It was an item of family mythology that when my grandfather, a coal miner, sought compensation through the union for one of his many industrial injuries, the union, the defendants, and all parties' solicitors, got together in a conspiracy, silent or otherwise it was impossible to tell, to look after their own shared interests, and ensure that workman derived no benefit from taking on the system. There was also a suspicion that those who worked within 'the system' would habitually collude to procure the disadvantage of the industrial worker, and if possible line their own pockets in the process. I was very sceptical.
However, I was wrong. The DTI's compensation scheme for miners with lung problems and white finger syndrome has involved large enough sums and large enough numbers of claimants to attract the interest of the press and of parliamentarians. Even now, every month fresh information emerges which could have the effect of confirming that mythology: the miners derive sometimes too little and sometimes virtually no benefit from making a claim, while those professionals who operate the system, including union officials, have devised working methods for ensuring that they themselves do very well out of such funds as are available. If it came only from the miners I do not think I would have believed the story, even now. However, the concerns of judges, MPs, the Law Society, and the Serious Fraud Office lead me to take seriously the possibility that many people who work in 'the system' have a built-in reflex to trick miners who are claimants. It is hard to resist the conclusion that this is because the claimants lack relevant experience, may have poor literacy, and in many cases have diminished effectiveness because they are dying from serious illnesses.
The miners feel they are being cheated on all sides. The management of the fund on behalf of the DTI by IRISC (now taken over by Capita) was perceived as incompetent and terribly slow, a particular irritation where the claimant is dying.
Some of the delays may also be attributable to the solicitors who were acting for the miners. However, the complaints against the miners' own solicitors (or their claims handling firms, which may not be solicitors) essentially started with the suggestion that solicitors and claims handlers had overcharged for handling the claims. Where claims were successful the DTI would pay the claimant's costs, to an extent which many observers consider adequate. However, solicitors handling claims in many cases imposed additional charges on their clients which they deducted from payouts. It is not clear in many cases whether the solicitors did enough to ensure that their clients (who may be assumed to lack experience of litigation, as well as being seriously ill or dying) understood the extent to which the charges were normal or fair or competitive.
On top of the solicitors' charges were charges applied by the claims handlers they worked with. It appears the claims handlers are commercial operations which in many cases do not pursue the claims themselves but take a cut in exchange for putting claimants and solicitors in touch, having identified claimants by the marketing, including cold calling, and even including offering £100 up front the claimant, who would, on completion of a successful claim, pay back a larger fee. MPs expressed concern about the relationships between claims handlers and solicitors in Parliament in a debate on 22 Mar 2005. The way claims handlers act as professional agents collecting business for solicitors does have worrying features, particularly if they have close relationships with particular firms and are employing commercial methods on behalf of solicitors which the solicitors would not be allowed to employ themselves.
An additional problem for the miners was described in this recent article in the local newspaper, Worksop Today. The story had earlier appeared in the The Times, which reports on how solicitors paid secret commissions to the union, or more precisely, to a company apparently controlled by the union's Claims manager, for miners' claims which the union referred to those solicitors. It is not normally permissible for a solicitor to pay a commission to get business, and the legality of the union claims handler controlling a company which received an undisclosed commission may also be questionable. Some miners might also feel there is lack both of transparency and of solidarity if they were to discover the union officials could earn very large salaries, and in some cases appear to benefit from very substantial commissions, though their union work on industrial injury claims.
The Worksop Today article goes on: "Bassetlaw MP John Mann, who has been leading a campaign to ensure miners receive every penny of their compensation, this week dubbed the agreement 'an enormous scandal' 'this shows there was a formal agreement to distribute money between the different partners involved in the claims and none of the miners were aware of it," said Mr. Mann.
The Law Society has made great and laudable efforts to rectify the injustice. Their latest press release on the subject is here. However the miners' prejudices against 'the system', and their 'them and us' attitude, can only be confirmed by the outcome of a recent of a recent application in a case designed to rectify some of the original problems they had with legal advisors. A handful of miners, having engaged new solicitors to act against their former solicitors and the union, applied for a Group Litigation Order. The judge said that application should never have been made, and strongly indicated that the costs of that application were wholly disproportionate to the sums at stake. The application is Hobbs & Ors v. Ashton Morton Slack Solicitors & Ors. [2006]EWHC 1134 (QB)
The point of procedural law on which this application turned, as the
judge found, was the requirement in
However, the judge also indicated that some alternative to group litigation, or to any litigation, should have been considered on costs grounds, when the applicant was taking the 'preliminary step' which this rule requires. The court is clearly entitled to take this approach under the overriding objective. At paragraph 45 the judge said, 'If it be assumed that all the 'would be' applicants came forwards and were joined in the litigation, the total sum claimed would still be only about one half of the costs incurred to date, leaving aside the additional costs which would be incurred if the action were to proceed.' In this paragraph the judge is also unwilling to justify making a GLO on the ground that once made, many more claimants are likely to jump on the band waggon. Quite apart from the fact the judge doubted this would happen in this case, he said, 'it must be doubtful if the making of a GLO would be justified on such a speculative basis.'
Therefor, the law now seems to be that when considering whether to apply for a GLO, the applicant must have considered alternatives to litigation, and that in a case where the costs of litigation are disproportionate, that can be a reason for refusing a GLO. Put like that, the proposition is problematic, because it makes the refusal of a GLO look like a tool to push the parties in alternative dispute resolution, and in any event here the GLO was refused primarily on other grounds. However, it is submitted the costs dimension should be considered before applying for a GLO, because courts will be reluctant to grant an order which facilitates litigation in a case where the costs are likely to be excessive. To grant a GLO in those circumstances would be to fly in the face of the overriding objective, even if the only alternative would be mediation, for example, rather than some other way of having the claims tried in court.
To further compound the mess in the present case, the judge took the very unusual step of criticising the applicant's solicitors for failing to disclose or obtain disclosure of, documents which might support their assertion that the costs of the claim, and the GLO application, were insured. In other words the judge said the claimants' new solicitors, acting against the claimants' old solicitors, had brought a costly and hopeless GLO application, which had 'done nothing to advance the cause of those claimants who may have had deductions made from their compensation in circumstances where there was no legal right for such deductions to have been made.' And the judge goes on to say that having incurred the costs of both sides, the miners could even find that their solicitors had not secured adequate insurance cover for costs.
For more technical coverage of Group Litigation Orders, and of
alternatives to GLOs, see forthcoming CPD videos which are currently
being prepared.
Dr John Birchall - Professional English, Legal English, and Common Law Training