Monday, 31 March 2008

A bitter pill…

Hundreds of British people who claim to have suffered harm from the withdrawn arthritis painkiller drug Vioxx have launched a campaign to challenge the manufacturer’s decision to only compensate US victims. The alleged Vioxx victims in the UK argue that they have been denied access to justice on both sides of the Atlantic because they were unable to bring a legal action in the UK where legal aid was not been available and in the US following the ruling of a New Jersey court to reject non-US claims.

In November last year the New Jersey based Merck announced plans to set aside $4.85 billion (£2.4 billion) for 44,000 US users of Vioxx. Although the painkiller was prescribed to 400,000 Britons at the time it was withdrawn in 2004 after studies showed an increased risk of heart attack and stroke to users. Independent research by the US Food and Drug Administration concluded that 27,785 heart attacks or deaths might have been caused by Vioxx between 1999 and 2004.

‘The government has a duty towards protecting the British public which has been harmed by a drug that was being marketed at large profit and licensed in this country and which has ended up harming several hundreds of thousands of people,’ comments Doctor Sarah-Jane Richards, senior associate at the South Wales firm Hugh James. Some 350 British claimants have formed a campaigning group and so far some 44 MPs have signed up to an early day motion backing their campaign. The campaign is calling for future legislation to prevent other non-UK companies treating UK residents in this way. ‘The case highlights an issue in law whereby people cannot get access to justice in this country,’ says Richards. ‘If you go to court and lose your case you are liable for the defence costs and, undoubtedly, an organisation like Merck would incur substantial multi-million pound costs to defend its product – that’s prohibitive of bringing cases like Vioxx to court in the UK.’

However Richards argues: ‘In an age where we have global markets it’s correct and proper for the pharmaceutical industry to compensate people wherever they live, wherever they have been harmed and whatever their nationalities.’ She reports that there was ‘outrage’ from the UK claimants who discovered that they lost their appeal in the US and were excluded from the American litigation in the same month that Merck offered compensation package to US nationals.

The Legal Services Commission pulled the plug on the UK litigation towards the end of 2005 complaining that the claimant firms Leigh Day & Co and Irwin Mitchell had not been forthcoming in providing an estimate of the costs of going to trial. This was disputed by those two firms at that time. ‘We weren’t prepared to write the solicitors a blank cheque,’ said David Keegan, director of the commission's special investigations unit at the time. The LSC has introduced tight controls to prevent the perceived haemorrhaging of public money on such multiparty actions. By direction of the Lord Chancellor, there now is only £3 million of public funds available for such litigation in any year and funding is also subject to an affordability review.

The claimant lawyers argue that the Vioxx litigation exposes a major funding gap in the system. The availability of conditional fee agreements to plug the hole left by legal aid is a non-starter, they argue, because the after-the-event insurance industry is either not prepared to back such complicated and potentially costly actions or, if it is, the premiums are prohibitively expensive.

Jon Robins.

Monday, 17 March 2008

Call to think again about new funding rules

You and Yours on BBC Radio 4 hosted a discussion today on Law Centre Closures.

Call to think again about new funding rules
Will access to justice for some of the country's most vulnerable people be under threat as not-for-profit law centres have their funding changed?

Steve Hynes, Director of the Legal Action Group and Chair of the Access to Justice Alliance
Crispin Passmore, Director of the Community Legal Service at the Legal Services Commission

Listen to podcast here.

Tuesday, 11 March 2008

Law Centres in Crisis

LAG has learnt that Gateshead Law Centre called in the receivers last Friday (7th March) after getting into financial difficulties. Gateshead joins Stockport Law Centre which closed its doors in November last year due to problems meeting the targets under the Legal Services Commission’s new fixed fee contracts.

Gateshead Law Centre was part of the first Community Legal Advice Centre (CLAC) the Legal Services flagship policy for civil legal services which has had difficulties getting off the ground. LAG understands that the continuation of the CLAC is in doubt, and decisions have yet to be made on whether the contract for the CLAC will be tendered again.

A survey published today by the Law Centres Federation indicates that twenty out of the 58 remaining Law Centres are having difficulties meeting the new targets. There are eight centres claiming to be under risk of closing. Among these is the largest law centre, South West London Law Centres which has a turnover approaching £2m and has offices in Battersea, Kingston and Wandsworth.

The centre’s Director Michael Ashe fears they will be forced to close leaving clients no-where to go. ‘The work we do is not glamorous, but it is vital,” he says. “There are desperate people queuing outside our doors for hours each night in the depths of winter to see volunteer advisers because their low-wage jobs mean they are not eligible for legal aid….We stay at work in the evenings and come in at weekends because we cannot balance the books any other way, and because there is always another vulnerable person denied their rights who we cannot let down. Like doctors, nurses and teachers, we just want to be allowed to do our job, and do it well.”

“LAG would urge the Government and LSC to look again at the fixed fee regime, as clearly the fees are too low to sustain many services” says Steve Hynes, Director of LAG. A report on the plight of Law Centres will be published in next months Legal Action.

