacts with constituents and the public generally.

12. The Chairman identified from informal contacts with his constituents a particularly worrying possible cause of delay which has affected confidence in the legal system and, in particular, in advocates on the

2 Annex

3 Island: the allegation that advocates "pad" their cases in order to boost their fees. The Committee made this its first area of examination.

13. Two further areas of investigation were prompted by both formal and informal responses received from members of the public: the problem of overcharging; and the scope for developing alternatives to court action, in particular by way of mediation.

14. Finally, the Committee looked at the system available to clients, when they wish to make a complaint (especially about delay). This area gave considerable cause for concern and is the principal area in which reform is needed.

III. “PADDING” CASES

15. The Committee started its investigation by inviting members of the public to submit evidence relating to deliberate time wasting by advocates in order to boost their fees – “padding” their cases in order to increase their fees. As the Law Society pointed out, such a practice is contrary to the Isle of Man Law Society Practice Rules 2001 which govern the professional behaviour of Manx advocates. Practice Rule 1(iii) requires that an advocate may not do anything which compromises or impairs his “duty to act in the best interests of his client”. Unless a client so instructs, it would not be in the client’s best interests to delay matters which could be progressed:

It will never be in the client’s best interest to have fees padded and delays deliberately created to justify such padding will fall foul of this rule.3

16. In addition, such deliberate falsification of work in order to bill clients fraudulently would be a criminal offence. It would also be a breach of the advocates’ Oath, in the context of litigation, since it is an advocate’s duty to assist the Court.4

17. The Committee invited members of the public with complaints about the service provided to them by advocates to write to it. It decided not to revisit the substance of any cases but to maintain a narrow focus on the early stages of case management well before the substantive hearing in court.

3 Appendix 1 p120 4 Ibid. p121

4 18. The Committee sent out a Press Notice which explained the remit and asked for written evidence within three weeks from the date of the notice. A copy of the Press Notice was sent to particular recipients identified by the Chairman.

19. The Committee also asked for written evidence from the Law Society, the Chief Registrar and the First Deemster about the problem of advocates wasting time in order to boost their fees, how the system finds out about such waste and punishes it or stops it, the extent to which this is a problem and its impact on the courts’ system.

The responses

20. The Committee was surprised that there was very little public response to the initial call for evidence about dissatisfaction with advocates. To some extent, this is because relatively few people in the general population come into contact with lawyers in connection with several disputes. Those that do, are not always dissatisfied with the service which they obtain. Nonetheless, on the basis of the various cases which had been reported to Mr Houghton, the Committee had hoped for a more substantial public response.

21. The evidence received from individual witnesses was mixed in quality and length. No one complained about the specific matter in which the Committee expressed interest, namely the practice of padding out work to inflate bills. As Mr Barker pointed out, it is difficult to prove that an advocate’s motive of writing a letter was to stretch out correspondence with the specific intention of raising the costs to the client.5

22. Mr Tully,6 Mr Johnson,7 and Mr Smith8 complained about delay by their opponents’ advocates. Only Mr Davenport9 complained about his own advocate’s delays.

23. Neither the Deemsters, nor the Chief Registrar, nor the Law Society pointed to any evidence of advocates’ deliberately padding out their work in order to boost fees. The Law Society was particularly offended by the suggestion that this might be a common practice among Manx advocates.

5 Not printed 6 Not printed 7 Not printed 8 Not printed 9 Not printed

5 Mrs Jane O'Rourke, Chief Executive of the Law Society, told the Committee that the Law Society had created a questionnaire and put it to members so that it could take account of their direct responses:

The questionnaire […] was completed by 29 advocates (though in one instance on behalf of the entire practice). Some advocates have expressed the view that they do not have the time or inclination to complete the questionnaire because of the offensive assumption that advocates routinely engage in the criminal practice of fraudulently padding invoices and those that completed the questionnaire expressed strong views of distaste that this question was asked at all in the absence of supporting evidence.10

24. The Deemsters noted the Committee’s interest in examining deliberate time wasting by advocates in order to boost their fees by issuing letters unnecessarily or carrying out other work which was not needed. They said:

The judiciary are not complacent but are not aware of "deliberate time wasting by advocates in order to boost their fees" and have not expressed concerns in this respect. The judiciary do not possess any evidence to suggest that such abuse exists or represents a problem in this jurisdiction.11

25. The Deemsters noted that there are mechanisms in place to deal with any deliberate time wasting by advocates in order to boost their fees. They said:

A client of an advocate has the ability to request assessment of the fees of the advocate (section 23(1)(a) of the Advocates Act 1995 and Rule 11.49 of the Rules of the High Court of Justice 2009) and a party subject to a costs order has the ability to have the costs assessed (Rule 11.7 of the Rules of the High Court Justice 2009).

Rule 11.14 of the Rules of the High Court of Justice 2009 gives the court express powers to disallow certain costs or order that a party at fault or his advocate pay costs which he had caused any other party to incur. The court may exercise these powers in cases where the court is satisfied that a party or his advocate has failed to comply with the rule, practice direction or court order or it appears to the court that the conduct of a party or his advocate, before or during the proceedings which gave rise to the assessment proceedings, was unreasonable or improper.

10 Appendix 1 p118 11 Appendix 2 p130

6 Moreover the courts have the power to make wasted costs orders against advocates (Rule 11.47 of the Rules of the High Court of Justice 2009).

Depending on the circumstances of the case there could be other civil law remedies, regulatory and disciplinary proceedings and the consequences under the criminal law.

The judiciary are content with the existing mechanisms for preventing or "punishing" or "putting a stop to" any "deliberate time wasting by advocates in order to boost their fees" if such abuse takes place. We add that we have seen no evidence to suggest that such abuse is presently taking place.12

26. The Chief Registrar pointed out that:

Courts administration has no contact with an advocate on civil proceedings until such time as a claim is filed. When a claim is so filed it is processed and will be set down for a case management hearing. Therefore within Courts administration there is no information as to the extent of communication which may have passed between advocates leading up to this stage. When a matter comes before the court, advocates are required to comply with the directions set down in relation to the production, filing and serving of documents.13

27. The Chief Registrar also said:

Should a party be unhappy with the level of work undertaken, and therefore as a consequence the level of fees, charged to them by his/her own Advocate, they have the right to seek to have such work assessed, either by a Costs Officer (pursuant to Part 11 of the Rules of Court) or by the Isle of Man Law Society (under the Advocates Act 1995).

It should be noted, that in privately funded matters, where a file is assessed and the level of deductions made by the Costs Officer exceed 50% there is provision for the advocate concerned to be referred to the Advocates’ Disciplinary Tribunal.14

Comment

28. The first area of the Committee’s inquiry, into the question of whether advocates were deliberately padding out their work in order to raise their fees, produced no substantial evidence supporting the suspicion that this

12 Appendix 2 p131 13 Appendix 3 p143 14 Appendix 3 p145

7 was a widespread practice. It provoked strong rebuttals from not just the Law Society, but also from the judiciary, the Legal Aid Certifying Officer and the official in charge of assessing costs in civil cases (John Kennish). It was not a charge raised by any of the members of the public who have sent in written evidence, only one of whom had a complaint against their own advocate as opposed to their opponents’ advocates. In default of any firm evidence, we cannot conclude that there is any “padding out” of work.

IV. SCRUTINY OF CHARGING

29. The Committee asked the Law Society to list their advocates and their individual areas of practice and hourly charges, indicating which ones were willing to undertake legal aid and what the charging mechanism was which they adopted.

30. The Chief Executive pointed out, in response, that the Advocates Scale of Fees had been abolished and that fees were principally determined by market forces. They were dependent on factors such as complexity, urgency, experience of the advocate and the continuing relationship with the client.15

31. The Committee asked for written evidence from the Advocates Disciplinary Tribunal; John Kennish, Manager, Legal Aid and Legal Costs, on the criteria for assessing what matters may be charged and what proportion of charges are disallowed and on what basis; and Mrs Wendy Montgomerie, the Legal Aid Certifying Officer (in particular asking her about the scale of charges and the criteria for what she will agree to).

32. Mr Kennish provided a response which set out his approach to determining reasonable fees. He told us that he did not believe that any deductions had been caused by advocates intentionally claiming for work which is “unreasonable or excessive” or work “being intentionally undertaken and claimed with a view to boosting the fees of the Advocate”.16 Mrs Montgomerie set out her process in a paper.17

15 Appendix 4 16 Appendix 5 17 Appendix 6

8 V. MEDIATION

33. The Committee asked the judges, the Chief Registrar and the Law Society about the efficiency of the pre-trial mediation process and its impact on reducing correspondence between lawyers and its overall impact on either settling cases early or bringing matters to trial sooner.

34. Mediation as an alternative to the traditional use of lawyers is being explored extensively in many jurisdictions. The judiciary, the Chief Registrar and the Law Society emphasised the practical limitations on the use of mediation as an alternative to court action. All of them pointed out that the most useful use of mediation is in family law, where parents of a family who are separating will often be able to use mediation to enable them to cooperate in making decisions about the future of their children. It is much harder to obtain satisfaction by way of mediation in other areas of civil law.

35. The Law Society asserted that the low number of cases requiring mediation on the Isle of Man meant that the skill level of mediators was not able to be brought the level of mediators elsewhere.18

36. We note that the chief difficulty in using mediation as an alternative to civil legal procedure is that it will only work in cases where the parties affected voluntarily engage in mediation. Notwithstanding the success of mediation in some family cases, this can be especially difficult in bitter divorce cases where the parties are unable to cooperate. It can also be difficult to obtain in civil cases where neither side can see any incentive to mediate as opposed to proceed with court action.

VI. COMMUNICATION AND COMPLAINTS

37. A major problem area in provision of legal services is the way in which complaints are handled. At present, there are three options for members of the public to complain about their advocate on the Island (apart from a complaint about lawyers from other jurisdictions, whose parent jurisdiction may be able to entertain a complaint). A complaint about an English solicitor or barrister who practises on the Island may be made to the Legal Ombudsman in England and Wales.

18 Appendix 1

9 Options for pursuing complaints

Internal complaints

38. The first option is an internal complaints procedure, by way of a complaint to the firm which employs the advocate. The Law Society’s website describes this option as follows:

All Advocates are required to have an internal complaints procedure for use by their clients. If you want to make a complaint within the practice you have used, please contact the practice and ask to speak to the person in charge of complaints, you can do this by completing the Society’s form here or by writing to or telephoning the Practice. It is helpful if you have a note of your client reference number; the Advocate you are complaining about and the date of the incident you want to complain about.19

Conciliation by the Law Society

39. The second option, if relations with the firm have not continued well, is described on the same website:

You may want to make an informal complaint about the service you have received from an Advocate. Law Society Conciliation is a process which affords both parties (Advocate and Client) the opportunity to discuss the complaint and hopefully agree a resolution. This process is voluntary for Advocates and free to complainants and the Society cannot make a finding against an Advocate or award you compensation. This service is now delivered for the Society by Ian Cochrane who is engaged by the Society but independent of it.20

40. There is a form on the website which the complainant can fill in and return, in order to engage the process.

Advocates’ Disciplinary Tribunal

41. The third option is to make a formal complaint about an Advocate’s conduct using the Advocates’ Disciplinary Tribunal (ADT). According to the Law Society, in 2011 (the last year for which they had figures at the time of asking) 14 cases had been referred to the Advocates’ Disciplinary Tribunal and all had been found in favour of the advocate.21

19 http://www.iomlawsociety.co.im/rules-complaints/complaints/ 20 Ibid. 21 Appendix 1 p121

10 42. The ADT was established by the Advocates Act 1976, to give a body other than the Society disciplinary responsibility over matters relating to professional misconduct; it operates under the Advocates (Disciplinary) Rules 2009. The Tribunal is independent of the Law Society. In determining a complaint against an Advocate it will consider whether the Advocate has breached the professional rules governing the profession.

43. The ADT can impose a penalty on an Advocate but it cannot award compensation.

44. In April 2011, responsibility for providing Secretariat support to the Advocates Disciplinary Tribunal ("the Tribunal") was transferred from the Chief Secretary's Office to the Tribunals' Centralised Administration in the General Registry.

45. The Tribunal consists of:

• a Chairman, who is an advocate, or a barrister or solicitor, of not less than 10 years' standing appointed by the Governor;

• two persons nominated by the Council of the Isle of Man Law Society ("the Council"); and

• two persons, not being members of Tynwald, nominated by the Isle of Man Office of Fair Trading ("the OFT").

46. In order to be quorate, the Tribunal must consist of the Chairman and at least one of the persons nominated by the Council and one of the persons nominated by the OFT.

47. The Tribunal proceeds in a formal manner, like a court. It can only consider complaints of professional misconduct. (Professional misconduct is defined on the Advocates’ Disciplinary Tribunal website as being when an advocate’s behaviour is outside the bounds of what is considered acceptable).22 Unless there are exceptional circumstances the Tribunal generally cannot deal with matters such as: allegations of negligence; breach of contract; compensation claims; or disputes over advocates’ bills or charges. The complaint is generally against a named advocate and not against a company.

22 ADT Guidance Notes - https://www.gov.im/lib/docs/registries/guidancenotes2014.pdf

11 48. If the complaint relates to a matter which is before a Court, then although the Tribunal will receive the complaint, in the absence of exceptional circumstances, the Tribunal will usually decide to hold the complaint over until the Court Case has been determined.

49. Complaints must be in writing and include: all the details of the complaint, attach all supporting documents, including any witness statements (the Tribunal will not necessarily allow production of later evidence). The Clerk to the Tribunal is not permitted to advise or assist the complainant during the course of submitting a complaint.

50. Once a complaint has been received the Tribunal considers the complaint. If the Tribunal feels that there is no case disclosed on the papers submitted or the complaint does not fall within its jurisdiction, it will notify the complainant accordingly. If the Tribunal agrees there is a case to answer, a copy of the complaint and supporting documents will be forwarded to the advocate. The advocate will be asked to answer the complaint in writing. The Tribunal will meet to consider the advocate’s answer. Following this meeting the Tribunal may: find there is no case to answer and dismiss the complaint; arrange for a hearing of the complaint; send the complainant a copy of the advocate’s answer and ask if the complainant wishes to make a comment; and then arrange for a hearing of the complaint.

51. If the Tribunal asks for a hearing of the complaint the parties are invited to attend. Both parties can ask for a representative, either an advocate or another representative, to be present. Tribunal hearings are always held in private. At the hearing the complainant presents his/her case, usually as sworn evidence. Parties are entitled to call witnesses in support of their cases and to cross-examine the other side. The advocate may respond to the complaint. Parties then make closing speeches.

52. The Tribunal may: dismiss the complaint or, if the complaint is proved, reprimand the advocate or order the advocate to pay to the Treasury a penalty not exceeding £5,000. A complainant may also seek all proper, reasonable expenses and costs incurred. The Tribunal may award such sum – if any – as it thinks just in the given circumstances. The Tribunal may also, if it considers its powers to be inadequate, refer the matter for consideration by the Lieutenant Governor. Either party may appeal against the decision to the Lieutenant Governor. The Lieutenant Governor will consider the appeal with the advice of the Deemsters.

12 53. At any stage before the Tribunal makes a final decision the Tribunal may, with the consent of the complainant and advocate concerned, refer the matter to the Council of the Isle of Man Law Society for conciliation.

54. Hearings are in private and a short note of the Tribunal’s findings is published on its website, but with no details of how any mistakes came to be made. There is therefore little of use to other advocates from the point of view of professional development or setting standards of behaviour.

Comment

55. There are several major problems with the current system of handling complaints and especially cases dealt with by the Advocates‘ Disciplinary Tribunal.

56. The secrecy of dealing with ADT cases causes a great amount of concern among both the legal profession and the public. This creates a sense of concealment which undermines public confidence in the impartiality of the Tribunal. It also prevents other lawyers from learning about the mistakes made: the fact that judgments are not made public means that the work of the ADT is not subject to open scrutiny and it is impossible for it to give any guidance which it could or should give to advocates about acceptable practices.

57. No compensation is awarded to complainants, so they have little incentive to complain.

58. Advocates are invariably represented before the ADT (they can claim the costs from their insurer), but complainants usually are not. This is unfair.

59. The track record of case findings is overwhelmingly in favour of the advocate. There is something wrong here: this raises the possibility that either there is an insufficient filter mechanism for deciding complaints without merit early or the system is biased against the complainant. This needs examination.

VII. CONCLUSION

60. Mr Barker’s complaint, echoed by other individual witnesses, was not so much that advocates were deliberately delaying cases in order to pad out

13 their fees, but that for whatever reason they were very slow.23 His solution was to take away the duty of regulation from the Isle of Man Law Society and to establish a regulator with proper abilities to monitor service quality. He did not think that the conciliation service offered by the Law Society worked, as it had no teeth. He also thought that the Advocates Disciplinary Tribunal offered nothing but a very stressful experience to a member of the public with a complaint and that any sanctions imposed were payable to the Isle of Man Government rather than to the aggrieved consumer. In which case, “Why would anyone bother to complain?” he asked.

61. There are grounds for significant concern about the mixed role of the Law Society as representative body and regulator.

62. Evidence that the civil legal system is failing people is largely based on those members of the public who feel that they have not obtained justice. They are angry with the system and the delays inherent in pursuing a case. It is worth noting that several of the members of the public have complaints about handling of matrimonial cases and this is, of course, a very difficult area. Whether the complaints are reasonable or not, it is possible to conclude that the system for communicating with them failed and that on occasion there has been insufficient explanation about why there was significant delay.

63. Although circumstances prevent us from reaching formal conclusions and recommendations, there are strong arguments for replacing the current system for complaining with a new system that is easier for the public to use. In particular, the Advocates’ Disciplinary Tribunal should be reformed, to allow for clearer processes and more clearly independent administration. The process should be more transparent and more equitably balanced between complainant and advocate and, crucially, the Tribunal should publish outcomes.

S C Rodan

T P Wild

June 2016

23 Not printed

14 VIII. ANNEX

The following people or organizations gave written evidence to the Committee:

Deemster Doyle

Advocates Disciplinary Tribunal

O'Rourke Jane (Isle of Man Law Society)

Wendy Montgomerie, Legal Aid Certifying Officer

Stephen Cregeen General Registry

Henry Kennaugh*

Sally Cracknell*

Kevin Goldie*

S Ball*

R Tully*

Bridson Andrew of Bridson Halsall*

Barry Nutter*

G Moore*

Clive Davenport*

Ian Moncrief-Smith*

Chris Woodrow*

P Smith*

Lee Johnson*

J Kennish*

T J C Barker*

R Tully*

Evidence marked * has not been printed, as it relates to personal cases.

15 16 ORAL EVIDENCE

17 18 4th February 2013 Evidence of Mr T J C Barker

19 20

T Y N W A L D C O U R T O F F I C I A L R E P O R T

R E C O R T Y S O I K O I L Q U A I Y L T I N V A A L

P R O C E E D I N G S

D A A L T Y N

S E L E C T C O M M I T T E E O F T Y N W A L D O N C I V I L L E G A L P R O C E E D I N G S

B I N G E R – L H E H T I N V A A L M Y C H I O N E I M M E E A G H T Y N L E I G H O I L N E U – C H I M M A G H

HANSARD

Douglas, Monday, 4th February 2013

PP 27/13 CLP, No. 1

All published Official Reports can be found on the Tynwald website www.tynwald.org.im/Official Papers/Hansards/Please select a year:

Published by the Office of the Clerk of Tynwald, Legislative Buildings, Finch Road, Douglas, Isle of Man, IM1 3PW. © High Court of Tynwald, 2013 21 TYNWALD SELECT COMMITTEE, MONDAY, 4th FEBRUARY 2013

Members Present:

Chairman: Mr J R Houghton MHK Mrs B J Cannell MHK Mr T P Wild MLC

Clerk: Mr R I S Phillips

Business Transacted Page

Procedural...... 3

Evidence of Mr T J C Barker ...... 3

The Committee sat in private at 3.30 p.m.

______2 CLP 22 TYNWALD SELECT COMMITTEE, MONDAY, 4th FEBRUARY 2013

Select Committee of Tynwald on Civil Legal Proceedings

The Committee sat in public at 2.30 p.m. in the Legislative Council Chamber, Legislative Buildings, Douglas

[MR HOUGHTON in the Chair]

Procedural

The Chairman (Mr J R Houghton MHK): Ladies and gentlemen, my name is John Houghton MHK. I am the Chairman of the Select Committee looking into Civil Legal Proceedings. May I extend a welcome to you, Mr Barker, and everyone else who is attending this afternoon. 5 This Committee is taking evidence today on the matter of civil legal procedure on the Isle of Man, and its remit is:

‘That a Select Committee of three Members be appointed with powers to take written and oral evidence under Sections 3 and 4 of the Tynwald Proceedings Act 1876, as amended, to examine the reasons for delays and deficiencies in 10 respect of case management with regard to Civil Legal Proceedings, and to report with recommendations to the October 2012 sitting of Tynwald Court.’

Today we have, as our first witness giving oral evidence to this Committee, Mr Barker. Mr Barker, I would like to introduce my fellow colleagues here today: to my left is Mrs 15 Cannell MHK, whom I understand you know (Mr Barker: Yes.); to my far right is Mr Wild, Member of the Legislative Council; and to my right is the Clerk of Tynwald, Mr Phillips. Can I also ask everyone who is here today to make sure that your mobile phones are turned off and that you are all acquainted with the emergency exit procedure, which is the way that you have come in, through the door at the end, and also this door here on your left, should a fire alarm go 20 off.

EVIDENCE OF MR T J C BARKER 25 Q1. The Chairman: If I may turn to you then, Mr Barker, you have written to the Committee an extremely interesting letter, hitting what I would view as the very high-level principles of issues that you see are problematic within Civil Legal Proceedings and the operation of advocates, and so on. May I ask you, Mr Barker, how much experience have you had with the use of advocates – 30 without naming an advocate – actually dealing with the experience?

Mr Barker: In the Isle of Man, not… I have lived here for 26 years. Apart from using an advocate to purchase property – so, conveyancing – my first contact was with this particular advocate for any commercial work, which was in the year 2000, when I had a commercial 35 property to let. The agency I was using was Deanwood Commercial, and they recommended this particular lawyer as being the person who could draw up a pretty good commercial lease and was expert in the field, and he was the man to use. So I used him, and he drew up a lease for me, a 12- year lease for a tenant. As time went on into the mid-2000s, the tenant started to struggle to pay the rent, and I was 40 aware that this… There were various excuses, and it just got a bit out of hand. So eventually, I said to the guy at Deanwood, ‘Is there any chance you might find me another tenant, because these fellas are struggling?’ He said to me, in fact, ‘Well, instead of a retail use, if you could get an office use we would have a better chance.’ Mrs Cannell helped me with Planning over that, because they were a bit silly about change of use – I felt unnecessarily so. But, anyway, I made an 45 arrangement.

______3 CLP 23 TYNWALD SELECT COMMITTEE, MONDAY, 4th FEBRUARY 2013

I asked Deanwood to be on the lookout, because I had spoken to them to say that these chaps wanted out, and if we could find somebody else... I said to them that, providing they paid the expense of just rolling over the tenancy, as far as I was concerned, if I could get another tenant I would let them out of the lease. I am told by Deanwood subsequently that the normal arrangement 50 is that… In fact, when they went, there were four years to run on the lease, and normally what happens is people have to pay to get out of leases, because they have got a financial commitment. But I had said to them, ‘No, providing you pay my costs – I do not want to punish you for this – you can go.’ Eventually, Deanwood found… They had been trying to assign this lease, it transpires, through another estate agent, without any success, and Deanwood did find a potential 55 tenant. The way the system works is that the estate agent prepares what they call heads of agreement for both the people coming in and the people going out, and this was done. The incoming tenant gave his advocate’s name as Dickinson Cruickshank, so a copy of each of these documents would be sent to both my lawyer and their lawyer, and they would be set to work, in a sense. 60 The normal thing you might expect – and I expected – is that, like a house purchase, everything would be ready at the same time and it would all be signed on the same day. I went away, and when I came back – I do not know, but we will say it was in November or the beginning of December – I could not get hold of my lawyer at all. Every time I rang up, he was not in the office – he was away; he was off the Island – and even his junior, or what I thought was almost his 65 secretary, a young girl, was unavailable as well. It went on, and my strong impression was that they were so overworked… They were a smallish firm, and I suspect he would be off the Island. Once, I know he was in Germany. Goodness knows where he went to, but he would often be gone from Tuesday to Thursday inclusive, which would then leave him Monday and Friday to sort out anything that was… 70 During this period, running up to Christmas, I could not get hold of them at all, and I was just getting, ringing up, ‘Oh, they are not available,’ this sort of business, so when it eventually came to… The tenant wanted to be in either in November or else immediately after Christmas, so when it came to it, they had not prepared the lease. The lease was not ready. There had been a lot of work done on the surrender documentation, but nothing on the lease. The lease was not ready. It 75 was miles away from being ready, and I was put in the position of, ‘Well, do you want these people out, or don’t you?’ I subsequently found, through copy e-mails that I got from Deanwood… Part of the system is that when a tenancy is being taken up, there are pre-contract enquiries, almost as if you are buying the property. There seems to be a Law Society form which is sent out, where they are asking all 80 sorts of questions about who owns the boundary walls and all sorts of things that you would not think perhaps were… Nonetheless, this had to be done, and I saw an e-mail – sometime in November, I think it was – from this lawyer, saying, ‘I am currently working on this documentation, these pre-contract enquiries.’ They sat on this and did nothing for 26 days, and after that I am then faced with the fact, ‘Well, 85 the lease is not ready.’ They sent it to me and I turned it round in four days, because they could not answer these questions anyway – who owned the party wall and all this sort of business – so they had to come to me, but they did not send it to me for more than three weeks. This was a crucial three weeks, as far as I am concerned, because of the point I made to you in my letter – life goes on all the time, and in business people want surety, they want to know what is happening. 90 I felt, and I strongly feel, that what was happening was this junior… It turns out that this girl had been an articled clerk and had been brought up by this fellow and taught the ropes throughout her time with the firm, and no doubt… My assumption is that when he went off on his travels, he would be on the mobile phone, saying, ‘Do this; do that,’ and she would not know… She would be trying to please everybody. The firm was overloaded, and at this particular crucial time for me, I 95 could not get any sense out of anybody, until I got told, ‘Well, the lease is not ready – do you want to sign the surrender document?’ These people had not paid a penny piece from the previous August until now, Christmas, so when I turned up to sign the surrender document, I said to the young girl – because the senior lawyer was nowhere in evidence, but he had sent an e-mail, copied to me, about an hour before the 100 meeting, to say, ‘I am in. You can tell him you can give me a call if there are any problems,’ and he sent me a copy, saying to this girl that she was to make sure I was fully satisfied before anything was signed. So, when I was there to sign the surrender documentation – and, as I understood it, my ex-tenant was in his lawyer's office to sign the documentation – I said to the young girl, ‘Is there no money? Is there no money at all?’ She said, ‘Well, I’ll have to go and ring 105 them.’ So she goes out of the room, and they have some discussion, which I am unaware of – which I feel a senior person, with more experience, might have made a better job of – but ______4 CLP 24 TYNWALD SELECT COMMITTEE, MONDAY, 4th FEBRUARY 2013

nonetheless, she comes back and says, ‘They haven't got any money. Their lawyer says they haven't got any money, they cannot pay anything, they have left his office, and they have not signed the documents.’ 110 The document said that they should be out of the property by 30th December, and that is what they did. So, they vacated the property, having not signed the surrender documentation, and me not having the lease for the incoming tenant available to ask them to sign it, and the attitude of the lawyers was, ‘Well, they are still on. They have still got four years. They have not signed the surrender documentation; therefore, they are still bound by the lease.’ That was basically the 115 background to this.

The Chairman: Thank you.

Mr Barker: The other thing I would like to say to you… Discussions then ensued as to what to 120 do about this situation, as you can imagine, and they had not paid any rent from August, so part of the thing was to issue proceedings for the quarters of rent unpaid, and when it came to it, I had a telephone call from the girl, saying, ‘We need you to sign a documentation of appointment.’ It is headed ‘Terms and Conditions’, but it is to appoint them as my advocate – which is after they had been my advocate since the year 2000, but nonetheless, suddenly, will I sign this condition ‘which 125 is needed by the court and we are issuing the documents today – could you call into the office today?’ I said, ‘Well, I am on my way down into town. I will call in and do it now.’ She said, ‘Oh, well, there is no need to read it. I will put a copy in an envelope for you and you can read it at your leisure. If you would just sign it, and then if you have got any queries, we can discuss those later.’ So that is exactly what I did, and I did not look in this envelope for two or three days, and 130 when I did look at it and read it… I have brought you a copy of the whole thing, because I would like you to know the sort of thing you are expected to sign up to, and when you are well into something this is a fine time to be told about it, but nonetheless… I suspect that none of them… It is basically saying that… Many of the lawyers… I have seen one like it. Well, I have seen one from another local advocate, which has got a little bit more charm to it. It is a little bit politer. This 135 is pretty bald, but they obviously all use much the same thing, I suspect. What I would like to say to you is because this thing… I then complained. Eventually, after a thoroughly unsatisfactory period of time, with further delays, we decided to go to arbitration, and there was one period in this, while I was away, when I see that there were 55 days when there was no communication between either side. Nothing was done, not a five-minute note on the bill for 140 time spent, nothing for 55 days, and when I am in the sort of pickle, in a sense, that I am in, I do not regard this as good enough. I do not see any real effort being made. What I found out with this documentation, these terms and conditions… The very first item says:

145 ‘I shall, of course, carry out most of the work in this matter personally.’

That is the first line.

‘If, however, it does become necessary in due course for me to delegate part of the work, then I will let you know as 150 soon as possible and introduce you to the person concerned. We aim to offer all our clients an efficient and effective service and will use our best endeavours to do so in this case.’

– and so on. There are various other things. It then goes on to list… You can have this afterwards, but it 155 then goes on:

‘Our initial charging rates will be…’

– and there are then seven different headings – 160 ‘Senior advocate, £325 per hour…’

– and it goes right down to ‘general clerks/administrators, £295 [17.52.4] an hour’, and so on. It then says, somewhere further down, clause 5: 165 ‘Please note that secretarial time, which is charged for at £80 an hour, is only charged for in exceptional cases where, for example, a secretary undertakes specific work, such as photocopying or something unusual.’

______5 CLP 25 TYNWALD SELECT COMMITTEE, MONDAY, 4th FEBRUARY 2013

But then we go on: 170 ‘Should it become necessary to vary the above rates, I will, of course, let you know as soon as this is practicable.’

