0800 652 3371

Calls to Reform Surrogacy Laws

The Law Commission has recently published its surrogacy consultation paper: ‘Building families through surrogacy: a new law’. Sir Nicholas Green, Chair of the Law Commission, has called the current laws governing surrogacy, "outdated and no longer fit for purpose". He highlights the increase of the use of surrogacy; criticising the current law and recommending ways to promote the interests of all, including the child.

Under the current law the ‘intended parents’ have no legal rights in respect of the child until a parental order is made. The Law Commission has proposed a change that would make intended parents the legal parents once the child is born, with the surrogate having a right to object within a short period of time. Other proposals include:

  • The establishment of a surrogacy regulator;
  • Removing the requirement of a genetic link between the intended parents and the child, where medically necessary;
  • Creating a national register, allowing children born of surrogacy to access information about their origins.

Lanyon Bowdler’s family department are specialists in their field and can advise those who are either considering, or have recently been involved in, surrogacy of their rights and responsibilities. If you or someone you know would benefit from an appointment with one of our specialists then please contact a member of the family team for further advice.

The Discount Rate

On 15 July 2019 the Lord Chancellor announced a new discount rate of -0.25% for all personal injury and clinical negligence claims. The Association of British Insurers (ABI) was swift in its criticism of the rate and renewed existing arguments that the new rate would lead to a rise in insurance premiums and pressure on public services such as the NHS, which would have knock on effects on the taxpayer.

The aim of compensation

As we have explained in previous blogs, the aim of compensation in a clinical negligence case is to put a claimant in as close to the position that they would have been in, but for the negligence. This is not always possible, for example in a case where a child has suffered a brain injury in the form of cerebral palsy, the compensation is used to ensure that they are able to achieve their full potential during their lifetime, by ensuring that they can afford the care and support they need for life.

What is the discount rate?

Generally, all compensation payments consist of at least some element of a lump sum, which is awarded for past and future losses. However, the future loss element is discounted at the point of payment to reflect the fact that the compensation could be invested by the claimant and they could actually make money on it. If it were not discounted, this could be unfair since in reality the claimant could be overcompensated for their loss. The idea of discounting is therefore that when the claimant invests their money, the only money they will make is the amount of compensation that was deducted when they received it.

Until 2017, the discount rate was set at 2.5%; the assumption being that interest could be earned at that rate. For example, if a man aged 37 at the time of the negligence sustained a loss of £30,000 a year that would continue until he reached the age of 65, the discount rate would be applied and his claim would be for £606,300. We would not simply multiply his loss by the 28 year period and then claim back £840,000 because the law assumed he would earn a good rate of interest during that 28 years.

Why was it unfair?

Unsurprisingly, defendant insurers and the NHS were happy with this arrangement as they did not have to pay out as much in compensation as the claimant deserved. They happily ignored the fact that, in reality, it is almost impossible for a claimant to earn the necessary rate of interest to make up the shortfall in their compensation. This meant that claimants were being undercompensated.

In 2017, the government recognised this and implemented a new discount rate of -0.75%. This meant the loss of earnings claim in the above scenario changed to £935,100. It recognised that claimants would not be able to earn interest on their compensation. It also provided an advance top-up of their compensation to reflect the fact that over time the value of their money would actually go down as the cost of living goes up (inflation), as a further safeguard against under compensation.

However, defendants were unhappy with this as it meant they had to pay out more in compensation. They argued that claimants were now being overcompensated and that this would increase the burden on taxpayers where the NHS was paying and insurance premiums where insurers had to pay out.

The government accepted that a closer review was required and set the groundwork for this in the Civil Liability Bill 2018. It was then a waiting game as to what the new rate would be.

The new discount rate

In the wake of massive cuts in legal aid and other changes in the way in which clinical negligence claims are funded (which it is fair to say did not go the claimant’s way), claimant solicitors were not optimistic about what the new rate would be.

However, the new discount rate of -0.25% announced by the Lord Chancellor on 15 July 2019 was welcomed as it still reflected a fair and balanced approach to the calculation of compensation. The ABI however is not happy and has denounced the rate as unfair. They argue that higher compensation pay outs will mean higher premiums and taxes, but appear not to appreciate that the gentleman above would now only receive £870,000 for his lost earnings, which is less than before the rate changed and is much more in keeping with his actual loss.

