http://www.theinjuryforum.co.uk/forum/index.php? topic=500.

msg735#msg735
Official Solicitor
on: September 16, 2012, 09:03:26 AM

Quote help please why do solicitors use the "Official Solicitor" as the litigation friend over family members. Can the family stop this from happening ======================================== Dear Dunnitaday In most litigations, the family member does become the litigation friend. The Court only appoints the Official Solicitor if they have the permission of the family OR if they believe that it is the child's best interests to have an Official Solicitor in place whatever the family thinks. This normally occurs when it is believed that there is a possible conflict of interest between the family and the child, or to protect the money so that the child gets the full benefit of it. It's usually the Court that makes the decision, though, not a solicitor. I would ask to see whatever Order has led to the Official Solicitor being put in place. You can apply to overturn such an order by application but you would need your own solicitor to do this, and the court is unlikely to overturn it unless there are very good reasons for doing so. Gareth ====================================== Hi Gareth, very interesting I thought that lawyers was just an employee for their client an advisory, certainly not to have the powers to overrule their client. Just imagine if all service industry were given those powers you will never get anything done the way you wanted it. I say this because of a strong advice by a personal injury firm.

Some lawyers can be intimidating and pushy, but be brave. This is YOUR case, and they are working for you.

http://smithslawyers.com.au/10-questions-to-ask-your-personal-injurylawyer/?goback=%2Egde_1061567_member_180140184
You stated that, >but you would need your own solicitor to do this, and the court is unlikely to overturn it unless there are very good reasons for doing so.< I am just wondering what it the client refuses to accept an official Solicitor, does the case ends there in a catch 22 situation? Is the claimant deprived from his or her compensation? Doesn't this kind of behaviour encourage professional negligence or corruption, it is certainly away to undermine the situation. ========================================= ================ Dear Colin I think you've misunderstood the situation. The official solicitor only enters the scene if the Claimant themselves is unable to bring the claim through lack of capacity [either their age, or disablement of some kind]. They bring the claim for the Claimant. Often one of the parents does this through a solicitor, unless the Court believes that the parent should not, for whatever reason, be running the claim for the Claimant. So the claim is still run, just not directly through the parent. Gareth gxl@glewisandco.com ======================================

Thanks for the reply Gareth. I do realise that the claim shall go on, but my question is, what if the claimant and their family do not agree to an intervention by an official Solicitor introduced into the case by their solicitors requests. I say this because my wife and I find us trapped in this situation.

In your statement you mention, >I would ask to see whatever Order has led to the Official Solicitor being put in place. You can apply to overturn such an order by application but you would need your own solicitor to do this, and the court is unlikely to overturn it unless there are very good reasons for doing so.< Well we never knew this at the time, and know one mentioned this to us. Our solicitor decided to bring in the official Solicitor because we refuse to accept the offer. We felt very strongly that this case should have been brought to court because of the sheer negligence by the defendant. We wanted the public to know how little care that this company had for the public entering their premises. The solicitor involved also went on to remove himself off the records and have been paid by the insurers for his services rendered. Because we refuse to accept the introduction of the official Solicitor, the compensation has not been forthcoming, it would be 10 years this April since the accident. As for the reasons given by the solicitor, the claimant does not have the mental capacity to decide the award given. No mention of this in the expert witness reports submitted to the court at the time of the claim, and the amount offered had been reduced by 80%. I am just wondering now, will the claimant ever receive whatever award they had decided on, considering how long this case has taken? ========================================= ================ Hi I can only really reiterate what I said in my previous message. You need to see all of the orders on the case to know what has happened, why it happened, and when it happened. There's no point in asking what if the family don't agree with the intervention if the intervention has already occurred. You need to know what the terms were of that intervention. You should have been served with the documents if you were involved in the claim at any level. As for the money side of it, the official solicitor does have a duty to report to interested parties, so I suggest you write to them directly and find out the current state of play.