And the next clause, at the end:

175 ‘If a review is carried out for any reason before this matter has been concluded, we will inform you of any variation in the rate before it takes effect.’

That is an absolute statement of what the deal is: ‘If a review is carried out for any reason before this matter has been concluded, we will inform you of any variation in the rate before it 180 takes effect.’

Mrs Cannell: Excuse me, Mr Chairman –

The Chairman: Yes, go ahead. 185 Q2. Mrs Cannell: If I could just ask Mr Barker to pause there. Is there nowhere within that document that specifies that the person acting for you, or the person you have appointed to act for you, will reach a negotiated sum with you? Is there no mention in there about discussion between client and advocate about reaching agreement? 190 Mr Barker: No, not that I am aware of. As I say, I am happy to leave this with you. It also says here… and this is a bit like like – Mr Wild will forgive me – the sort of note you get from your bank, the terms and conditions. There is not a hope that you are going to vary them. You are having them, and that is the deal. 195 ‘As confirmation that you would like us to proceed on this basis, we would be grateful if you would sign the extra copy of this letter enclosed by way of an acknowledgement and return it to us. We will then have entered into an agreement, which will mean that the hourly charge rates as set out above will be fixed.’

200 And it then goes on:

‘Your rights to challenge these rates will be restricted.’

I have highlighted these bits. (The Chairman: Thank you.) 205 ‘Also, there is a time limit and you will not be able to ask for assessment after six months from the date.’

This assessment business is something that the lawyers seem to have in their world, whereby when you get an invoice, you can actually ask for it… I think they might call it ‘taxed’. You can 210 have it checked, but you have to do so within six months of receiving it. I had invoices which said virtually nothing, like ‘To time spent, £1,500,’ that sort of thing, no detail at all, and it was not until I got to the Law Society… In fact, when I told the lawyer that I was so fed up with the service that I was going to go and complain to the Law Society about it, at that point, when I got their final account, it was the first time that I had ever seen any time 215 breakdown, any ‘10 minutes for this’, and that sort of thing. When I got to the Law Society, I had an informal discussion, first of all, with Jane O’Rourke, who is the Chief Executive, and she was very pleasant, I must say, and she told me, ‘Well, haven’t you had breakdowns of these invoices?’ I said, ‘No, I’ve never seen them.’ She said, ‘Well, you should have. You should ask for them. When you fill in your forms for the complaint, that should 220 be one of the things you want, a time breakdown for the invoices that you have received.’ Well, I didn’t. Despite asking through the Law Society, I only ever got one breakdown of one invoice. Apart from the final one I got in September 2010, I got one for March 2010, and strangely enough, all the rates charged in March 2010 were higher than the rates charged in September 2010. We asked why this was and would they give us an explanation. No explanation was 225 forthcoming. My experience at the Law Society… Jane O’Rourke explained that I could either go to the ADT, I think it is called, the Advocates Disciplinary Tribunal, which sounds a pretty stressful occasion, because you are in front of a team of lawyers and possibly a couple of people, I

______6 CLP 26 TYNWALD SELECT COMMITTEE, MONDAY, 4th FEBRUARY 2013

understand, from the consumer affairs department – I am told that is the sort of make-up of the 230 committee – and you have got to set out your complaint to them as to why you think you have a grievance. If your grievance is upheld, the lawyer could be fined up to £5,000, which is payable to the Government, and you will get not a penny piece for your trouble. She said my other alternative was to opt for conciliation, a process that the Law Society offered – a conciliation service – and there were details of it on the website. It turns out to be 235 different since Jane O’Rourke came on the scene, because she is a full-time employee, whereas previously I think they had various volunteers to man a committee, and that seems to have made some difference; I am not quite sure what. At one stage, it said that you would receive a sort of written report as to how they saw it at the end of the thing, which I never received, and she said they were not doing that any more. 240 Having filled in my formal complaint, she then sent that on to the advocates and they had so long to file a response. If they fail to answer any of the questions, or give a vague answer, or skate over things, it seems that I cannot come back because the system has no means of obliging their members to attend. It is a voluntary system from their membership point of view, and they do not put pressure on them. They do not want to put too much pressure on, otherwise they will not come, 245 and they do not seem prepared... There is no means where you can come back and ask a question. If they do not want to answer anything, they don't, and you are then left… At the end of the process – I have got a copy – I did write to her at some length. I had a few exchanges of e-mails with Jane O’Rourke, and I told her what I thought – how disappointing the whole thing had been, how much time had been spent where we had got absolutely nowhere with 250 it – and I was more or less told, ‘Well, you can either go to the ADT…’ I have already told you what I think about that; I do not see that that is any help to me, as somebody with a complaint.

Q3. The Chairman: May I just ask, interject at that point, how did you, at that time, know that the ADT was, in your opinion, not worthwhile pursuing? 255 Mr Barker: Because I was told by the Law Society. I had got to explain my case to them, obviously, and if it was felt that I had some merit in what I had to say, I would get nothing as a consequence of this, not a penny piece. Nobody would say… When you asked me initially as to what my experience had been of the law and lawyers, I was 260 in business on my own account for 15 years in the UK, and on two occasions only I had reason to go to the Small Claims Court for somebody who I thought was being –

Q4. The Chairman: This was in the United Kingdom?

265 Mr Barker: This was in the United Kingdom, and my experience of that was that the person who became the judge, shall we say, was what they called a recorder, and it seemed almost like a process of saying, ‘Well, I can see both sides here,’ and more or less split it down the middle sort of a process. That seemed to be how it worked. That was my impression. But when it came to this, because Jane O’Rourke had said to me that I could either go to the ADT or I would have to take it 270 through the courts – the Small Claims Court or… and, of course, one of the things that the Law Society says is that you should go to another member and start taking action against the first member, and pay all over again – as if the cost is nothing, the attitude seems to be. I had already spent over £10,000 with these people and got nothing, no success in any shape or form. So I thought, ‘Well, it is going to be a bit of a…’ It is pretty daunting to actually decide to 275 issue some proceedings against a firm of advocates. It is a very intimidating thing, and I did ring the Small Claims Court and said, ‘Look, they are going to be coming at me with all guns blazing. Am I likely to get costs awarded against me for this?’ and I was told, ‘It is pretty unlikely. It is not absolutely out of the question, but it is pretty unlikely that you would get costs awarded against you,’ although in this case they did apply for them, but the Deemster said no. 280 So I decided, on the basis that I had either got to forget it at that point… I just felt that it was so appalling. If somebody tells me they are going to pay me £300 an hour to do anything for them, my God, am I going to try hard, and I am going to give it my best attention and most prompt attention. The performance is just appalling!

285 Q5. The Chairman: Thank you for that, Mr Barker, and I thank you for your opening address on that. It is very interesting and we have already taken a lot of notes on that. When you reached the point of Jane O’Rourke, who took the formal complaint, (Mr Barker: Yes.) can I just ask you now if we can just concentrate on what happened next? Did it go anywhere, or did it run up against the buffers? ______7 CLP 27 TYNWALD SELECT COMMITTEE, MONDAY, 4th FEBRUARY 2013

290 Mr Barker: It took about eight… We decided that, because I was away a bit, we would do it by correspondence – at least, we started off by correspondence, and eventually a conciliation meeting was held.

295 Q6. The Chairman: May I ask how?

Mr Barker: E-mail.

Q7. The Chairman: Were you writing to Jane O’Rourke and she was writing to, if I may say, 300 the offending advocate – without naming the advocate?

Mr Barker: No, well…

Q8. The Chairman: What was the channel of progress? 305 Mr Barker: First of all, I wrote a letter to Jane O’Rourke and I filled in their form, which is called ‘Isle of Man Law Society Conciliation Scheme, Extension to the Complaint Resolution Form A(2)’.

310 Q9. The Chairman: And this was after you had met with Ms O’Rourke?

Mr Barker: I went, first of all, and enquired. I said I had a complaint and I was not happy – how difficult was it going to be and what was going to be involved? She was kind enough to make an appointment for me to come and see her, which I did, and she explained that this was… and I 315 have brought… That particular day, I had received my final account from the advocate with the September breakdown, which was the first one I had seen, and it was at that point she said, ‘Well, you should have one of these for every every one, and we will ask – you ask in your complaint – this is one of the things you want.’ So I went home with the form and I wrote her a covering letter – which I have got a copy of for 320 you to have and the form that I filled in, my copy of the form, what I was complaining about, and from then on… Then she sends that to the other advocate and gives them the 21 days, or whatever it is, to reply. There were certain delays. There was a bit of what I would call gamesmanship – it may not have been, but it delayed it – and there was a fair bit of delaying went, but eventually… This went 325 on by e-mail. I was away at the time, but I was in e-mail contact through Jane O'Rourke. They would write to her; she would send on to me what they said.

Q10. The Chairman: Just bringing this a little bit more together, Jane O’Rourke was operating and trying to be helpful (Mr Barker: As a mediator.) as a mediator, in order to conciliate 330 something. Was that the route that we were going down with the Law Society?

Mr Barker: That was the route, because that was the only route available, really.

Q11. The Chairman: It was that route or the – 335 Mr Barker: Or the ADT.

The Chairman: Advocates Disciplinary Tribunal?

340 Mr Barker: That is right.

Q12. The Chairman: So, you chose to go down this conciliation route?

Mr Barker: I thought it was worth a try because there was nothing else, because I believe 345 that… One of the things she did say to me was, ‘When you get to a situation like this, this is always a failure of communication by the advocates. This is nearly always...’ You might think, on any sort of relationship that you have, it is to do with trying to get on some sort of reasonable terms and trying to understand one another's point of view, but I found… I had written previously, during

______8 CLP 28 TYNWALD SELECT COMMITTEE, MONDAY, 4th FEBRUARY 2013

350 this whole period, a couple of times to my main advocate in the contract and told him… I had made a few written complaints.

Q13. The Chairman: So you had contacted the advocate outside the…? [Inaudible]

355 Mr Barker: This was before I made my complaint. While the months were going by and nothing seemed to be happening fast enough or well enough, I had written a couple of times.

Q14. Mrs Cannell: Mr Chairman, if I may just ask Mr Barker, from when you first met with Ms O’Rourke to the point at which she felt as though everything was exhausted and you were not 360 getting anywhere, what was the time? How many months are we talking about?

Mr Barker: I should think it was nine months; quite a long time.

Q15. The Chairman: Can I just move on now, Mr Barker, because, as I say, we have got the 365 main understanding of the situation and how things drag on, even through a conciliation process. What was the result of Ms O’Rourke’s assistance under the conciliation process? What was the result of that, and how long did it take to achieve that result?

Mr Barker: She said, ‘I think we have exhausted the process,’ and – 370 Q16. The Chairman: What was the result of it?

Mr Barker: The result of it… I was not offered any sort of… There was no ground given, basically. 375 Q17. The Chairman: Did you meet with the advocates (Mr Barker: I did.) in Ms O’Rourke’s company?

Mr Barker: Yes. An appointment was made. I asked, I think… I remember they actually made 380 it to the very last day possible, at four o'clock in the afternoon, in the month of such and such – shall we say March, for sake of argument – and it was the last working day of March, at four o'clock in the afternoon was when they said they could meet. What actually happened was that the two, both the senior man and the young lady, breezed into this room at four o'clock, upstairs in the Law Society, at the back, and he said, ‘Goodness, I have 385 never been here before. I didn’t know we had got this sort of thing. I cannot spend very long. I have got an hour. I have got to get back. There is nobody in the office and I have got the post to sign and things to do. There is nobody in the office. I have got to be back by five.’ They had walked, and it had taken them rather longer than they had expected, and so on. He said he had never walked so far – unless he was on a golf course, was the comment made. 390 Q18. The Chairman: So he had very little time for you, basically?

Mr Barker: Well, that is what I am telling you. That is what happened. How can you actually try to resolve something if somebody breezes in and sticks a time limit 395 on it – then had said to me, by e-mail and in his response, that despite the contract, he was not the main person; it was the girl who was my day-to-day person. He talked for the whole of the time. I do not think she said a word the entire time, until he went at five o'clock. She stayed, and at that point some discussion ensued, but whilst she maybe acknowledged certain things, nonetheless there was no agreement that… ‘Oh, well, let's try and 400 settle something.’ There was no effort made on that basis, just to say what they had done and that I had not got anything to complain about at all, basically.

Q19. The Chairman: After that meeting, were there any further meetings between you?

405 Mr Barker: No.

Q20. The Chairman: How long did it take after that for that process to be wound up, approximately? Months? Weeks? Longer than that?

______9 CLP 29 TYNWALD SELECT COMMITTEE, MONDAY, 4th FEBRUARY 2013

410 Mr Barker: I e-mailed, but this e-mail correspondence backwards and forwards to Jane O’Rourke, which is in… I think we may have had the meeting in March – at the end of March, shall we say – and I have got e-mails here dated 21st April through to 31st May, when I was in correspondence with Jane O’Rourke at the Law… that are subsequent to the conciliation meeting. I, frankly, cannot remember now – I could look it all up – whether she was going to have one 415 more try, or whatever it was, but basically it took another couple of months before a line was drawn under it and she said, ‘I cannot do any more. You will either have to go to the ADT – that is your choice – or…’ –

Q21. The Chairman: So Ms O’Rourke brought about the closure after she had made these 420 attempts?

Mr Barker: That is right. She more or less said, ‘I cannot do any more.’

Q22. The Chairman: What happened then, after that? What did you do next? Did you go to 425 the ADT?

Mr Barker: No, I did not go to the ADT. I decided the ADT was going to be a pretty daunting, stressful probability.

430 The Chairman: You have mentioned that earlier, Mr Barker.

Mr Barker: That is right.

Q23. The Chairman: How were you so briefed about the ADT? Was it from – 435 Mr Barker: Ms O’Rourke told me that there was no financial… So whatever case I had, any money, any fines… It was a punishment for the advocates; it was not any help for me at all. I decided that I would explore the Small Claims aspect of it, after a bit of thought, so that is what I embarked upon. What I would like to say about that is it turned into a very legal affair, in a 440 sense, and –

Q24. The Chairman: Can you just state what you took to the Small Claims Court? Were you taking action against the advocate for fees paid that you wanted returning?

445 Mr Barker: Yes.

Q25. The Chairman: What was your primary purpose of going to the Small Claims after matters had concluded with the Law Society?

450 Mr Barker: There were two parts to it. The first part was to do with four invoices that had been paid by me… One point I wanted to make to you – which I was criticised about, but I would hope you would understand – is I was very reluctant… When I got bills, quite often the money was taken out. I pointed out to you that, when I had to sign this thing for the courts, they were issuing proceedings for back rent, which they got, and when they received it they deducted their fee as 455 they sent it on. Two things: I was very reluctant to fall out, because so much time… They understood what the problem was. They just were not dealing with it properly, as far as I was concerned, and if I had to go to another advocate and start all over again, all the effort, all the cost that had gone before, had been completely thrown down the pan. 460 So I was hoping that they had a conscience, that they would realise that they had wasted a lot of time, that they were not giving me the sort of attention and the priority which I felt it ought to be receiving at £300-odd an hour, and therefore they would eventually come good. When I came back from a trip away and found that, for 55 days… We had a meeting in April at the lawyer's office, when conciliation was recommended by the senior man, and I asked him 465 whether, if they conciliate and agree to something, is that enforceable, like a judgment is enforceable, and he gave me to understand that yes, more or less it was. So we agreed on the conciliation route, and I went away and came back, and I was calling at the office when I passed their offices and said, ‘Can I see so-and-so?’ Nobody there. ‘Will you tell them I have called?’ I did not get a call back. It happened about three times, and eventually I was told by the girl, ‘Oh, 470 the senior partner has got the file,’ and they were back – ______10 CLP 30 TYNWALD SELECT COMMITTEE, MONDAY, 4th FEBRUARY 2013

Q26. Mrs Cannell: Sorry – through Mr Chairman – Mr Barker, you said your action in the Small Claims Court was for two separate elements. (Mr Barker: Yes.) If you could advise us what they were, please? 475 Mr Barker: Yes, I could give you a copy of it, if you would like it, but basically there were two sections to it. One was the amount of time and the fact that it transpired that this girl had been doing the work, when I had believed I had contracted with the senior person. I am the age I am. You can see the sort of age I am. I know that life experience matters, and that is what you are 480 paying the senior person for. You do not expect it to be capable of being given to somebody maybe even newly qualified, or not even that, and that that is going to be as good for you, and that you are going to be charged 12% less than the senior man for it. But, strangely enough, when you get in front of the Deemster, that is all fine. All the things that I read out to you in these terms and conditions – which I raised in my 485 complaint to the Small Claims Court, in writing – were not addressed by the Deemster in her judgment, because, I feel, they are practically unanswerable. You could not defend them, so they were not actually there. Only the clauses that actually favoured the advocates were reported in the judgment, and I was ridiculed, in a sense, for… Why did I pay these invoices, if I was not happy, sort of attitude. Well, first of all, because I had got no detail as to who had done what work – and 490 still haven't in four cases out of six – but these sort of things were just glossed over. So I complained about who had done the work, what my contract was, the slowness and the fact that I had lost so much time and nothing had been achieved, and I had paid all this money. They were not entitled to the money that they had had, because they had not achieved anything and they had wasted 55 days in a stretch of achieving doing nothing. So that was one point. 495 The other thing was to do with… I did say to you that the previous tenant had not paid any rent – he had paid rent up to August 2008, I think it was – and the way they brought their commitment to me into line and they paid their back rent was because they sold a property that they owned, a big house that they were living in, and they sold this house with a view to getting capital out of it, (a) to recapitalise the business, and (b) to pay off the arrears of rent. 500 Q27. The Chairman: Can I just home in: what was the point of the second part of your claim?

Mr Barker: The second part of the claim was that, in collecting this arrears of rent, which this advocate, Corris, did for me, he made an agreement with their advocate that when this property 505 was sold, the advocate, when he received the money, would discharge to my advocate the debt on the back rent. I got two invoices for that: one for making the deal in the first place; and then the second for getting it when it came to –

Q28. The Chairman: You were seeking the recovery of those moneys on the…? [Inaudible] 510 Mr Barker: That was in my lease, that that sort of expense is recoverable, and I had asked for that twice. I had put it in a letter and it had never been actioned. They were more concerned… It seemed their mindset was more on dealing with the fact that the tenant had left without signing the release documentation. They were more preoccupied with that than they were about the fact that I 515 had paid, two years previously, their bills for something else, and I was saying, ‘Hang on, I want you to claim this,’ and yet it never appeared. When we had these meetings, which were terribly… because you are short of time on these sort of occasions, and they would prepare a sort of draft as to what they were going to claim, and this that I had asked them to claim was not there. I used to think to myself, ‘Well, they know I 520 have asked them to do it. They have not done it. There has got to be some sort of a legal reason why they keep leaving it out.’ So I accepted it. I must say I did not raise it with them because there was so much else, and they, in a sense, tended to lead the conversation, and so I did not raise it. I accepted that if I had raised it with them twice in writing, and because the law is such a specific sort of thing, I expected them to read what I was asking them to do and to take some action about 525 it; and if they did not, there must be a good reason for why they were not doing so, and it was not just that they could not be bothered.

Mr Wild: Mr Chairman, can I just ask a question?

530 The Chairman: Yes.

______11 CLP 31 TYNWALD SELECT COMMITTEE, MONDAY, 4th FEBRUARY 2013

Q29. Mr Wild: Was the rent that was recovered the rent from August to December 2008, or from August 2008 to 2010?

535 Mr Barker: No, the only money that was paid was for 2008. The matter was in dispute as to whether they had terminated, because – this is a beauty – they had handed the keys in at the estate agents.

Q30. Mr Wild: But they had not signed the surrender documents, had they? 540 Mr Barker: No.

Mr Wild: Thank you.

545 Q31. The Chairman: Before we move on, what was the result of the Small Claims hearing? How did you get on? What was the judgment?

Mr Barker: I did not get on very well. I thought I was treated very politely by the Deemster, and… When my documents were served on the advocates, because they had been served by the – 550 Q32. The Chairman: Sorry, we have covered that area, Mr Barker. What was the result? The Small Claims area is outside the Committee’s remit. (Mr Barker: Okay.) It is just for the background knowledge.

555 Mr Barker: There were three different hearings took place.

Q33. The Chairman: But what was the result, because the Small Claims area is not within the remit –

560 Mr Barker: I did not lay a glove on them. That was the result: nothing. I have actually got something here, which in the Small Claims… I have brought a couple. This is not the full judgment, because you do not want the detail, but this is just the couple of pages in the background where it is… One of the things that the Deemster says in her summing up is:

565 ‘… and the claimant signed the contract and does not deny its validity.’

This is the terms and conditions.

‘The claimant paid all the invoices. The claimant, in his pleading, referred to his money as being plundered by the 570 defendant to pay fees. Not only is this an unacceptable expression to use in these circumstances; it was also untrue. The claimant agreed to the payment of the invoices and to the taking of his funds in the hands of the defendants for such payment. It begs the question as to why the claimant agreed to payment of the invoices if he believed they were so very wrong.’

575 Well, of course, I had no detail on them. That is why I paid them, and also I was very reluctant, because the moment you start querying somebody's bills, the relationship is breaking down, and I did not want that.

‘The claimant never sought assessment of the invoices…’ 580 – this is important –

‘… despite his right to do so being set out by the defendant in the contract. The claimant sought to argue that he took the view it was better to stay with the defendant rather than try to change advocates whilst matters were ongoing. This 585 is a very weak argument, in my view.’

Q34. The Chairman: So, bringing it to a conclusion, Mr Barker, the claim was unsuccessful?

Mr Barker: The claim was unsuccessful, but one final point I would like to make is that all the 590 documents and the invoices were supplied to the Deemster. The Deemster says here:

______12 CLP 32 TYNWALD SELECT COMMITTEE, MONDAY, 4th FEBRUARY 2013

‘The girl was a trainee advocate for some of the time prior to qualifying as an advocate, and the hourly rate utilised was £195, which was in accordance with the terms of the contract. I cannot see the justification for the claim of £90 which has been specifics…’ 595 She is saying here, having looked at the documents, and having the documents in her possession… the Deemster is saying that the hourly rate of £195 was fair. I was charged for this person £285 an hour for every hour in the March invoice, and £225 an hour in the September one, which, as I say, surprisingly, is less than the March one. She says £195 is in the contract, and fair 600 enough, but all I am saying is, I did not get… Despite that, I did not win. I did not get a penny piece for anything.

Q35. The Chairman: Thank you for that. That is the point that I assumed was likely to happen. 605 Was there any further action that you took to try and regain your money?

Mr Barker: I was cowed.

Q36. The Chairman: Was there any further new action that has not been examined this 610 afternoon that you took, other than the action that you took?

Mr Barker: No. In the e-mail correspondence in the two months after, I did raise with Jane O’Rourke what I thought were the shortcomings of the process, of which I will give you a copy, (The Chairman: Yes, thank you.) and the fact that there was not an ombudsman and the fact that 615 the particular lawyer used to refer to the Law Society as ‘our regulator’. This is a strange word, because there is no regulation going on, and they are not being regulated at all.

Q37. The Chairman: We are aware of that.

620 Mr Barker: Right, okay. The final thing I would like to say is that, if the outcome of your deliberations should be that we were to have a legal ombudsman, shall we say, I would like to caution you against appointing somebody like the Deemster who heard my case, because the Deemster who heard my case… Everything seemed to be looking after the lawyers. 625 All the points in this contract that were in my favour were not raised at all in the judgment, only the points that favoured the lawyers. It seemed as though this was an operation to make jolly sure that… and this did not succeed, because I actually said in my documents, ‘I am trying to show the Manx Government that the system of regulation for the consumer is useless.’ I put that in my complaint and the Deemster will have read it. 630 The other thing I perhaps have not made clear is that – you cut me off a little bit – when these documents were served on the lawyers, they counter-claimed to have it thrown out on the basis that I had not got a case at all, and the Deemster explained to me that that was the first thing she was going to hear, as to whether this was going to be thrown out. She said to me, ‘If it gets thrown out, you cannot… That is the end; you are finished.’ And that is what happened, after three 635 hearings.

The Chairman: Thank you very much. Any closing questions, Mr Wild?

640 Mr Wild: No, thank you, Mr Chairman.

The Chairman: Mrs Cannell?

Q38. Mrs Cannell: Yes, thank you, Mr Chairman. 645 If I can just ask, Mr Barker, did you, at any point, seek to have a chat with the Office of Fair Trading to get some advice before going to see Ms O'Rourke?

Mr Barker: No, I did not.

650 Mrs Cannell: Because they deal with –

Mr Barker: I know that they are involved in the ADT, aren’t they? ______13 CLP 33 TYNWALD SELECT COMMITTEE, MONDAY, 4th FEBRUARY 2013

Q39. Mrs Cannell: They also, of course, have a facility where, if somebody is pursuing you 655 for a debt, or any kind of monetary advice, they do have trained counsellors there who can deal with it, who might have been able, perhaps, to have pointed you to another solution earlier on in the process. Just one other final question: the contract of engagement that you were asked to sign with the advocates, appointing them as your representatives – it is surprising that you received that so late 660 in the day, but it is probably because it was just prior to a court (Mr Barker: It is.) hearing taking place that that was a requirement. But you say that, to your knowledge, there was nowhere in there that made an agreement as to a variation in costs, (Mr Barker: No.) but you have specified that, in that, it said that you could refer the matter to taxation within six months.

665 Mr Barker: Yes. That is important, because I took the view… You get these bills as the thing proceeds, and I regarded the whole thing as one operation. Not only that, I understand – I have always believed – that, in civil law, I can take an action within six years, and this whole business of taxing things… I thought to myself, ‘Well, they can put that in if they want; I do not have to do it,’ but the Deemster thinks I did. 670 Q40. Mrs Cannell: Sure. So what you are telling us then, is that the interpretation of that provision of six months is applicable only to each individual invoice?

Mr Barker: Yes, absolutely. That is the way it is – 675 Q41. Mrs Cannell: That is the way it is interpreted, rather than the action as a whole?

Mr Barker: Absolutely, and of course the moment… I feel – I do not know what you feel, but if you start falling out and querying people's charges, it is the slippery slope to a fall out, isn’t it? 680 So I kept paying; not because I am fool, but just because I wanted to keep things sweet.

Q42. The Chairman: You are on a train, aren’t you?

Mr Barker: Yes, exactly. 685 The Chairman: And it is hard to stop the train, as you rightly say. Any further questions, Mr Wild?

Mr Wild: No, thank you. 690 The Chairman: Mr Phillips?

The Clerk: No, thank you.

695 The Chairman: Mrs Cannell?

Mrs Cannell: No. Thank you very much.

The Chairman: That brings this oral hearing today to a close. 700 Can I thank you for giving, Mr Barker, very detailed evidence this afternoon. I thank you also for leaving the documents that you promised us as well, which we will review after we adjourn in private. Now this oral hearing is at an end. Thank you.

705 The Committee sat in private at 3.30 p.m.

______14 CLP 34 7th February 2014 Evidence of Mrs S Cracknell Evidence of Mr K Goldie

35 36

T Y N W A L D C O U R T O F F I C I A L R E P O R T

R E C O R T Y S O I K O I L B I N G V E A Y N T I N V A A L

P R O C E E D I N G S D A A L T Y N

S E L E C T C O M M I T T E E O F T Y N W A L D O N C I V I L L E G A L P R O C E E D I N G S

B I N G E R – L H E H T I N V A A L M Y C H I O N E I M M E E A G H T Y N L E I G H O I L N E U – C H I M M A G H

HANSARD

Douglas, Friday, 7th February 2014

PP2014/0045 CLP, No. 2

All published Official Reports can be found on the Tynwald website www.tynwald.org.im/Official Papers/Hansards/Please select a year:

Published by the Office of the Clerk of Tynwald, Legislative Buildings, Finch Road, Douglas, Isle of Man, IM1 3PW. © High Court of Tynwald, 2014 37 SELECT COMMITTEE, FRIDAY, 7th FEBRUARY 2014

Members Present:

Chairman: Mr J R Houghton MHK Mrs B J Cannell MHK Mr T P Wild MLC

Clerk: Mr R I S Phillips

Contents Procedural...... 17 EVIDENCE OF Mrs S Cracknell ...... 17 The Committee adjourned at 11.44 a.m. and resumed its sitting at 11.54 a.m. when Mr Goldie was called ...... 35 EVIDENCE OF Mr K Goldie ...... 35 The Committee adjourned at 1.15 p.m...... 59

______16 CLP 38 SELECT COMMITTEE, FRIDAY, 7th FEBRUARY 2014

Select Committee of Tynwald on Civil Legal Proceedings

The Committee sat in public at 10.30 a.m. in the Legislative Council Chamber, Legislative Buildings, Douglas

[MR HOUGHTON in the Chair]

Procedural

The Chairman (Mr Houghton): Can I bid everybody a good morning and welcome to an oral hearing of the Select Committee into Civil Legal Proceedings. Firstly, may I welcome you, Mrs Cracknell, to give evidence today and I understand that you 5 may have a statement that you wish to read before the Committee.

The Clerk: Mobile phones.

The Chairman: Yes, of course, may I remind everybody today to switch their mobile phones 10 off, please. Thank you. Thanks very much indeed. If I may also add that the proceedings will be recorded today and, of course, they will be in the public domain on Hansard a number of days after this session has taken place.

EVIDENCE OF Mrs S Cracknell

Q43. The Chairman: So, firstly, if I could welcome you, Mrs Cracknell, and give you the opportunity to make any opening statement that you wish to make and then members of the 15 Committee may have questions for you afterwards. (Mrs Cracknell: Okay.) We are in your hands. Thank you very much indeed.