Monday, 3 March 2008

Thumbs down for BVT plan

Criminal defence lawyers have given a resounding vote of no confidence to government plans for the proposed ‘best value tendering’ regime under which they would be expected to bid for work. An online survey of 361 legal aid lawyers found that almost two thirds (67%) of solicitors described themselves as ‘strongly against’ the proposals. The LSC is currently consulting on the BVT scheme and that consultation closed this week (March 3rd).

The survey ‘not only highlights that there is a lack of support for BVT across the profession’ but it also ‘reveals some of the fears solicitors have about the LSC's current proposals’, reckons Richard Miller, the Law Society’s legal aid manager. He goes on to say that ‘the fact that 85% said they would not bid for the contracts again when they come up for renewal if they failed first time around starkly demonstrates one of the major problems with the proposals’. ‘We have still seen no answer to the question how there can be adequate competition in any second round of bidding,’ he adds.

Chancery Lane points to ‘broader implications’ of BVT insofar as over half of the respondent firms (56%) undertake civil legal aid work and almost three-quarters (74%) of those firms reckon there would be ‘an adverse impact on their civil legal aid work if they were unsuccessful with their criminal bids’.

The Criminal Law Solicitors Association also published its response rejecting the proposed introduction of Best Value Tendering (BVT). It argues that the proposals ‘fail on every test that the LSC set themselves namely “to create a sustainable legal aid system, with quality, access and value for money at its heart”’. It says that the plan is ‘fundamentally flawed’.

A watchdog without teeth?

Criticism of the Independent Police Complaints Commission (IPCC) has been intensifying over the last week as the families of those alleging police misconduct, campaigners and community groups came out to back concerns raised by lawyers.

The credibility of the police watchdog set up in 2004 to replace the much criticised Police Complaints Authority was seriously undermined earlier in the month when more than 100 members of the Police Action Lawyers’ Group withdrew their support and two representative members, Tony Murphy and Raju Bhatt, resigned from its advisory board.

The forthcoming April issue of Legal Action reveals that this isn’t just a falling out between the IPCC and lawyers. Far from it, instead we talk to families, campaigners and commentators about their firsthand experiences dealing with what is widely regarded as a toothless watchdog. Tony Murphy, of London law firm Bhatt Murphy, rightly points out that proper investigation of complaints against the police has ‘long been held as essential to our democracy’. He says: ‘The leadership is failing to fulfil its responsibilities in relation to that vital task. Urgent action is needed if the IPCC is not to become another obstacle on the road to police accountability.’

The current row between the IPCC and its critics follows a letter sent to the body in January by Murphy and Bhatt in which the pair pointed out that they had participated in its advisory board representing the PALG because they felt it could be ‘an important means for the IPCC to take account of the interest of complainants and other stakeholders and that it could afford an important element of accountability’. However, they also acknowledge ‘significant scepticism and dissent’ amongst the group’s membership over the concern that they would be little more than window dressing. ‘Almost four years on, it is a source of deep disappointment to find that our involvement has reaped little benefit for the complainants represented by members. Indeed it has had a negative effect insofar as it has taken as a way from our clients the nil return,’ they wrote.

The IPCC chair Nick Hardwick denies the group is facing ‘a crisis of confidence’. He reckons its business as usual and the group continues to deal with PALG members ‘on a day-to-day basis without any problems’. ‘Sometimes we agree, sometimes we do not,’ he says.

However PALG members tell Legal Action that the views expressed by Murphy and Bhatt are shared throughout the group. ‘The IPCC should be playing an important constitutional role in holding the police to account when officers abuse their powers,’ says Jules Carey, head of the Police Action team at Tuckers. ‘The IPCC is failing dismally at this.’

Helen Shaw of INQUEST, which is on the IPCC advisory board, shares the ‘frustrations in trying to get the IPCC to listen to concerns from bereaved families over the quality of investigations and the way that the IPCC has approached families’. ‘Our experience has been until very recently that the IPCC has paid lip-service to what we’ve been saying,’ Shaw adds. The group has yet come to a decision as to whether it will resign from the board.

‘We feel that that IPCC hasn’t changed much from the days of the PCA,’ says Justin Waldron, cousin of Roger Sylvester who died after being restrained by six police officers who detained him under the Mental Health Act in 1999. The IPCC announced no officers were going to be disciplined in August 2007 despite an inquest verdict of unlawful killing in 2003. ‘We didn't think it was a thorough investigation to come to a decision that the officers shouldn't even be reprimanded,’ Waldron says. ‘It means the police are allowed to avoid scrutiny and accountability by the IPCC washing its hands of a case.’

The perception of the IPCC as ineffectual appears to be leading to a loss of confidence in the wider community as well। Stafford Scott, an independent adviser to the Metropolitan police Trident operation command unit (which investigates gun crime in the black community) and a chair of the black independent advisory group to the Metropolitan police borough command for Haringey, believes that the body has ‘no credibility’. ‘The confidence of complainants in the group provides a barometer to public confidence,’ he says. ‘We sue the police – that’s what we do now. We don’t go through the IPCC. We go through the civil courts.’