In terms of the negligence of the other side, here's where we enter into more difficult territory. What a lot of Claimants don't understand is that the negligence and the valuation are two different parts of the claim. In this country, damages are not supposed to "punish" the Defendant per se, only attempt to put the Claimant back in the position they were in before the accident. We don't have punitive payouts against companies like they do in America. So pushing a claim into Court when an offer has been made that the solicitor doesn't think will be beaten should be the end of a claim. It doesn't matter that the company behaved terribly [it matters morally, but not legally] because in order to get your costs you have to beat the offer that's been made. If the solicitor doesn't think it'll be beaten, then he would be negligent to advice the client to carry on because the client could potentially end up with nothing if they didn't beat the offer. You need to see the orders in the case because otherwise you're just guessing what has occurred. No-one can really advise you without seeing the orders. Gareth ======================================= Well that is the problem Gareth, we have not received any orders from the court, and because we did not recognise or accept the intervention of the official Solicitor we have not had any correspondent with her. Our barrister told us that we had to obtain a report from an expert that my wife did not have the mental capacity before we could receive the payment that was the last we heard of it. I did try once going to the official solicitors office but she was not there, but phoned me later and said that my wife's doctor may provide the information they require, but my answer was they have several expert witness report amounting to 5 not including the experts from the NHS which amounts to another 10 or even more, why should my wife having to prove anything else to them, years later after the accident. We did not want to get too involved with her because we have not accepted the presence of an official Solicitor in the case. Well I can see where you're coming from now, morally it does not matter, the conduct of the solicitor in this case don't seem to

matter, as long as the solicitor sees it fit that the amount is substantial, well if they told me that bluntly we would have grabbed the money and ran. The problem I have is that I believe in justice but it seems to be something that is only in my imagination and wrongful belief. http://www.moneylife.in/article/is-ethical-businesspossible-in-this-corrupt-world/27809.html So I guess in ignoring them completely we will not see the compensation forthcoming. My son mentioned to me that I should get a solicitor to help us resolve this problem, because we refuse to have anything to do with them. Highly unusual, after all this year's we have just recently received a letter from the official Solicitor stating that there will be a hearing on 15 November on this case, which we do not plan on going. Colin PS, I would like to say that you have my admiration for your posts on here, extremely good advice and bluntly speaking in the interests of those who seek advice. Just in case you were wondering what this case was all about. http://www.youtube.com/user/colinberry1?feature=mheeif ========================================= ================

Gareth Lewis
Solicitor Administrator Full Member

Posts: 128

0 Re: Official Solicitor

Reply #7 on: Today at 06:06:33 PM

Dear Colin

Quote

I think the advantage of getting another solicitor is that you will be able to get the truth of the Court paper trail, if nothing else. In my experience, solicitors are much better with paper than people, I'm afraid to say. I include myself in that. It's partly our fear of being sued ourselves, because we're dealing with such important things, but it means that as a tribe we're risk adverse and tend to stick to letters. The other advantage to getting a solicitor is we tend to treat phonecalls / letters from other solicitors very seriously because we each individually know whether the conduct of the other solicitor has been good, bad or indifferent. Every call is written up and there's rarely any misunderstandings. A call from an "interested party", no matter how close to a case, might not be billable and therefore the calls tend to be treated less seriously because taking them is effectively working for nothing. So the business element, even of the best of solicitors, does outweigh the "moral" element, i.e. doing some abstract decent thing. That's an unfortunate fact of life and it will get worse after April, when large swathes of legal aid are taken away from certain sectors. The Judiciary have told solicitors that they expect us to "help out" with the Courts being stretched to breaking point, effectively for free or on low paid fixed fees, both of which suggestions have been met with barely concealed contempt. The downside to getting your own solicitor at this late stage, however, is he's going to look at the sheer size and complexity of the case / paperwork and probably quote you a huge amount to deal with it. But there's no harm in getting a quote. I had a quick look at the link and it does look like you've been through a lot. I wish you good luck in the future, in any event. Gareth ======================================== Dear Gareth I do appreciate your advise and do understand what is required to pursue this case, but unfortunately due to the care and rehabilitation that my wife had not received from the very beginning has caused her great harm, so I have decided at the present time to