Mrs Cracknell: Good morning. First of all, thank you for allowing me this opportunity to speak to you all. 20 I should like to offer evidence to the Civil Legal Proceedings Committee against Mr Kevin Goldie, of Callin Wild, who was instructed by myself to act on behalf of my husband Mr Neil Cracknell. My husband was a police officer on the Isle of Man for 24 years and in January 2002 he was tasked with setting up and running the newly legislated Sex Offenders Register. 25 Unfortunately, the Isle of Man Constabulary failed to recognise that this was a very demanding and dangerous role which needed very careful management with high levels of supervision and support. This failure to provide Neil with a safe working environment was to have huge ramifications for my husband and family, as in 2008 he suffered a catastrophic mental breakdown from which he has never recovered. 30 He is diagnosed with complex post-traumatic stress disorder (PTSD), along with an additional diagnosis of REM sleep behaviour disorder. He suffers from flashbacks, depression, loss of

______17 CLP 39 SELECT COMMITTEE, FRIDAY, 7th FEBRUARY 2014

memory, lack of concentration and has been hospitalised twice due to fears that he will cause himself harm. There is very little, if any, improvement in his condition despite the tireless dedication of the team of psychiatrists, psychologists and psychiatric nurses who have been 35 involved in his care. Neil was retired on the grounds of ill health at the recommendations of his psychiatrist as he could no longer deal with complicated or stressful tasks. Even mundane ordinary tasks were and still are often beyond his capabilities. To clarify, the Police acknowledge that he is injured; the diagnosis of PTSD is not disputed. 40 Neither is it disputed that his injury was caused by his work. His injury is classed by the Department of Home Affairs as an injury whilst on duty. Mr Goldie was instructed only to prove that the police were negligent in allowing the circumstances in which Neil became so gravely ill. Neil was a bright and able officer with an exemplary record; a funny, gregarious ex-forces 45 man's man. He was a doting dad to our four daughters and a loving and supportive husband. He was over half way through studying for a degree in systems practice in which he had gained the very highest grades and was on course for a first. He wanted to take on a new challenge after his retirement from the Force, as he would only have been 49 on his natural retirement. His injuries effectively decimated the rest of his life. He now has great difficulties with 50 relationships and has had to try to learn how to interact with his family again. He struggles in social situations, cannot concentrate – causing him to lose the ability to read some years – has short and long-term memory problems and has issues with stressful situations. He is hypervigilant in public and has become violent at times. He is very heavily medicated and has to be particularly heavily medicated overnight because 55 his sleep disorder has caused him to attack me, causing some very nasty injuries. For this reason, he cannot be left with our little girl overnight as there has to be another adult present in case of fire or another emergency. His breakdown was sudden and once I got over the initial shock I found myself wondering how my capable, strong husband could have been reduced to the man I was now caring for 24- 60 hours-a-day. I began to question what on earth could have happened that would cause this. Neil could not answer this question and there was no obvious reason so I asked the Police for all his documentation, files etc and pored through his diaries and notes to build together a timeline of events that showed clearly that he was overworked, under-supervised, under-trained and resourced. 65 I approached other forces and found out that other officers in commensurate roles were very carefully protected to prevent the injuries that Neil had suffered. I spoke at length to the Federation who, at first, doubted that Neil had been treated as badly as I said, but I continued to work through the papers that I had until I was able to provide them with more and more documentary evidence to support my claims. 70 Eventually, after many meetings, they agreed to pay for a lawyer so I could attempt to seek damages against the Police for the injuries their negligence had caused. I knew that it would be hard to go up against an organisation as big as the Police Force, but knew that I was now solely responsible for Neil’s welfare and that of our young family. I was aware that the Constabulary had been sued previously by an officer. I found out that he 75 had used Jeremy Callin and I thought this would be a good advocate to talk to as perhaps he would be less intimidated. I spoke to his office who told me that he no longer did this kind of work but they suggested Mr Kevin Goldie from that practice. I was quoted £265 per hour for his services and made an appointment to see him. I rang Mr Walker, the Police Federation representative, who agreed to fund the meeting and 80 asked me to let him know what I thought of him as he had never heard of him. They were looking for someone to handle their affairs. They were considering approaching a lady whose name I cannot remember. I cannot remember the exact date of the meeting either but we signed the contract on 16th July 2010, so it must have been shortly before this date.

______18 CLP 40 SELECT COMMITTEE, FRIDAY, 7th FEBRUARY 2014

Mr Goldie has provided a version of how we came to be his clients to the Commission which 85 is absolutely false. I cannot comment on whether he is mistaken or intending to mislead but I hope my earlier submission of documentary evidence to the Commission has proven that Mr Goldie did not meet with Mr Walker from the Police Federation until after we had received the report stating that we had over 70% chance of success. I believe this is very important because Mr Goldie claims that Neil and I discussed other 90 officers having doubts about the veracity of Neil’s claims with him, which he says were backed up by Mr Walker at the outset. Mr Goldie did not have any discussions with Mr Walker at the outset. We met Mr Goldie and became his clients late May and early June of 2010. Mr Walker had a meeting with Mr Goldie after the report was commissioned and presented to us. Mr Walker told me about the fee he had negotiated on 13th September by text. He 95 negotiated a very reduced rate for the Federation in exchange for a guarantee that all Federation work would go through Callin Wild. We were clients of Mr Goldie from July and Mr Goldie had already written the report to indicate his initial view of the case. I strongly suggest that he had no right to have a discussion with Mr Walker of this nature and if these suggestions were made to him they should have been passed on to myself. 100 It is worth a note that this phrase ‘doubts about the veracity’ comes from a letter from the now Chief Constable to the Department of Home Affairs, which was written when Neil was being retired from the Force in 2009. I am not surprised that the letter, and therefore the phrase, stuck out in Mr Goldie's memory but it is shocking to find that he has such an appalling grasp on the details of this case. 105 Mr Goldie claims that he met with Dave Walker before he met us. He states that he met with him on 29th July 2010. He claims that he was made aware of the possibility that there would be insufficient funds to fund the claim and that the Federation were in the process of enlisting the services of an insurance company. I take issue with all of the above. I know that I rang the office and made the introductions myself. They did not come from 110 Dave Walker. I have a text from Dave Walker dated 17th August saying that Mr Goldie is on leave and that he is going to meet with him to discuss terms on his return; and another text dated 13th September stating that they now have met and agreed to a rate of £180 plus VAT, in which Dave also confirms that Mr Goldie will draw up an agreement and lodge papers. If they had met previously, the terms and the rate, at least, would have been finalised, the 115 Federation would have been billed for the report at the above amount – if the arrangement had come through them. It did not. The bill for the report was sent to Neil at the amount that I was quoted. Perhaps it is true that at some point the Federation told Mr Goldie that they did not have the funds to pay for the case and discussed the insurance idea with him, but if that is true did he not 120 have a duty to mention that to us? Maybe that is why he never bothered to do any work. But wouldn’t it have been his duty to tell us? We sat and waited and tried desperately to find out what was happening for over a year, without a word from him. That was a disgraceful neglect of his duty towards us and, frankly, was nothing short of cruel. Moving on, on 9th August 2010, I received the news that I had been hoping and praying for. 125 Mr Goldie confirmed that we had a greater than 70% chance of success in court. This meant I could secure funding from the Federation and the case could move forward. I was so happy that I would finally have the chance to fight to get justice for Neil and some way of securing his future and, in some ways most importantly for Neil, the chance to prove that he had been wronged by the Constabulary for whom he had devoted so much of his life. 130 I am unsure of the exact date but it was very soon after the report that Neil and I again met with Mr Goldie. He explained the way forward: as we were being funded by the Federation they would also have to sign a contract. And he explained that they would be billed monthly and would be given a report of how things were progressing. The Federation had also received a copy of the report, in which Mr Goldie made it clear that the first step was to obtain a private

______19 CLP 41 SELECT COMMITTEE, FRIDAY, 7th FEBRUARY 2014

135 psychiatric report. The Federation agreed to pay for the psychiatric report in the first instance but we knew if it was unfavourable further funding could be declined. Mr Goldie seemed very enthusiastic at this meeting and told us he would lay the matter down with the court as a matter of urgency. He did say this would give the Police a warning that we were pursuing this course of action but, in our case, he felt it was the right thing to do. 140 Mr Goldie has since denied telling us that he would take this action and has given some detailed legal reasons why that is the case. However, I have provided to the Commission a copy of a text sent to myself from Dave Walker, in which he clearly states that he has spoken to Mr Goldie, who has agreed a cheap rate and has confirmed that he will lodge papers. Surely Mr Goldie cannot expect the Commission to believe that we were both mistaken. 145 He also reaffirmed that it was paramount that we retain the services of an independent psychiatrist who could answer some of the more complex questions regarding Neil’s injuries, what caused them and the nature of them, and whether he had the capacity to deal with the case. He had even made reference to this in his report dated 9th August 2010, in which he stated, ‘I suggest the first requirement is to set out some questions to a psychiatric expert.’ He 150 did not do this and it was not until Rebecca Coleman was enlisted to assist him that it was done. Neil finally met with Dr Bird in May 2012. It took Mr Goldie nearly two years to organise a psychiatrist to answer the questions that he had said were vital to the case moving forward. Since Mr Goldie said himself that this was the first thing that needed to be done, I think it is safe to assume that nothing else was ever done either. Mr Goldie has been asked to provide a copy 155 of any invoice that went to the Federation, which would prove whether he did any work at all between the compilation of the report and Miss Coleman’s involvement, but he has so far declined. I suggest that he did not. At this meeting, he also told us he needed to access Neil’s medical records and Neil signed a document to facilitate this. Again, this was never done. Rebecca was surprised to find that the 160 records were not on file and had to arrange to get them in haste to send a copy to Dr Bird. I now wonder if this was why the questions asked by Dr Bird were so weak and unhelpful. At our meeting, Mr Goldie had explained that he would study the file that I had given him and Neil’s medical records, to ensure that he asked the appropriate questions. Yet again, this never happened. 165 We had further discussions within the first meeting about the possibility of having myself made – I think the phrase was – Neil’s ‘litigation friend’ as he lacked the capacity to understand what was happening. According to Mr Goldie, the benefit of this was that the limitation clock, as it were, would stop ticking. But we had to prove that Neil did indeed lack the mental capacity necessary. I was not concerned about this as I knew that he did and felt strongly that it was just 170 a formality. At this stage I was still encouraging Neil to eat, dress himself and go out on short trips. He had not yet even learnt to read again. So the suggestion that he could understand the proceedings and handle his affairs was a nonsense. Neil no longer dealt with anything important or complicated. I still, to this day, take care of all financial or family matters and Neil is cared for 175 by myself entirely. I knew that his medical record would document the severity of his disablement and I believe that Mr Goldie would shortly, in possession of the same. I also spoke to Neil’s key worker and asked her opinion. She confirmed that Neil was in no position to understand or organise the case. 180 Dr Bird’s report, when it was eventually sourced, states that Neil's condition continues to cause serious limitations in his day-to-day activities. A case as stressful and complicated as this can hardly be described as day-to-day, so it was clear that he could not be expected to cope. Bearing this in mind, how on earth can Mr Goldie say, ‘We formed the view that Neil did have the required level of capacity’? If he is qualified to make this judgement why did we need the 185 services of the psychiatrist? Mr Goldie's answer regarding this issue is very contradictory. In his letter to Mr Houghton he states: ‘We had no evidence that Neil lacked capacity’ whereas a few

______20 CLP 42 SELECT COMMITTEE, FRIDAY, 7th FEBRUARY 2014

lines earlier he says, ‘From an early stage when first meeting, it was apparent to me that Neil may have difficulties dealing with this case’. Only Mr Goldie can tell you which version is closest to his true opinion. However, I have to say that if he had accessed Neil’s medical records, as he 190 promised, he would have been very clear that Neil did not have the capacity to deal with this case. I do appreciate that there are many ifs in this statement, but because Mr Goldie failed to do anything we will never know for sure what would have happened. But Neil’s disablement is very severe and this clause in the limitation law was intended to help people like Neil, so I feel it is 195 safe to assume that if Mr Goldie had done what he should have done and accessed Neil's medical file and got a psychiatrist to see Neil at this time, the court would have accepted that Neil lacked capacity and we would have had a way forward. I have submitted a report from Dr Iggy to the Commission, demonstrating that Neil's condition was, at this point… Excuse me. 200 The Chairman: Take your time.

Mrs Cracknell: I have submitted a report from Dr Iggy to the Commission, demonstrating what Neil's condition was at this point in time so that you, as members of the Commission, are 205 in a position to make an informed decision yourselves, on what the likely outcome would have been if Mr Goldie had done his job. I was very surprised when we did not hear from Mr Goldie in the weeks that followed the initial meeting, as he had been so keen to get Neil to a private psychiatrist as soon as possible. So I rang Mr Goldie for an update, but to no avail. I rang often, much to the annoyance of his 210 secretary and receptionist, and was always told, ‘He's in court’ or ‘in a meeting. He does have your last message’ and finally, ‘He will call you back’. I explained that I needed to speak to him urgently but he never returned my calls. By late summer 2011, I was extremely concerned. A year had now passed without any contact whatsoever. Neil did not take this well. He is prone to great fluctuations in mood and his 215 emotions are very raw. We have to be very careful to avoid shock, disappointment or even surprise. We are careful to stick to a routine and to ensure that things happen when he expects them to. All of this was explained to Mr Goldie at the outset. Neil became incredibly upset and then began to worry that Mr Goldie was colluding with the Police Federation and the Isle of Man Police Constabulary to keep this matter out of court. He 220 became, in turn, increasingly depressed and angry and even more isolated – trusting no-one and voicing fears that he was the subject of a conspiracy between the Police Federation and Callin Wild. Eventually, Mr Goldie did return my call and invited us in for a meeting in which he informed us that Callin Wild were to be joined by a lady called Rebecca Coleman. She was going to be a 225 point of contact for me and should ensure that there would never be a time when I could not get hold of someone from Callin Wild again. The only explanation he offered for the delay was that he had not been able to get a reply from any of the psychiatrists that he had contacted. Neil gave him the name of Dr Joe Sullivan, who he had met whilst working with sex offenders, and Mr Goldie promised to chase this up. We 230 were later very disappointed to learn that this was, in fact, a lie. Rebecca Coleman told us that the quotes were all ready in January – nine months earlier – and she had no idea why they were not followed up by Mr Goldie. We were contacted by Rebecca in November 2011. She appeared very keen to get things moving – as was I. She explained Mr Goldie had suggested she begin by contacting the 235 Federation to get them to re-sign the agreement to fund. She wrote to the Federation stating that they are now taking positive steps to pursue this matter and are seeking to instruct a psychiatrist in the near future. This came as a shock to me, as although I had been suspicious, it was the first confirmation that Mr Goldie had not been taking positive steps all along. She was

______21 CLP 43 SELECT COMMITTEE, FRIDAY, 7th FEBRUARY 2014

especially keen to get funding for the psychiatrist's report, as that was now urgent and we could 240 not move forward without it. She contacted me shortly after to say that she had bad news. The Federation had now put the cases in the hands of an insurance management company and they would say whether or not we would get funding. She expressed surprise that this was now the case and did not suggest that Mr Goldie knew about this being a possibility the year before. This was the first 245 time I heard mention of the Federation using an insurance company. The insurance company found against us, which was another blow and one which I could not understand. So I contacted them and got Neil to sign the document to allow me to have a copy of the file on which their decision was taken. They were not given a copy of all the documentary evidence I had supplied to Mr Goldie. They were not given a copy of Neil’s medical records. They 250 were not given anything that was slightly useful or relevant. The Commission is very welcome to see a copy of this file if they have not already done so. Instead, they were given some old documents from Neil’s Federation file and a copy of a report from a company called Russell Jones & Walker, which was also commissioned by the Federation without making use of any of the evidence. 255 I was told that neither Mr Goldie nor Rebecca had had a chance to discuss the case with the insurer and there was no mention of any correspondent with either of them on their file. So it came as a complete surprise to me to see that in Mr Goldie’s answer to Mr Houghton, he said that he was, in fact, contacted by the insurer in January 2012. I fail to understand why, if he was given that opportunity, he did not arrange to send them 260 some information which may have been useful to them in the decision-making process. He could have sent a copy of the documentary evidence, the extensive timeline of events and Neil's medical records, showing his state of health. There was not even a copy of the decision to retire Neil on the grounds of ill health/injury on duty. Suddenly it was not so surprising that they found against us. Just to be clear, I did not have 265 this information at the time. It will be some time later that I received the file and could piece together what had happened. On 26th January 2012, Neil and I met with Rebecca and Mr Goldie to discuss what should happen next. Mr Goldie mentioned the statute of limitations and I commented on how at least that was okay because he had laid it down with the court straight after the report. This was 270 when we learned that this had not even been done. I was stunned and I did not press the issue as much as I really should have in the meeting. It would be days before the enormity of what this meant to us really hit me. Mr Goldie and Rebecca agreed that the only way forward was for us to fund the psychiatric report ourselves in the hope that we could then go back to the Federation for the rest of the 275 funding necessary. This brought us to the next discovery, which was that he had not even arranged to get a copy of Neil's medical records. Neil finally met with Dr Bird on 16th May 2012 at his offices in Harley Street. On 18th June 2012, I received an e-mail from Rebecca saying that the report had arrived and that, unfortunately, it was bad news. She stated Neil is unable to bring a claim now due to 280 limitation rules. Of course, this would not have been the case if Mr Goldie had done what he had a duty to do in the first place two years earlier. I was very angry but I still believed that we could get the right result for Neil because I still knew that he lacked the capacity to handle his own affairs. In her e-mail, Rebecca says, ‘I am sure you will break the information down and inform Neil in the best possible way’. She had also 285 contacted the Federation to complain that they had contacted Neil, instead of me, due to the stress that it caused him. I felt absolutely sure that she and Mr Goldie understood how ill he was. Mr Goldie was visibly shocked and expressed his sorrow at seeing Neil so ill on our first meeting, as he remembered him as the custody sergeant. However, I was then to learn that Rebecca and Mr Goldie had

______22 CLP 44 SELECT COMMITTEE, FRIDAY, 7th FEBRUARY 2014

290 discussed this and had concluded that he did indeed have the capacity to deal with his own affairs. I was dumbstruck. I had several telephone conversations and e-mail conversations with them. The reasons why we could not do anything changed often. They kept finding problems and I kept showing them the solutions. The information was all in the file that they had but it was clear that they just had 295 not read it. I truly believed, and still firmly believe, that for some reason they did not want the case to be viable. I now wonder if that was because Mr Goldie had failed to lay it down with the court and was trying to minimise the damage that his failure had caused Neil and the effects that this could have on his reputation and that of Callin Wild. In sheer desperation, I contacted Mr Houghton and asked him to see me and see if he could 300 offer any advice. He is not our MHK but kindly agreed to see me anyway. I gave him copies of all the letters, e-mailed and a detailed timeline of events, and he kindly agreed to contact Mr Goldie on my behalf. I felt sure that, as Mr Houghton is a Member of the House of Keys, Mr Goldie would have to reply to him and show him more respect than he had done myself. This was not the case and Mr Goldie continued in the fashion that I was now used to. He either did 305 not reply at all, did so late and only when pressed and wrote answers that were unhelpful and contradictory. I contacted the Civil Legal Proceedings Committee to ask you to look into the way we were treated by Mr Goldie, because I believe he had a duty to provide the service that we had employed him for. Mr Goldie failed us. I believe we should have been entitled to expect him to 310 act on our behalf, with our best interests at heart. He did not do that. Mr Goldie says that once he got the psychiatrist’s report he knew that the case could not go any further. This, he claims, is because Neil was injured in 2002. He also claims that the Federation would not have funded the case anyway, even if he had acted in a timely fashion. He also has some very clever reasons for why he did not lay the matter down with the court when 315 he said he would. I am not a lawyer and I have to be honest and say some of what he says is beyond me, but I understand enough to know that Neil was not injured in 2002, as he had only just started in the role. I have sat through so many meetings with his team whilst his condition is debated so that a way forward for him can be found. The experts all agree that his PTSD is complex because it was 320 not caused by a single factor. It is not as simple as if it had developed after being held hostage or attacked. Neil’s PTSD was caused by an accumulation of factors; stresses that occurred between January 2002 and November 2004 – a period of three years. These factors included the nature of the work and the images and heinous crimes that he was dealing with, the lack of supervision, the excessive hours he worked, the fact that he did not 325 receive any counselling of any kind, which is mandatory for any officer in the country dealing with these kinds of crime. They were exacerbated by the fact that he had to endure taunts from some of the sex offenders… bumps in to them if he is out and that some of them watch our children or make comments in the hope of provoking a reaction from Neil. Neil, nor the professionals, nor I or the family, had any idea that Neil was in any way affected 330 by this role until he suffered the breakdown in 2008, and it would take Dr Iggy many months to convince Neil that this was actually the cause of his illness. The Isle of Man Police Constabulary charged Neil with a very difficult, disturbing job – arguably the most stressful and vile job in the entire Constabulary. They failed to identify it as a high risk role and failed to provide the safety measures necessary to protect him from the 335 inevitable damage to his mental health and wellbeing. This is all very clear from his medical records and is why he was retired on the grounds of ill health/injury on duty. Even the Police do not dispute this. He is so ill that even Dr McAndry, the Department of Home Affairs occupational health doctor, has waived his right to review Neil every 18 months as it was too stressful for him. 340 All of this information was available to Mr Goldie. It is Neil’s medical record and the comprehensive file that I left with him. Sadly, he did not take advantage of it. He did not access

______23 CLP 45 SELECT COMMITTEE, FRIDAY, 7th FEBRUARY 2014

the medical records. His failure to attempt to understand the case, his failure to do anything meant that when Rebecca eventually put the questions together for Dr Bird the correct questions were not even asked. 345 I feel very aggrieved by the way we have been treated by Mr Goldie. I believe that he lied to us and has lied to the Commission. He failed to provide even the most basic service. We should have been able to trust him to have Neil’s best interests at heart. And he discussed things with the Federation and kept things from us deliberately. Even Mr Goldie admitted, and I quote, ‘Neil has had to face uncertainty about whether his case had any real prospects between August 2010 350 and June 2012.’ He is right and that is a period of some 20 months. That is outrageous and the fault for that lies entirely with Mr Goldie and Callin Wild. What possible reason can there be for his failure to do anything to do with the case? He did not even make a start. He wrote the report, we secured funding and he did nothing further until we were out of time and had lost funding and could no longer progress the case. 355 I do not know whether this was neglectful or wilful but the consequences are the same. He destroyed our chances of ever getting justice for the pain and suffering that Neil has endured and the funding to pay for treatment to give him the best possible chance of recovery. It is no comfort to hear Mr Goldie say that he has sympathy for Neil. We did not and still do not need his sympathy. We only needed him to do one thing for us and that was to do the job 360 for which we hired him or, if he felt unable to do that, to tell us so that we could find an advocate who could. Thank you for listening.

The Chairman: I thank you very much, Mrs Cracknell, for an extremely comprehensive 365 statement. Thank you very much indeed. Mrs Cannell, do you have questions?

Q44. Mrs Cannell: Yes, I have a series of questions. First of all, you have my sincere sympathies about what you and your husband and your 370 family have had to go through. It is not a happy story, it is a very sad story and I am very sorry about that. But there are a number of questions I just want to clarify with you. You said, ‘I can't remember the exact date of the meeting but we signed the contract on 16th July 2010.’ This would be the contract with Mr Goldie?

375 Mrs Cracknell: Yes, it was the contract… When we met with Mr Goldie he explained that he would send a contract out to us that we were to sign and return and that was that initial contract.

Q45. Mrs Cannell: So that would be the contract of engagement, basically? 380 Mrs Cracknell: Yes. It was the first contract anyway.

Q46. Mrs Cannell: Okay. What was the basis of the engagement? When you went, you instructed him on behalf of your husband. What did you ask him to actually do for you? 385 Mrs Cracknell: At that time he was asked to review the evidence that I had. I had a number of files that I had collated and it was to go through that evidence and to give us an idea of whether we had over a 70% chance of success. The Federation needed that for us to secure funding. So at that stage it was about securing funding, really. It was to find out whether we had over 390 a 75% chance of success. So that, if we did, he could take the case forward. So I suppose it was to secure funding at that stage.

______24 CLP 46 SELECT COMMITTEE, FRIDAY, 7th FEBRUARY 2014

Q47. Mrs Cannell: So really it was to give yourself assurance that, in fact, the evidence that you have found was sufficient enough to pursue a case? 395 Mrs Cracknell: It was really, in fairness, to give the Federation that assurance that we needed the funding from them. So we had to find somebody who would say we had a 75% chance of success.

400 Q48. Mrs Cannell: Okay. So that was signed on 16th July 2010 and then some time later you make reference to the Federation re-signing a contract.

Mrs Cracknell: Later on. That was because there was the gap. What Rebecca said was, because there had been no activity at all, it was common practice for things to have to be re- 405 assigned. The Federation had already signed that they would fund the case. We had that in 2010. But when Rebecca joined and they started to look at the work again or to actually do something, she said because nothing had been done during that period that she felt it was prudent… or actually Mr Goldie had advised her that she needed to ensure that funding was secured again. They 410 would not do any work until they had that confirmation again.

Q49. Mrs Cannell: Did you keep a copy of that contract that you initially signed – the contract of engagement with Mr Goldie? Did you get a copy of that?

415 Mrs Cracknell: I think so. I think I have that at home.

Q50. Mrs Cannell: Yes. In terms of that agreement, what assurity were you being given as the client with Mr Goldie? Because, clearly, you signed to agree for him to do certain works but then he has to agree to provide you with certain services and I would have thought within a certain 420 time frame.

Mrs Cracknell: To be honest, I cannot answer that question. I could try and find it and let you know.

425 Q51. Mrs Cannell: I think it might be important for you (Mrs Cracknell: Okay. Yes.) because the contract is a formal agreement between the two parties to do something, so there will be an expectation built in there of what the client hopes to get from the relationship with the advocate (Mrs Cracknell: I see. Yes.) and some kind of guarantee. So that might be important for you. 430 I just want to ascertain… We have gone through the evidence – yours and Mr Goldie’s – and there seems to be this dispute as to when the actual injury occurred. In your evidence here, you say that Mr Goldie says that he was injured in 2002 but then you say this very difficult job where he was left unsupervised was between 2002 to 2004; yet he had a breakdown in 2008 and it was the following year when he retired. So at what point was the date of injury do you think? 435 Mrs Cracknell: It is very complicated because of the nature of the PTSD. The breakdown was so sudden and so bizarre. What actually happened was Neil hit a frog mowing the lawn and we literally could not stop him crying; we could not stop him screaming and crying. It was just an utter melt down. That was the first point that Neil knew he was injured – that any of us knew 440 there was anything wrong with him. Once the nightmares started to happen and he was hospitalised and all of that, then it turned out that all his problems stemmed from the sex offenders. That was what the dreams were about; that was what the hypervigilance was about; that is what all the problems are about. But prior to that nobody had known that. He had had a heart condition, or what we thought was a

______25 CLP 47 SELECT COMMITTEE, FRIDAY, 7th FEBRUARY 2014

445 heart condition, in 2006 and he had seen lots of experts, none of whom thought he was suffering from PTSD or that it had anything to do with the sex offenders. It was not something that he discussed. It was something that he had done and he had put away.

Q52. Mrs Cannell: I can understand all of that but surely great play was being put on this 450 psychiatric report which you financed yourself and that revealed that, in fact, you were timed under the Limitation Act – you were out of time. In the psychiatric report, what year was given as the date of injury?

Mrs Cracknell: That was put down as 2002. That was where Mr Goldie got the 2002 from. 455 Q53. Mrs Cannell: Why was 2002… ? I have not seen –

Mrs Cracknell: I have no idea because it is not correct on any level and I contacted Dr Bird about that and asked him to review it but he said he could not; it was a legal document and… 460 done is done. We would have to seek another psychiatrist to give an alternative view but actually in 2002 he had not even seen the images. So it just cannot be right; he had not viewed the images that were –

Q54. Mrs Cannell: So are you questioning the validity of the psychiatric report? 465 Mrs Cracknell: I question deeply the way the questions were asked.

Q55. Mrs Cannell: Of the psychiatrist?

470 Mrs Cracknell: Yes. I do not think he was given the right information to make… He only saw Neil once. He saw him for about two hours – less than that.

Q56. Mrs Cannell: Can I ask you, bearing in mind you had to pay for it, did you get a copy of that report? 475 Mrs Cracknell: Yes, I have a copy of that report.

Q57. Mrs Cannell: Right, I take it you were not happy with that.

480 Mrs Cracknell: No and I questioned it straightaway. Straightaway, I questioned that that was the case. Within the report, Dr Bird also states that Neil was not capable, basically, of handling his own affairs and has serious limitations in his day-to-day and I do not think even he understood really that that could be a stumbling block.

485 Q58. Mrs Cannell: The sticking point seems to be establishing, in law, when the injury was likely to have taken place.

Mrs Cracknell: Apparently that is why in the limitation there is this thing about mental health and that is why the time limits do not apply because Neil simply… If he had broken his leg he 490 could have said, ‘The date I broke my leg was…’ or ‘the date I was shot was…’ But it is just not like that. The injuries happened over many years.

Mrs Cannell: Cummulative.

495 Mrs Cracknell: Yes and long after he had left. He was not even in the role when he had the breakdown. It came, I think, four years later.

______26 CLP 48 SELECT COMMITTEE, FRIDAY, 7th FEBRUARY 2014

Q59. Mrs Cannell: Can I ask you what age he was when he was retired in 2009?

Mrs Cracknell: You can. He was 45, I think. 500 Q60. Mrs Cannell: He was 45. Okay. Was it a Police decision that he be retired?

Mrs Cracknell: Yes, it came from his psychiatrist who felt strongly that he just would never return to the capabilities necessary. He recommended it and the Police took the decision that he 505 would be retired but he was retired on the grounds of ill health, but injury on duty because the Police do accept that it was caused by the sex offender role.

Q61. Mrs Cannell: Okay. Just one final question, Mr Chairman. When you engaged Mr Goldie, or it was suggested that he might be the right person to help 510 you in this kind of situation, you signed the contract in July 2010; may I ask whether or not you had legal aid at that time?

Mrs Cracknell: No, we did not.

515 Q62. Mrs Cannell: You did not. Did you ever consider applying for legal aid?

Mrs Cracknell: Yes, we did not qualify.

Mrs Cannell: You did not qualify. Okay. Thank you. 520 That is all for now, Mr Chairman.

The Chairman: Thank you very much indeed. Mr Wild.

525 Q63. Mr Wild: Thank you, Mr Chairman. I think the first thing is my sympathies go out to you in terms of the family situation. I think it is a very comprehensive statement which satisfies most of my issues and points of clarification; and I think my hon. colleague, Mrs Cannell, has followed through. You did clarify it later on in the statement when you said that your husband, ‘needed careful 530 management with high levels of supervision and support’. By support, I was making the assumption you meant counselling support, given the nature of the images and work he was dealing with.

Mrs Cracknell: Yes, counselling support and also peer support. 535 Officers in the UK are never in a position where they do this work alone. That just does not happen. There is always more than one officer. Neil was the only officer in our sex offender role so he did not have a colleague to go out to meet these people with or to talk about what was going on or feelings or that sort of thing. There was just no support at all of any kind. 540 There was no counselling. He did not see psychiatrists or psychologists or anything like that for reviews, neither was he checked before he took the role on. And, as I said, there was not even a peer or there was not even a sergeant at that time – because he was a PC at that time – to really talk to about anything. He was completely isolated.

