- Litigation Futures - https://www.litigationfutures.com -

New APIL chief asks: Why are defendants not subject to ‘fundamentally dishonest’ rule?

Wheeler: system dumbed dow [1]

Wheeler: system dumbed down

The new president of the Association of Personal Injury Lawyers has laid into the new ‘fundamentally dishonest’ test that came into force earlier this month, asking why defendants do not face the same sanction of having their case thrown out.

In his inaugural speech at the association’s annual conference, Jonathan Wheeler also cast aspersions on the prospect of online dispute resolution.

He said it was “anyone’s guess” what ‘fundamentally dishonest’ actually meant.

Mr Wheeler, head of the child abuse claims team at Bolt Burdon Kemp, continued: “Note, of course, that ‘fundamentally dishonest’ only applies to claimants. What about defendants who pursue ‘fundamentally dishonest’ defences? Who say they haven’t got crucial documents to disclose when they have? Who defend a claim for child abuse against a priest by claiming that at the age of 15, my client consented to being raped by a 61-year-old man of the cloth.

“Is this an honest defence? How can it be? Not least because the Catholic Church insists that all its priests are celibate. Taking instructions from my client (now aged 20) on such a pleading – signed by a senior official of the church into which he was born – was almost unbearable. I truly wonder whether people outside this room, the people who are making this stuff up in court documents for the defence, have any idea what this sort of thing does to someone?

“How about the defendant who purposefully sets out to delay a settlement brought on behalf of a terminally ill claimant, because it would be cheaper to pay out on the claim when they are dead, rather than alive. What about a litigation authority that spends vast sums on defending the undefendable, costing the taxpayer thousands, when it should have apologised and put in place a meaningful rehabilitation programme to help a claimant’s recovery?

“Isn’t that dishonest? Why aren’t such defendant practices also caught by legislation?”

Mr Wheeler added that the recent attempt by defendants to have noise-induced hearing loss classified as an accident rather than a disease, so as to reduce the level of costs they would have to pay, was “downright dishonest”.

In a wide-ranging attack on government reforms that also took in the curtailment of judicial review, he said the increase in court fees ran counter to the principle of reducing the cost of litigation that was used to justify the LASPO reforms.

“How ironic then that in this year, this government is misusing its power to bring about changes to our civil justice system which will be of direct, financial benefit to itself, whilst the rule of law is ignored.”

Mr Wheeler called for efforts to make more consumers, parliamentarians and opinion-formers care about what is happening to the justice system – “a system that is being dumbed-down, sidelined and in some cases, dismantled completely”.

He cited plans in Northern Ireland to close 40% of the courts, and a year-long pilot from October to replace judges with ‘legal assistants’ to make judicial decisions at the Salford Business Centre.

“If Richard Susskind and his friends get their way we will have artificial intelligence deciding damages and disputes – who would have thought that Lord Justice Dyson could be replaced by a clever vacuum cleaner?

“And online dispute resolution taking its inspiration from E-bay? You might as well outsource justice to Ladbrokes.”

Mr Wheeler said that among the priorities for his year in office was “championing the idea of compulsory public liability insurance”.

He explained: “Claimants denied redress because a defendant has gone bust without insurance is a real issue, and we can call upon a body of clients who will speak of this injustice. Some rogue business owners liquidate their companies to avoid paying out, and then set up a new business and carry on trading with impunity. This is morally unacceptable and should be tackled head-on.

“Compulsory PL insurance would have the added benefit of driving up safety standards among public-facing businesses. This needs serious consideration at the highest levels. APIL has the power, the reach, and the influence to start the debate and I intend to make sure we’ll be listened to.”