Amidst all of the figures which fly about in the context of negligence claims, it is to be applauded that the government has recognised that there are real victims behind the figures in the media, who deserve just compensation for their injuries. It is hoped that this recognition will continue when the discount rate is reviewed again in five years’ time.

In the meantime, it is unfortunate that out of something positive has come more scaremongering and criticism of claimants and their solicitors. We agree that insurers and the NHS should not have to pay out huge sums in compensation, but not because of the cost of it. We agree because cases of negligence should not be happening and this is why we campaign for lessons to be learned from mistakes that have been made to prevent the same from happening to someone else in the future.

Criminal Injuries Compensation Scheme Abolishment of “Same Roof Rule”

In 1964 the Criminal Injuries Compensation Scheme was introduced to compensate innocent victims for crimes of violence. However, victims of violent crimes, which took place before 1979, were unable to apply for compensation under the Criminal Injuries Compensation Scheme if they lived with their attacker as members of the same family at the time of the incident.

Recently, the “same roof rule” was successfully challenged in the Court of Appeal and therefore parliament subsequently removed this rule from the scheme.

As a result, victims of violent crimes which took place before 1979, even if they were the victim of an assault by someone with whom they were living, can now apply for compensation to the Criminal Injuries Compensation Authority. The new legislation, which abolished the so called “same roof rule” for victims of violent crime, came into force on 13 June 2019. Victims will have two years from that date to apply, although the CICA may be able to extend this two year limit in certain circumstances.

If you were the victim of a violent crime but were previously prevented from making an application for compensation and now wish to apply, you can contact a member of our personal injury team who will be happy to help you. Even if you have previously claimed and your application for compensation was rejected because of the “same roof rule”, you can now resubmit your claim to the CICA.

Any claim should be submitted or resubmitted as soon as possible.

Serious Injury Guide

I was delighted to have the opportunity to attend the Serious Injury Guide stakeholder workshop following Lanyon Bowdler’s signatory to the same. The Serious Injury Guide is a best practice guide designed to assist litigants conducting personal injury cases. It particularly applies to complex injury cases where the potential value of the claim is over £250,000 and is likely to involve a claim with an element of future continuing loss.

The attention is to help parties resolve issues whilst putting the claimant at the centre of the process. It aims to meet the reasonable needs of an injured claimant and helps the parties to work together, to resolve the case by co-operation and narrowing the issues.

The Main Objectives of the Guide are to:

  • Resolve liability as quickly as possible

  • Provide the claimant with early access to rehabilitation to maximise their recovery

  • Resolve costs in an appropriate and proportionate manner

  • Resolve the whole claim within an appropriate agreed time frame and;

  • Encourage an environment of mutual trust, transparency and collaboration

Claimants are encouraged to give early notification within 14 days of the claim to the defendant and their insurers, particularly where liability can be conceded.

Interestingly, a full formal letter of claim is not expected in the first instance; just an initial view for the purposes of understanding the nature of the claim, the severity of the injuries and to ensure that the case is allocated to the appropriate level of file handler.

Having made first contact the defendants should acknowledge a notification letter. Then within 28 days there is encouragement for the insurer to contact the solicitors. It is important to establish lines of communication and to consider the following:

  • Liability

  • Update on injuries

  • Rehabilitation

  • Potential defendants and;

  • Agreement as to when further discussions will be held

What helps Efficient Case Progression?

Case planning or pathway meetings enable there to be constructive collaboration and dialogue, which allows efficient case progression with an agreed action plan. It not only looks at liability issues, but also focuses on rehabilitation quantum evidence and overall settlement. Where possible, a longstop date for a joint settlement meeting is provided.

In terms of liability, there is a commitment for the defendant to finalise liability investigations within a maximum of six months from the date of first notification. It is not possible to identify barriers that stop liability and see whether those issues can be resolved at an early time, or to look at alternative dispute resolution or mediation in place of a trial. There is a commitment to obtaining an early interim payment of both payments on account for the claimant, and payment of disbursements in addition to base costs relating to liability once resolved. This helps clients in commercially funding their claims, which in complex cases can take a considerable time to settle.

In my experience, obtaining early rehabilitation for clients is effective by the appointment of an independent clinical case manager who can assist with the client’s needs. This coupled with a willingness to make early and continuing interim payments, help put the claimant in a better position in terms of their rehabilitation.