545 Q64. Mr Wild: Out of interest, was he assessed from a psychological perspective as being fit for duty in terms of that type of exposure?

______27 CLP 49 SELECT COMMITTEE, FRIDAY, 7th FEBRUARY 2014

Mrs Cracknell: No, it was just never checked. I think the failure really was that nobody identified it as a high risk role. It just slipped the net. It was not identified. The legislation was 550 coming out. There were lots of things going on within the Force and they just had to get somebody in there quick and I think it was a case of getting it rolled out very quickly. That was perhaps the tragic mistake.

Q65. Mr Wild: And, of course, a psychological illness compared to a physical illness is a very 555 subjective area and, again, when you talk about injury we are talking about a psychological injury, aren’t we?

Mrs Cracknell: Yes, it is. If anybody would see Neil he looks a very healthy, regular guy. It is when you start to break down the way that he has to deal with his life and the things that he can 560 and cannot deal with and cannot do, that you start to realise how ill he is. But on first meeting, apart from the fact that he would come across probably as very shy and a bit stuttery and a bit nervous, most people would not know that he was injured.

Q66. Mr Wild: My final question, Mr Chairman. Hindsight is a wonderful thing, as the 565 quotation goes. Looking back, in terms of Civil Legal Proceedings and the process, how do you think it should have been different?

Mrs Cracknell: I think, first of all, we should have had a Federation in place that actually financially could support the officers who pay into the system and who get in trouble. I think it is 570 terrible that they managed to get into such a situation where they simply did not have the funds or said they do not have the funds to help people. I think that was a great tragedy. But once Mr Goldie was hired, or I hired a lawyer, I would have thought that that should be the point when you can actually breathe easy and there is somebody to look after your interests and to guide you; because I did my best and I did my best to find the evidence that was 575 necessary in order to understand just for myself but I have no legal background whatsoever, so really was completely in the hands of this person to guide us through and I do think it is very sad that that was not the case and that that did not happen. I really did not know what to do. I do feel and I still feel some responsibility of… It became my job to look after Neil. He had always looked after us and suddenly roles were switched and I, effectively, had my four children 580 and this other child. His care is still very much that of a child. I did not know how best to protect him and to protect his future but the failure to do that, of course, means that I do not have the funds necessary, perhaps, to access the best care for him, which could well be – as Dr Bird suggests – a three-month stint in a private mental hospital which we do not have access to. So it could cost him very dearly; it could literally cost him his future. 585 Mr Wild: Thank you for that clarification. It is appreciated.

Q67. The Chairman: Thank you, Mr Wild. Thank you for that, Mrs Cracknell. You mentioned earlier about Neil having hypervigilance. (Mrs Cracknell: Yes.) Can you just 590 elaborate on that, please?

Mrs Cracknell: Yes, what that means is that at any given time he is aware of any danger. An example would be: we have a grandson and a child who is only nine… If we go to the park, where as other parents will sit and watch the children play, Neil will stand and scan the area. He 595 is constantly on the lookout for sex offenders or for risk of any type. He overreacts gravely if he sees anything that he considers to be a danger and he is prone to becoming violent if that happens, so he has to be watched. You have to watch him very closely to see how he will react. Sadly, over here he does know most of the sex offenders. So he sees them and if he is with the children he is constantly trying to… He gets cross with them if they stray away from him. So

______28 CLP 50 SELECT COMMITTEE, FRIDAY, 7th FEBRUARY 2014

600 if we are in a shop and they go, maybe, to that chair, he will scream and shout at our daughter who does not understand why, because two minutes ago it was fine that she went to the chair. It really is a case of being utterly aware of risks in any situation and these risks going through his mind constantly. Then when that happens he sort of zones out and becomes lost – gets lost in his own thoughts. Then he gets what is called intrusive images. So at that point the images of 605 what perhaps the offender – if it is an offender who has triggered the reaction – had on his computer or did, start flashing before his eyes like a movie screen. I cannot talk to him. We cannot get through to him at that stage. It is just a case of trying to bundle him to safety.

The Chairman: Thank you very much indeed for that. 610 Mrs Cannell, you mentioned that you wanted – (Mrs Cannell: I just – ) Yes, go ahead.

Q68. Mrs Cannell: Yes, thank you, Mr Chairman. There are just one or two more questions. When you met with Mr Goldie – the various times that you did in fact meet him – did you ever have anybody with you? Did you have a witness 615 with you?

Mrs Cracknell: Only Neil. (Mrs Cannell: Right.) At that time Neil came with me, so nobody who can really reliably remember what happened.

620 Q69. Mrs Cannell: Did he attend all the meetings with you?

Mrs Cracknell: I think he did. I think he did attend all the meetings with Mr Goldie, yes.

Q70. Mrs Cannell: Okay. The other question was… Well, in fact, there were two more. One 625 was how long did Neil complete in the Police Force? How long was he in the Police Force?

Mrs Cracknell: I think 24 years.

Q71. Mrs Cannell: 24 years. So it was a long time then? 630 Mrs Cracknell: Yes, I am fairly certain it was… It was in here and I read it out, but I think it is 24 years.

Mr Wild: 24. 635 Mrs Cracknell: Yes, 24 years.

Mrs Cannell: 24 years, right.

640 Mrs Cracknell: Yes, a long time. He was a submariner before that, so not a man who had never been through any stress in his life. He was a Royal Navy submariner. He had been through plenty of stressful situations.

Q72. Mrs Cannell: Yes. 645 Finally, you obviously feel very let down by this particular advocate and I must admit it is quite extraordinary to think that you had to wait… There was a year with absolutely no contact whatsoever and two years to organise a psychiatrist is a very lengthy time and one which you would not imagine you would have to wait with something like this. Have you ever considered or would you consider, in fact, logging an official complaint to the 650 Advocates Disciplinary Tribunal about how Mr Goldie represented you or did not represent you, as the case may be?

______29 CLP 51 SELECT COMMITTEE, FRIDAY, 7th FEBRUARY 2014

Mrs Cracknell: Yes, I would. I did not really know that that existed or that I could but, yes, if that is an option then, yes, I would consider that.

655 Mrs Cannell: Okay, thank you very much.

Mr Wild: Mr Chairman.

The Chairman: Yes. 660 Mr Wild: Sorry may I ask…?

The Chairman: Yes, you may.

665 Q73. Mr Wild: Just one final point of clarification, just more out of interest and understanding. The Police Federation is, effectively, the union (Mrs Cracknell: Yes.) and officers within the Force pay a subscription to be a member of that Federation, which will represent them and provide certain benefits (Mrs Cracknell: Yes.) as counselling and advice or whatever, or representation if there is a disciplinary or whatever offence. Is the insurance policy they are 670 referring to the insurance policy of the Federation? Because a union either works with a fighting fund in terms of litigation, as I understand it, or they pay for, effectively, an insurance policy and the insurer will then undertake the legal work on their behalf.

Mrs Cracknell: What actually happened was there was a transition period that throughout 675 Neil’s career the Federation had worked in that you paid in to the funds and was it ever necessary to call upon those funds, that happened and the Police paid for the legal fees, but there had been some very high profile cases of police officers ending up in court – that you will probably remember – in several matters that had come out and the fund had just been utterly depleted, apparently. None of the Police knew that on a ground level; it was not really talked 680 about, but when it came to call upon the funds then we were told that actually they were really quite depleted. It turned out that during this time – we did not know this – the Federation had got to a stage where they really did not have enough money for any problems that occurred and they started looking into hiring a management company so that all the fees would go into an insurance fund 685 and the insurance company would pay for legal fees should the need arise. (Mr Wild: Yes.) But at this stage I did not know that; we were never told that. The Federation were involved in Neil’s case because Neil could not organise his own payment for his pension and that sort of thing. I mean there was no way; he could not read the forms; he could not deal with it. And the Federation helped with that because I did not know how to do it 690 either. So the Federation stepped in and they did what Neil would have done – the filling in of forms, the applying for things and that sort of thing. They helped with that sort of thing but at no time were we told that actually... I had discussions with them about this idea that actually Neil had been very wronged and we should be looking at legal action – which they were never very positive about, it has to be said – but at that time I did not realise actually the funds were 695 not available.

Mr Wild: Thank you.

Mrs Cannell: Thank you. 700 The Chairman: Thanks very much indeed. Can I thank you –

The Clerk: Sorry, I just –

______30 CLP 52 SELECT COMMITTEE, FRIDAY, 7th FEBRUARY 2014

The Chairman: No, please. Of course you may. 705 The Clerk: Thanks, Chairman.

The Chairman: I do apologise.

710 Q74. The Clerk: I am terribly sorry to hear about your sad case. It is a harrowing experience for you and you husband to have been through. (Mrs Cracknell: Thank you.) Nobody could fail to sympathise with you. [Inaudible]… have before you, unfortunately, as well as you have experienced up until now. There are just one or two points I wanted to go through because the focus of the Committee 715 is, of course, about the system (Mrs Cracknell: Okay.) and how it could be made better and it would be interesting to get your views about that, particularly about communication. Leaving aside the particulars of what Mr Goldie may or may not have done, how do you think the system could be made better to explain to someone in your position, who is not a lawyer, how things have gone wrong and what your redress is and all that sort of thing? Do you think 720 that any improvements could be made?

Mrs Cracknell: I think that it would be very useful to have an easily accessible means of knowing what you can do when you are in that situation because in the situation we were – I was – in, it was very much about firefighting really. I would deal with every crisis as it occurred. 725 So, whatever was going on on a day-to-day basis, I was dealing with Neil’s every crisis so there was not a lot of time to sit down and think. We would try and phone Mr Goldie. He did not phone back. Then I would try again a few days later. There was not a lot of time to really clarify everything and work it out. I think it would have been very useful to have something on Google even, to say what should 730 happen. What can I do if this fails? What can I do next to find out who can help me in this situation? I did feel very alone and I did feel very vulnerable and I did not know what to do next.

Q75. The Clerk: That is a very interesting point actually. Is that the sort of thing you would like us to say to the Law Society, for example, (Mrs Cracknell: Yes.) about how things could be 735 improved? Has anybody offered any mediation to help you deal with your… because obviously your relationship with Mr Goldie has now broken down – I think that is fair to say, isn’t it? (Mrs Cracknell: Yes.) Has anybody offered any mediation between you and Mr Goldie to sort out just to make sure that you understand all the advice you have been given from him? 740 Mrs Cracknell: No.

Q76. The Clerk: I notice that in your statement you say that he offered some very clever legal reasons for why he did not lay the matter down before the court immediately. 745 Mrs Cracknell: That came in letters that he wrote to us – in fact, for Mr Houghton. There were things in there that I certainly had not heard before, that he had not mentioned before.

Q77. The Clerk: Did you understand them? 750 Mrs Cracknell: No, not really, if I am honest.

Q78. The Clerk: No, that is fair. I mean why would you? If you are not a lawyer, then there is no reason why you should. 755

______31 CLP 53 SELECT COMMITTEE, FRIDAY, 7th FEBRUARY 2014

Mrs Cracknell: I knew that they were totally different to what we had been told at the time, which was that the matter would be laid down straightaway. When I left that meeting that was what we were told – that that was the first job; that he was going to do that straightaway. He spoke to Dave Walker a day or two later and when Dave Walker contacted me… I have the text 760 message where Dave said, yes, he told him the same thing – he said he would lodge the papers. If I am honest, I do not really fully understand what lodging the papers and laying it down with the court is. As far as I know it is just telling the court that it is happening. And it turned out that that was really important, but at the time I did not know that. It was much later on when we found out that it had not been done, that I asked in the meeting, in fact… I asked Rebecca… 765 No, I put it in a text message, an e-mail to Rebecca and said, ‘Well, it will be okay, won’t it, because Mr Goldie will just tell the court he did not do it. He will explain it, won’t he?’ It was at that stage when all our correspondence… Rebecca’s messages were always very pleasant. It just came back saying, ‘We will consider what you have said’ and I had obviously hit on something and I did not realise… 770 Q79. The Clerk: Okay. There are reasons – which I am not going to rehearse now – as to why sometimes it is difficult to issue proceedings, but you have not had offered a third party to sit down with you and explain things?

775 Mrs Cracknell: No.

Q80. The Clerk: Have you taken advice from another lawyer?

Mrs Cracknell: No. 780 Q81. The Clerk: Have you thought about doing that?

Mrs Cracknell: We have but we do not really have the funds and the Federation… The last chance we had was that the Federation contacted the insurance company to ask for funds which 785 would have allowed us to do that but we were turned down. And the file that I make reference to in my statement was that file. But we have since been told that it would not have mattered anyway because the insurance will only look at injuries from the day they took over.

Q82. The Clerk: Has anybody explained to you, for example, that you can sue a lawyer who, 790 through their own mistake, prevents you from successfully carrying out an action? Has anybody ever explained that to you?

Mrs Cracknell: I have never had that explained from a third party. I have heard that that might be the case but I have never had anybody professionally tell me that that is the case. I 795 have not discussed that with anybody.

Q83. The Clerk: Has any mediation been offered to you by the Law Society?

Mrs Cracknell: No. 800 Q84. The Clerk: Or by Callin Wild?

Mrs Cracknell: No. I have had no contact at all.

805 Q85. The Clerk: Okay. So there has been no dispute resolution offered or anything like that?

Mrs Cracknell: No.

______32 CLP 54 SELECT COMMITTEE, FRIDAY, 7th FEBRUARY 2014

Q86. The Clerk: Okay. Do you think that would have been useful in your case?

810 Mrs Cracknell: Yes, I think it would. I think anything would have been useful really. It was literally just a case of being cast out; of being that is gone, it is done. It was a very scary, vulnerable position to be in, to be honest.

Q87. The Clerk: Quite rightly, Mrs Cannell has pointed out the crucial nature of Dr Bird’s 815 evidence which, now that you have commissioned it, you are stuck with because obviously you have to tell the other side about that evidence. You say that you thought the wrong questions were asked. Can you explain?

Mrs Cracknell: Yes. I think one of the questions, undoubtedly, should have been: is Neil in a 820 position to manage his own affairs in regards to legal proceedings? That question was not asked and I think it should have been that specific; Dr Bird should have been asked to make a decision as to what Neil could actually cope with at that time, because that puts us back into the issue of the limitation. If that is the case then we do not have a problem; the court would then accept that the chance was that he did not know that he was injured. 825 I think there should have been another question bearing in mind PTSD and in the nature of complex PTSD: is it possible that the injuries can be so insidious – I suppose is the word – that he might not have picked it up until much later? I have not told Callin Wild… in fairness, I had not said to them in 2006 we had this period of time where Neil was unwell because I had completely forgotten about it. I was dealing with things. At that stage if I did not make him eat he did not 830 eat, if I did not get him dressed he did not get dressed.

Q88. The Clerk: This was in 2006?

Mrs Cracknell: This was when we first started looking at all these problems. 835 Mr Wild: In 2008.

Mrs Cracknell: No, this was much later.

840 The Clerk: In 2008. Okay.

Mrs Cracknell: When this was picked up by Dr Bird that actually he had complained about palpitations and things like this, which can be a part of PTSD, he knew that straightaway and said, well, maybe he should have known at that point that he was ill. But Neil saw a counsellor at 845 that stage – from the Police; the police welfare officer – and he saw Dr McAndry at Home Affairs; and none of them even picked up on it being PTSD. Neil certainly did not and I think if Mr Goldie had read those medical records he would have rang me and said, ‘There is this thing in 2006. We need to discuss this.’ We could have, at that stage, said, ‘I will get you the medical records about that. I will explain it.’ We did not have the chance for that because the medical 850 records came so late. They were sent off to Dr Bird and there was no chance to offer the background for any of it and I think it became confused in a way that it did not need to be. I think it was just really unhelpful.

Q89. The Clerk: Did your husband go to the doctor in 2002? 855 Mrs Cracknell: No, not in 2002. There was no reason to. The first time he went to the doctors was when he had these heart palpitations in 2006. He had actually left the sex offender role at that stage. He had an argument with somebody at work – his boss, as it happens – and reacted wholly out of character, but he got over it and he carried on and we did not know what had

______33 CLP 55 SELECT COMMITTEE, FRIDAY, 7th FEBRUARY 2014

860 caused it. But nobody – and, as I said, he spoke to a counsellor, he spoke to the welfare officer, he spoke to his own GP – thought it was anything to do with the Sex Offender Register.

Q90. The Clerk: So why did Dr Bird say that 2002 was the starting point?

865 Mrs Cracknell: He said that Neil could perhaps have known that his reactions to the images that he saw… that they were affecting him; that maybe he knew that they were affecting him. He did know that they revolted him and he really hated it and he did know that they just made him sick and he just assumed that that was the case.

870 The Clerk: A fairly normal reaction he took to it.

Mrs Cracknell: Yes, but in fairness to Dr Bird, even he, who works with officers in those situations… but they all go through mandatory counselling. So Neil did not go into his counsellor and say, ‘I reacted like this’. He did not have somebody to say, ‘Actually that is not a good 875 reaction. We need to pull you out for a while.’ So it all built up and it was a case of just the next level, the next lot of work and the next job came in and he just hid it all until it absolutely exploded in 2008.

Q91. The Clerk: In 2002, clearly your husband was still working and still able – 880 Mrs Cracknell: He only started in 2002, yes.

Q92. The Clerk: Yes, so in fact in 2002 he was quite healthy apart from –

885 Mrs Cracknell: He had had no time off work or anything. Yes, he was working ridiculous hours. I mean he was not even doing an eight-hour day, he was doing ridiculous hours.

Q93. The Clerk: So he was fit enough to maintain a court action (Mrs Cracknell: Yes.) until?

890 Mrs Cracknell: He was trained, I think, in 2006. He was trained as a firearms Silver Commander. They did not pick up on the fact that there was anything wrong so he had no chance. Whatever the report says, they would train… One of the officers on that course was sent home because he lacked the mental capacity. Neil was not.

895 Q94. The Clerk: So until 2008 he could have maintained a court action?

Mrs Cracknell: Yes.

Q95. The Clerk: Has anyone explained to you the difficulties of when the clock stops ticking 900 and when you can go to the court to ask for discretion?

Mrs Cracknell: No.

Q96. The Clerk: And has anybody explained to you that you need to be ill when the cause of 905 action arises to have of right the clock stop but for the court to have a discretion later on – but it is a discretion? Has anyone explained that to you?

Mrs Cracknell: No.

910 The Clerk: Okay. Thank you very much.

______34 CLP 56 SELECT COMMITTEE, FRIDAY, 7th FEBRUARY 2014

Mrs Cracknell: Thank you.

The Chairman: Thank you. 915 Any more questions, Mrs Cannell?

Mrs Cannell: No, thank you.

Mr Wild: No, thank you, Mr Chairman. 920 The Chairman: Thanks very much indeed. Well that has been a very comprehensive submission of evidence, both oral and from your statement as well, Mrs Cracknell, which I commend you very much for. Thank you very much indeed. 925 The Select Committee will have a five-minute break and during that time, Mr Goldie, if you would like to make yourself comfortable when you come forward. Thank you.

The Committee adjourned at 11.44 a.m. and resumed its sitting at 11.54 a.m. when Mr Goldie was called

EVIDENCE OF Mr K Goldie

Q97. The Chairman: Mr Goldie, can I welcome you to the Select Committee. Of course, you know that I am the Chairman, Mr Houghton MHK. To my left is Mrs Cannell MHK and Mr Wild, to my far right, Member of the Legislative Council, with Mr Phillips, the Clerk 930 of Tynwald. First and foremost, Mr Goldie, do you have any form of a statement that you wish to bring to the attention… ?

Mr Goldie: No, I do not have an opening statement as such. Obviously, the Committee has a 935 particular remit. I do not know if you would prefer to be hearing me comment more generally on matters that Mrs Cracknell has addressed this morning or whether you have got particular questions in mind, given your remit, and you prefer to address those questions to me. I will be guided by you.

940 The Chairman: I am only in your hands as far as that you are very welcome at the outset, Mr Goldie, to make any statement that you wish to make and then, of course, after that there will be a few questions that we will have for you.

Mr Goldie: Okay, well I think there are probably a few things that I would just like to 945 address –

The Chairman: Please go ahead.

Mr Goldie: – in relation to comments made this morning. 950 The Chairman: Thank you.

Mr Goldie: Perhaps you could just bear with me as I go through my notes.

______35 CLP 57 SELECT COMMITTEE, FRIDAY, 7th FEBRUARY 2014

955 The Chairman: Yes, take your time, Mr Goldie.

Mr Goldie: The first thing I do wish to say is in relation to the claim. I appreciate that Mr Cracknell was… basically accepted that his injury had been caused in the course of work for the purpose of the benefits and his working conditions, but I think it is probably worth clarifying 960 that, as far as I am aware, the Constabulary never accepted any liability for compensation in relation to this matter. Just in case there was any misunderstanding about that. Another matter which I think probably needs to be clarified is just in relation to the point at which the limitation period began and how it has expired and those issues. It is a very complicated case. The law in relation to this is not straightforward and applying it to this 965 particular case is not straightforward. My recollection of the psychiatric report that was obtained was that it indicated that Mr Cracknell had attended his GP in 2006, I believe, and on that occasion he revealed to his GP that he was suffering from a mental illness or symptoms which may well have been part and parcel of the injury that he was later to become more affected by; and that he had revealed to his GP at 970 that stage that it was caused by his employment. Taking that information from the psychiatrist, my opinion was and is that that date when he saw the GP was really the latest date when we could say that his knowledge that he had been injured in the course of work and was suffering enough to be able to make enquiries and take the matter further forward... That was really the last date for the beginning of the Limitation 975 Act. It may have been before that but from the psychiatrist’s report that was effectively the latest date we could take as the starting point. In relation to capacity – I think it probably became a non-issue at that point but in relation to capacity – if Mr Cracknell had been absent of capacity to conduct legal proceedings at any point, from the commencement of the injury onwards, then there are exceptions within the Limitation 980 Act to allow for later proceedings; but, firstly, I do not recall that we ever had any knowledge that Mr Cracknell was lacking that particular level of capacity. If we had, obviously, we would have needed to look into further exactly when and how that arose and how that impacted upon the Limitation Act. I do not know if that sufficiently clarifies or helps at all. 985 Q98. Mrs Cannell: I am sorry, Mr Chairman, could I just come in with a question there before you move on? You said that in 2006 it was evidenced to the psychiatrist who was appointed that Mr Cracknell saw his GP and spoke to his GP. Why then did the psychiatrist indicate 2002 from the 990 date of illness or injury?

Mr Goldie: I think that might be in relation to… 2006 was effectively the date when this became known to Mr Cracknell, for the purposes of the Limitation Act. That is my interpretation of the report. That does not mean the injury was caused at that stage. The injury was clearly 995 caused at some point prior to him attending his GP and I think the reference to 2002 is that that is when he started the course of work during which he became injured. So at some point from 2002 onwards he was suffering… the injury was inflicted upon him – if I can put it that way. The symptoms that he began to suffer, we only really have evidenced from 2006 from that GP report and later on, from 2008, a much more severe way. 1000 Q99. Mrs Cannell: It is a bit of guesswork, isn’t it?

Mr Goldie: It is a very complicated issue which is why it required a psychiatric report, I think, to actually identify how it all fits together. It is not a straightforward question. It is not like 1005 breaking a leg in a car crash.

______36 CLP 58 SELECT COMMITTEE, FRIDAY, 7th FEBRUARY 2014

Q100. Mrs Cannell: But as we understand it, though, at the time the psychiatrist who was appointed… You heard the evidence given by Mrs Cracknell this morning and she is suggesting that the psychiatrist who was engaged was not provided with all of the relevant information for 1010 him to be able to make an informed decision. We are also aware that the psychiatrist only had one session with Mr Cracknell so there was only the one meeting.

Mr Goldie: Well, in relation to the instruction of a psychiatrist, what we would ordinarily do and what we did in this case was: you engage with the psychiatrist and you say, ‘This is the 1015 opinion we would like you to provide’ and you basically ask them what do they need in order to do that. It is for them to say, ‘I can give that opinion if I see Mr Cracknell once’, ‘I would need to see him six times’, ‘I would need to see him over the course of a year’. That is really his remit. I would not be able to say whether it was appropriate or not for the psychiatrist to give his opinions without seeing Mr Cracknell on more occasions and, equally, ordinarily, the medical 1020 records are the backbone of the information provided. We were not aware, until the report came in, of quite what a critical impact those records had. I have to say that I am stretching my recollection to a little degree on this but I believe that there was correspondence after the report with Mr and Mrs Cracknell – it may have been via Mr Houghton – which did indicate that this was the basis of why we have come to this conclusion 1025 and there was an issue raised about whether or not, in fact, that GP record was accurate and did refer to this condition. It was explained that action could be taken, we could try and find out whether or not the GPs record was accurate or not, but it we would need to go down that route because this evidence would need to be counted. But I think really that was at a stage where the relationship, if it had not already broken down at that point, was on its way to being; and clearly 1030 we were never instructed to take any further action in relation to that.

Mrs Cannell: Okay. Please continue.

The Chairman: Before you do – Mr Wild, have you... ? 1035 Q101. Mr Wild: Thank you, Mr Chairman. Just for clarification and understanding, Mr Goldie, can you explain the criteria by which Callin Wild selected Dr Julian Bird as the psychiatrist to undertake the examination of Mr Cracknell? And whether or not in this type of case an instruction there is, I suppose, an aide- 1040 mémoire in terms of what information you provide in advance of the consultation?

Mr Goldie: The process – there are a number of stages to it. The first thing is that, obviously, by virtue of the nature of work that I was at that stage involved in, I did have some contact with a number of experts from different fields. I cannot, to 1045 be honest, recall whether or not Mr Bird was someone I had dealt with on a previous matter or not. That would be one way in which his name would have come onto the radar, if you like. In addition, there are directories of expert witnesses which identify their fields of specialism but they do not necessarily provide a full CV, so you do need to then go further and ask further questions. The initial contact is then made with, ordinarily – and I think in this case also a 1050 number of psychiatrists – to identify: do they feel they are capable of giving the opinion that we are asking for and what would their terms be? We would hear back from them. They may have further questions; there may be a bit of to-ing and fro-ing in relation to that. Then when the eventual instruction goes forward there would be terms and conditions entered into between the law firm and the psychiatrist for the 1055 preparation of that report and, as I say, ordinarily, medical records will be supplied and a small amount of background information to identify what the opinion is about and in a psychiatric case it is, I would say, almost inevitable that they would also want to see the client – but that would not necessarily be the case with all experts.

______37 CLP 59 SELECT COMMITTEE, FRIDAY, 7th FEBRUARY 2014

Mr Wild: Thank you very much. 1060 The Chairman: Thank you. Please carry on with your presentation.

Mr Goldie: Thank you. I have to say, in relation to… one of the issues that was raised is how the matter came to be 1065 with Callin Wild in the first place. I have to express this is obviously going back some years and I certainly would not have any intention to mislead the Committee anyway. It was certainly my recollection that I had seen Mr Walker in advance of seeing Mr and Mrs Cracknell. It may well be that they signed the contract initially but again it is my recollection that the Federation had already agreed that they would be paying for the initial report, which was 1070 what that contract related to.

Q102. The Clerk: The initial medical report?

Mr Goldie: No, sorry, the initial opinion report from myself. 1075 Perhaps if I just clarify again, from my recollection of the matter, there were three stages to the proceedings. There was initial contact, review of the documentation that Mrs Cracknell had obtained and provided – which was a very comprehensive bundle of information; it was something that I think most lawyers would be happy to see a client present to them – and presenting an initial opinion 1080 as to whether or not there were good prospects of success. I think, as Mrs Cracknell indicated, although it was effectively an opinion to her, it was really for the basis of identifying whether or not the Federation were going to take the matter any further forward. They had identified a threshold of – I cannot remember if it was – 70% or 75% likelihood of success to be able to move the matter forward – whether they would fund it or not. 1085 So if, therefore, I had given the opinion that there was only a 50% chance of success, they would have said they were not funding it any further. That was the background to that instruction. Following on from giving that report, the report indicated that there were… Effectively, I had to caveat my advice and say that whilst everything I have been told and everything I have got here tells me there are good prospects of success, we do need a psychiatric opinion before we 1090 can certify any of these items and causation limitation. There were a number of points which we needed to look at. A psychiatrist needed to be appointed and we asked for authority to… We then entered into discussions with the Federation as to whether or not they would fund the next step: getting the report. There then followed a secondary stage of gathering information and getting the information, 1095 the quotes and the identification of the experts to the Federation and I will accept the criticism in relation to that stage, that the service was not provided as certainly I would have liked to provide it and certainly as Mr Cracknell would have been entitled to expect. So I will accept that criticism there. That secondary stage we reached – 1100 Q103. Mrs Cannell: Sorry. If I may, through you Mr Chairman, ask why there was that long delay at that stage?

Mr Goldie: I think, unfortunately, it is a number of factors. Certainly – just because the issue 1105 was raised this morning – it was not any kind of collusion with the Police Force or with the Federation or any other way in which it may have been seen to be deliberate or a deliberate act in some way. A certain percentage of it – and I will say at the outset probably a small percentage of it – was waiting for third parties to respond and the fact that you have to go through a process of actually trying to identify these experts. So there was a certain amount of delay due 1110 to the nature of the process. But in relation to the rest of it I am afraid that it was simply a case

______38 CLP 60 SELECT COMMITTEE, FRIDAY, 7th FEBRUARY 2014

of, for example – I cannot tell you the exact dates of anything but – say I had written to an expert and they did not reply, it was not a matter which then was reviewed regularly… and chased up on those replies. It was not –

1115 Q104. Mrs Cannell: But surely though, Mr Goldie, right from the onset of this type of complaint, one must be aware of the Limitation Act – in pursuing a medical complaint – whether it be a physical medical complaint or a mental medical complaint or a cause and effect of having to retire from work early – anything to do with a health issue is limited in law.

1120 Mr Goldie: Well, every issue is limited in litigation.

Q105. Mrs Cannell: Sure, but bearing that in mind, I would have expected you to have applied greater vigilance to it because it was time sensitive, wasn’t it?

1125 Mr Goldie: Yes. As I say, I think every case is time sensitive to one degree or another. But, yes, I would accept that it was not carried out with the speed that I would certainly have liked to provide and, as I say, that they had every right to expect.