dedicate all my time towards her needs and will support her to the bitter end. I have to blank my mind to what has happened in this awful scenario even though my mind is churning to fight this blatant injustice but my love and care for my wife stops me, advise from experts on this type of situation on Linkedin, only rings true that whatever time we have should be concentrated on my wife rather then to pursue this huge corporate for justice. But I will never forget or forgive the injustices and harm that has been done to my wife. I can only thank you for your time and your advice. Colin _____________________________________________________________________ __________________ >I think the advantage of getting another solicitor is that you will be able to get the truth of the Court paper trail, if nothing else. In my experience, solicitors are much better with paper than people, I'm afraid to say. I include myself in that. It's partly our fear of being sued ourselves, because we're dealing with such important things, but it means that as a tribe we're risk adverse and tend to stick to letters.< Dear Gareth, I have been thinking about the court paper trail you mention, would it take up a lot of my time being involved or could it be pursued with the case number. I must say I have a lot of papers here involving the case, is it something that you are prepared to take on. My biggest fear is that solicitors are not prepared to expose other solicitors for wrongful practice more so for professional negligence and the rest. It will certainly be interesting to know what they have been up to, especially with promises that was made to my wife by experts to help her, and promised that it would make a huge difference to her life but never materialise, because I presume that her solicitor fail to follow it through. This Dr seem to be a wonderful man to us I thought my worries for my wife would have come to an end, this Dr promised my wife that

he could help her but why did he let us down so much after making all this promises, it took up a lot of our time considering that my wife wasn't well having to travel all the way to Oxford to see him. Dr. Aidan Jones Consultant Clinical Neuropsychologist Trust Head of Clinical Psychology Department of Clinical Neuropsychology Oxford Centre for Enablement Nuffield Orthopaedic Centre Headington I would just like to know why did he make all those promises and built up our expectation for nothing. Colin P.S. The hearing on the 15th failed to release the compensation due to my wife, so I was considering approaching a newspaper on this matter, is there any newspaper that is brave enough to publish our problem. ________________________________________________ Dear Colin I think you need to understand that most professionals are playing roles. A doctor that's putting forward a medical opinion on a case is bound by all sorts of competency and independence rules, so he can't "help you" as such. He's also relatively powerless compared to the solicitors / court. As for the case number, yes, that should be enough to get you the paperwork. I personally wouldn't get involved in a case of this size this late on because it seems as if a number of other parties have already put their imprint on it and it's ongoing. I do sometimes take on cases late in the day, but it's rare because I already have a full caseload. I think that's true of most solicitors, unfortunately. I take on board your comments about solicitors not wanting to sue other solicitors, but the truth is actually the opposite. Actions by solicitors against other solicitors are a massive industry and personal injury is actually one of the key areas for professional negligence.

Your problem is that rather (a) you don't have a smoking gun, for want of a more formal phrase, and (b) your case is very complicated. In order to get a solicitor interested in your case, if it is negligence you are alleging, you have to present it to them in as simple and as straightforward way possible. If you heap detail after detail on to them without any one or two events being clear negligence, they will lose interest because there's no way in which we can make any profit out of such cases unless there's clear negligence. You understand the detail because you've had intimate knowledge of the case from day one, whereas a new sol will make a judgment call early on as to whether any negligence took place, whether it's likely to be an awkward / time consuming case, and whether you're likely to be an awkward / time consuming client. For you this is personal, but for a sol the decision is a financial one. That's the real hurdle you have to jump. This problem is also going to hamper you going to the newspapers, although there's no harm in trying. Newspaper stories like simple narratives with "hook" and where they can say something without much chance of them being sued. That's why you rarely hear of newspapers stories naming and shaming sols. We do sue. It's what we do for a living. gareth __________________________________________________ Colin Well, thanks again Gareth, I have no intention of going down the road of suing anyone for professional negligence, I am a quick learner when it comes to know thy enemy. I just wanted to peruse the paper trail. I just wanted to know what they had to do to earn their 400,000 even the judge was surprise but the insurers was quite happy to clinch the deal, considering the claimant a TBI victim, still has not received her compensation coming on 10 years. Well at present my hands are tied, I am totally dedicated to taking care of my wife she comes first and that is all on my mind at present.

