Writ January New Grid

Issue No. 129 November 2001 THE RIT JOURNAL OFW THE LAW SOCIETY OF NORTHERN IRELAND Criminal Injuries Reform: The Assembly Verdict As reported in previous editions of The should be by the legal profession - not Parliament in its current form. Writ, the Society had made submissions Victim Support Northern Ireland. In addition the Assembly took the view to the Northern Ireland Assembly, Recommendation 4: That the Secretary that the proposed removal of the right explaining in detail the reasons why the of State should examine other areas of appeal to the courts was Society was opposed in principle to the where Victim Support Northern Ireland fundamentally flawed, and made a Government proposal to introduce a may be able to play a more increasingly further point noting explicitly: tariff-based compensation assessment pro-active role in supporting victims of system in Northern Ireland. “....the core recommendations set out in violent crime. the Law Society’s supplementary The Assembly met in plenary session on Recommendation 5: That the Secretary memorandum of evidence. This calls for 26th November to debate the matter, of State should not, in determining an the establishment of a working party and in particular a Report on the award, have regard to a person’s criminal with a general remit to examine the proposed legislation prepared by a record, where that persons actions, that compensation process. The key objective special ad hoc Committee of the maybe indicative of that record, cannot of this remit would be to bring about Assembly, which had reviewed the be shown to be responsible for the act of systematic improvement by addressing legislation, and received written and oral criminal violence that resulted in the the problems of delay and ensuring submissions from various interested injuries, for which compensation is being transparency, communication and loser parties (including the Society). sought. liaison between agencies within the system. The Committee encouraged the The Assembly endorsed the Report Recommendation 6: That paid legal Northern Ireland Office to engage with recommendations which received assistance should continue to be the Law Society and give due unanimous cross-party support. The provided to persons who make successful consideration to their proposal”. Assembly recommendations to the NIO applications for compensation. are as follows: Responding to the Assembly debate, the Recommendation 7: That a system of President, Mr. John Neill, welcomed the Recommendation 1: The proposal for a compensation whereby awards are clear and unequivocal endorsement by “bereavement support payment” to be determined by a Tariff should not be the Assembly of the Society’s position, made, in recognition of the grief and introduced in Northern Ireland. saying: ‘Unfortunately the government sorrow caused by the death of a victim of has shown no willingness to date to violent crime, to qualifying claimants, Recommendation 8: That the Secretary engage in a meaningful dialogue with should be incorporated into Northern of State should not, in determining an the Society, and indeed has given every Ireland’s compensation system for award, have regard to any payments signal that non-negotiable decisions have criminal injuries. made in respect to private healthcare or been made, and that the consultation those received out of private health exercise is a meaningless formality. The Recommendation 2: That the proposal insurance. for wider eligibility criteria to apply in message to the Government from almost cases where a person is claiming Recommendation 9: That the Secretary all consultees and now the Assembly is compensation for psychological injuries of State should, where a victim is unable clear. We hope that the Government will should be incorporated into Northern to work, award compensation for loss of listen to the voice of the Assembly, think Ireland’s compensation system for earnings and earning capacity from the again, and take up the Society’s criminal injuries. date of the injury. recommendations for a working party, led by a senior judge, to examine ways in Recommendation 3: That representation Recommendation 10: That the proposed which the present process could be and the provision of advice to victims legislation should not be introduced to improved without penalising victims”. CONTENTS Trek for Action Cancer. p4 Pro Bono Scheme. .p6 Risk Management. p13 Law Society Financial Advice. .p5 Book Launch . p12 Land Registry. p20 November 2001 2 which was typical of many personal injury cases where, if the claimant's evidence, or that on his or her behalf is Settling Scores accepted, the claim will succeed and if the defendant's account is accepted the claim will either fail or there will be Will a recent Court of Appeal at the approval hearing. The claimant substantial contributory negligence. decision lead to more caution over subsequently contended that the advice