The Chairman: Thank you. Carry on, Mr Goldie. 1130 Mr Goldie: The secondary stage, if you like, was then obtaining that information and presenting it to the Federation. The Federation were presented with the quotes. The funding of the report, they could not authorise until the quotes and the information were provided to them. 1135 The decision at that stage was made by the insurer who had then taken over from the Federation in terms of the funding of this matter and, I think, other matters as well; and at that stage the decision was made that – irrespective of the opinion that I had given that there may be a good prospect of success – they had come to their own conclusions. Apparently there was another legal opinion given by another firm off-Island that they were relying upon and they had 1140 come to the conclusion that there were not reasonable prospects of success and they were not, therefore, willing to spend any further money on it and fund the psychiatric report. The third stage then was: we then discussed with Mr and Mrs Cracknell whether or not they still wished to proceed and obtain a report. Realistically, I think there were two motivations that they had when they made the decision to go ahead with that. 1145 The first being that it was possible that the report could have come back and been entirely positive, entirely backing up the fact that there were good prospects of success and, therefore, we could have turned around to the insurer and said that their initial views were wrong and could they reconsider – could they continue to fund the case? Obviously, there were no guarantees they would reconsider it and there were no guarantees what the psychiatric report 1150 would actually say but that was one motivating factor. The other was just to… I think I understood that Mr and Mrs Cracknell wished to find some closure, to identify exactly what was the cause of the injury and get that opinion regardless of whether it had an impact on the case or not. That third stage was then the conduct of actually instructing the expert, getting the report 1155 and commenting on that report in correspondence with Mr and Mrs Cracknell, which then obviously continued for a certain amount of time and then Mr Houghton took over the correspondence lead for a time.

Q106. Mrs Cannell: Can I ask, through Mr Chairman, why did Rebecca Coleman get involved 1160 as things progressed?

______39 CLP 61 SELECT COMMITTEE, FRIDAY, 7th FEBRUARY 2014

Mr Goldie: The reality was that this case – as I have already accepted… the speed with which this was being dealt with was not the speed with which I felt it ought to have been dealt with by myself. She was new to the firm; she had capacity to assist with it and hopefully deal with the 1165 matter on a very urgent basis. So I asked for her assistance with it. I remained supervising the matter but she very kindly assisted in that stage.

Q107. Mrs Cannell: But according to the evidence we heard this morning from the statement which was read out, you were instructed by Mrs Cracknell quite early on, in fact – on 16th July 1170 2010 the contract was signed with you and the family for you to represent them… and the terms of the contract – I have no idea what those provide. Perhaps could you elaborate on that? Was it just a contract of engagement or were there promises made of what you would deliver or what the expectations might be for the client?

1175 Mr Goldie: I do not know exactly. Ordinarily the contract is a very standard terms contract; it does not contain precise details of what will be delivered when. There is, however, a paragraph on the first page which identifies the scope of the instruction. I cannot recall whether it was particularly limited or particularly described in that paragraph, however, it was certainly my understanding that the instruction at that time was to give my legal opinion about the prospects 1180 of success and that was, effectively, the end of that instruction. Then we had to discuss matters with the Federation.

Q108. Mrs Cannell: And at the end of that process you produced a report which said, ‘I think it's favourable. You have got a 70% chance of succeeding with this case, provided that an expert 1185 can provide the evidence to support my belief that you will be successful.’

Mr Goldie: Yes.

Q109. Mrs Cannell: And that is how you came to suggest that an expert be engaged. 1190 I am curious though, all the way through your letter – and I have gone through your letter again, dated 29th April 2013 – you admit that the time for this or the time for that was your fault and you accept responsibility for that etc, but I am just wondering, assuming that you were given permission to seek medical records at Noble’s Hospital or at the Department for Mr Cracknell very early on, why that was not done? 1195 Mr Goldie: Again I cannot recall exactly what happened when. The reality, I think, is that the need for the medical records is to provide them to the experts and until we know the expert is going to be instructed there is no urgency to obtain them because they would certainly also need to be updated prior to the experts receiving them. 1200 Q110. Mrs Cannell: I find that extraordinary, Mr Goldie, having had previous experience of helping constituents who have sought medical redress through advocates on Island. The first thing that is done is the letter of engagement is agreed and signed, a letter of instruction is signed that goes off to seek medical records; and that is the first thing that that advocate then 1205 receives, before even considering engaging an expert.

Mr Goldie: That does sometimes happen. It depends on the matter. If it was, for example, a whiplash case then we would not ordinarily be too concerned about… I personally would not be too concerned about whether or not we need an expert at that stage, 1210 because the evidence of whether or not a person has gone to their GP or attended Accident & Emergency and said they have pains in their neck, we can understand that – that falls within the remit.

______40 CLP 62 SELECT COMMITTEE, FRIDAY, 7th FEBRUARY 2014

I would not have – I do not believe – gained anything or been able to give any opinion to Mr and Mrs Cracknell based upon a review of those records. Obviously, the reality is that if we were 1215 not going to be seeking a psychiatric report – obviously, at that stage we thought we were, but if we were not going to be – then not only would it have been a waste of cost in terms of obtaining those records but any evidence I were to provide or any opinion I were to provide based upon those records is… I am a lawyer not a doctor; it would not have been of any consequence; it would not have affected any – 1220 Q111. Mrs Cannell: I can appreciate that. You are not a medic but do you have experience in dealing with clients such as the Cracknells who came to you? Had you dealt with many cases like this before?

1225 Mr Goldie: Not like this one.

Q112. Mrs Cannell: No. I get a sense – and I might be wrong and I apologise in advance if I am wrong, but I get the sense – that you were perhaps swamped by this particular case and the complexities of it and did not have an awful lot of experience. 1230 Mr Goldie: I think the reality is that this case is… I think you will appreciate yourselves that it is a very sad and unfortunate and unusual set of circumstances; it is not something that falls within the average experience that you come across, but in terms of dealing with it – more promptly, yes, but in terms of how to deal with it – we really are following the same processes 1235 for a more straightforward case. You obtain the expert’s evidence and move on from there.

Q113. Mrs Cannell: Thank you, Mr Chairman. Would it not have been wise possibly, bearing in mind the complexities and the unusual aspect of the case, to have made reference right at the very onset to refer Mrs Cracknell to someone else who had dealt with this sort of case before? 1240 Mr Goldie: It was a case where I felt I had the expertise.

Q114. Mrs Cannell: You had the expertise but you were keen to win an award from the Police Federation, weren’t you, for the company that you were working for? 1245 Mr Goldie: No.

Mrs Cannell: Thank you, Mr Chairman. That is all for now. (Interjection by Mr Goldie)

1250 Q115. The Chairman: We will come back to it. Mr Goldie, I know we are questioning you and interrupting you during your presentation. I just wanted to establish: have you finished your presentation now, before we do some formal questions?

1255 Mr Goldie: I do not know, to be honest. I may have covered most of the facts. I do not know if Mr Wild… I think you indicated a question as well or is that…?

The Chairman: Yes, well, I have got a number of themed questions that I need to ask that will build all the picture up in a minute. But, Mr Wild, do you have a question in relation to what Mr 1260 Goldie has mentioned thus far?

Q116. Mr Wild: Yes, thank you, Mr Chairman. Just for understanding and clarification, Mr Goldie, in terms of case work management within a legal firm, is there a governance structure and process that ensures that… We have all agreed

______41 CLP 63 SELECT COMMITTEE, FRIDAY, 7th FEBRUARY 2014

1265 that every case has time implications – depending on the law and the particular law affecting that case – so is there any sort of process that makes sure that files are reviewed on a regular basis to ensure that they are not slipping out of a timescale?

Mr Goldie: Obviously, I think in terms of speaking to that generally I do not think there is a 1270 requirement imposed by, for example, Law Society Practice Rules, if that is what you mean – to say that each firm has to have a particular – (Mr Wild: Process.) framework. Was that the question you were asking?

Mr Wild: It was, yes. Thank you. 1275 Q117. The Chairman: Thank you, Mr Goldie. Just for the record, can you state your qualifications, experience and specialised subjects that you actually undertake?

1280 Mr Goldie: Well, I am no longer involved in private practice. I do not provide legal services to the public any longer, but at this time I was an advocate involved in private practice. I was generally involved in litigation. I was called to the Bar in 2000, having taken my two years’ articles on the Isle of Man. I have undertaken a wide range of work over that period of time. I would say possibly something in the region of a third of that work would relate to what I would 1285 call common law litigation, which includes personal injury work.

Q118. The Chairman: Okay, thank you very much indeed. Those are the areas that you actually specialise in, do you? Because working with Callin Wild – and correct me if I am wrong – the different areas of litigation seem to be or appear to be 1290 addressed by different advocates specialising in those areas.

Mr Goldie: Yes, it is not… Obviously, again, I am not there any longer, I cannot speak for the firm, but it would ordinarily be the case while I was there that there were different lawyers dealing with different types of work, yes. (The Chairman: Okay.) There may be an overlap. There 1295 may be matters where… As I say, I did deal with a variety of different types of work. It was not just that field.

Q119. The Chairman: Okay. Thank you for that. I have got some themed questions now. It will help us build up our picture on what is alleged 1300 to have gone wrong at this point. When did you realise, Mr Goldie, that Mr Cracknell was incapable of handling his own affairs?

Mr Goldie: I do not believe that I have actually… From the terms of the legal test as to whether or not he is capable of conducting the litigation, I do not think we ever actually had that 1305 clarification confirmed. I do not think that that was ever reached at all. I know it was an issue that was a possibility, if you like, to be looked into or considered from the very outset from my first attendance with them.

Q120. The Chairman: Okay. Thank you. 1310 You have answered certain questions in relation to the Police Federation but can I just ask you this straight question: were you constrained at any time by the Federation from doing a professional job and doing the job that you wanted? At any time were you constrained by the Federation who control the budget and, therefore, obviously the payment to your practice?

1315 Mr Goldie: I think the yes/no answer to that is, yes, but the fact is that in every case we are constrained by whoever is paying the fees – be it the client directly, be it legal aid, be it a third

______42 CLP 64 SELECT COMMITTEE, FRIDAY, 7th FEBRUARY 2014

party insurer or funder. They will have restrictions on what you are allowed to do without asking them for consent. They will only pay for what they think it is reasonable to do and what they authorise you to do. So there was a restriction there. 1320 Did I think that affected the way in which we conducted this case? Obviously, in perhaps an ideal world if we had not been needing to satisfy the Federation about the funding of the report we would have had the report immediately commissioned rather than seeking any quotes; we would not have worried about satisfying the Federation that it was actually required.

1325 Q121. The Chairman: In relation to the way in which you were constrained then can you explain how did you report back and who did you report back to in the Police Federation? So how did that work? Did you go to them every time you had to write a letter or what have you? Can you explain how those constraints were imposed on you and how you dealt with those?

1330 Mr Goldie: Well, I think, as I have explained, really this secondary stage of the proceedings – the obtaining of that extra information – we had a brief, if you like, to go off and get that information, those quotes, and effectively report back to the Federation with that. Obviously, as I say, there was a delay there but when that report went back so that there was not a need for anything else we were authorised to go and get that information, we presented that information 1335 to them, they then made a decision. So I did not need to go back and ask for permission to write every letter or –

Q122. The Chairman: Okay. Did you obtain any quotes for psychiatric reports in 2011?

1340 Mr Goldie: I could not tell you any dates… [Inaudible]

Q123. The Chairman: Can you recall actually having done so?

Mr Goldie: No, I cannot recall whether or not that was… or what was… At the very least, we 1345 obviously did obtain a quote from Dr Bird – I think it was – who was the final psychiatrist we used. So there obviously was a quote from him but I could not tell you what other quotes were obtained.

Q124. The Chairman: Was that quote taken back to the Police Federation for funding – the 1350 quotation for the medical report?

Mr Goldie: Again, I would not like to mislead the Committee in any way. I think that that quote was part of the information going back to the Federation before they made their decision. But it may have been that they made their decision not based on just a report back saying what 1355 we are doing.

Q125. The Chairman: Did you communicate that in any way – of anything you received from the Federation – back to Mrs Cracknell, on behalf of Mr Cracknell?

1360 Mr Goldie: The only thing that we received back, as far as I recall, was the finding that they were going to decline funding from that point onwards. So that obviously was communicated, yes.

Q126. The Chairman: In order just to gain your legal understanding, would you agree that in 1365 January 2011 the case was still within the statutory limitation period? If you did not agree, what advice did you give to Mrs Cracknell and when did you advise her?

Mr Goldie: I am sorry…

______43 CLP 65 SELECT COMMITTEE, FRIDAY, 7th FEBRUARY 2014

The Chairman: Can I say that again? 1370 Mr Goldie: Yes, please.

Q127. The Chairman: Please, if – because you have not got any notes with you, of course, to refer to… So, please, you can take some of these questions away and come back to us in written 1375 answer to them, since you have not got any records with you, Mr Goldie.

Mr Goldie: If I may, just in relation to that… Obviously I do appreciate that offer but, no longer being in the same firm, I do not have access to records automatically.

1380 Q128. The Chairman: Are you sure that you do not have access to them? Because, of course, you do, I would have thought, have a right to be able to refer to matters – especially in the interests of enquiries of this Select Committee.

Mr Goldie: It may be possible for me to obtain them and, obviously, now that I know Mr 1385 Cracknell has waived his privilege to a certain extent… but we would need to go through a process to get them. I do not have the records myself… [Inaudible]

The Chairman: This Committee would be grateful – in the case that you have not got the records to hand, so you are obviously unable to answer them… and I do want to ask these 1390 questions for the record… which then, of course, the Hansard will be made public, as you know – for you to be able to find the answers in the cases where you cannot answer the questions.

Q129. The Clerk: Can I ask, Mr Chairman…? There are two questions here, aren’t there? One is not simple but one which you may be able to answer briefly, which is: in 2011, was the case 1395 out of time?

Mr Goldie: My understanding, with hindsight from what we know now, is that, yes, it was.

Q130. The Clerk: And the second question was: when did you convey this information to Mrs 1400 Cracknell?

Mr Goldie: When did I convey the fact that I believed it to be out of time? Once we had the psychiatric report received from Mr Bird, I do not believe there was any delay in then responding to Mr and Mrs Cracknell with what we interpreted the implications of that to be – 1405 which included the limitation period was at an end.

Q131. The Chairman: It is vitally important that you are able to advise the Committee of the surety of that answer, Mr Goldie. Thank you. I will move on. Can you recall whether Dr Bird actually clarified the important points that Mr 1410 Cracknell was not ill before he worked in the sex offenders unit?

Mr Goldie: I do not recall whether that was addressed in the report or not.

Q132. The Chairman: So why did you not exercise a judgement to initially register this case 1415 with the court and arrange for an extension of time limits on the basis of Mr Cracknell's condition as a matter of real urgency at that time?

Mr Goldie: At which time, sorry?

1420 The Chairman: At the time. This was around the early part of 2011.

______44 CLP 66 SELECT COMMITTEE, FRIDAY, 7th FEBRUARY 2014

Mr Goldie: Well, in order to be able to lodge the matter with the court, the first thing is that the Court Rules require that we bring our expert evidence – which we did not have at that stage. Also there is the very real fact that you have to plead your case correctly. If it is not correctly pleaded you will not be able to succeed on matters that are not pleaded within that. 1425 Once it is pleaded and lodged with the court the ordinary timetable that runs requires a defence to be filed by the defendant – assuming they are going to defend it – and we then start running forward various procedures; one of which would have been the requirement to file our expert evidence and, equally, they would have been entitled to obtain their expert evidence and do that. 1430 All of this process involves cost on both sides and the simple fact of the matter is that, up until the point where you are confident that the case is going to succeed, those cost risks are borne by the client; and we did not have the evidence to say, ‘This is going to succeed. There is no risk to you here.’ Had psychiatric reports been obtained on both sides, had the limitation point been argued, 1435 we could have been looking at tens of thousands of pounds’ worth of costs before even dealing with any of the substance of the case. At that stage I would not have said it was appropriate to issue proceedings as we did not have the evidence to justify it.

Q133. The Clerk: This is one of the points at issue but it is quite a complex, technical issue as 1440 well, you know, when you start proceedings in the timeframe that the Rules impose on you. (Mr Goldie: Yes.) So it might be worth just changing down to third gear, as it were, and going through this rather slowly so that we all understand; because, of course, particularly Mrs Cracknell, who is listening, has a right to understand this as well.

1445 Mr Goldie: Certainly.

Q134. The Clerk: When you have a client come in and say they have a cause of action, you do not race off to the court immediately – (Mr Goldie: No.) and issue proceedings. And the reason for that is that you have to back it up with evidence. Is that right? 1450 Mr Goldie: Effectively, I think I could put it as being three reasons. The first is that we have a duty to the courts not to issue proceedings unless we think there is an actual case there. We also, from a professional point of view, need to be able to advise our clients what they are getting into and, until we have the evidence to be able to make a decision about whether or 1455 not their case is going to succeed, we cannot tell them, ‘You have got a good case here’ or ‘You have got a bad case,’ and what the cost implications are from that, which are general cost implications. Also the reality is that if you rush off with a case that is not correctly pleaded or is not pursued correctly after that point, it could be struck out and you could be then unable to pursue it at a later date. 1460 Then the third issue is that actually in order to draft the proceedings, we need the evidence to be able to say what the proceedings are about.

The Clerk: One of the… sorry to...

1465 The Chairman: Take your time.

Q135. The Clerk: Mrs Cracknell seemed to think that in the initial interview – obviously, we all go away from interviews with different impressions of what was said – that at that stage you were very encouraging; that you were going to lodge papers – or whatever phrase she used – 1470 straightaway. Is that something that you are likely to have said?

______45 CLP 67 SELECT COMMITTEE, FRIDAY, 7th FEBRUARY 2014

Mr Goldie: No, it is not.

1475 Q136. The Clerk: And do you, as a matter of course, explain to clients exactly what the procedures are and why it may take some time before you lodge proceedings?

Mr Goldie: Ordinarily, there are a lot of issues to discuss with the client. The process by which you go through – the court proceedings part – at that early stage, we would have discussed it 1480 but I would not necessarily have explained the whole process in a great deal of detail – the whole process of the court side – because I think it was unlikely we would have been going down that route. But, clearly, if we were going to be issuing proceedings at any point, it is vital then at that stage the client knows exactly what we are getting into, what the process involves; because it is not just a case of lodging something, there will then be a response to that and a 1485 timetable that you have to follow to respond to that response and deal with the next stage and the next stage and the next stage.

Q137. The Clerk: So, in other words, the clock does not stop ticking just because you have issued proceedings; there are other – 1490 Mr Goldie: A new clock starts.

The Clerk: – weigh points that… Another clock starts. So how long between issuing proceedings and putting in your Statement of Claim (Mr Goldie: Well, the – ) [Inaudible] What is 1495 the maximum time?

Mr Goldie: If we were looking at trying to defeat the limitation period, the Statement of Claim has to be in by the point at which that has to be defeated anyway.

1500 Q138. The Clerk: And the Statement of Claim, just for the benefit of everybody, is?

Mr Goldie: Is the detail of what you are actually looking at.

Q139. The Clerk: So you are rehearsing the facts on which you are going to rely and that 1505 binds you subsequently.

Mr Goldie: Yes, those are –

Q140. The Clerk: It is difficult to go away from that once you have put that in, so you need to 1510 understand what it is you are claiming.

Mr Goldie: Yes.

Q141. The Clerk: And it is normal for that to be backed up by professional evidence in this 1515 sort of case?

Mr Goldie: In a personal injury case – I do not have the Rules in front of me but – I think it is actually a requirement that you plead your medical evidence.

1520 Q142. The Clerk: Right and in simple cases, like a broken leg in a car crash, you can get that quite quickly. In a complex case like this, it is more difficult?

Mr Goldie: Yes.

______46 CLP 68 SELECT COMMITTEE, FRIDAY, 7th FEBRUARY 2014

1525 Q143. The Clerk: Thank you. So I think we have just established… So at the time that you were first taking instructions, you were aware of the limitation period – obviously, because you must be. Did you think it was a particularly urgent matter?

Mr Goldie: It was summer 2010 – the initial instruction. For that to have been the urgent 1530 limitation point, it would have meant that there was a cause of action arising in 2007 and I do not think that was ever discussed as one of the possible dates. I think that the…

The Clerk: The collapse occurred in 2008.

1535 Mr Goldie: 2008.

Q144. The Clerk: So you presumably thought that you had a year.

Mr Goldie: At that very first stage that would have been one of the options, yes, if the 1540 limitation had not already expired, yes.

The Clerk: Okay. Thank you very much.

Q145. The Chairman: Thank you. 1545 Was all of that explained at that time to Mrs Cracknell?

Mr Goldie: I would certainly have hoped that I explained the situation to her and what procedures needed to be followed and why. Obviously, there is a lot to discuss and it may have been there was some part of that that was not particularly well explained or that Mr Cracknell 1550 and Mrs Cracknell, together, did not take away from that meeting.

Q146. The Chairman: Because, of course, at this particular juncture you could have lodged a claim, submitted a skeleton argument. That is the legal understanding, isn’t it? (Mr Goldie: Well, not – ) You submit a skeleton argument to stop the clock going, as it were, and while you build 1555 up the rest of your evidence, in order to keep in with the time limit and withdraw it if there was not further evidence coming forward? (Mr Goldie: No.) Did you explain that to Mrs Cracknell?

Mr Goldie: No. I do not think that is correct, so I would not have explained that to her.

1560 Q147. The Chairman: So you are quite satisfied with that?

Mr Goldie: The claim that needs to be filed needs to be… You can split it into two. Normally it is one form but, effectively, you have a… ‘I’m claiming for personal injuries relating to: dates, place, who the defendant is,’ and then there is the detail of that claim. 1565 You can differentiate between those two. I cannot recall off the top of my head but I think it is possibly a month that you get of extra time before you have to put the detailed one in. But certainly the detail has to be in before the limitation period expires, in any event. The initial skeleton argument, as I understand it, in terms of legal argument is an outline of the legal argument you will be submitting to the court in your oral addresses that you give at a very late 1570 stage. So that would not be related to this part at all. Once you have issued the proceedings, including the detail in it, you have then got four months to serve that on the other side. If it is served upon them, they respond and basically you cannot withdraw it without the court authorising the withdrawal and the other party agreeing; and the usual case would be that if it is withdrawn you pay the costs of the other side. 1575 The Chairman: Thus far.

______47 CLP 69 SELECT COMMITTEE, FRIDAY, 7th FEBRUARY 2014

Mr Goldie: Well, obviously not in relation to any future matters, yes.

The Chairman: Yes. Obviously and that is understood. 1580 Mr Goldie: But that would include any correspondence and matters prior to the issue of proceedings as well.

Q148. The Chairman: Okay, thank you. 1585 A report from Dr Bird, following an examination of Mr Cracknell, concluded that there was neglect and the neglect had caused an injury at that time – that we have already covered. Such neglect occurred whilst Mr Cracknell was working within the sex offenders unit. At what point in time did you reach the conclusion the personal claim was statute barred? And, if you did, when did you inform Mrs Cracknell? 1590 Mr Goldie: Following reading that report and informing her shortly thereafter. I do not know how long past.

Q149. The Chairman: Thank you. Moving on, how many individual cases were you managing 1595 at that time, in respect of clients?

Mr Goldie: I do not think I could give you an accurate answer to that.

Q150. The Chairman: We have covered a little bit of this but I just want to do it because it is a 1600 themed question, Mr Goldie. At the initial meeting with your client and his wife, did you agree that you would lay the matter down with the court as a matter of urgency – we have covered this – to be safe?

Mr Goldie: I think we have covered this already. 1605 The Chairman: We have covered that but I am just re-asking that question in this theme.

Mr Goldie: No.

1610 Q151. The Chairman: No. At the same meeting did you advise your client that the case may be out of time as early as August 2012?

Mr Goldie: August 2012? I cannot recall what event in August 2009 –

1615 Q152. The Chairman: So the theme was: ‘We must lay this down immediately and get it going with the court’ – as we have previously covered – because if we do not then the case may be out of time as early as August 2012.’ It is one that you can come back to us, Mr Goldie.

Mr Goldie: I do not recall that date as being a particular date for any reason. 1620 Q153. The Clerk: Presumably there was an earlier date because if Mr Cracknell had collapsed in 2008 that would have put him on notice, would it not? (Mr Goldie: Yes, exactly.) So it would be some time in 2011, (Mr Goldie: Yes.) not 2012.

1625 Mr Goldie: No, again I –

The Chairman: I do not want a guess. I am sorry, I do not want a… I need an absolute answer, Mr Goldie.

______48 CLP 70 SELECT COMMITTEE, FRIDAY, 7th FEBRUARY 2014

Mr Goldie: I have no idea what that date means. 1630 The Chairman: If you could take that question away, I would be grateful. Mrs Cannell.

Q154. Mrs Cannell: Sorry, yes, if I could just deviate a little bit from this theme? I take it that 1635 the assumption was being taken by yourself that the date of illness or the date of injury was from the date of breakdown, which was in 2008. Was that the assumption that was being taken?

Mr Goldie: There was no assumption made at all at that stage. We were looking into that issue as one of the issues – what was the actual cause of the injury, when had it arisen and, 1640 effectively, when the limitation period started?

Mrs Cannell: Sure but –

Mr Goldie: That was one of the options – 1645 Q155. Mrs Cannell: Sorry, if I could just finish, please. The breakdown occurred in 2008 and it was in July 2010 – some two years later – that you were engaged to have a look at this.

Mr Goldie: Yes. 1650 Q156. Mrs Cannell: Yes. So, had it been me, I would be thinking, ‘Well, I’ve got a three-year limitation on this – if one assumes the injury can be taken from the date of breakdown, but obviously that will have to be substantiated by an expert – so I have got until 2011 in order to lodge something.’ 1655 Mr Goldie: Again, that is one of the possibilities. (Mrs Cannell: Okay.) That would have been a possibility… (Mrs Cannell: Okay.) [Inaudible]

Q157. Mrs Cannell: So what is striking then… that that is a given possibility – and probably 1660 was the likely situation, I am assuming – it is odd then that, having met with them in July 2010, you did not meet with them again until May 2012, at which point a psychiatrist still had not been engaged.

Mr Goldie: That is correct. 1665 Q158. Mrs Cannell: So had the psychiatrist’s report said, ‘Yes, 2008 was at the point of the start of the injury,’ then they still would have been out of time, wouldn’t they?

Mr Goldie: Potentially, yes. 1670 Mrs Cannell: Okay.

The Chairman: Thank you.

1675 Mrs Cannell: Thank you, Mr Chairman.

Q159. The Chairman: Did you, Mr Goldie, write to your client in early August 2010 confirming that in your opinion there was a greater than 70% chance of success in this case?

1680 Mr Goldie: Sorry, what was the date there? August 2010?

______49 CLP 71 SELECT COMMITTEE, FRIDAY, 7th FEBRUARY 2014

The Chairman: Early August 2010. Do you recall doing that?

Mr Goldie: Yes, but it was caveated on the need for the psychiatric evidence to back that up, I believe. 1685 Q160. The Chairman: And, therefore, didn’t you further state in your letter, and I quote: ‘If we can show that no trauma was known to be suffered until 2008, we have no difficulties.’

Mr Goldie: I probably did say that. 1690 Q161. The Chairman: Therefore, what action did you take after issuing that letter?

Mr Goldie: Once we had the authority from the Federation to go ahead and get the quotes and entered into that contract the next stage was to go and get the quotes and the information. 1695 And, as I have said, obviously that was not carried out as quickly as I would have hoped.

Q162. The Chairman: Following this letter – which actually was dated 9th August – what further work did you personally undertake on this case during the 15-month period up until November 2011? 1700 Mr Goldie: I cannot recall.

Q163. The Chairman: What, if anything, was done to monitor progress during this 15-month period? 1705 Mr Goldie: I cannot recall with any specifics for you, I am afraid.

Q164. The Chairman: During this period, did you receive any telephone calls from Mrs Cracknell asking for progress reports? 1710 Mr Goldie: I have heard her evidence this morning and I have no reason to doubt that those phone calls were made to the office, yes.

Q165. The Chairman: If so, why did you not respond to her numerous calls to the office? 1715 Mr Goldie: I do not know. I do not think there was a reason for that or anything like…

Q166. The Chairman: Were you at any time constrained by the Police Federation from effectively working on the case? 1720 Mr Goldie: I think we dealt with that earlier. I think the –

Q167. The Chairman: We have but I am building through the theme… at the very start and now we are quite some considerable period further… because you must have had some form of 1725 communication at that time with the Police Federation as to the development of the case. Did they put any constraints on you on or around that time?

Mr Goldie: No.

1730 Q168. Mrs Cannell: Mr Chairman, if I could just elaborate on that?

______50 CLP 72 SELECT COMMITTEE, FRIDAY, 7th FEBRUARY 2014

But you were aware, were you not, that in fact their finances were ‘depleted’ – I think the expression was used earlier on? You must have been aware of that – that, in fact, they were cash strapped?

1735 Mr Goldie: I have to say – again, I am stretching my recollection a little bit – but my understanding of what I was informed by the Federation at a very early stage was that they were making this change, this transition, that Mrs Cracknell explained earlier, to having insurance funding. So whilst, yes, the Federation itself appeared to have limited funds, there were steps in progress to make alternative arrangements for dealing with cases for their members. 1740 Q169. Mrs Cannell: Did you actually receive any kind of payments from them at all throughout this case? Do you recall?

Mr Goldie: Not along the way, if you like. I mean they obviously paid for the initial opinion 1745 and I think there was a further invoice raised, which they would have paid, at a late stage – probably either just before or just after the psychiatric report was obtained.

Q170. Mrs Cannell: And what would that have been in connection with?

1750 Mr Goldie: That would have been in connection with whatever work had been carried out from the date of the contract up to that point.

Mrs Cannell: Okay, thank you. Sorry, Mr Chairman.

1755 Q171. The Chairman: No, thank you. On 2nd September 2011, you again met your clients following their numerous telephone calls to your office for information and to which obviously you apologised for these delays. This is a 15-month period of delay in between the last communication that you had with them. What was your explanation at that time for these serious delays? 1760 Mr Goldie: I do not recall.

Q172. The Chairman: At this meeting you informed your client that Rebecca Coleman was going to be joining you and would be assisting in the management of this case. Of course, you 1765 have mentioned this, haven’t you? There was some mention of Rebecca earlier. Rebecca Coleman actually took over the case from you, didn't she?