It is just amazing to me that the faith that lies before us. Well all I can say is that I have tried to bring this case to an amicable end but it looks like it is in vain. Colin __________________________________________________ Colin Gareth, I thought you may be interested in this. The three times specials rule was just a simple way to settle claims and, in my opinion, never made sense. The value of a case should be based on how it effects the injured person and the other variables unique to the case. >If you are not ready, willing and able to take your client's case to trial then you really should not be doing this.< http://www.linkedin.com/groupAnswers? viewQuestionAndAnswers=&discussionID=80304251&gid=1061567 &commentID=107017547&trk=view_disc&ut=0S8lqrGnMJt5w1 =======================================

dunittaday
hi gareth i started the original forum between you and colin. i have spoken to the solicitor today regarding the official solicitor and taking back control as litigating friend she said that when it went to court in feb then it would be almost immediate as long as i worked with her she would tell the official solicitor and the court that it was the best thing. is it as simple as that in the 10yrs the case has been open the 75 yr old sole carer has never recieved help or 1p towards costs involved in day to day care or specialist appointments etc. would the system allow for an interim payment or some form of help

we have continuously asked for help only to be told months after that it must be put in writing and explained in detail the reasons why we need the help but even then it never materializes ----------------------------------------------------------------------

Gareth Lewis
Dear Dunita Yes, it is normal for the carer to receive recompense for their work if it is part of the claim. If you are sending letters and getting no response, I suggest that you send them by recorded delivery. I would send them a letter confirming what has ALREADY been agreed, in as simple a form as possible, i.e., I am happy to work with you and to take over the position of litigation friend, as I believe my close position to the claimant means I will be a good position to give instructions. I also wish to make an application when I am the litigation friend for an interim payment for the ongoing care costs of Mrs X and Mrs Y. Then set out the costs in a simple pound and pence way, in terms of the hours per week that you help, how you help, what costs you have on top of your time, and divide it into the time periods since the accident. The Court itself won't intervene unless it receives an application from one of the parties or their sol. It seems realistically that working with the solicitor is your best way of making sure such an application is made. The thing you have to realize about solicitors is they're professionals but they're also human beings [hard to imagine!]. If you send them a long speculative letter which contains a number of accusations or deals with twenty different points, then in all probability the letter will end up in a pile marked "to do later". If you give them a single clean line of thought, concise, then they're infinitely more likely to co-operate and relatively quickly. Chances are the sol has more than 100 cases and only has the normal office hours to deal with everything, so urgent matters take precedence. So if you keep clear and short, they normally respond. Judges are the same. It's common to get instructions now from the Court that the whole case has to be summarized in under 300 words.

I realise that's the opposite of what you were told when you were asked for detailed information, but when sols say that we want detailed information, what we mean is the precise information we asked for. We're a bit like machines in that regard. It's why we're not really regarded as the friendliest professionals in the world, but if you keep it clinical, I think you'll get more response. Hope that helps. Gareth _________________________________________________

colinberry1
Hi Gareth, Dunnitaday, I question the fact that the introduction of an official Solicitor legal? Maybe true a High Court but I cannot see a High Court allowing it. I'm sure it would come under the deprivation of liberty & DoLS, if there is any compensation involved, depriving the claimant from a quality of life. Especially if the deprivation goes on like in my case, coming on 10 years. It just goes to show that the British legal and judicial systems overstretch their authority on innocent victims lacking the power to obtain justice. Nothing more them a bunch of Nazis dictatorship, if you read the article below it shows that Germany comes on top, in trying to defend the rights of a person with mental capacity problems, the mind boggles. http://autonomy.essex.ac.uk/deprivation-of-liberty-and-dols Well if you read Appendix 1 Guardianship regulations in Russia, if you asked families who are trapped under the Court of protection they will tell you there isn't much difference from us and Russia, that is the reality. __________________________________________________