There is commitment by both parties to obtain and disclose liability reports, police reports and accident report documents. On the cases that I have dealt with, we have arranged for there to be ongoing, rolling disclosure of medical notes, records and documents relating to past loss. Case management and treatment records should also be included to provide the defendants with the possibility of reviewing the claim in early course - even if medical reports have not yet been obtained. Collaboration and case planning, early interim payments, maximising rehabilitation, identifying early issues of dispute and providing a flexible approach to resolution, avoid the need for a contentious background to litigation. What’s more, regular updates between the parties and increased communication are key.

If there are multiple defendants, the identity of a co-ordinating party will try to avoid the duplication of correspondence. There is also a continued expectation that the defendants will agree to a co-ordinating defendant as soon as possible. For me, it is most important that regular ongoing dialogue takes place between the parties, until the next stage required in the case. Any material change of circumstances should be notified immediately e.g. loss of capacity, significant material deterioration, change in care regime costs and risk of loss of employment.

Early rehabilitation

For the claimant, the most important point (and the overriding aim of the guide) is to have access to early rehabilitation at the earliest practical possibility. It also includes a consultation with the claimant, the claimant’s family and looking for early intervention, rehab or medical treatment that would improve the present or long term situation. The defendants should reply promptly to any request for rehabilitation within 21 days. If either party feels that the opposing handler is not acting in accordance with the spirit of the guide, the first step must be to exhaust attempts to resolve points of concern. Alternatively, there is an escalation procedure and parties are expected to adhere to the objectives.

Ongoing dialogue is fundamental to the process and the guide covers early neutral evaluation, joint settlement meetings, mediation, arbitration or a stocktake/cooling off period, before the parties re-engage. On a commercial basis the offer of rolling costs, payment of disbursements and full interim payments assist all parties in terms of providing better service - all of which help to make the litigation process a much easier experience. For more information about the guide, please click here.

Lanyon Bowlder are one of Shropshire & Herefordshire's Leading Serious Injury Claim Solicitors Firms, If you or a loved one have been injured, talk to our team today.

The DVLA and Fitness to Drive

The DVLA can revoke a person’s driving licence for medical reasons, so it’s important to keep them updated on any illnesses that can affect your ability to drive. A full list of medical conditions that may impact your driving can be found here.

I have had a number of recent enquiries from people who have had their licences revoked by the DVLA. The licences have previously been granted to them for a fixed period, suggesting a possible change of policy at the DVLA into how these decisions are reached.

The question I am being asked is how you can challenge the DVLA’s decision if you feel they have got it wrong?

When revoking the licence, the DVLA will explain why it has made the decision, if and when you can reapply and, most importantly, how you can appeal.

The DVLA appeal should include information such as medical evidence and any other supporting documentation stating the reason why you believe the DVLA to be incorrect.

If the DVLA uphold their revocation decision, you can then appeal against this to a local Magistrates’ Court within six months.

For any help or assistance regarding such matters please contact 01743 280280.

Understanding Pathological Fatigue

With Action for Brain Injury Week having just gone, I wanted to take a look at some of the daily struggles people with brain injury have to overcome.

A brain injury can have devastating effects on the victim, their family and friends. Some of the effects are obvious, but what about those which are harder to see from the outside?

The problem

We all know how difficult being tired can make things. It makes you feel irritable, unable to concentrate and unwilling to socialise. Usually a good night’s sleep will be the remedy to freshen us up to face the rigours of everyday life again but what about if sleep didn’t help? What if you had that feeling all the time? How do you explain to someone that you feel this way despite having a full night’s sleep? This can be the life of someone who suffers with pathological fatigue.

Pathological fatigue is unfortunately a common issue in those with brain injury. This has been explored in a recent study by Headway Brain Injury Association, as part of their Brain Drain – Wake up to Fatigue campaign. Responses to the study report that 87% of those who suffered a brain injury stated pathological fatigue has a negative impact on their life.

Despite it being so common amongst those who suffer with a brain injury, 80% of respondents felt that others had an insufficient understanding of the impact of pathological fatigue, with 69% saying they feel they have been unfairly judged as a result of the lack of understanding.