Mr Goldie: I remained supervising it at all times. She did take over, for a period, the primary work on it, yes. 1770 Q173. The Chairman: Can you explain how you supervised the case? Did you have weekly meetings with her on the progress? (Mr Goldie: No.) How did you supervise Rebecca Coleman’s handling of this case?

1775 Mr Goldie: In relation to anything that was of substance, if you like, that was done. So any opinion being given to the client about what the impact of the report would be, for example. Anything she was writing of that nature, I would have seen before it was –

Q174. The Chairman: Before it was issued out. 1780 Mr Goldie: Yes.

______51 CLP 73 SELECT COMMITTEE, FRIDAY, 7th FEBRUARY 2014

Q175. The Chairman: Rebecca Coleman found evidence in the file that you had obtained quotes from a psychiatrist as long ago as 26th January 2011 – some nine months earlier. Can you 1785 recall this?

Mr Goldie: No, I cannot. It is possible that there may have been… No, I would be guessing about information so –

1790 Q176. The Chairman: It is in the form of correspondence information anyway. But why was that not followed through? January 2011 – some nine months earlier and nothing done about it.

Mr Goldie: Again, the unfortunate reality of the situation is that this is a case that did not get dealt with as quickly as I would have liked. 1795 Q177. The Chairman: Moving on, Rebecca Coleman continued to move things along at a pace. In November 2011, she contacted Mrs Cracknell and expressed surprise about how long matters had taken and, although she was unable to offer an explanation for the failings thus far, she wrote to the Police Federation stating that they were taking positive steps to pursue this 1800 matter and were then seeking to instruct a psychiatrist. Were you aware of that?

Mr Goldie: Yes.

Q178. The Chairman: Thank you. 1805 Do you agree that no positive steps had been taken up to that point?

Mr Goldie: At some point during that period there would have been positive steps taken. They just were not… Again, the period of time they took was something which I will accept the criticism that is laid about. But there would have been some positive steps taken, otherwise we 1810 would not have been any further forward with being able to say we had identified a psychiatrist or anything at all.

Q179. The Chairman: Have you any idea what positive steps and why they were not communicated back to Mrs Cracknell? 1815 Mr Goldie: Not without reviewing the file.

Q180. The Chairman: Okay. The Police Federation had already given its approval to fund an examination by a psychiatrist 1820 some 12 months earlier. Do you recall that?

Mr Goldie: I do not believe that is the case. I believe they agreed funding in principle but had not authorised the disbursement actually being incurred.

1825 Q181. The Chairman: Now then, although your colleague at that time was now making inroads with her enquiries, do you acknowledge that by failing to lay the matter before the court at least 12 months earlier, as you had promised, you had missed the vitally important deadline in order to give formal notification of impending legal action? I am sure you do not agree with this point but I am putting it to you. Do you agree with that point? 1830 Mr Goldie: No, I do not agree, firstly, that that was the date… and, I am sorry, could you repeat the question, because there was something else in there?

______52 CLP 74 SELECT COMMITTEE, FRIDAY, 7th FEBRUARY 2014

Q182. The Chairman: Certainly, I made mention that your colleague was making inroads with 1835 her enquiries and I am asking: do you acknowledge that, by failing to lay the matter before the court at least 12 months earlier, as you had proposed, you had missed the vitally important deadline in order to give formal notification of impending legal action? If I can just widen it, from the evidence you have given thus far, the issue is that you were going to get this psychiatric report done on Mr Cracknell and you were positive about that and 1840 you needed to move quickly because you told the Cracknells that, of course, at the first meeting in order to lay it before the court in order to – which we examined a little bit earlier – stop the clock.

Mr Goldie: Sorry, what was the question there? 1845 Q183. The Chairman: So the question I will re-ask you then is: at least 12 months earlier, as you had proposed, you had missed the vitally important deadline in order to give formal notification of impending legal action... Do you agree with that point?

1850 Mr Goldie: No, I do not believe that was the impending deadline and I also do not believe I gave the indication that we were to have issued it at that early stage either.

Q184. Mrs Cannell: Sorry, Mr Chairman, given the time constraints under the Limitation Act and taking or accepting the assumption that the injury was incurred in 2008 – yes? – then really, 1855 had that been validated by the psychiatrist, you would have missed the deadline anyway, wouldn’t you?

Mr Goldie: That would have been the case, yes.

1860 Q185. Mrs Cannell: Yes, so I think this is where Mr Chairman is coming from. Taking the assumption – which you had taken all the way through and I think the family did too – that from the date of the nervous breakdown, which was in 2008 – that was when it became evidenced that he was clearly suffering some kind of psychotic break – that you would need to lodge papers within a three-year timeframe. 1865 Mr Goldie: Yes.

Q186. Mrs Cannell: Yes. We have evidence which suggests – and, again, following Mr Chairman’s line of questioning – that, in fact, you did have three quotes from three different 1870 psychiatrists in the cupboard some six months prior to selecting or revealing Mr Bird, or engaging with him. I am not sure what happened over that but it does suggest that there was a period of time where things literally just sat in the cupboard and were not pursued. And what we are trying to pin down here is you cannot hide behind the fact that it was out of time – because of the Limitation Act because of Mr Bird’s report – because you had not sought it by 1875 that time.

Mr Goldie: No, I think, if I understand correctly, the point the Committee is trying to get to is: was there incurred here in relation to the time period when I was dealing with this matter; and I think I have already answered that to say, yes, there was. I think that is what the Committee is 1880 trying to get at and I think that is the issue that we have been trying to deal with. I cannot really say any more than, yes, there was and I accept that criticism.

Q187. Mrs Cannell: Yes, so, had the psychiatrist supported the assumption that, in fact, the date of illness – the injury – was 2008… had he supported that in his document –I am talking 1885 hypothetically now because he did not, he said 2002; and that is questionable as to how he

______53 CLP 75 SELECT COMMITTEE, FRIDAY, 7th FEBRUARY 2014

came to that assumption, whether or not he was supplied with all the appropriate information, but we will leave that for the moment… Had he verified that it was 2008, in fact, when the injury occurred, then your delay would have cost the family a good case, wouldn't it?

1890 Mr Goldie: Potentially.

Q188. The Clerk: Well, could I just… ? In 2008, presumably Mr Cracknell was not capable of maintaining an action.

1895 Mr Goldie: In 2008?

The Clerk: Yes, when he collapsed.

Mr Goldie: Do you mean in terms of his capacity? (The Clerk: Yes.) I do not know, to be 1900 honest.

Q189. The Clerk: I mean that is a question which a psychiatrist would have had to ask. (Mr Goldie: Yes.) So we cannot rush to judgement immediately that, had 2008 been the magic moment, as it were, the clock would have – 1905 Mr Goldie: No. I mean also, obviously, there are a large number of factors at work here in terms of actually finding a successful case. We do not know what the Police would have said; we do not know what their psychiatrist – who they would have engaged – would have found. But I accept the hypothetical possibility based on the hypothetical – 1910 Q190. The Clerk: The delay was not a very good thing. Okay.

Mr Goldie: Yes.

1915 Q191. Mrs Cannell: Can I just, Mr Chairman, follow on from the Clerk of Tynwald's line of questioning there? And I note he was quick to come and defend the rights of the advocate (The Clerk: No.) but I was… (The Clerk: Excuse me – ) through Mr Chairman, I did say ‘hypothetically speaking’ and I was not trying to pin anybody down to… Can I just ask, bearing in mind that there was a capacity question following the nervous 1920 breakdown, why wasn’t an assessment done on his capacity – his ability?

Mr Goldie: To be honest with you, my recollection was that that was raised within the psychiatric report but if it was not – or in dealings with the psychiatrist afterwards – I am unsure about… 1925 Q192. Mrs Cannell: I am just revisiting a line of questioning that the Clerk of Tynwald gave a little bit earlier on. He asked about the capacity issue and did you consider assessing that and you said, no. That just left me with a question of why?

1930 Mr Goldie: As I said, I thought it was considered in the report that was obtained. If it was not… I do not know. Again, going back some time, my recollection was that it was addressed.

Q193. Mrs Cannell: Because if there was a question mark over the capacity of Mr Cracknell that would have given you an extension of time, wouldn’t it, to pursue a case? 1935 Mr Goldie: Not necessarily, but potentially there could have been issues related to that.

______54 CLP 76 SELECT COMMITTEE, FRIDAY, 7th FEBRUARY 2014

Mrs Cannell: Yes. Thank you.

1940 The Chairman: Mr Phillips, any point of clarification?

Q194. The Clerk: No. There are one or two other things. The communication with Mrs Cracknell is perhaps the key issue, in the sense that so many of these cases [Inaudible] failure of communication, and I notice that Mrs Cracknell regards the questions put to Dr Bird as wrong. 1945 (Mr Goldie: Yes.) Would you like to comment on that?

Mr Goldie: The first I have heard of that was in her comments this morning and I did make a note, I think, of what was said there… if I may. I think the only note I have in relation to that was that the issue of capacity was not raised – which, again, I am surprised to hear that. My 1950 recollection was that he addressed capacity in some way. It may not have been in that report, it may have been in some other format, but I have a recollection that it was. That is the only thing I –

Q195. The Clerk: If you cannot recall properly then I am not going to press you on that. 1955 Mrs Cracknell did refer to a letter that set out clever legal arguments etc – as she described it – (Mr Goldie: Yes.) and that, I think it is fair to say, not being a lawyer, she did not understand quite what the procedure was. Do you think with hindsight – which of course is great – that the system should be and could be improved to ensure that people do have a better explanation of just what the difficulties are to do with the procedure adopted in maintaining a court action? 1960 Mr Goldie: I think our new Court Rules since 2009 have gone a long way towards creating a system that can actually be read and understood. I mean it still takes a lot of reading; it is not necessarily clear. But I think the difficulty with any kind of explanation being given is you can give an overview of how proceedings are to be followed – and I think the court website, for 1965 example, provides information in relation to a very general overview – but you can only give a very general account which does not necessarily fit every case. In an ideal world, yes, I think there would be some kind of explanation that people can go to that… It would be ideal if I could say to a client coming through the door, ‘There is a book. Read that,’ and that was the end of it. That would be… But I do not think that you would ever get to 1970 the stage where you could do that and I think in terms of… Obviously, we have an obligation to make the clients understand, to explain things to the client, but we also have to rely on the client saying to us, ‘I don’t understand that,’ because once something has been explained we do not necessarily know that they have not understood or that there is any misunderstanding. I mean one of the facts that anybody who deals in any kind of legal proceedings comes across 1975 very regularly is that no two witnesses ever have the same recollection of the same event and, therefore, it is entirely possible that somebody will leave a meeting with a completely different apprehension of what was said than the person who is giving the explanation. I think, yes, in an ideal world there would be some way of confirming or clarifying exactly what was understood and breaking it down into simple terms but, unfortunately, they are not 1980 always simple concepts.

Q196. The Clerk: Do you think that the Law Society, for example, ought to or could improve its structures for dealing with cases where there is a breakdown in confidence between a client and an advocate, and offering mediation? I notice that Mrs Cracknell has not been offered any 1985 mediation.

Mr Goldie: Well, the Law Society offers conciliation services. It would appear that she has not taken that up.

______55 CLP 77 SELECT COMMITTEE, FRIDAY, 7th FEBRUARY 2014

1990 Q197. The Clerk: Has she been offered that?

Mr Goldie: The Law Society offers that as a general publication thing. I am not aware that we, Callin Wild, indicated that to her. Certainly in relation to the Advocates Disciplinary Tribunal, information is available in reception in all firms and in various other sources. But, again, I do not 1995 know whether that was specifically spelled out to her. There is also an internal complaints procedure which was offered by every firm and, again, I recall that being mentioned in correspondence; that we have that procedure that she could follow and no doubt as part of that she would have been made aware of other processes. But I think the reality of the situation is that prior to the report coming out and giving our opinions on 2000 that, there was no real complaint being made. I mean, obviously, there were issues there and I had accepted those issues but there was no real complaint being made. At a later stage, obviously, Mr Houghton got involved in the correspondence and, as I say, I think we did raise the fact that there is a complaints procedure – as there is within all firms – but I am not aware of either that or the Advocates Disciplinary Tribunal or the Law Society’s 2005 conciliation process being taken, nor of any action being taken against the firm by Mrs Cracknell.

The Clerk: Thank you.

Q198. The Chairman: In November 2011, at the same time as we had earlier mentioned on 2010 the earlier points, Mr Goldie, another devastating blow was meted out to the Cracknells in that the Police Federation informed them that they would no longer fund the case. This terrible news had a crippling effect on any future progress of this case. Do you agree that this would not have happened had the Police Federation's approval to develop the case been taken up at an earlier time? 2015 Mr Goldie: Had their approval been obtained at any time, then it would not have happened.

Q199. The Chairman: At an earlier time. What we are saying is –

2020 Mr Goldie: They never gave it at any stage so it was not a case of getting it earlier; we did not get it. But if we had had it, it would have made a great difference

Q200. The Chairman: It would have. Thank you for saying that. Do you further recall receiving a payment from the Cracknells to the tune of some £8,000 to 2025 help fund the cost of an examination and report by a psychiatrist? Do you recall that?

Mr Goldie: I recall that the quote we had from the psychiatrist was roughly about £8,000. I think this was dealt with in correspondence with the committing of this issue. There obviously was a misunderstanding in relation to this because the intention was to only 2030 ever charge Mr and Mrs Cracknell for what the psychiatrist’s fees were. We were not going to raise any invoice or any charge for fees that were incurred in relation to myself and Rebecca doing work in relation to that report, either obtaining it or commenting on it with any opinion. So we did not raise the fees for that. The –

2035 Q201. Mrs Cannell: Sorry, through Mr Chairman, can I ask why not?

Mr Goldie: Partly in recognition of the fact that they had not had the service that we would have hoped to deliver. Obviously, we did not enter into any kind of deal in relation to that. I did not say to them that it would only be on the condition they did not make a complaint or 2040 anything. It was just, in recognition of the situation we were in, we were not going to raise a fee for the rest of the work. And also in recognition of the fact – regardless of whether or not it is

______56 CLP 78 SELECT COMMITTEE, FRIDAY, 7th FEBRUARY 2014

accepted by the Cracknells – I do still have a great deal of sympathy for the situation they are in. It was an unfortunate situation. But we went to that stage – we did not raise that invoice. The £8,000 requested initially was to meet the quoted fees for the expert and I understand 2045 that Mr and Mrs Cracknell paid that in advance. Then after the report was obtained I understand an invoice was issued for the full amount of the expert’s fees and they then paid that invoice. But the misunderstanding… it had not been accounted for the fact that there was money paid on account. They were later refunded that amount.

2050 Q202. The Chairman: Can I move on? Do you recall around about the same time that we are just examining, on one of the occasions you met with Mr and Mrs Cracknell, that you were supplied with a comprehensive file which provided a detailed timeline of events?

Mr Goldie: At the very start I was provided with a very detailed file. 2055 Q203. The Chairman: What did you do with it?

Mr Goldie: Sorry?

2060 The Chairman: What did you do with the file?

Mr Goldie: Eventually or at that time, or what?

Q204. The Chairman: Whenever. Did you read it and what information did you take from it, if 2065 you did read it?

Mr Goldie: Yes, I read it and that was the information which I used to form the initial opinion that was provided.

2070 Q205. The Chairman: Okay, thank you. Would you give the Committee your comprehensive understanding of a patient suffering from severe mental health problems – which had now, of course, been confirmed by a consultant psychiatrist – and the law as to statutory limitation for such patients, in your own words? 2075 Mr Goldie: Sorry, you want me to explain what the law is or how it affects this particular… ?

The Chairman: What the law is. In this case, what the law is. We have touched on it earlier but I just want the understanding as to what you see the law is – just for the sake of Hansard. 2080 Mr Goldie: Clearly, I would refer to the Limitation Act to actually set out what the law is but, in terms of my opinion here and now about that, the Limitation Act says, basically, that you have three years from the date the injury is caused to issue proceedings. If the date of the knowledge of that injury is a later date – our criteria for establishing that – 2085 then the date instead can be the date of knowledge. If somebody lacks capacity from the date on which the injury is suffered and they continue to lack that capacity then that period of incapacity is effectively disregarded for the three years. Is that sufficient?

2090 The Chairman: Only if you believe it is, Mr Goldie. (Mr Goldie: I have given you – ) I am in your hands on this particular point. I am just asking you for your understanding, that is all.

Mr Goldie: As I sit here now that is how they are.

______57 CLP 79 SELECT COMMITTEE, FRIDAY, 7th FEBRUARY 2014

Q206. The Chairman: Thank you very much. 2095 Did you discuss Mr Cracknell's condition with any of Mr Cracknell’s former colleagues in the Police, specifically members of the Police Federation?

Mr Goldie: His condition? No.

2100 Q207. The Chairman: Okay. Moving on, on 26th July, I wrote to you in my capacity as an MHK seeking answers to a number of your questions, to which to you replied on 6th August. I wrote to you again on 13th September 2012 seeking more detailed answers, to which I received no reply. Do you recall this?

2105 Mr Goldie: I think that is correct.

Q208. The Chairman: Why did you fail to reply, Mr Goldie? You could see I was representing a very concerned constituent who had severe problems. You were aware of those. Why did you fail to reply to me in time? 2110 Mr Goldie: I do not know. It was just an unfortunate slip and I do apologise. I certainly never intended any discourtesy.

Q209. The Chairman: I wrote to you again on 25th October 2012 – 2115 Mrs Cannell: I am sorry, Mr Chairman, I feel very uncomfortable with this line of questioning because it really is outwith the remit of the Committee… to look at the remit that we have.

Q210. The Chairman: It has a relevance, Mrs Cannell, and it will not take me long to run 2120 through it. I wrote to you again, Mr Goldie, on 25th October 2012 and again no reply was received either. Do you recall that?

Mr Goldie: I do not recall that particularly but I will accept your account. 2125 Q211. The Chairman: And then I followed up by writing to you again on 14th November 2012 expressing my concern that you were simply ignoring my correspondence with you and, as such, you were treating me with contempt. Do you remember that?

2130 Mr Goldie: I believe that was correct.

Q212. The Chairman: Moving on, on 15th November a letter was received from you which had crossed in the post, in which you apologised for not replying to my letters but failing to offer any satisfactory reasons at that time. Your letter also stated that you promised to respond in the 2135 next few days. No follow-up letter was received so I wrote to you again on 25th January 2013, giving you seven days to respond, to which you finally replied via Mrs Cracknell on 31st January 2013. Mr Goldie, why did you continually fail to reply to my follow-up letters?

2140 Mr Goldie: Again, I do not know what else I can say. It was not a deliberate attempt at discourtesy. It was just a case of, obviously, in order to respond to you I required time to sit down and look at the information and provide that information to you and, unfortunately, it was not done that quickly.

______58 CLP 80 SELECT COMMITTEE, FRIDAY, 7th FEBRUARY 2014

2145 Q213. The Chairman: Mr Goldie, so why do you, therefore, continually fail to properly case manage Mr Cracknell's affairs at such an important time?

Mr Goldie: Well, at that time we were no longer dealing with his affairs. Effectively, the relationship had broken down. The remit, I think, of our instruction really came to an end. Once 2150 we had given an opinion on the psychiatric report, we were never instructed to do anything further.

Q214. The Chairman: Do you have anything to say to Mr and Mrs Cracknell in respect of this catalogue of serious failings? 2155 Mr Goldie: I have already offered my apologies in what I think are more appropriate forums –

The Chairman: Thank you. Any further questions, Mrs Cannell? 2160 Mrs Cannell: No thank you, Mr Chairman.

The Chairman: Mr Wild.

2165 Mr Wild: No, thank you, Mr Chairman.

The Clerk: No, thank you.

The Chairman: Thank you very much for your evidence this morning, Mr Goldie. Thank you 2170 very much indeed. Now, ladies and gentlemen, this Committee will go into adjournment and I thank you all for your time this morning. Thank you.

The Committee adjourned at 1.15 p.m.

______59 CLP 81 82 2nd May 2014 Evidence of Mrs Jane O’Rourke, Chief Executive of the Isle of Man Law Society

83 84

T Y N W A L D C O U R T O F F I C I A L R E P O R T

R E C O R T Y S O I K O I L B I N G V E A Y N T I N V A A L

P R O C E E D I N G S D A A L T Y N

S E L E C T C O M M I T T E E O F T Y N W A L D O N C I V I L L E G A L P R O C E E D I N G S

B I N G E R – L H E H T I N V A A L M Y C H I O N E I M M E E A G H T Y N L E I G H O I L N E U – C H I M M A G H

HANSARD

Douglas, Friday, 2nd May 2014

2014/0080 CLP, No. 3

All published Official Reports can be found on the Tynwald website www.tynwald.org.im/Official Papers/Hansards/Please select a year:

Published by the Office of the Clerk of Tynwald, Legislative Buildings, Finch Road, Douglas, Isle of Man, IM1 3PW. © High Court of Tynwald, 2014 85 SELECT COMMITTEE, FRIDAY, 2nd May 2014

Members Present:

Chairman: Mr J R Houghton MHK Mrs B J Cannell MHK

Clerk: Mr R I S Phillips

Apologies: Mr T P Wild MLC

Contents Procedural...... 63 EVIDENCE OF Mrs Jane O’Rourke, Chief Executive of the Isle of Man Law Society ...... 63 The Committee adjourned at 3.55 p.m...... 87

______62 CLP 86 SELECT COMMITTEE, FRIDAY, 2nd May 2014

Select Committee of Tynwald on Civil Legal Proceedings

The Committee sat in public at 2.30 p.m. in the Legislative Council Chamber, Legislative Buildings, Douglas

[MR HOUGHTON in the Chair]

Procedural

The Chairman (Mr Houghton): Good afternoon, Mrs O’Rourke and good afternoon to everybody else. Thank you very much indeed for attending this afternoon, the Civil Legal Proceedings Select Committee, looking into certain matters. 5 I am quite sure, Mrs O’Rourke, that you are aware of our movements thus far and we are very grateful to you for that. I do not feel I need to but if I may, for the sake of the tape, introduce you to Mrs Cannell, of course, MHK – she is a Member of the Committee; Mr Wild, who is the other Member, sends his apologies – he is unwell; and our Clerk of Tynwald.

EVIDENCE OF Mrs Jane O’Rourke, Chief Executive of the Isle of Man Law Society

10 Q215. The Chairman: If I may then, Mrs O’Rourke, you are the Chief Executive of the Law Society?

Mrs O’Rourke: That is right, yes.

15 Q216. Mr Houghton: Do you have any opening words that you wish to say to us before we ask a few questions of you?

Mrs O’Rourke: I do not really because we already put in a very full response and I thought maybe the better thing to do would be to take questions from you on that response or any other 20 matters that you want to raise.

Q217. The Chairman: That was a very in-depth response too and we thank you for letting us have that. We have read that, thank you. Well, Mrs O’Rourke, perhaps if I just ask one or two questions – and I know we have given 25 you notice of some, to be helpful – to get a greater feeling of the work that we are… as possible. Again, we thank you for that. If we may ask: what reforms to the system of regulation and discipline of advocates and others practising law in the Isle of Man would you recommend then?

30 Mrs O’Rourke: Well, that is a very big question and it would be a very big project because legal services are delivered by lots of people on the Isle of Man.

______63 CLP 87 SELECT COMMITTEE, FRIDAY, 2nd May 2014

Traditionally people think of advocates as just delivering legal services and back in the day that was probably the case, because most Manx advocates were just general practitioners. They were the ones that you would go to for any legal advice at all. It is a small Bar and most people 35 where skilled at doing most things. That is no longer the case. The Bar has grown significantly. We have got about 218 members at the moment. But you have lots of other people doing things that previously would have been done by lawyers. So when you are talking about regulating lawyers, do we mean regulating that profession or do we mean regulating the legal service provision? 40 If we look at foreign lawyers on the Isle of Man, we have got to something called a ‘registered legal practitioner’. So somebody who is a solicitor, maybe in South Africa or England, can come over here and they can set up practice or they can work for somebody else. We do not have any jurisdiction over them. The Advocates Disciplinary Tribunal does but we, the Law Society, do not. So, if we were to change the way in which we regulate Manx advocates, that would not touch 45 the registered legal practitioner profession.

The Chairman: That is very interesting.

Mrs O’Rourke: You have also got people who are delivering legal services within accountancy 50 firms because there are only certain areas which are reserved to advocates to deliver. So I think there is a very real need to look at who is delivering legal services, how they are delivered and who is regulating them.

Q218. The Chairman: That is very interesting, Mrs O’Rourke, but of course if we take the 55 situation that we have been examining more into focus, which of course are advocates who are representing the ordinary person on the street… [Inaudible] when I say simple criminal… (Mrs O’Rourke: Civil.) for this Committee’s circumstances, the more simple civil matters – which is what the Committee has been dwelling on, although we take the wider aspect into consideration also, from what you have seen and from your submission, what would you say 60 would be most appropriate to be changed there?

Mrs O’Rourke: I think first of all we need to recognise that Tynwald and society wants legal services to be regulated, and when the Law Society’s functions were set out in legislation they had the character of a regulator’s functions – not all the characters and it did not say the Law 65 Society was going to be a regulator by name, but I think as time has gone on we have accepted that we have a regulatory function. We have also got a support function for the profession. That is also laid out in the statute that Tynwald thought was appropriate. I think as things develop we need to examine more closely how those two relationships sit with each other. If you look at the UK, for instance, what they decided was it was not really 70 possible to deliver services there that were both support services and regulatory services within the same body, which was the Law Society. So what they did was they delegated the regulatory function to another body called the Solicitors Regulatory Authority. They do the sort of conduct- making, they make the rules and that sort of thing; they do not do the discipline. The professional side of support things are done by the Law Society and the regulatory bit is done by 75 the SRA. Remember that we are a fused profession so we are both solicitor and barrister. So, if you look at the UK, that is about 127,000 solicitors and there are 15,500 barristers. That is a lot of people and you have got a lot of volume there. We have got 218 advocates, so it would be very difficult for us to say, ‘Let’s replicate what goes on in the UK,’ because we just do not really have 80 the numbers to justify it; it would be very hard to do it. If you look at Scotland, Scotland do the same thing we do. They have got a Law Society which both regulates and acts as a professional body which supports the profession.

______64 CLP 88 SELECT COMMITTEE, FRIDAY, 2nd May 2014

So I think there is still an argument for saying that you can do both roles together if you are clear about what you want the regulatory role to be and what you want to support function to 85 be. I think you have to be very clear in how you deliver those things and also you have to decide to what extent you want to fund it. So if you were to look at an organisation, suppose you set up a separate organisation akin to the FSC, who is going to fund it? At the moment Tynwald is funding the FSC quite considerably. I doubt whether they would be very keen to put new money into a new regulator. 90 Q219. Mrs Cannell: Sorry, Mr Chairman, if I could just come in? So the public… Good afternoon, Mrs O’Rourke. The public – there is a perception there then of bias, isn’t there – (Interjection) a bias with the Isle Of Man Law Society because, on the one hand, they regulate to a degree and, on the other hand, they support? 95 Mrs O’Rourke: I do not know whether there is a perception of bias. I think there might well be a perception of conflict and I think that, essentially, it is a function of statute. That is what the statute did when it set up the Law Society’s functions; it gave it both of those sets of functions. And I think, again, it goes back to the fact that at that time there were very few advocates, the 100 notion of regulation was very much in its infancy and I think that the way the Law Society has tried to deal with that is the way we often try to deal with conflict in a small jurisdiction or a compact jurisdiction, as Deemster Doyle accurately refers to it – is that what we say is, ‘We recognise the perception of conflict or in some cases real conflict. How do we manage it?’ The way in which we manage it in the Law Society is that we operate through a council, 105 which again is provided for statute, which is practising advocates. So they are elected by the membership, and they are practising advocates and they essentially make the policies. Latterly – I have been in post for about five years – there has also been a paid executive. So we now have a Chief Executive post – I am not a Manx advocate; I have never been a Manx advocate; I have been a registered legal practitioner – and then we have two people in a 110 compliance team. We work on any known names basis as far as we can, as far as council is concerned, so we try to, within the organisation, separate out those functions and we try to reduce conflict where it is possible to. First of all, we have to identify it, then we have to identify what is a proportionate way in dealing with that conflict. 115 I think perhaps, if I can pre-empt you – I do not think you were going to say this but – if the next point was going to be, ‘But how can members of the public be reassured that when they have got an issue it is dealt with properly, impartially and without that conflict interfering in the way the decision is made?’ then I think, again, we have to look and see, ‘Well, where have we come from?’ 120 We have traditionally always had a conciliation service within the Law Society and when I took up my post that was provided by practising advocates because there was not an executive to do it. When I came into post it was recognised that that was something that I could do because it would remove the layer of perceived conflict because I am not a practising advocate; I have got nothing to gain from advocates being found not responsible for their actions. But even I 125 found that, although I was not a Manx advocate and although I had nothing to gain, the perception of conflict was still there. I am a qualified mediator. I have always made clear, in the course of any mediation that I did or conciliation that I did, that I would not take overly into account the interests of the advocate but neither would I overly take account of the interests of the complainant; I would treat each 130 impartially. But I still felt that it was not as good as we could do and so we then approached the Legal Ombudsman in the UK and asked them could he provide a complaints service for the Isle of Man? He was very happy to do that and came to visit us and we did all sorts of presentations, but unfortunately the legislation in the UK does not allow that body, at the moment, to have

______65 CLP 89 SELECT COMMITTEE, FRIDAY, 2nd May 2014

135 jurisdiction in this jurisdiction. It is something that they are looking at. They have got it on their agenda of things that they would like to change.

Q220. Mrs Cannell: Sorry, when you say ‘they’?

140 Mrs O’Rourke: The Legal Ombudsman in the UK. So I am still in regular contact with them. I go over and meet with them on a regular basis, take their best practice and that sort of thing.

Q221. The Chairman: But, surely, could our legislation not be put in place here for that 145 person to operate in that role here on the Isle of Man?