Gareth Lewis
Reply #19 on: December 13, 2012, 10:55:03 PM

Dear Dunita / Colin

Quote

Yes, the official solicitor is approved by the Court. If you wanted to

question the appointment of an OS, Colin, you would need to see the basis on which the Court made the decision. If there's errors or misrepresentations in the application, then that would be a way of overturning the decision, but, as you appear to have found out, it is usually quicker to work with the solicitors surrounding the case because they have the "whip-hand", for want of a better phrase. Once you are party to a proceedings, however, you are allowed access to any of the documents that have been filed during the case. Unfortunately, however, the government had made this yet another thing that you have to pay for. It used to be the legal paperwork was free. Dunita, I don't really understand the delay, no, but I think the specific question - why can't this be done, say, in January, is a reasonable question to ask. If the answer is workload, the sol should be honest about it at least. Gareth _______________________________________________

colinberry1
Reply #20 on: December 18, 2012, 09:12:58 AM

Quote Modify Remove Well I think that all the legal and judicial system should find time to read our history of (Social Contract) before they think they have the powers of doing as they please, and the individual hasn't any rights over them, I would like to rest my case, that the individuals involved overseeing our case overstretched their powers of authority against a helpless individual in her hour of need, further demolishing whatever little autonomy she has remaining after her horrific injuries. Talking about double jeopardy! John Locke http://en.wikipedia.org/wiki/John_Locke by John Locke asserting that a man has a right to kill someone who takes away his liberty.[23][61] Social contract http://en.wikipedia.org/wiki/Social_contract Philosophers [edit]

Hugo Grotius (1625) In the early 17th century, Grotius (15831645) introduced the modern idea of natural rights of individuals. Grotius postulates that each individual has natural rights that enable self-preservation and employs this idea as a basis for moral consensus in the face of religious diversity and the rise of natural science. He seeks to find a parsimonious basis for a moral beginning for society, a kind of natural law that everyone could accept. He goes so far as to say in his On the Law of War and Peace that even if we were to concede what we cannot concede without the utmost wickedness, namely that there is no God, these laws would still hold. The idea was considered incendiary since it suggested that power can ultimately go back to the individuals if the political society that they have set up forfeits the purpose for which it was originally established, which is to preserve themselves. In other words, individual persons are sovereign. Grotius says that the people are sui juris (under their own jurisdiction). People have rights as human beings but there is a delineation of those rights because of what is possible for everyone to accept morally; everyone has to accept that each person as an individual is entitled to try to preserve himself. Each person should, therefore, avoid doing harm to or interfering with another. Any breach of these rights should be punished. I believe that the law on an introduction of an Official Solicitor is unconstitutional when it comes to adults with spouses or family members willing to represent the claimant. (Any person acting on behalf of the government who tries to prevent an individual from exercising individual rights which the constitution protects.)

Autonomy and the role of the Official Solicitor whose interests are really being represented? http://ukhumanrightsblog.com/2012/10/10/autonomy-and-therole-of-the-official-solicitor-whose-interests-are-really-beingrepresented/ _______________________________________________

colinberry1

Hi Gareth, how legal binding are marriage vows and marriage laws? Marriage http://en.wikipedia.org/wiki/Marriage Rights and obligations Giving a husband/wife or his/her family control over a spouse's sexual services, labor, and property. Giving a husband/wife responsibility for a spouse's debts. Giving a husband/wife visitation rights when his/her spouse is incarcerated or hospitalized. Giving a husband/wife control over his/her spouse's affairs when the spouse is incapacitated. Establishing the second legal guardian of a parent's child. Establishing a joint fund of property for the benefit of children. Establishing a relationship between the families of the spouses.
______________________________________________________