Understanding the condition

Sadly, it can be all too easy to dismiss this debilitating condition as ‘whinging’ or ‘staying up too late’ and to simply tell someone to ‘get over it’. Even those closest to the victim can often misunderstand the nature of their illness, with 75% of respondents reporting this to be the case.

Peter McCabe, Chief Executive of Headway, believes this is a pervasive issue;

“As a society, we need to wake up and recognise the debilitating effects fatigue can have on people living with the long-term effects of brain injury.

“We all get tired from time-to-time, but for brain injury survivors fatigue can have a debilitating impact on every aspect of their lives. Even seemingly straightforward tasks such as going to the shop can drain a brain injury survivor of all their energy.”

Victims of pathological fatigue can find their lives changed dramatically, being unable to do tasks they were previously able to do with ease; this can lead to conflict for an individual and those around them. Peter McCabe firmly believes “…a lack of understanding of the underlying cause can lead to problems with relationships, work and social life, and the self-esteem of the brain injury survivor.”

Contact us

At Lanyon Bowdler we understand the need for specialist knowledge when working with those that have suffered a brain injury as a result of medical negligence. We work closely with professionals who broaden our understanding of these complex issues, ultimately allowing us to better address our clients’ needs and achieve the best result for them.

Lanyon Bowdler are proud to be corporate members of Headway and are listed in the Headway Head Injury Solicitors Directory.

If you are affected by any of the issues raised in this blog, you can contact a member of our team who will be happy to help you. Alternatively you can read more about the campaign at Headway Brain Injury Association.

Local Artist Decorates our Windows for Shropshire Council's Competition for Armed Forces' Celebrations

As a signatory of the Armed Forces Community Covenant we are always looking for ways to demonstrate our support to the armed forces community. When Shropshire Council announced a competition for local businesses to decorate their windows for armed forces celebrations, we were keen to be involved.

We invited local artist, Sali Nixon, to our Shrewsbury office on 3 July to decorate windows in order to take part in Shropshire Council’s competition. Sali created the window displays in the sunshine and did a fantastic job. The silhouette images are displayed on the entrance doors at our head office in Shrewsbury and on meeting room windows, incorporating images of service personnel.

Lanyon Bowdler is proud to have signed the Armed Forces Covenant, a scheme which pledges to help support serving and retired armed forces personnel and their families. As a full service law firm we have been able to demonstrate our commitment to the armed forces community by offering a full range of legal services and employment opportunities.

I also participate in a local operations group, which is a fantastic group brought together by Shropshire Council. The group meets once a month and case manages veteran’s needs post service. It is a great opportunity to bring together support for military personnel, both in terms of the public, private and charity sectors. This has now grown to encompass an outreach event twice a month at Palmers Café in Shrewsbury, where service personnel, veterans and their families can access help and support. The outreach event occurs on the first and third Monday of every month, more details here.

Winners of the best display will be announced in the next week or two, and we have members of staff already vying for the chance to tour the base at Shawbury, to fire a rifle or pistol on one of the ranges, and to have a close up look at a helicopter and a red hawk.

Idsall School Mock Trial

On 10 April 2019 staff from Lanyon Bowdler attended Idsall School, where year 12 students had transformed part of their school into a courtroom and were conducting their own legal drama before a retired judge.

The pupils were tasked with running a criminal trial, taking on the roles of barristers and witnesses for both the prosecution and defence. The defendant was being prosecuted for racially aggravated assault. The situation was made more complicated with inconsistent witness statements, several possible timelines and hidden information through which the students needed to navigate in order to develop the strongest case for their side.

This followed several workshops in which the students were given advice and guidance by staff from Lanyon Bowdler before staging a dress rehearsal, which was judged by Lanyon Bowdler partner, Edward Rees.

Between workshops the students developed persuasive arguments and theories, which carried through to the culmination of the live trial. In order to make the experience as real as possible retired Judge Chapman presided over the courtroom with year 10 students forming a jury. Relatives, friends and staff from Lanyon Bowdler watched the trial from the public gallery.

The event was a huge success with all the students performing extremely well. Retired Judge Chapman congratulated them for participating so enthusiastically.

And for those wondering, after the verdict was delivered, one final piece of information was revealed, which revealed whether the right person was brought to justice!

