Praisegod Barebone

Some years ago, I took my children on a tour of the Houses of Parliament. I dimly remembered visiting them in my own youth, and as politics has been quite interesting for the last few years, felt that it was time they learned about the Mother of Parliaments. You can book a longer or a shorter tour, there is an excellent and satisfyingly heavy guidebook to purchase, the toilets are clean and plentiful and you can bolt on tea/champagne on the terrace of the Houses of Commons too.

Yet the visitor experience is ultimately frustrating. I formed the view that this was not an institution fit in physical or functional terms to serve as the legislature of a modern democratic state in the twenty first century. The decor is gloomy Victorian. The messengers dress in nineteenth century costume. The digital age is firmly excluded. The chamber itself is too small to hold all the MPs elected to serve in it. The orientation of the benches (“two swords length apart”) promotes conflict rather than compromise. The voting system is archaic, if not anarchic.

The business of Parliament is governed by obscure and arcane procedures found in such inaccessible tomes as Erskine May, and the proceedings themselves, resemble a pastiche of a bad university debating society. From time to time, the members behave boorishly whether through jeering and leering, or through bursting into song. In addition, the MPs for many years facilitated an obscure system of expenses and allowances, designed to conceal from the public the true drain they placed on the public purse. In the years 2016 to 2019 it has been consumed with navel gazing, over the disaster that is Brexit.

Parliament is useless, dangerous and should be abolished. The difficulty of course, is what it would be replaced by and whether it would be “better” than the current system.

More than 350 years ago, we killed our king and the victors of the Civil War then embarked upon a series of constitutional experiments to find new ways of governing the country which did not involve the King-in-Parliament model of Commons, Lords and Crown. They were all uniformly disastrous innovations.

First, Parliament was purged of malignants by Colonel Pride (a wonderful idea) and reduced to a Rump believed to be more malleable to the desires of Oliver Cromwell and the New Model Army, than the full assembly.

When this did not prove the case, the Rump in turn was abolished by  Cromwell, who instead of an elected Parliament, decided to have a Nominated Assembly of godly men in 1653.

The most notable member of the 1653 Assembly was the unbelievably named Mr Unless-Jesus-Christ-Had-Died-For-Thee-Thou-Hadst-Been-Damned Barebone, also known as Praisegod Barebone, a preacher and hot gospeller, who doubtless possessed the nasal twang, sour expression and Biblical cant, of so many of the Puritan persuasion.

Like any number of modern MPs who currently grace Westminster, Mr Barebone proved a less than satisfactory legislator, and the Nominated Assembly devoted itself to squabbling about the payment of ecclesiastical tithes, a tax loathsome to the Puritans and other non-conformists.

The Nominated Assembly in turn proved less tractable than Cromwell had hoped, and it in turn was dissolved, and replaced by the rule of the Major Generals: naked military dictatorship, where private houses were entered by soldiers without a warrant, roasting meats were seized from ovens to prevent the celebration of Christmas and people fined on the spot for swearing. Adultery was punishable by death, but in an early display of independence, juries refused to convict, whatever evidence was presented to them.

Then Cromwell became dictator as Lord Protector: when he died his son and successor lasted only a few months, before people started to call for the exiled king, who had inherited his title the moment his father’s head was removed with an axe.

The recall of the king in 1660 was genuinely greeted with relief: because people knew what a king’s role was, that he was bounded by law, and his power constrained by a revived Parliament, which retained many of the fruits of victory in the Civil War.

As no one in their right minds, would wish to go through a similar exercise in 2019, perhaps it is better to keep the system we have.

Mitigating the effect of a dysfunctional legislature, is the Civil Service which keeps the machine of government running, notwithstanding political attention being diverted to Brexit and other matters.  Accordingly, notwithstanding the turmoil of the last 3 years the work of costs reform has continued, pushed forward by the Ministry of Justice and/or the Department of Health. This is because the state, through the NHS as compensator has a direct financial interest in the introduction of fixed costs in clinical negligence cases.

And so by a circuitous route of musing, I come to consider the latest fixed costs proposals, which can be found here: Fixed recoverable costs report in clinical negligence claims

A Civil Justice Council Working Group published a report on fixed costs in clinical negligence litigation: specifically, in relation to cases which have a value of less than £25,000 in damages.