Where there is such a conflict it is very advice on outcomes? to settle had been negligent and that difficult, if not impossible at an earlier the action had really had considerably stage of the case, as (the advice to On 8 June 2001 the Court of Appeal greater prospects of success than the settle) was, to be sure which evidence (Schiemann and Kay LJJ and Sir Murray third defendant had advised. The Court will be preferred.' Stuart Smith) gave judgement in Griffin of Appeal concluded that the third v Denise Kingmill and DJ Freeman & co defendant's analysis of the evidence was Counsel's responsibilities (A Firm) and Peter Clark HHJ (unrep). It wrong, and that had it been corrected, In a case such as this, which depended is an interesting and important advice to settle for £50,000 would or on assessing which evidence was likely judgement which deals with the nature should have been given. to be preferred, Sir Murray Stuart Smith of the duty counsel and solicitors owe said that: to lay clients in giving advice about the Standard Advice 'All that can be done is to point out the likely outcome of litigation. The leading judgement was given by Sir fact and the significance of the conflict Background Murray Stuart Smith. He pointed to of evidence and then make some Lord Diplock's speech in Saif Ali v Sidney attempt to evaluate the strengths and The facts were simple. In 1988 the Mitchell & Co (1980) AC 198 at 220, and weaknesses of the conflicting account. claimant, who was 12 years old, was went on: It would take very cogent reasons going home from school when she was 'The circumstances in which barristers indeed to say that it was knocked down by a motor car. She and solicitors have had to exercise their overwhelmingly likely that a particular suffered devastating injuries. The first judgement vary enormously: On the witness's account would be preferred defendant, a solicitor whose practice one hand decisions have frequently to and another's rejected, and subsequently merged with that of the be made in court with little time for consequently that the claim had no second defendant, was instructed to mature consideration or discussion. reasonable prospect of success... In a investigate with a view to recovering That is a situation familiar to any case such as this, logical and sensible damages against the driver of the car. advocate. It is one in which it may be reasons have to be given for rejecting She did so. In 1989 the driver's insurers very difficult to categorise the the favourable evidence of a witness. If made an offer of settlement of £50,000. advocate's decision as negligent even if the reasons do not bear examination The third defendant, who was then a later events proved it to have been they are not such as can be expected barrister specialising in personal injury wrong. Or in a very complex case it may from a competent and experienced cases, was instructed to advise on be that in advising settlement too much practitioner.' whether the offer should be accepted. weight is given to some factors and not He was told that the claim was privately enough to others. Here again a difficult The court was anxious that its funded and that the claimant's parents judgement has to be made; and unless judgement should not be taken as had very little money but were the advice was blatantly wrong, i.e. such requiring counsel to sit on the fence. It rearranging their finances with a view as no competent and experienced pointed out that the fence was not to qualifying for legal aid. He advised practitioner would give it, it cannot be necessarily a safe place to be. Kay LJ in writing. The opinion was short. He impugned and the prospects of said: briefly analysed the evidence, and successfully doing so would seem very 'Litigants do require clear advice. There concluded: slight.' is little point in obtaining the opinion of counsel, if counsel is not prepared to 'I cannot hold out any reasonable This, with respect, is very confusingly give the client the benefit of his prospect of establishing any liability on put. The only test which applies, to experience and expertise. Nothing in the part of any driver for this accident.' courtroom and paper decisions and in the conclusions I have reached in this simple and complex cases alike, is case would discourage the giving of The first defendant apparently agreed whether the advice which is criticised is with this advice. She noted that legal such robust advice provided it was given advice which no competent and with proper care. Indeed an indecisive aid was not available and that the offer experienced practitioner would give. should be accepted. Acting on the opinion in circumstances which would advice from the first and third Claimants criticising advice given in lead a reasonably competent defendants the claimant accepted the complex cases do not have to prove that practitioner to give clear and positive offer.

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