Mrs O’Rourke: Because he would be prevented from doing it from his side. His power and ambit would not extend. So what is the next thing that we could do? We said we were going to appoint somebody 150 who is independent and who, on the Isle of Man, is actually perceived to be an independent character? That is why we asked Ian Cochrane, who used to be the Manx Industrial Relations adviser who, again, has got a long history of impartial negotiation conciliation. So he now provides – independently of the Law Society, save that the Law Society and, therefore, advocates pay him – a conciliation service. 155 So if somebody has a complaint to make about an advocate, that relates to service as opposed to professional conduct, they will contact us. We do not deal with papers at all; we send them on to Ian and Ian has got his own e-mail contact, he has got his own telephone contact; and he will then run the cases. I do have some figures for you. I do not know whether you are interested in statistics or 160 whether you just want principles but we transferred to him, in November 2013, 13 cases and he has worked on them really well; and I think – from what I hear – both advocates and complainants are very pleased with the work he is doing. Of the 13 cases he took on, three are ongoing – of which one is in the process of being settled; it is just pending paperwork. Six are settled; one conciliation has been declined by an 165 advocate, because under the conciliation rules it is a voluntary process; to complainants have withdrawn their complaint and one conciliation ceased because the complainant turned against the Legal Aid, to complain about the legal aid as opposed to the actions of the advocate. I think those statistics say to me that he seems to be doing an effective job and I am pretty happy with it. I have not had any complaints from complainants and I have not had any 170 complaints from advocates. It is a service that is free at point of use to complainants and advocates fund it as part of their subscription fee.

Q222. Mrs Cannell: If I may, Mr Chairman, would you say that the public are well aware of this facility? 175 Mrs O’Rourke: Certainly, it is on our website and when we first introduced it it stayed on our news item on the very front page. So as soon as you went on to our website it was on the news page of our website for probably about a month to six weeks. We are aware that there is some confusion in the minds of the public about legal service 180 providers and who their regulator might be; and, I suppose a year ago, we employed Stephen Ritch to do some media work for us and it is on his agenda to do a piece in the newspaper about Ian’s role working with the Society. We had some difficulties with Manx Telecom and we did not want to do a piece that would give out wrong information – that people could not get hold of him when we said that they 185 could get hold of him. All that seems to be solved now so people can readily get hold of him.

______66 CLP 90 SELECT COMMITTEE, FRIDAY, 2nd May 2014

Q223. Mrs Cannell: Would it not be helpful to, rather than have a publicity splash about it which can often get forgotten a year or two later – especially when a Member of the public is faced with a problem and a dilemma, a legal one – to have leaflets available? 190 Mrs O’Rourke: I am not sure about the value of leaflets. I think when I came to the last hearing and Mrs Cracknell was giving evidence, she said if only she could have Googled something. But, in fact, had she Googled something she would have instantly come up with the conciliation bit on the Law Society’s website, because it is all still there. 195 I am not sure that people would pick up a leaflet. I am not sure where they would go to for a leaflet and it quickly becomes out of date. It is something that we have debated and if you think that paper would be a better format than online –

Q224. Mrs Cannell: I think it is a case of… I mean, you say that you remember Mrs Cracknell 200 saying, had she Googled or got onto the internet… The fact of the matter is not everybody has got an internet (Mrs O’Rourke: That is true.) and they tend to Google to do further and better research, not necessarily to research and localise that particular issue. I think Mr Chairman might agree with me that leaflets in crystal English – without putting all the detail in but the very fact that the service is there and where they could draw upon that 205 service and (Mrs O’Rourke: They will…) contact details – would be very useful. It could be all around the public libraries. It could be anywhere really.

Mrs O’Rourke: All clients will get an engagement letter from the advocate and in that engagement letter it will identify the means for complaining. So conciliation is actually the 210 second step because it will identify first of all –

Q225. Mrs Cannell: Could I just ask you to pause there? (Mrs O’Rourke: Yes.) This is the one thing that we have received evidence – oral and written – where there is a problem, because there is a lot of gobbledygook in these documents that advocates send out after a client has 215 agreed to engage their services. They are far too complicated for the ordinary man and woman to understand and we feel that there seems to be a big gap there, in terms of understanding guidance and being clear about what they are getting themselves involved in, what they can expect from the advocate, what they can do in fact if the advocate lets them down. There is a big gap there; there is a big grey area. 220 Mrs O’Rourke: I do not know that there is a gap in terms of the actual information being provided. I would agree that there is always room for improvement in the way in which we communicate. It is always very difficult, isn’t it, when you are an expert at something? You assume a level of understanding that is not always there. 225 If you are routinely issuing letters of engagement for a professional relationship, you might assume a level of understanding about what will be involved in that relationship, and in fact it may not be there on the part of the lay member. So one of the initiatives that actually our President is going to undertake at the moment is – not plain English lessons, that is too patronising but – some plain English workshops where we 230 can talk about that sort of thing and say, ‘We know what we mean by it…’ Actually I am not a Manx advocate so maybe I would be a good guinea pig. ‘Well, I do not know what you mean by it, perhaps, but… You might know what you mean by that but would other people?’ It is like reading legislation, isn’t it? I mean legislation is there for everybody, it governs everybody’s life, but I think if most members of the public read a piece of legislation they might 235 find that they are none the wiser.

Mrs Cannell: Well, they would not understand it. It is a simple as that. Okay, thank you, Mr Chairman.

______67 CLP 91 SELECT COMMITTEE, FRIDAY, 2nd May 2014

Q226. The Chairman: Thank you very much. 240 Mrs O’Rourke, you mentioned of course that your conciliation procedure – or the way I understood it – was you initially refer the initial complaints to Mr Cochrane in the appropriate cases, (Mrs O’Rourke: That is right.) if I may say – putting words in your mouth – and then you would go through the second part or second phase of the conciliation procedure. How do you view that with this very helpful, initial…? Do you put all your complaints initially, 245 if I may say, through Mr Cochrane (Mrs O’Rourke: Yes.) and then move on from that if the complaint is still not –

Mrs O’Rourke: When you say ‘the second phase of the conciliation’, do you mean a complaint to the Advocates Disciplinary Tribunal? 250 Q227. The Chairman: No. When they make the original complaint, do you channel all the original complaints – initial complaints – through Mr Cochrane –

Mrs O’Rourke: Absolutely, yes. 255 The Chairman: – if you like, as a –

Mrs O’Rourke: Independent, yes.

260 The Chairman: Yes – as a filter system, for the want of a better word?

Mrs O’Rourke: Not really as a filter system, no, because it would not go anywhere else. Ian would deal with all the complaints. So they would come in to us and we would automatically forward them on, and then he will deal with them; and he deals with them without identifying 265 complainant’s names to me. Then I would ask him for a report and I will then report back – just in the way I have reported to you – to council to say, ‘This is the level of conciliation matter’. I think it is important to remember that the conciliation scheme is often confused with the Advocates Disciplinary Tribunal. People say, ‘Do I have to do go through conciliation before I can go to ADT?’ Of course, that is not the case; they are two very different sorts of complaint, in 270 reality. It is a shorthand way of saying it but, the conciliation scheme… really what you are trying to do is to maintain a relationship. It is where something has gone a little bit awry in terms of what I would characterise as a service delivery; whereas a complaint to the Advocates Disciplinary Tribunal would be in respect of professional misconduct. 275 Q228. The Chairman: Will you move down the conciliation road for certain complainants before, or if the complainant does not wish to go down, the filtration process of Mr Cochrane?

Mrs O’Rourke: It is entirely up to the complainant how they want to have their complaint 280 heard. So in previous days, when I was handling conciliation, I would always say to them it is always a good start to use the internal complaints system because there will be a partner there who has got a very keen interest in making sure that you are a satisfied customer. If that does not work or you have tried it and it does not bear… let’s go down conciliation. But 285 I think it is really important to stress that that is not a filter, that it is something in and of itself. It is a process in and of itself and it has its own conclusion. There is no set penalty, there is no reprimand, there is no fine, there is no compensation, although very often it will lead to a settlement as regards payment of fees. But for professional misconduct issues that is a separate process altogether and one is not dependent on the other. I

______68 CLP 92 SELECT COMMITTEE, FRIDAY, 2nd May 2014

290 do not regard one as higher or lower in the scheme of things; I regard them as completely separate lines of complaint.

Q229. Mrs Cannell: Mr Chairman, following on from that, it is complicated for a member of the public. I mean what you are saying demonstrates that – that a person will say to you, ‘Do I 295 have to do go through conciliation before I can lodge a complaint about a lawyer to the Tribunal?’ Do you not think there would be merit in sort of streamlining and modernising this going forward, where the two processes were combined? In other words, going on from what Mr Chairman said – he said, ‘the second phase’ – I think we, both of us, thought that initially 300 perhaps a person might come to you, as the Chief Executive, and then if you were unable to satisfy them with their concern they would go to the likes of someone like Ian Cochrane to try and resolve it. Then if it were shown at that level that, in fact, there were a number of questions arising from the quality of the service provided by the advocate which merited a formal complaint, it would then go to that stage so that you have actually got a three-tier stage, but 305 that they are interlinked. Would you not support something like that?

Mrs O’Rourke: No, I would not, because of – I think, in the first instance – our opening remarks about the perception of conflict. If something came to me in the first instance, there would automatically be that the perception of conflict; which is why we have tried to find a way 310 to avoid things coming to me because I am branded ‘The Law Society’ and so there is straightaway a perception that I will be conflicted in some way. So I think me being involved in the chain… We have worked quite hard and we are paying quite a lot of money, relatively speaking, to make sure that I am not in the chain. (Mrs Cannell: Okay.) So if we lost that step, I think certainly we have to have the Law Society as a signpost, if 315 you like, as a referral. If I can just compare what happens in the UK, because there have been some recent changes in the UK and bearing in mind, as I have just said, it is quite a bigger population in terms of the lawyers who are there. They have just introduced in the UK this legal ombudsman who deals with all complaints as a starting point against all the lawyers. That includes people who you 320 would not normally expect, so it includes the Council of Licensed Conveyancers and they are just about to also take on jurisdiction for claims handling management. What happens there is all the complaints come through to them in the first instance. And last year they had about 71,000 initial contacts, so we are talking about quite a big operation. It cost £16.6 million for this, so it is not to be taken lightly; and what they do is they try, in the first 325 instance, to deal with things quickly and efficiently as possible over the telephone. It is a very modern set up, if you go to the building; it is quite surprising. It is a bit like a call centre. It is all done over the telephone, which I think goes back to your point – actually, if I have a conversation with you, it is much better than my sending you a letter that might be written… you might not even be able to read, English might not be your first language, you might be 330 confused about the service you have been provided with. So if I can have a conversation with you, you can identify to me fairly readily what the problem is, which is why it is so important, we felt, for Ian to have direct telephone contact with the people that he deals with. So they deal with about half of their complaints just over the phone and get rid of them. That is basically on service delivery. They do have the power to make a compensation award, but they 335 say their biggest power is to be able to compel an advocate – I am saying advocate but it is any sort of lawyer – to make an apology. But, if they feel that there is a more serious issue relating to professional misconduct, they do not handle that because they say it is a different sort of issue altogether and that goes back to the professional body which governs that particular branch of legal profession. 340 So, for instance… I am sorry. This is complicated. It is very complicated. In the case of solicitors, it goes back to the Solicitors Disciplinary Tribunal which is a body which is made up of

______69 CLP 93 SELECT COMMITTEE, FRIDAY, 2nd May 2014

visitors and lay people. In the case of barristers, it goes back to the Bar Standards Board who then delegate it on, after initial consideration, to another body which has just been set up.

345 Q230. Mrs Cannell: I am just wondering, if I can ask you… I do understand the process in the United Kingdom and of course also what we have here, but you have now gone on to explain to us how a wanting advocate or solicitor or barrister or lawyer is dealt with, in terms of the service he has provided; we have lost Joe Public somewhere. He has been left behind now.

350 Mrs O’Rourke: No, because it is Joe Public who has made the complaint in the first instance.

Q231. Mrs Cannell: Sure, but there is nothing within the process that gives him justification if his complaint is found to be justified.

355 Mrs O’Rourke: The complainant? (Mrs Cannell: Yes.) Well, if the Legal Ombudsman upholds his complaint, he can make an award of compensation which is received by the complainant, Mr Joe Public. If it goes forward on a matter of professional misconduct, obviously the relevant disciplinary body has got powers – significant levels of sanction – which will start off with a fine and will end up with the ability to stop them 360 practising or put conditions on their licence so they can only practise in a certain way. So it is a very interesting concept. When you look at regulation generally and regulators generally… If you look at the General Medical Council and the dentists and lawyers – if you look at generally all branches of regulation – the issue of compensation to Joe Public is one that is a moot point and is frequently discussed as a sort of intellectual… Is the point of regulation to 365 provide compensation to the person in question or is it to provide a sanction against the professional who is being regulated? Most regulators for most professions in most jurisdictions seem to come down in favour of saying it is actually to provide a sanction against the professional. I suspect that is because they say there are other routes that Joe Public can use to get some sort of compensation; and that 370 what you have to do to recompense, financially, Joe Public is to look at the nature of their private commercial relationship with the legal service provider. So, essentially, they can put into the hands of the regulator a matter which requires, for greater public interest, a penalty to be imposed against the professional to either discourage them from doing it again or to take them out of circulation altogether. But if you want to get 375 financial compensation yourself, as Joe Public, then you can bring an action in whichever court – the small claims court or the higher court – for a breach of contract or for negligence, which would give you the financial compensation that you would be entitled to.

Q232. Mrs Cannell: Sure, but you would have to have means in order to take it that far. 380 Mrs O’Rourke: Unless you were legally-aided. I think it is also one of the points that you raised about the fairness of the ADT as a platform and the fact that advocates are represented and complainants are not. Of course, complainants are entitled – luckily, in this jurisdiction because in adjoining jurisdictions they are entitled to 385 very little from legal aid… But in this jurisdiction legal aid is available for somebody to bring a complaint before the ADT.

Q233. Mrs Cannell: But the legal aid is growing out of all proportion in the Isle of Man – over the last five to 10 years – and it is starting to create a bit of a problem for the taxpayers. 390 So I thank you and I thank Mr Chairman for you taking us through that process, but I still have a concern that somewhere there the complainant, who has a genuine case, a genuine grievance, may well have been so badly let down by the advocate – who has not necessarily broken any

______70 CLP 94 SELECT COMMITTEE, FRIDAY, 2nd May 2014

disciplinary regulations, in terms of his conduct of the case, but he has just been so slow or so slack that the client has now lost money or means. 395 Mrs O’Rourke: I think that is when you go back to your remedies that you would have in any commercial relationship. That is what the courts are for. But recognising – and I think this is the case in other jurisdictions too – that is not always the best way. That is why I think we have these conciliation schemes, a legal ombudsman scheme, to say, ‘Well, is there another way that 400 we can get to Joe Public?’ Joe Public very often does not actually want money. What they want is recognition of the fact that something has gone wrong and very often they want an apology; and a conciliation service – whatever you call it – can provide that, I think, perhaps more readily than…

405 Q234. Mrs Cannell: I accept what you say but I would not say that the vast majority just simply want… In the cases and the evidence that Mr Chairman and I have been receiving, it has been a lot more serious than just an apology.

Mrs O’Rourke: I think if we are talking about… This Committee is to talk about delays and 410 what you are saying is if something has been delayed and therefore cost… Well, there would be an ability to take action now. If you are saying that people would be reluctant to do that then, of course, the other thing that they could do is to say, ‘Well, actually I would like to have my bill assessed,’ which they can do. There are two mechanisms for doing that. You can have your bill assessed through the court 415 or you can have your bill assessed through the Law Society’s assessment scheme.

Q235. Mrs Cannell: Thank you, Mrs O’Rourke. We are fully aware of that but then, of course, you also have the other mitigating factor of running out of time – so if you have an advocate who has not broken any disciplinary regulations but has been extremely slack and slow, thereby 420 causing the actual case and grievance of the complainant to run out of time.

Mrs O’Rourke: Are you talking about in terms of limitation periods there?

Mrs Cannell: Yes. 425 Mrs O’Rourke: Yes. Perhaps it is not appropriate for me to talk about the other case that you heard from, although I know that was an issue –

Mrs Cannell: That is only one case. 430 Mrs O’Rourke: Yes. That was an issue. I am not aware of any other cases where the limitation period has been called into question, but I think in all those issues relating to time you have to accept – and it is something that in the criminal sphere is now generally accepted – that there is inevitably a certain amount of delay 435 inherent in a litigation system. Before I came here – I know that we gave you certain information in our response but – I did ask just three or four advocates to say… ‘Give me some very concrete examples that I can understand and I can give to the Committee that would explain why there might be delays in civil proceedings and, in respect of which, there would not necessarily be any fault on anybody’s 440 part.’ So I am not saying to you pass the buck to somebody else, but I am just saying, do explain to me where the delays might arise. So, if you want me to just very briefly take you through a case where legal aid might be involved and a case which is privately funded or a case where an insurer might be involved? In the first instance – let’s say legal aid – legal aid is only available for very limited circumstances

______71 CLP 95 SELECT COMMITTEE, FRIDAY, 2nd May 2014

445 when a case begins. I believe it was a result of the last Select Committee on Legal Aid that they said that in the first instance, to protect the public purse, an advocate should only be able to go as far as negotiating something. So you have to try and see if you can settle it without taking proceedings out and if you fail at that stage then you have got to go back to Legal Aid. Obviously Legal Aid have got certain standards to fulfil – they are accountable to you and the 450 rest of the public – so what they have to do is, at each stage of the game when they are extending an advocate’s certificate to do the next step in the process, what they say is, ‘Demonstrate to us that this is appropriate. Demonstrate to us that this is necessary.’ What that means is that they will very often ask the file to be sent back into them so they can look and say, ‘Yes, we said you could negotiate. Yes, I can see you tried to negotiate. That did 455 not work so, yes, I can see the next step is warranted and, okay, so the next step might be, for instance, we need to call in some experts.’ This applies whether it is legal aid or whether it is privately funded. If you have got two opposing people, they are both going to want to have their own experts. So you would be in a position there where what you are trying to square in terms of litigation is 460 the diaries of two experts, the court, two advocates and the parties themselves. So already you are looking at trying to get a date that suits all of those people. They have then got to provide the information that you are asking them to give. If Legal Aid is involved, at each step along the way you will have to go back to Legal Aid and say, ‘Can I now do the next thing? Can I now do the next thing?’ There is no way around that 465 unless you say Legal Aid can say, ‘Crack on and we will just audit files on a random basis,’ and that is for Legal Aid and Tynwald to decide whether they want them to operate in that way. If you say you want to measure how much legal aid funding has been given out on a step-by- step basis then, inevitably, it is going to bring delay into the proceedings. There is no way around that. Anything that involves an expert is going to bring delay into the proceedings. Third-party 470 funders, like insurers, are effectively going to be operating like Legal Aid. They are going to be saying all the way along, ‘I am not sure. Do you really need to do that? Do we really need to have that expense?’ and they will be checking it all the way along.

Q236. Mrs Cannell: So what you are suggesting then, through Mr Chairman, is the legal aid 475 issue is that there can be an inevitable delay because it is staged? (Mrs O’Rourke: Yes.) Okay. What about someone who is not relying on legal aid?

Mrs O’Rourke: Well, again, in the situation that I was talking about, in lots of cases – let’s say medical cases – you are going to have to get an expert opinion. It might be an expert opinion 480 from a consultant in the UK, for instance, who will then have to do an examination. Then the other side might also want to do an examination and also produce an expert’s opinion. Somebody has got to timetable it all. Somebody has then got to find a slot in the diary for the court where everybody can attend, they can give their evidence, the questions can be put. So it does not really matter whether it is legal aided or not. The process of litigation is about 485 establishing the facts for your client, whether you are on the defending side or the claimant’s side – establishing the veracity, establishing the strength of what the other party says, establishing how you can defend your claim, establishing where you can get extra information from – whether it is expert information that you need or not, whether you need to go back and get more witness statements. That sort of thing. 490 Q237. Mrs Cannell: I think we can accept that – I mean, in complicated issues like that, when you are talking about medical complaints, health complaints and also mental health complaints, and then of course the other civil things that come up. But would you – to try and sort of square it, if you like, on this question – consider it odd that a local advocate should take on a client, 495 agree to be engaged by a client to pursue a matter which required a medical opinion on the mental health and stability of the client, whilst the matter was, in fact, already out of time?

______72 CLP 96 SELECT COMMITTEE, FRIDAY, 2nd May 2014

Would you find it surprising that an advocate agreed to take on that case when it was already – had it been pursued to its ultimate conclusion – out of time?

500 Mrs O’Rourke: I think that we are talking about a specific case here and the evidence was given at the last hearing in respect of that specific case.

Q238. Mrs Cannell: Yes, but I am just talking about it in a general sense because there is more than one – 505 Mrs O’Rourke: In a general sense, if it was that clear cut then, yes, it would be odd; but it is often not that clear cut and I think, in the case that you are referring to, the issue that related to limitation was when the injury was sustained. So there would be a lot of work in establishing when the injury was sustained. 510 Nobody – unless they were very foolish – would say, ‘I am going to take on a case that is not capable of being fought.’ You would not do that because your primary obligation, under the code of conduct, is to act in your client’s best interests and, if it was perfectly self-evident from day one that there was no way there was a case that could be advanced, it would not be in your interest to do any more work. 515 That is the straightest case of professional misconduct you could get and it would be perfectly appropriate to go to the ADT. However, unfortunately, it is not always so very clear and, just as you were saying before about clients sometimes not understanding the terms of the letter of engagement that comes to them, so equally they do not understand that they have brought with them letters 2, 6 and 8, and that, unless the advocate has the whole bundle of 520 letters 1 to 50 or the whole bundle of documents 1 to 50, he is not going to be able to advise. Very often the advocate does not know about the existence of documents 35 to 50 and it is not until you start to get into it and you say, ‘There is a reference in this letter to a meeting, a report on the meeting. What was that all about?’ ‘Oh, is that important?’ So inevitably – and we talk about simple matters but very few matters in life that go to 525 advocates are that simple; there is always a wrinkle, there is always a particular difficulty… that you need to establish the facts. And not establishing the facts is a recipe for disaster.

Q239. Mrs Cannell: Thank you, Mr Chairman. But taking on board what you are actually saying, I mean a member of the public would 530 expect a qualified lawyer to be able to get to the nub of the matter –

Mrs O’Rourke: They would.

Mrs Cannell: – and be able to request from the client all of the available paperwork – 535 Mrs O’Rourke: Yes, they would.

Mrs Cannell: – that was necessary and (Mrs O’Rourke: And advocates would.) also have the staff mechanism in place to be able to scrutinise that paperwork and pick up the example that 540 you have just made reference to and to do it in an orderly time. But what you are saying is that that does not always happen.

Mrs O’Rourke: No, that is not what I am saying. I am saying you are absolutely right, I would agree with what you just said but that the client would not necessarily always realise the papers 545 that they have got… Bearing in mind that this can be relating to events that might have happened two or three years ago, lots of papers might have been put in a file as not being very relevant, when in fact they may be the most relevant papers. The only way you can establish

______73 CLP 97 SELECT COMMITTEE, FRIDAY, 2nd May 2014

that is to try to understand, from the client, the nature of the case and then say, for instance, ‘Would you have any papers relating to…?’ 550 I think in the case that you heard from on the last occasion, there were actually some quite complicated facts – a fact scenario there that was very complicated, that your complainant was talking about, where in fact the injury in question had not come to light until quite some considerable time after he had finished working in the particular area that he was working in. Nobody understood the relevance of the work that he had been doing then, in the context of 555 what happened subsequently and so –

Q240. The Chairman: I think we are talking about a case and we must desist from going too much into it… only that the advocate was questioned by this Committee and he did admit to doing, really in a nutshell, absolutely nothing for 12 months – nothing at all. 560 Mrs O’Rourke: I do not think that is what he did admit to, but –

Q241. The Chairman: Well, that is for the Committee to decide upon, but the issue is there were some very serious issues that we need to look at. 565 If I can come into that, we have been asking – and Mrs Cannell has gone into a great deal of detail… into other ways of trying to assist a particular client who feels seriously harmed by what has been done on them and the time delay and so on. Have you any other suggestions… I mean you have covered an awful lot – and we are very grateful to you, Mrs O’Rourke – about legal service ombudsman – you have given us a point on 570 that – and independent regulation and the cost of that. Would there be, for instance – and I am just thinking, coming back from rather a wild approach now on this… For instance, if you saw that someone had not received their own justice in a matter, could you allocate them another advocate from another practice? Have you a scheme or thought of a scheme of doing that – to try and help that person who is in serious 575 distress at that time and has lost a lot of ground because of the actions of another advocate?

Mrs O’Rourke: Well, I think there are a couple of issues there. First of all, you cannot underestimate the significant importance of the client confidentiality relationship. So I would not know if somebody had X, Y, Z as their advocates or not. There is no way in which I could just 580 pop into an advocate’s firm and have a little look around at the list of clients and say, ‘Oh, I see you are doing –’

Q242. The Chairman: Let’s just assume, for the sake of it, that you have established that somehow. 585 Mrs O’Rourke: If somebody comes to me and says, ‘I am not very happy with the service I am receiving from my advocate and I do not really want to be bothered with your conciliation service and I do not want to be bothered with their internal complaints service, and actually I am not interested at this point in time in going to the Advocates Disciplinary; I just want somebody 590 who is going to look at my matter,’ I would not recommend another advocate to them. The reason I would not recommend another advocate to them is I do not know enough about the particular difficulties of that client’s particular case, to know that I would be recommending them the right advocate. It is a bit like somebody recommending a dentist or an optician to you. You might think they are great, somebody else might think they are awful, and yet they are 595 providing just the same service. So what we do is we say we do not recommend people but we do have, on our website, a ‘Find an Advocate’ function. (The Chairman: Yes.) So you can –

Q243. The Chairman: We are aware of that, Jane. That is not helpful, really.

______74 CLP 98 SELECT COMMITTEE, FRIDAY, 2nd May 2014

600 If I could perhaps just move on then along the lines… You very carefully and helpfully brought out a number of other skills that advocates should have, in your answer to Mrs Cannell earlier. I just want to summarise some of them. In addition to, obviously… that they are legally qualified, that they should have an enquiring mind, good management and administrative skills for good case file management. That is the 605 area that this Committee is looking into. If I may, this Committee is looking into the more simpler aspects of advocates simply not pre- reading a file when they next write a letter and the letter that they may write on this particular day has already been written two or three letters earlier, asking the same questions – things like that. 610 So, good case management… Would you say that they should have a good ability to manage files…? It is an obvious question, Jane, it is just I am asking an obvious…

Mrs O’Rourke: Not only should they but they invest many thousands of pounds in computer systems which enable them to do just that. 615 Q244. The Chairman: Fine. So why is this Select Committee sitting then?

Mrs O’Rourke: Well, that is really a question for you, I think, rather than me because I do not know the complaints that you have received. The only complaints that I am aware of are the two 620 that we have referenced. I am not aware of any other complaints in particular.

Q245. The Chairman: For your information, we have looked at a lot of other files of complaints and then, of course, brought the people to an oral hearing in the way that we particularly have. 625 Mrs O’Rourke: I would be more than happy to look at any of those complaints with you and talk to the advocates in question if there are any particular questions.

Q246. The Chairman: To which we are very grateful, thank you. 630 Can I move on to my last main question, if I may? We are looking at the standard of advocates and the abilities… that they work hard and their minds are on the job. That is what it amounts to. That is what it really amounts to. No matter how many good IT requirements and procedures there may be in order to remind advocates, your mind has got to be on the job. I know that I go home at night thinking, ‘How am I going to sort this arrangement out for that 635 particular constituent or that particular piece of Government work, and so on?’ and having an interest in it and putting your mind to it in that regard. As far as standards are concerned, for advocates… because what this Committee understands is an advocate gets his legal qualifications, he is associated with someone until he gets those qualifications, then he or she is called to the Manx Bar. They are then out to operate either on 640 their own or within a practice arrangement. As far as PDR reviews – reviews on the standard of their working practice – what do you know, Mrs O’Rourke, about… If I may put two separate advocates – an advocate who is working for a large practice that may or may not have a PDR scheme…? Do you know about that and so on? 645 Mrs O’Rourke: Do you mean a CPD scheme?

Q247. The Chairman: CPD, yes. (Mrs O’Rourke: Yes.) A scheme that monitors their performance and then, of course, if you are an advocate operating on your own, as a singleton… 650 those people do not have a CPD PDR scheme that monitors in an annual way, like many other cases, their ability and performance for that particular year.

______75 CLP 99 SELECT COMMITTEE, FRIDAY, 2nd May 2014

What do you have to say about that because there is not an official one or if there is could you let us know about it?

655 Mrs O’Rourke: Yes, there is. (The Chairman: Thank you.) I think, just scrolling back to what you say, remember that at the point at which they qualify they will have undertaken basically six years of legal training. They cannot then go out and just set up on their own. I think it is three years that they have got to be with somebody before they can go off and set up on their own. But, regardless of whether you are a sole practitioner or 660 whether you are working in a big firm, there is an expectation from the Society that you will engage in an appropriate level of CPD and it will be about 16 hours. To ensure that people do that, there are other things that we do and expect from the Law Society. For instance, to be on the Duty Advocate Scheme – so you want to appear in the police station or in the courts as a duty advocate – you have to undergo certain training. In respect of 665 that, we do training that is provided by two qualified, experienced advocates and also we bring somebody in from the UK who delivers training to solicitors. There is a requirement that you have to do that before you can go on the Duty Advocate Scheme. We also, throughout the year, run another series of courses and we are constantly responding to people when they say, ‘We want training’. So the latest training that we are doing 670 at the minute is going to be ethics training. We keep –

The Chairman: No, sorry. Carry on.

Mrs O’Rourke: We keep an attendance register in respect of everybody who goes on that and 675 that gets put on their file. We also have a scheme whereby trainees who are about to sit their exams they attend lectures. So the people who are delivering the lectures and also the people who are attending the lectures… that is CPD. What we try to do on the Isle of Man, which is not done in the UK… In the UK they have a compulsory requirement to undergo CPD but it is not relevant CPD. So, for instance, what you 680 tend to find if you go on to, say, the SRA – that is the Solicitors Regulatory Authority – website you will find there is a list of accredited CPD courses you can go on. Towards the end of somebody’s CPD year, they will just cram in a number of hours. So commercial aircraft might be your field of practice but, just to get your hours in, you will go on ‘Attending a Police Station’, ‘Child Vulnerable Witnesses ’ – that sort of thing. 685 What we try to do to encourage lawyers here to do relevant CPD is we will try to focus our training sessions to the particular areas of Bar. So we recently brought somebody over to do training in respect of drafting of family orders. You may remember that last year we did quite a big session – a four-day session – on Vulnerable People in the Justice System and we brought over two QCs to do that and Baroness Newlove. 690 So, although we do not ourselves have a compulsory CPD programme, we do have an expected CPD programme that people comply with; and we know who has done the training. They have to do certain things, so they have to do the duty advocate thing, they have to do the AML training. We also have a number of our entities who are providing CSP services and so they are 695 licensed by the FSC, who have a compulsory CPD arrangement; and, to meet their compulsory CPD arrangement – either as directors who are not licensed by the FSC or as entities who are licensed by the FSC – they will take into account the CPD that they do to fulfil the Law Society’s requirements.