Stand out from the crowd

Lanyon Bowdler recognises that a legal career is challenging to pursue and, with increased competition for positions, it is becoming increasingly more difficult. Extra curricular activities, such as mock trials and mooting competitions, are an excellent way to develop legal skills and experience. They allow for an early understanding of the subject, which helps students develop a passion for law, which is important for making you stand out from the crowd.

Lanyon Bowdler regularly runs mock trials for local schools. Please contact Lucy Speed or Holly Edwards at Lanyon Bowdler if you are would like to find out more. If you are interested in legal work experience, applications for 2020 are being accepted until 15 January 2020. Please email work.experience@lblaw.co.uk with your CV and cover letter.

Warfarin in a Nutshell

Warfarin is a blood thinner otherwise known as an anticoagulant. It’s a very interesting drug as, just like penicillin, it was discovered by chance. The advancing knowledge and understanding of these drugs have altered how modern medicine is practised, which has saved many lives. However each drug has the capacity in certain situations to have catastrophic consequences. People can have a life-threatening reaction to penicillin, and warfarin needs to be strictly monitored, as it has important drug interactions which can change its effect - making the blood thinner or more at risk of clotting.

The discovery of warfarin

Warfarin was discovered in the early 1920s in the USA and Canada, where cattle were bleeding torrentially, with some dying, after minor surgical procedures e.g. dehorning. The problem was traced to mouldy clover meadow hay. A fungus within it was metabolising a naturally occurring compound called dicoumarol in the mouldy hay and turning it into an anticoagulant.

After many years of research and further refining of the compound, Karl Link, a chemist from the University of Wisconsin, managed to synthesise a more potent anticoagulant from dicoumarol. The drug was named warfarin. Warfarin comes from an acronym WARF – Wisconsin Alumni Research Foundation and arin, from coumarin, which was the molecule present within dicoumarol.

In the 1940s, WARF funded the research into couramin based rodenticides and from this research it was concluded that warfarin could be used medically.

Which conditions can be treated with warfarin?

Warfarin is used for a variety of clinical conditions where the blood is prone to clot. These include:

  • Atrial fibrillation - an irregular heart rhythm caused by the two smaller heart chambers contracting in an erratic way
  • Patients with artificial heart valves
  • People with previous clots or embolisms
  • Strokes
  • Cardiomyopathies – heart muscle problems
  • Medical conditions at a greater risk of clotting e.g. Kawasaki disease

Warfarin acts by interacting with vitamin K clotting factors and its effect can therefore be reversed by giving vitamin K.

How warfarin affects the blood differs from one person to the next. It is difficult to predict its effect and it has to be monitored regularly by a blood test called the INR (international ratio). The same dose can cause widely different anticoagulant effects from person to person and this can be described as a narrow therapeutic index. A small change in dose can make a big change in the INR or no / little change; hence the blood becomes thinner and less able to clot with devastating effects, or the dose may not make the blood as thin as predicted. Monitoring is essential, therefore the INR blood test needs to be performed regularly so the level of anticoagulation is established to be within the agreed range needed for the patient’s specific condition. A normal INR range lays around one.

Can certain drugs and food impact the effects of warfarin?

Many people are not aware that warfarin’s actions can be affected by certain foods and drugs– i.e. there is an interaction.

Certain drugs and foods can potentiate the effects of warfarin, increasing the INR and making a person potentially more prone to bleeding or haemorrhage.

These include:

  • Cranberry juice, mangos, grapefruit, grapefruit juice, grapefruit seed extract, or pomegranate juice
  • Alcohol
  • Certain antibiotics e.g. metronidazole, erythromycin and clarithromycin, ciprofloxacin
  • Some antifungals e.g. fluconazole
  • Non-steroidal anti inflammatories
  • Some laxatives
  • Some heart drugs e.g. amiodarone

Certain drugs and foods can decrease the INR making the blood more prone to clot. These include:

  • Foods high in vitamin K – leafy green vegetables, including spinach, kale and swiss chard
  • Cruciferous vegetables e.g. broccoli, brussels sprouts and cabbage
  • Cholestyramine
  • Barbiturates, rifampicin, carbamazepine

Other drugs that make the patient more likely to bleed without interfering directly with the plasma concentration of warfarin but affect clotting include:

  • Antiplatelets: clopidogrel – aspirin in low doses – dipyridamole
  • Non-steroidal anti inflammatories

The importance of regularly monitoring warfarin treatment

It is always important to inform a treating clinician that warfarin is being taken to try and avoid any deleterious drug interactions. If the INR is too low the patient is more prone to clot and if it is too high the patient is more prone to bleed. Both may have a harmful effect for the patient such as increasing the likelihood of a haemorrhage e.g. from cuts, wounds and abrasions, or spontaneous bleeds such as a haemorrhagic stroke / bleeding from ulcers within the gut system. If the INR reduces it can make the patient more likely to clot, which increases the chance of ischaemic brain strokes, deep vein thrombosis or pulmonary embolism.