Gareth Lewis
Reply #22 on: December 22, 2012, 02:04:45 AM

Hi Colin

Quote

If a judge has made a formal ruling on the representation of someone who is incapacitated, then he has to set out his reasons for doing so and why he's going against the presumption that the spouse represents her / his partner. The judge has discretion in that regard if the arguments put to him are strong and backed by evidence. Although we're moving towards the european model of conciliatory justice, we remain still within a largely adversarial system. If you want to challenge something, or dispute something, you'll have to do it by way of application. As I've mentioned before and to the other forum member who is having problems vis a vis the OS, any such application has to be short, surgical and well-argued. That's why people use lawyers: not because of the justice of the case, because that should be self-evident, but to tell you what is useful, what is superfluous and what will get you the result you want. Most judges dislike LIPs [litigants in person] and their dislike is likely to increase as the Tories restrict the use of lawyers further in April 2013. As for the list, it's a hotpotch of things which do have statutory footing elsewhere [for example inheritance laws / children] and

things which only the very old fashioned would say is a plank of marriage anymore [control over a spouse's sexual services!]. That's the danger of Wikipedia: 80pc truth, 20pc nonsense. Gareth

colinberry1
Reply #23 on: Today at 05:36:40 AM

Quote Modify Remove I thought it was a local and legal contract between 2 people call spouses, > it is common sense that one can't come to court during divorce and say "Your honor, our marriage is a culturally recognized union and is all about love, not money, therefore you shouldn't rule that I have to pay half of what I own to the other party!". This is common sense that without the prenap contract divorce is all about financial obligations, and therefore marriage is also all about financial obligations, which means it is a contract. That's how legal system and government sees it.< http://en.wikipedia.org/wiki/Talk:Marriage Well as I see it Gareth there was a legal and private contract between the spouses covering an array of things, there is nothing in the law saying that this type of contract cannot be statute, so as I see it, must be a constitutional law that is set in stone, neither of the spouses have broken any of the law within the agreement and neither of the spouses have requested the intervention of a judge, I believe that the judge had no authority to intervene. The reason why the spouses have not question the intervention of the judge because we were led to believe that the United Kingdom could be run by a fascist legal and judicial regime therefore could be endangering our lives by questioning this type of intervention. Because a Democratic regime would have enlightened the spouses of their intervention and stating the reason why they had a reason to do so, and given the spouses involve an opportunity to reconsider. So I clearly say that the manner that we have been treated could only be located to fascists Hitler's regime, who have left a badly injured victim to fend for herself for the past 9 1/2 years depriving her from her rightful benefits from the injury and

failing to pay for the care she received from her spouse. http://fds.oup.com/www.oup.com/pdf/13/9780199237104_chapter 1.pdf Business of marriage. I would just like to add, I look upon any contract as a business. This business consists of 2 directors agreeing to what ever happens to one of them the remaining director will take over and run the company, the contract have safeguards to ensure that the business thrive and continue, in our case one of the directors had been taken ill therefore within the contract the other director is left to run the company there was no reason for an intervention if the rules was followed. The company could claim if all the rules was followed that the company could have survived, if the offending company lived up to the laws set, with the intervention of the court, the court failed in its duty to make sure that the company survived through the sad event. Instead the court stifle the company from survival, damaging the business and leaving the directors bankrupt without any funds to run the business, even if the court had the right to intervene they should have made sure that the business survived not cripple to the point of destruction in withholding the money due to them to keep the business alive. There is no law allowing a court to behave in such manner. ______________________________________________________ ________________________________ The involvement of an official Solicitor was on the case cited? Stare decisis; precedent >but all may be cited as persuasive, or their reasoning may be adopted in argument. Quite apart from the rules of precedent, the weight actually given to any reported judgment may depend on the reputation of both the reporter and the judges.< http://en.wikipedia.org/wiki/Stare_decisis I am in good mine to name the solicitor and the judge not to mention their qualification involving brain injury. To think that an injured party having suffered a brain injury and in a neck brace for 2 weeks, fractured 3 vertebraes having to endure living in a body cast for 5 months not being able to participate in family affairs, and where has the meaning of "fiduciary" gone to in British Law, when a badly injured claimant is suppose to fight their case against the British legal and judicial system to obtain Justice?

Just look at what grounds they have to deny this Innocent badly injured claimant from the money that was due to her, having to wait nearly 10 years trying to obtain it, after denying her the right to take the case to court,