700 The Chairman: Mr Phillips.

Q248. The Clerk: I think there may be a slight misunderstanding here.

______76 CLP 100 SELECT COMMITTEE, FRIDAY, 2nd May 2014

CPD, of course, is about Continuing Professional Development, which is very important. But the original question was about something else – about the Personal Development Review, the 705 annual report that people who work in large organisations standardly have to have made written about them. I think what the question was actually trying to look at was a guarantee of continuing quality, not just of the training courses you have actually attended, but the real work you have done as a professional person. I think the question was more directed towards maintenance of standards 710 by way of review by your peers or your superiors in a firm; and how that can be used maybe to guarantee a quality of performance, which sometimes is perceived as lacking.

Mrs O’Rourke: I cannot tell you that I know for sure firms undertake appraisals. I would say that they probably will do. 715 I understand now your point that you are making about sole practitioners – that there is nobody within a sole practitioner firm to undertake an appraisal – but I guess you would have to say that the market will speak for itself. A sole practitioner who was not doing a very good job would not have very many clients and would have a list of complaints before the ADT and possibly within the conciliation service. 720 Q249. The Clerk: Could I just stop you there? How do you know, with the greatest of respect, that a sole practitioner who was not very good would be known to be not very good to their clients, most of whom only hire a lawyer once or perhaps twice in their lives?

725 Mrs O’Rourke: Well, I am not sure that that is true actually. I think that a lot of sole practitioners have continuing business, repeat business, and people would say, ‘He is my lawyer,’ and so they would go back to them… In fact, I was speaking to a lawyer just this morning – at the moment I am engaged in seeing every legal practice; I am going around visiting every legal practice – and he described himself as 730 that old-fashioned sort of lawyer; that he would be a family lawyer, it would be a family office, if you like. And I think it is self-evident that somebody would cease to be in business unless they are providing a service that people thought to be appropriate.

Q250. The Chairman: But before they get to that stage, Mrs O’Rourke, there will have been 735 an awful lot of casualties in clients who have lost their cases, in the cases that you have heard and what this Committee is concerned about and so on. I have always had a rough general line of advising my constituents who wish to go to a lawyer and they say, ‘Well, who is an effective lawyer? Who and where?’ And, of course, I point them in the direction of people who are on the way up because, like in a lot of professions, an awful lot 740 of people are on their way up, then they sit on the crest of the wave, then slowly they eek downwards, but they are still viewed as sitting on the crest of the wave – the tiptop of people. And that is in any profession, that I see that. Controversial, as I say, but the issue is that – specifically with those private or singleton practising advocates – would it not have been a good idea, or helpful for the Law Society, to 745 review the way they file, and run an odd course and see if they are interested enough in coming along? Because, just like in advocacy – in the law, in this case – like in everything else – medicine or what have you – you have to continue to be refreshed. We do, as Members of Tynwald, in laws and changes.

750 Mrs O’Rourke: I am now confused. (The Chairman: I am sorry.) In terms of an appraisal scheme, I do not think it is possible that the Law Society could undertake an appraisal of every advocate, on the basis that you would undertake if you were an employer of the advocate. I do not think that would be reasonable, I do not think it would be appropriate.

______77 CLP 101 SELECT COMMITTEE, FRIDAY, 2nd May 2014

755 In terms of some sort of review to ensure that their standard of work was up to quality, I am prepared to trust market forces, with the assistance that can be provided by a certain level of compulsory training being imposed upon them, which we do where we think it is appropriate. But I think that, in terms of whether or not somebody is going to be good enough to re-instruct, then the market will speak for itself on that one. 760 Q251. Mrs Cannell: Sorry. If I can just come in there, Mr Chairman? You said before that there is no compulsory duty upon any advocate practising in the Isle of Man, other than an expectation that they might – (Interjection) if I may finish? – attend courses that your organisation makes available to them to polish up and improve their technique in 765 whatever area they like to study law in. So what you are saying… the way I am picking it up… (Interjection) Sorry.

Mrs O’Rourke: No, because that is not correct. There is a compulsory requirement to undertake AML training and money laundering training, and also duty advocate training if you 770 are going to be on the Duty Advocate Scheme. Those are compulsory.

Q252. Mrs Cannell: Sure, yes, they are compulsory but the overall picture does not come under a compulsive picture, does it? Because what has come out is that you rely on market forces to determine which lawyer is successful and which one is not. In other words, you go by 775 word of mouth. The public does not know where they can find a good lawyer who practises in one area or another; they have to go by word of mouth. There appears to be no peer review and, as a consequence, there is no periodic quality assurance tested to give confidence to the public that, in fact, those practising – particularly those in a single capacity – are good practising lawyers who have kept up to date with the changes in law that are changing every day. 780 The advocates are reliant on market forces but just imagine a scenario where we had the same sort of system within the medical health services, where patients just had to pick and choose, and they would go by whichever surgeon was most popular and believe he or she was going to be expert in doing that particular piece of surgery; and the rest of them who chose the wrong surgeon, it would be very much hit and miss, and in some cases quite tragic, wouldn’t it? 785 Mrs O’Rourke: I am glad you raised it because I was going to ask you… I cannot think of any other profession in which the sort of scheme you are suggesting would happen. That is very much what happens. If I want to see a consultant, I either take the one that I am given by the NHS or I have to choose one; and the way I would choose one is I would probably 790 say to one of my friends who had had a dodgy knee like mine, ‘Who did you go to for your knee surgery? What did you think? Was he competent? Was his bedside manner good? Was he expensive?’ Those are the sorts of questions I would ask. In terms of his CPD, I would assume that, to get his registration, to have a current registration, he would have had to have complied with whatever professional standards. But 795 actually I suspect most people would not say to their doctor, ‘Could I have a look at your current practising licence to ensure that you have done your CPD?’ I think that they probably would say, ‘My friend came to you and was really impressed with what you did. I would like to use you.’

Q253. Mrs Cannell: Yes, but you had the GMC, which is like the advocates – your situation 800 and the Advocates Disciplinary Tribunal. They are the people who take complaints and medical complaints and will strike a surgeon or a doctor off the register. But what I am trying to suggest to you is, in order to provide a good service to the member of the public – whether you are going for surgery or whether you are dealing with a very sensitive, emotional and possibly very costly legal fight – what you are looking for is quality assurance; what you are looking for is 805 professionalism, qualification and ongoing assessment that the qualification is kept up-to-date.

______78 CLP 102 SELECT COMMITTEE, FRIDAY, 2nd May 2014

It happens in medical services but it does not seem to be happening in legal services in the Isle of Man.

Mrs O’Rourke: Can you explain to me what you mean when you say, ‘It is happening in 810 medical services,’ because I do not understand that?

The Chairman: I do not think we have time for that –

Q254. Mrs Cannell: Sorry, I will just touch on it, just so that Mrs O’Rourke can understand. 815 There is peer review once a year and a practitioner, in order to maintain their registration… Yes, they have to have had so many operations, they have to have attended so many courses, they have to do have done this but their overall performance is judged by peer review.

Mrs O’Rourke: Well, I am not aware of that and, if you are saying that you would like to move 820 to a position, say like in the UK, where solicitors have to do have an annual practising certificate, then that is something you must address in the legislation, because at the moment the way the legislation is drafted, what happens is an advocate receives a commission and that commission remains extant until it is terminated or suspended.

825 The Chairman: That is right and that is the concern we have.

Q255. The Clerk: Could you explain what the basis is of the annual renewal of the practising certificate in England?

830 Mrs O’Rourke: CPD I think largely, yes.

Q256. The Clerk: Just turning up to –

Mrs O’Rourke: Pay your money – proving you have done your CPD. 835 The Clerk: – not necessarily relevant courses and then automatically you get it renewed? (Mrs O’Rourke: Yes.) So there is no qualitative examination?

Mrs O’Rourke: There is bound to be qualitative in terms of the way you are doing your 840 practice for your employer – bound to be that – but, in terms of the SRA, not that I am aware of, no. It is simply a question of: you apply, you pay your fee and I suspect there is some sort of CRB, of the sort that you might expect – as we do when we introduce somebody to the profession: ‘Have you been bankrupt? Have you any criminal convictions?’ That sort of thing. 845 Q257. The Chairman: But nothing on his PDR, nothing on his ability?

Mrs O’Rourke: I just cannot see how that would be done by anybody other than your employer because, to assess your work, you would have to know the case that you are working 850 on and there is no way you could do that without infringing those very basic principles of client confidentiality and legal privilege.

Q258. The Clerk: Do you think that most people who use lawyers are pleased with the service they get in the Isle of Man, or do you think that there is a significant number of people who are 855 dissatisfied with the service they get?

______79 CLP 103 SELECT COMMITTEE, FRIDAY, 2nd May 2014

Mrs O’Rourke: I think by and large those people who lose their cases when they are litigated are dissatisfied with their lawyers; those people who win their cases are happy with their lawyers. 860 Q259. The Clerk: What about people who do not necessarily go to finish litigation but have something settled or it is not a litigated matter, or whatever? Do you think they are overwhelmingly satisfied?

865 Mrs O’Rourke: The only objective measure I have of that is saying, ‘How many people can make a complaint?’ That is not at all the same as saying, ‘Are people satisfied or not?’ but I suppose it does give you a measure of: are they sufficiently dissatisfied as to make a complaint? We know that 15 people a year are sufficiently dissatisfied to make a complaint to the ADT and we know that 13 people are sufficiently dissatisfied to make a complaint a year to the 870 conciliation service. But whether or not there will be layers of dissatisfaction below that, obviously, I could not speak to that.

Q260. The Clerk: You do not have any means of picking up, on an informal basis even, the level of satisfaction? 875 Mrs O’Rourke: Well, for instance, yes, recently I had a case. Somebody telephoned me and said, ‘I would like to have from my Manx advocate x, y and z documents and I am concerned that I have not had these documents from this person. I am thrilled with the standard of work this advocate has provided. There is nobody that I have dealt with – and I deal with lawyers all 880 around the world…’ So was he a satisfied client or was he a dissatisfied client? Like all things, there are bits of the service that you like and there are bits of the service that you do not like. If people keep on using an advocate, I am going to guess that they are satisfied with the service that they are getting.

885 The Chairman: Thank you. Do you have another question?

Q261. The Clerk: Do you think the Advocates Disciplinary Tribunal is fit for purpose?

Mrs O’Rourke: I think it is a very competent body to hear the complaints put before them, 890 but I think it is hamstrung by the provisions that prevent it operating in the way other disciplinary tribunals operate in this day and age. It is very unusual, for instance, to have a tribunal that meets in private. It is very unusual to have a tribunal whose decisions are not readily available. It is pretty unusual to have a tribunal where it is not absolutely apparent the type of sentence that would be imposed on you if you 895 had made a mistake – if you were found guilty of the complaint that was brought against you. We are a very different jurisdiction. You can point to other jurisdictions and say it is commonplace in other jurisdictions that everything is out in the open and it is very transparent. We come back to where we started really: in a compact jurisdiction that is very difficult. One of the things the ADT has recently said is that they do not want to be used as basically a 900 tool in litigation. So, the way the legislation is drafted at the moment, anybody can make a complaint about any advocate. So supposing it was your brother who was getting divorced, you could make a complaint about your sister-in-law’s advocate although there is no nexus between you. You might simply say, ‘I do not like the way he is treating my brother,’ without knowing anything about the way in 905 which he was handling the case for his client. The way the rules are written at the moment, that is perfectly legitimate. You might say that is not a sufficient nexus – that there should be more connection between the person making the complaint and the advocate. And, in fact, if you could do something like

______80 CLP 104 SELECT COMMITTEE, FRIDAY, 2nd May 2014

that… that you could actually dissuade somebody from carrying on with an action… because it 910 does not cost you anything to go to the ADT; you can just appear in person; you can be legally represented with legal aid. So it does not cost you anything and even if you lose your case, even if the Tribunal thinks – as it generally does – that the complaints that come before it are completely unfounded, there is nothing they can do to penalise you. They cannot put an award of costs against you. And you can 915 have finished your case on Monday and put in the same complaint on Tuesday – and, if not the same complaint, one very similar, on the Tuesday.

Q262. The Clerk: Clearly, they need a filter system where they can get rid of claims without any merit whatsoever. That is another one of the common features of many tribunals, isn’t it, 920 which would be quite easy to set up? But do you think that it would be more useful to have a lot more publicity about cases so that lawyers could learn about good practice, but also the general public could learn a little bit about which lawyers to avoid, if there are such?

Mrs O’Rourke: But, more importantly for clients, I think that they could then make an 925 informed decision about whether or not to take a case to the ADT, and to understand how to craft their complaint in such a way that it was actually meeting what the ADT was to put there. So the ADT cannot, for instance, hear claims relating to negligence. The Law Society sees all the complaints that go to the ADT and, despite the rules saying, ‘We do not deal with claims relating to negligence,’ on several occasions you will see in a complaint, 930 ‘My advocate has clearly been negligent.’ Well, whether they are right or wrong as to whether or not the advocate has been negligent, the Tribunal has no choice in that matter – the rules say they do not deal with negligence cases. So if somebody is saying, ‘My client is being negligent,’ the ADT has to say, ‘You are in the wrong forum.’

935 Q263. The Clerk: So you would agree with the proposition that we need to rethink, route and branch, the operation of the ADT?

Mrs O’Rourke: I think some improvements would really help.

940 Q264. The Clerk: But it sounds like it is a fairly fundamental re-examination that is required, if you need to have a proper filter, you need to have proper publicity and so on. And you need to sit in public.

Mrs O’Rourke: I think things have already started to be done. I mean I am not here to speak 945 for the ADT, (The Clerk: No.) and no doubt they can speak for themselves, but I can say that things have already started to be done. For instance, in the way in which the ADT is appointed – two members are nominated by the Law Society and two members are nominated by the Office of Fair Trading. I think it is fair to say that the Office of Fair Trading did not necessarily know that they were nominating people until 950 quite recently because, once people are on there, they are on for an infinite term. Whereas the Appointments Commission, on which I sit, has now been delegated with responsibility from the Governor to appoint the Chair to the ADT, and they are appointed for a fixed term and then that term will come up for renewal. That does not happen to the people on either side at the moment and it may be a change that is going to be in the offing for various 955 reasons – or maybe not, I do not know. The appointment of the Tribunal, I think, is quite important because it is a tribunal like other tribunals, where there is a fixed term; and I think that is always helpful when you are on a tribunal because you know your term is going to come up and there is maybe an incentive to do things in a certain way. So I think that is important.

______81 CLP 105 SELECT COMMITTEE, FRIDAY, 2nd May 2014

960 I noticed that, just very recently, the Tribunal have reissued guidance notes which are in a very clear format. They have also updated their website. I do not know whether you have visited the ADT website recently but, for instance, the three cases recently found against advocates are now on the website. So you can find on the website… It is a summary of the decision that was brought against them but you will find the name of the advocate and you will find the matter 965 that was complained of and you will find the result. You might not find the reason but you will find the results.

Q265. Mrs Cannell: But that has not changed very much though, has it, Mrs O’Rourke? Because, going back a number of years – even going back a decade ago – one or two lawyers 970 who were found wanting and were found guilty, if you like, in front of the Tribunal… There would be a poster that was put up on the board in Government Office in the public area and it would be up for 24 hours, letting everybody know that particular named advocate had been a naughty boy or girl and then it would be taken down again.

975 Mrs O’Rourke: But now it is on the website.

Q266. Mrs Cannell: Sure but, at the moment, when someone like that is found wanting before the Tribunal, if they are fined, that fine goes to Isle of Man Government. So we have evidence to the effect that those who go through the trauma and stress associated with lodging 980 a complaint with the Tribunal… to the effect that what is the point of going through all of that? Because at the end of the day, ‘If the lawyer is found wanting, Government gets a fine from him or her and I get nothing.’

Mrs O’Rourke: And that takes us right back to the discussion we were having at the beginning 985 about regulatory principles and what is the purpose of a disciplinary tribunal. Is it to recompense the client or is that to be found in another forum, or not? I think that that is a different debate and it is a much bigger, intellectual debate as to whether or not the purpose of a regulatory disciplinary body, in that sense, is to ensure that the public is protected by making sure that people are taken out of circulation from practice, or that 990 they are encouraged to behave better in future, or is the purpose of that body to make an award of compensation?

Q267. Mrs Cannell: So it comes back to where we started really. One of my questions, Mr Chairman, is: in your opinion do you think we need a legal ombudsman in the Isle of Man, who 995 has the power to be able to award, for example, compensation?

Mrs O’Rourke: I do not want to skirt that question but what I would say to you is I do think that we need the ability for people to feel that they have complaints dealt with impartially. Whether in this jurisdiction you could justify the cost of setting up a legal ombudsman, I have my 1000 doubts, given the number of complaints you see coming through the system and the numbers of advocates that we have got. It takes us back to the scenario: £16.6million in the UK. Well, obviously, there is nothing of that scale that we could envisage on the Isle of Man. That is why I was saying to you that perhaps it would be helpful for us to be able to tap into that resource at some point – all the 1005 overheads already met and we would pay on some sort of per case basis, something like that; that it would bring in the benefits of the scheme without having the unnecessarily disproportionate expense of it. If you were to say to me, ‘Should we have an ombudsman on the Isle of Man that could deal with a whole range of things?’… For instance, we have got a very effective Financial Services 1010 Ombudsman operating out of the Office of Fair Trading and doing, from all accounts, a sterling job. Ought we to have an ombudsman that would deal with all different levels of professional

______82 CLP 106 SELECT COMMITTEE, FRIDAY, 2nd May 2014

services or different types of professional services? I think perhaps there is more merit in that argument. But I would agree with the principle that you really are enunciating, that there ought to be somewhere that somebody could go to and feel that, if they had a complaint against an 1015 advocate, they would have an impartial hearing.

Q268. Mrs Cannell: Okay. I just have one more question and it is completely different, but it is a rather curious question. I understand – and correct me if I am wrong – that all the practising advocates on the Isle of Man pay for public liability insurance (Mrs O’Rourke: That is right.) into 1020 the same pot with the same company; (Mrs O’Rourke: Yes.) and there is the public perception out there that because of this there is a reluctance for one advocate to go against the other, because if they are found wanting it could affect their premiums. That is the perception. The other part of my question is – and I am pleased you have affirmed that, in fact, that is the case here – I understand that when their practice starts on the Isle of Man – they go through the 1025 Manx Bar and they open up a practice – that they are compelled to join that same insurance – that public liability insurance scheme. Who compels them?

Mrs O’Rourke: Well, if you look at the legislation, the legislation says that there has got to be appropriate insurance cover for, essentially, members of the public. It is a public interest and it is 1030 one of our primary purposes of the Law Society to ensure that there is a public interest protection there on insurance. So there is a compulsion to have professional indemnity insurance. Then you say, ‘Well, what is the best form of professional indemnity insurance for a practice or profession the size that we have got?’ 1035 As a regulator protecting the public interest, what I want to make sure is that if advocates takes out insurance it is going to be of an appropriate level of insurance. So if somebody sues them they are able to claim on their insurers to an adequate level and so the minimum level of insurance that we say advocates on the Isle of Man must hold is £2 million and if you are operating through an incorporated vehicle it is £4 million. 1040 Most advocates buy top-up insurance which gives them even more than that and, as regards top-up insurance, they can go to whichever insurer they like; there is no requirement at all that they go to the same broker –

Mrs Cannell: Right, for the top-up insurance? 1045 Mrs O’Rourke: For the top-up insurance, yes.

Q269. Mrs Cannell: But for the basic insurance?

1050 Mrs O’Rourke: And the reason for that is it is a single policy. It is not that there are 34 firms out there with 34 policies with the same insurer; we have a single policy of insurance. The reason that is a good idea is that it means that we know that all the advocates got the same standard of protection for their clients. At the moment in the UK, there has been a bit of a revolution in the PI field. Quite a few 1055 significant professional indemnity insurers have hit the wall, leaving advocates and solicitors firms uninsured for a period of time or meaning that they have got to buy their insurance again – and, as you know, professional indemnity insurance is very expensive. One of the things the SRA have done in the past is to say, ‘What level of insurance do we want, not just in terms of the value of the insurance that we are buying but in terms of the 1060 quality of the insurer that you are going to?’ Insurers are rated according to their quality and their stability – their security if you like. If you go to a rated insurer, your insurance is going to be quite expensive, relatively speaking. If you go to an unrated insurer, you can get cheaper

______83 CLP 107 SELECT COMMITTEE, FRIDAY, 2nd May 2014

insurance but there is no guarantee that that insurance company is going to be in existence at the time you need them i.e. when a claim comes in, which could be up to six years later. 1065 So what regulators often say is, ‘There is going to be a minimum level insurance requirement that we would have.’ We would say, on the Isle of Man, we have a lot of small firms; if we left small firms to try to get insurance on the open market many of them would find it very difficult if not impossible to get insurance with adequate insurance at an affordable price; and that puts the public at a disadvantage. 1070 I do not know if you have had the opportunity to read the Visitor’s decision but recently one of our significant firms said they did not feel the master policy was appropriate for them; that they felt they could make their own insurance arrangements that would be very appropriate for their clients and would provide an appropriate level of public interest protection. What we said to that was that we did not think that it was appropriate to have one member 1075 out of the master policy because our insurance – all the underwriters, not just our principal insurer – said unless you have everybody in the master policy, it ceases to be a master policy and therefore it is not attractive to us. So there is nothing to stop you having separate policies of insurance but it would mean that small practices would be in grave difficulty in getting insurance at an affordable rate. 1080 Q270. Mrs Cannell: So is it your organisation then that buys, if you like, or arranges or brokers the –

Mrs O’Rourke: No, we negotiate it through our brokers who are AON. 1085 Mrs Cannell: The master policy?

Mrs O’Rourke: Yes, through AON. AON then go into the market and say, ‘We have got this pool of people who need insurance.’ The firms all fill out a proposal form. The insurers come 1090 back and say, ‘This is the price.’ We then go back to our members and say, ‘This is the price that we have for the policy. We are going to split that between you.’ It is a bit of a complicated form, as insurance policies tend to be, but basically it is worked out so that you pay a certain amount in respect of the number of advocates you have got, a certain amount in respect of the turnover that you have got and a certain amount in respect of your previous claims record. 1095 So the idea is that if you are a biggish business and you are turning over a lot of business then you pay more, but if you have got a poor claims record because of whatever reason then also they are going to tie that to the cost of your insurance, as is the case anyway – if you make a claim on your insurance you are more likely to pay more the next time round. That had not been done traditionally but now we tie in the claims record to the amount of premium that you will 1100 pay.

Q271. Mrs Cannell: Sorry, if I can just clarify that? I can understand that because that is how it works for us all if we are taking out home insurance or car insurance. But because it is a master policy and everybody is covered by the 1105 master policy, irrespective of having extra private policies running, if someone has reached their premium level – in other words, they have had a lot of claims so their premium or the premium cost for that firm has increased because of the amount of claims they have had – is that increase attributed just to that one firm or do they have to share the pain? Do they all have to share the pain? 1110 Mrs O’Rourke: The insurance people do not really care as long as they get the total amount of premium back.

Q272. Mrs Cannell: Sure, but how does it work on the ground?

______84 CLP 108 SELECT COMMITTEE, FRIDAY, 2nd May 2014

1115 Mrs O’Rourke: By applying that process that we have just talked about – that formula. So, in respect of every single firm, our brokers do a calculation and they say, ‘How many lawyers are employed at that firm? What is the turnover at that firm? How many claims have been brought against that firm and what have those claims cost us?’ According to the formula, which divides the whole premium by: x% goes to advocates, x 1120 amount goes to the fees, x amount goes to the claims structure… and they will apply that formula and they will come out with a price per firm that the firm will have to pay. The next year, depending –

Q273. Mrs Cannell: So the price per firm varies then? It is not the same? 1125 Mrs O’Rourke: No, not the same at all. (Mrs Cannell: It varies?) Yes, each firm will pay a different price depending on the number of advocates there, their turnover and their claims record. When you were going back and saying, ‘Nobody wants to act against another advocate’, that 1130 is not true because what happens is the insurers then say, ‘There is going to be a panel of advocates. We are happy with their level of expertise, we understand how they work, they understand the wording of the policy that we have in place.’ At the moment there are three firms on that panel. It is something that we are looking at reviewing to check it is right that those are the only firms that are on the panel. They will say 1135 that there are people on that panel and people on that panel will routinely undertake work as insurance advocates. So, to my knowledge, I have never heard of an instance where somebody wanted to sue an advocate and found that they were not able to find another advocate to act.

1140 Q274. Mrs Cannell: No, I am not saying that it… I cannot testify to its actually happening. There is anecdotal evidence, professionally, that has been said to me, that there is a discouragement within the advocates’ community because they are all tied into the same insurance policy with the same company – there is a reluctance for one to sue the other on behalf of a client because it affects the premiums. 1145 Mrs O’Rourke: No.

Q275. The Chairman: At what stage, Mrs O’Rourke, do advocates have to notify the insurance company that there is a pending claim against them, and do they have to give it of a 1150 certain magnitude? You mentioned there where, obviously, there is a higher premium in respect of corporate advocates looking after corporate business, (Mrs O’Rourke: No –) of which the claims could be greater if there is a challenge against them.

Mrs O’Rourke: No, I did not mean to say that and I do not think that I said ‘in respect of 1155 corporate’. What I said was that the premium that you pay will vary, depending on the size and you might expect a firm with a bigger turnover to pay a higher premium.

The Chairman: Yes, that is understood.

1160 Mrs O’Rourke: But that is an assumption on your part, that the higher turnovers are going to rest with corporate entities –

Q276. The Chairman: But the question is: the insurance companies do require to be notified, do they not? 1165 Mrs O’Rourke: Yes, they do.

______85 CLP 109 SELECT COMMITTEE, FRIDAY, 2nd May 2014

Q277. The Chairman: And do they have a say… So if you notify that you are being sued and the legal action against you could amount to quite a considerable sum, (Mrs O’Rourke: Yes.) does the insurer have the ability to say, ‘Right, okay, well, we will get Parkinsons advocates, 1170 down at the bottom of Sea Terminal hill to represent in this case’? Do they nominate a representative? Because an advocate, strangely enough, usually has to be represented by someone else in court and the case managed accordingly.

Mrs O’Rourke: When it looks like there is a serious likelihood of something turning into a 1175 claim or the potential for a claim, then there is an obligation – as in all insurance policies – to notify your insurer that there is a possibility of a claim.

Q278. The Chairman: At what stage…? At the possibility? At the early stage?

1180 Mrs O’Rourke: Not at the, ‘I think this might go’, but when you have got something to go on, when there is evidence of some direct threat – if we can put it like that – that there is a real possibility that there is going to be a claim made against you, you identify it to your insurers. In terms of the formula that we were talking about before, there is no penalty against people having notified claims to their insurers; it is only in respect of claims that are either reserved… So 1185 when you tell your insurer that there is a possibility of a claim against you, they will say, ‘Let us know how that develops,’ and then as it develops they will say, ‘We think there is a good chance that this claim is going to come in at around about…’ and they will put a reserve price on that claim. So they will have an idea in their head of what they are looking at and then the advocate 1190 against whom the claim might be brought will say, once it has moved on to the next step and proceedings are going to be brought against that advocate, ‘Okay, now I need to have representation.’ And the insurers will generally say, ‘Well, that is the panel. Choose an advocate from the panel.’ If they say, ‘There is a reason I want to choose a different advocate,’ then the insurers are 1195 generally willing to listen to the argument about why a different advocate should be instructed and there is generally no issue around that.

Q279. The Chairman: Does that apply to actions against them, of course, in the High Court – that you would expect them to have an advocate, as well as the much lower down in the cases 1200 with Advocates’ Disciplinary Tribunals, because they are representative? Very often an advocate, as we know, is represented in an ADT.

Mrs O’Rourke: That is right.

1205 Q280. The Chairman: Is it the same process or is the process…?

Mrs O’Rourke: It is the same process because it is a claim against an advocate and for us that is a real issue, because you identified it as an absence of a filter mechanism. As soon as a complaint comes in against an advocate under the ADT process then you would say, ‘I cannot 1210 ignore it. I have to treat this very seriously because it could be, taken to its logical conclusion, a mark against my professional representation. So I have to take this seriously.’ Then you would say to the insurers, ‘It seems like this is going to run. Papers have been put into the ADT. I would like to be represented,’ in just the same way as you would with any other claim. 1215 The Chairman: Have you any other questions?

Mrs Cannell: Nothing further, no. Thank you.

______86 CLP 110 SELECT COMMITTEE, FRIDAY, 2nd May 2014

The Chairman: I think you will be pleased to hear, Jane, that is all the questions that the 1220 Committee have of you this afternoon. We are very grateful for those full, frank and very comprehensive answers that you have given us. Thank you very much, indeed.

Mrs O’Rourke: If you do have any more questions as events unfold do not hesitate to get in 1225 touch and we will see what we can do.

The Chairman: To which, again, we are very grateful. Thank you very much. Now I declare the oral session closed.

The Committee adjourned at 3.55 p.m.

______87 CLP 111 112 WRITTEN EVIDENCE

113 114 APPENDIX 1 Letter from Mrs Jane O’Rourke, Chief Executive of the Isle of Man Law Society 30th March 2012

115 116 117 118 119 120 121 122 123 124 APPENDIX 2 Memorandum from the Isle of Man Judiciary 21st March 2012

125 126 127 128 129 130 131 132 133 134 135 136 137 138 139 140 APPENDIX 3 Letter from Mr Stephen Cregeen, Chief Registrar 26th March 2012

141 142 143 144 145 146 APPENDIX 4 Letter from Mrs Jane O’Rourke, Chief Executive of the Isle of Man Law Society 15th May 2012

147 148 149 150 APPENDIX 5 Letter from Mr John Kennish, Section Manager/Costs Officer, Civil Legal Aid & Legal Costs Section General Registry

11th May 2012

151 152 153 154 155 156 157 158 APPENDIX 6 Letter from Wendy Montgomerie Certifying Officer, Civil Legal Aid

11th May 2012

159 160 161 162 163 164 165 166 167 168

Parliamentary Copyright available from:

The Tynwald Library Legislative Buildings DOUGLAS Isle of Man, IM1 3PW British Isles June 2016 Tel: 01624685520 Fax: 01624 685522 e-mail: [email protected] Price: 1