It helps considerably if a patient on warfarin is aware of the above information and the importance of careful monitoring by the GP or hospital. Unfortunately, accidents do happen and we have acted on behalf of patients, who have suffered injury as a result of a failure to monitor their warfarin and INR levels.

Agricultural Wages in Wales - Guidance Published

The Welsh Government has published guidance relating to the Agricultural Wages (Wales) Order 2019.

In addition to the increased minimum rates of pay for agricultural workers, under the Order there are amendments to the definition of an apprentice and amendments to the definition of qualifying days for the calculation of annual leave.

The increased minimum rates of pay and amended definitions came into force on 1 April 2019.

The guidance can be accessed here.

Action for Brain Injury Week

Headway Shropshire Garden

In 2010 Headway Shropshire developed the concept of the Labyrinth Garden for the Shrewsbury Flower Show outdoor garden competition. This amazing project was assisted by garden designer, Mike Russell and many volunteers. Local businesses got involved donating items to bring the project to fruition along with Lanyon Bowdler, who also grew plants for the project and kept diaries of their plant’s progress. The garden won the award for best outdoor garden that year, which was a testament to all the hard work by many clients, volunteers and local businesses.

Whilst this took place, Headway clients got involved by potting plants and creating fantastic murals out of paint and chipboard to be displayed around their own garden at Headway House in Shrewsbury. The garden is a great resource for the Headway clients to relax and take some time out in. Many of the features that formed part of the outdoor garden at the Flower Garden were later moved over to Headway and still remain there now.

Fast forward nine years and the garden remains an important feature at Headway, however over the winter months, the garden has got a little overgrown and required a bit of TLC to prepare it for the summer months ahead. As this week marks Action for Brain Injury week (20 – 26 May), we sent an army of volunteers from Lanyon Bowdler’s personal injury department, handyman Paul and Operations Manager Rowland, to transform the garden – ground force style!

There were many jobs that needed completing, including weeding, watering, painting and digging. It is really important to remove any plants that are sharp or prickly to prevent Headway’s clients injuring themselves and ensuring it is a safe environment for them to use. We had lovely sunny weather and everyone spent the morning hard at work, trying to decipher what was a plant and what was a weed, and in my case, trying to get the paint onto the flower bed borders and not all over myself.

After a morning of hard work, we broke for lunch and everyone was delighted to see the arrival of some sandwiches and a lemon drizzle cake, kindly baked by personal injury partner Debbie Humphries.

Hats for Headway

After everyone had eaten enough sandwiches to sustain them, we all donned our hats for the Hats for Headway photograph for Action for Brain Injury week.

By the end of the day, the garden looked renewed and the blue paint really jazzed up the garden ready for summer. Headway Shropshire’s garden is a great resource for its clients and staff and although everyone was tired from a day of hard work, it was great to see the garden looking so beautiful ready for the summer.

Coroners’ Inquests

The Coroner Service is at least 800 years old and has recently undergone significant changes. It is a public service to find out the cause of a death that has been reported to them. Coroners investigate the death in order to explain how, when, where and in what circumstances it occurred. In relevant cases, they will make a report to prevent a future death occurring in similar circumstances. It is also for bereaved families and the wider public good, learning lessons for the health and welfare of others.

However, paying for legal representation in connection with an inquest is a major problem for many bereaved families. The government claims that legal representation is unnecessary for most inquests, probably because of its investigative rather than adversarial nature and the fact that the deceased’s family are unlikely to be responsible for the death.

Is it possible to get legal aid for an inquest?