The Working Group was split down the middle, in relation to a number of proposals by reference to whether those participated in the group, represented claimants or defendants. This division is manifest in the conclusions and recommendations which are contained in chapter 8 of the report.

One of the themes that always arises in any set of proposals for fixed costs, is fixed costs for what? If there is a set sum of money, then it can be argued logically there should be a defined amount of work to be undertaken for that sum. That in turn sparks consideration of streamlining the litigation process:

8.03 There is room for improvements to the process pre-issue. The proposed scheme is built around:

a) a standard track and a light track;

b) exclusion of categories of case which are likely to be complex or sensitive;

c) the claimant retaining responsibility for obtaining and sorting the medical records, but limiting the records required;

d) sequential exchange of experts’ reports and witness statements (ST), as long as appropriate safeguards are put in place;

e) a letter of claim (ST) which discloses the claimant’s case and is accompanied by an offer to settle;

f) a letter of notification (LT) which contains more information on alleged liability and on quantum;

g) a letter of response which discloses the defendant’s case and responds to the offer;

h) the claimant’s right to reply;

i) a mandatory stocktake and discussion if the case cannot be settled after the reply;

j) mandatory neutral evaluation if the case has not settled after the stocktake.

One of the proposals smacks immediately of “Balkanisation” that of the quantum only “light track”:

8.04 The LT is designed for claims that incur fewer legal costs, because liability is not in dispute. Any other case types that could start in the LT will only remain if the defendant agrees to pay compensation on a full liability basis.

Sequential exchange of expert reports, could be viewed as placing the claimant at a disadvantage:

8.05 Sequential exchange of experts’ reports on breach and causation is a key part of the recommendations for the ST, which will deal with cases where liability is likely to be in dispute.

Mandatory neutral evaluation, is an interesting proposal, which begs the question as to why it should be confined to clinical negligence disputes:

8.09 MNE is an attractive but novel solution, put forward by the parties at a relatively late stage to address some difficult problems related to preparing for litigation. It could remove the need for changes to post-issue process and resolve some more difficult aspects of preissue process.

8.10 MNE would be a mandatory step, but the outcome would not be binding on either party. Unnecessary or unreasonable litigation could be deterred in practice by appropriate sanctions. In this way we believe that the recommendation complies with Article 6 ECHR, but this is a matter on which the government should seek its own advice.

8.11 The evaluator would be chosen from an agreed panel of specialist clinical negligence barristers. The evaluator’s fees would be shared equally at the outset and met by the defendant if the claimant succeeds.

8.12 Not all members of the claimant group agree with the proposal for MNE. There are obvious concerns about whether it would work effectively. The Bar also has some concerns, both for them as evaluators and for the parties. It has been suggested that the proposal could be piloted, but it is difficult to see how this could work in practice.

Interestingly it may not have been the quantum of fixed costs that was as contentious as other elements of the report:

8.13 The parties came close to agreeing figures for FRC. In the absence of a concluded agreement, the proposals of the claimant and defendant groups for the level of FRC are summarised in Tables 4 and 5 below, all figures are exclusive of VAT and disbursements:

Table 4 – Standard Track

1 All steps up to and including stocktake

£6,000 plus 40% of damages agreed

£5,500 plus 20% of damages agreed

2 From stocktake up to and including neutral evaluation

£2,000 in addition to stage 1

£500 in addition to stage 1 Table 5 –

Light Track Stage Description Claimant Defendant

1 All steps up to 21 days after letter of response is due £2,500 plus 25% of damages agreed

£1,000 plus 10% of damages agreed

2a From 21 days after letter of response up to and including stocktake £1,500 plus further 5% of damages agreed, in addition to stage 1

£500 in addition to stage 1

2b From stocktake up to and including neutral evaluation £500 in addition to stages 1  and 2a

£500 in addition to stages 1 and 2a

In reality the quantum of fixed costs may be capable of agreement, but issues of expert fees and the procedural reforms that are meant to accompany these fixed costs are likely to remain vexed issues. However, given the recent landslide majority that the government has obtained in the general election, there are likely to be no impediments to the imposition of a system to reduce what the government will see as unnecessary public expenditure.



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