In the past few days, I have had two carbon-monoxide cases brought to my attention. The cases were sent to me in the hope that I could at this stage suggest an alternative strategy for these Consumers.
Its important to talk about this Consumer-label because all too often, people who become involved in litigation fail to understand that in the initial stages of their complaints, they had rights, consumer rights, which could have helped them resolve a particular problem. But then why should we expect Consumers to know these rights when Consumer commentators provide a broad positive gloss on securing their rights with a good stiff letter; these same commentators rarely follow up on those initial advices when companies give Consumers the merry-go-round.
Once emboldened, Consumers will try to resolve that problem, but with so few resources, they will either continue trying until they reach a dead-end, or worse, with no help or research, they go into court on their own!
In either case, and when all seems lost, they contact solicitors.
Carbon Monoxide cases are about exposure to a toxin. Exposure usually happens because a fitter or a landlord has failed in their basic duty to provide a safe heating or water supply, but the same exposure event can happen in an aircraft, in a motor vehicle or in a commercial or industrial setting. Carbon Monoxide is a colourless and odourless gas and in some circumstances it can kill but if you are exposed at low-levels, or over a period of time, you can suffer serious illness.
Consumers go to a solicitor because they are seeking reassurance and expertise to help them with their difficulties.
But finding a solicitor is the challenge. Search tools, sometimes using a post-code adds another layer of reassurance in that within your area, there exists a plethora of legal expertise. If you don't believe me, try that search with several post codes; you will see what I mean!
Now let’s look at the two cases.
Case A involves a family who were subject to Carbon Monoxide poisoning. The case has been running for 11 years and in that time the Consumer has had to obtain their own liability report despite legal representation through 3 sets of solicitors. A medical report has been obtained which has not been tested in conference with a barrister and it requires further work on its conclusions, but in particular, it fails to deal with the affects of low dose exposure over a period of time. In fact the liability report fails to analyse the escape of toxins into the home on more than one occasion. A ‘nuisance’ offer now rests with the case which falls far short of the compensation that should be awarded for the family’s injury; it also includes their costs which consume the entire offer. It is difficult for me to comment further without revealing fact, but, consistent failures to deploy good, normal and expected legal practice has placed this family with deadlines they don’t understand and a deep underlying sense that they are not going to achieve Justice, without incurring serious debt.
Case B. This also relates to a Carbon Monoxide poisoning case. Once again, the family involved have been on a ‘legal representation merry-go-round’. The latest solicitor has had to review the family’s papers, most of which they have put together themselves. They are at an impasse with regards to medical evidence, where there is a clear need for toxicological evidence; this is not difficult to achieve. After many weeks of ‘considering’ the papers, the solicitor wrote a short letter to the family advising that personal circumstances prevented them from taking the case. Well, you may say, that is that, but the letter in question was written on a page torn from a notebook and attached to the papers delivered to the family. Given that injury has been suffered, they suggested that they seek advices from a housing solicitor. Whilst this advice might be correct at first base, this family need a personal injury lawyer, perhaps supplemented with specialist advices from a housing solicitor.
These two cases reveal in my view a lack of expertise or knowledge or indeed the expected basics of running a legal case. They also reflect a lack of understanding on the basics of investigation and evidence. The legal responses to these cases do not reflect a level of service or confidence in the legal profession which gives the impression that costs are more important (whether the case is taken on or not) than the client’s needs.
I have long believed that if a solicitor or firm have a lack of skill or knowledge in a particular area, then they should say so. They would do a great service to their craft if they were to invest a little time to analyse and point the prospective client in the right direction - treating that exercise as a ‘loss-leader’ process which would leave the Consumer impressed by the honesty and candour presented, along with the time invested to help them along. The prospect exists thereafter that this ‘marketing exercise’ will deliver that client again at their front door when next they need legal assistance.
This may be a harsh set of conclusions to present in these cases and I suspect a great many more cases. I think my pedigree allows me to do so and with the prospect of a small but angry set of lawyers, unhappy with my views, I say this to them: the times are a changing and being precious about the service given to clients does not help us overcome the overwhelming need for the legal profession to adapt and reform.
I suspect that Consumers reading my opinions will either be able to relate directly to these two cases or know others who have suffered in the same way. My advice to all engaging legal service is to:
- Always write down all the key elements of your case;
- Do you know who is responsible for your exposure to a toxin(s) - is it possible to identify who controls the chemicals, heating, boiler etc?
- Where do you think the Defendant has failed you?
- Are others affected by these failures - who are they?
- Does this involve a housing, service or industrial failure?
- Do you understand what is meant by natural gas and where it is sourced from - the Wobbe Index if this involves a gas-index event - the composition of ‘other’ fuels other than gas?
- If it is a case involving toxins, do some research to understand the wider issues;
- In understanding toxins, make sure that you understand:
- The type of toxin you have been exposed to;
- Understand what are the potential side-effects of exposure and how do these relate to your symptoms;
- If the case involves injury rather than a death, understand the effect of a repeated low-dose exposure on your health;
- Obtain medical, repeated if necessary, advices - make sure you get all potential symptoms on record;
- Because it is a toxin case, always seek expert legal advices before advancing any action;
- If you are going to pursue such a case on your own, then make sure that you become familiar with the Civil Procedure Rules and in particular, the Pre-Action Protocols for:
- Housing Disrepair;
- Personal Injury Claims, and
- Disease & Illness;
- If you are going to ‘commission’ and pay for your own liability or medical report, always make sure that you bring this to the attention of any solicitor you instruct or the Defendant’s representative if you decide to represent yourself:
- Make yourself familiar with Part 35 of the Civil Procedure Rules on Expert Evidence!
- If you decide to instruct a Solicitor:
- Make sure that they prove to you that they have the necessary skill-set and knowledge about toxin cases;
- Check and understand all aspects of the ‘retainer’, in other words how you will pay them, before you instruct them;
- Provide them with all information and evidence you have gathered;
- Obtain a case plan from the solicitor, this should include:
- A timeframe for progress along with clear information on your limitation date;
- Early access of your medical evidence;
- Early identification of a liability expert and how to pay for them;
- Early identification of a toxicologist (other medical expertise may be required, dependent upon your medical complaints) and how to pay for them;
- Early capture of your witness evidence;
- Capture of your initial liability and medical reports;
- Early conference with a barrister to challenge your own evidence and to plug any deficits;
- An action plan on how/when to lodge your claim with the Defendant(s);
- Continuous explanation of the Court process;
- Updates every 3 to 4 weeks as a minimum.
Each case will be dependent on its facts, but the above plan is a good start on what to expect if you should become exposed to toxins and suffer ill-health - there will be variations, particularly if the value of the case falls below certain levels (Civil Procedure Rules (Part 26) Allocation to Track & Part 27, 28 & 29). Even if a case falls below these thresholds, a solicitor should explain the rationale behind their running of the case and the ‘minimums’ they will deliver and the ‘extras’ you may have to commit to in order to prove your case.
The moral of the story for Consumers is to prepare well and take care of the decisions you make!
Consumers deserve better and who among my legal critics would disagree?