Legal aid is only available, in theory, for “exceptional cases”, which are defined as (1) if there is a human rights issue and (2) a wider public interest in the inquest. A human rights issue usually arises where the death has potentially been caused by the state, for example, a death in police custody. However, the number of cases falling within either of these two categories is very low and legal aid is also subject to very restrictive means-testing, meaning that legal aid is frequently unavailable. Another type of legal aid - “Legal help” - is available before an inquest but it does not cover the hearing itself.

The lack of availability of legal aid for bereaved families was highlighted in several recent high profile inquests, including that relating to the 1974 Birmingham pub bombings. In that particular case, the bereaved families’ application for legal aid was rejected and they had to resort to last minute crowd-funding in order to fund their legal representation at the inquest.

It may sometimes be possible to obtain free legal representation but this is unlikely to be available in the majority of cases.

If there is a civil claim for compensation, the bereaved family’s legal representatives may be willing to act for the family in the civil claim under the terms of a Conditional Fee (“no win, no fee”) Agreement. As part of investigating the civil claim it is often reasonable to instruct lawyers to attend the inquest to ask questions and obtain evidence relevant to the civil claim, and the legal costs can be recoverable in the civil claim from the defendant who is alleged to have caused the death.

However, obtaining funding to pay for legal representation remains a frequently insurmountable problem for bereaved families, leaving them with no option but to represent themselves, at what can be a traumatic and complicated inquest hearing.

The unavailability of legal aid for inquest hearings, and the lack of other funding alternatives, is a very real problem for bereaved families and lawyers who represent them. Often, the other parties at the inquest are legally represented but the family is not, which seems very unfair.

The benefits of having legal representation at an inquest hearing

There is a substantial benefit in having legal representation at the inquest hearing, as well as legal advice during the inquest process. It can help to take some of the stress out of the hearing itself, and appropriate legal advice prior to the hearing can assist the family to navigate its way through the disclosure process.

There is now a general right to disclosure of evidence prior to the hearing and legal representation can assist with important matters such as identifying and agreeing (with the other parties and the coroner) relevant documents and other evidence for use at the hearing, agreeing which of the witnesses and experts will be called to give oral evidence, and deciding whether or not a site visit will be necessary. These issues – and others – may be considered and determined by the coroner, with input from the parties’ legal representatives, at one or more preliminary hearings, before the inquest itself takes place. The legal representative may need to liaise with the health and safety executive before the hearing if the death occurred as a result of an accident at work, or assist with compiling bundles of evidence for use at the inquest hearing. The whole of the inquest process can be upsetting for the bereaved family, including the receipt of witness statements containing sensitive information about the accident or death, post-mortem reports and photographs.

Families are usually unfamiliar with the inquest process and unused to advocacy. The coroner may decide that a jury is required, adding a further dimension and complication to the hearing.

Having an experienced legal representative at the inquest hearing should help to ensure that all of the relevant evidence is explored and that appropriate questions are put to the witnesses and any experts. It may be necessary for the legal representative to put questions to doctors, or other medical personnel.

One of my own clients, for whom I was able to arrange legal representation at an inquest hearing into the death of her husband, told me afterwards, “The inquest was such a daunting and horrendous experience, if I did not have legal representation I would have definitely been bullied by the opposition. The advantages helped me understand the ‘legal jargon’, the way the coroner operates and, most importantly, to have a full investigation into the death of my husband”.

Funding for legal representation needs further improvements

The charity, Inquest, has recently revealed new figures which show that, in 2017, the Ministry of Justice spent £4.2m on legal representation for the prison and probation service, as opposed to the £92,000 granted to bereaved families through the Legal Aid Agency’s exceptional funding scheme. Why should doctors, police officers, government departments and insured defendants have representation, often from senior counsel and experienced solicitors, and their legal costs fully funded and bereaved families are left to their own devices? This is clearly a dreadful and continuing injustice for grieving families who deserve legal representation at inquests. Despite the recent significant changes to the coroner service brought about by the Coroners and Justice Act 2009 (which came into effect in July 2013), it is clear that much still needs to be done to improve funding for legal representation throughout the inquest process. It is about fairness and equality.

Latest News

08 May 2016

A Mother Talks About the Challenges Faced Due to Cerebral Palsy Following a Birth Injury

Her daughter from Shropshire was diagnosed with Cerebral Palsy following a birth injury, Lanyon Bowdler are working w...

Read More