Solicitors Mutual Defence Fund Debacle

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Many years ago when I heard about the formation of the SMDF,  I was excited because I felt this was a great idea that my Professional Body was endorsing something by Solicitors for the benefit of Solicitors. Great idea. I immediately joined and remained with the SMDF until I observed practises which I disliked. I aired my views and this resulted in one of their senior Solicitors telling me that if the SMDF didn’t cover me then nobody would. I took exception to these remarks and immediately contacted the late Padraic Smith, Insurance Broker who arranged an Insurance Policy for me, at a fraction of what I was paying in Premiums to the SMDF. Remember it is a Defence Fund, not a Policy of Insurance. At the end of the following January I had a visit from The Law Society. This was not a problem and a very nice gentleman carried out an inspection of my Accounts. Upon completion I asked if this was a random visit or were they looking for something in particular. I was horrified to be told that The Law Society had been advised that I was practising without Insurance and I was told (He said “Don’t quote me”) who had reported me. I was horrified, no I was disgusted.

This year, all solicitors, bar the Elite, have had horrendous problems renewing their Insurance Policies. No help was forthcoming from the Law Society. In fact a colleague told me the Society had referred him to the SMDF as a Fund of last resort but had heard nothing back from them. Thankfully he finally got Insurance. There is talk of a New Policy to cover the profession but now I am told this will not take place this coming year because of one reason or another.

We are now being asked, like the Irish People were by Brian Lenihan to trust in him. That the Banks needed saving and we must Guarantee them. We now as a profession are being asked something similar by those who may well have advised Mr Lenihan on his course of action. Instead of the use of the word ‘collegiality’, Lenihan used the word ‘patriotism’.

We have heard both arguments as to why we should or should not Vote for the present Proposal. To ‘save our colleagues’ or not, some say. That is not my reading of the situation. It would appear to me, from a perusal of the very limited information now to hand that some questionable decisions were made by the SMDF as to investment of Funds etc. Maybe the SMDF Members should be investigating the operation of the fund and demanding to know what questions were put to Counsel and what they received by way of Advice. There are too many unanswered questions. To now ask the profession as a whole to Vote Yea or Nay without a full Brief is, I feel erroneous. A lot of Firms have made a hell of a lot of money in Legal Fees as a result of their acting in many Court actions for the SMDF. To now expect the average solicitor, who has been put to the pin of his/her collar in recent times to pay up is quite extraordinary. A lot of solicitors have lost their jobs and many of those who did succeed in getting Insurance Cover have had to dig deep into their own pockets to pay the premiums as many Banks have refused to fund the cost of this Insurance. Where was the leadership of The Law Society when we all needed help then? From the Memorandum of Vincent Crowley provided to us, it shows clearly that The Law Society want to ensure a Yes Vote at all costs. They cannot afford to lose face. They are telling the profession how to Vote not asking them for a Direction. Don’t get me wrong. I admire the majority of the people working in Blackhall Place. They are good people. My grievance is with the Elite, the politicians who want to control us and these people have great power. The majority should be represented not the powerful minority.

Remember when PIAB was proposed by Dorothea Dowling on the instructions of Mary Harney T.D., there were a lot of Conferences convened to discuss the Proposal. I attended one in Trinity College where Ms Dowling clearly set out the proposals and referred to PIAB as a ‘solicitor free zone’. Ken Murphy attended and spoke at this conference on behalf on the Law Society. He said that the Law Society had reservations about PIAB but were not simply against it. At the luncheon recess I was in the company of Ms Dowling and I spoke with Mr Murphy who responded to me that he and the Law Society didn’t agree with my views on PIAB. My views were to fight for the right of the citizen to bring their case before a Court instead of having to have it first submitted to a Government Agency. The introduction of PIAB has contributed greatly to the loss of jobs in the profession. Clearly, The Law Society showed no concern for them as they were “solicitors who advertised” and suchlike. As regards the change in procedure where Solicitors must now give a Certificate of Title to The Financial Institutions instead of the previous system where you closed the purchase at the Offices of the Solicitor for the said Institution, who will stand up and take credit for that disaster? That decision alone has been detrimental to the legal profession. How many jobs lost to the profession by that stroke of genius ? Hasn’t the Profession been brought into disrepute by the actions of some of its members who used this daft change in procedures to enrich themselves? A lot of us spoke about such a thing being possible many years ago but the Law Society was unconcerned.

Please use your Vote, make up your own mind and don’t be taken in by the argument that there are no other options. We are lawyers and deserve better than being told that we must Vote without full disclosure of all the facts. How would you advise your own clients if they sought your advice on such a Vote?

LegalEagleStar , Tuesday , 7th. June 2011.

Are we really the ones with the Brass Neck ? You v. Insurance Co.

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We’ve all heard the stories about the Mafia and their influence over politicians. Maybe not the Mafia itself but some other equally obnoxious grouping of wealthy gangsters who influence our lives to our detriment. In Ireland today, it is my opinion that the citizen has been targeted by unscrupulous individuals and companies as never before. I suppose the most obvious matter before the people at present is the totally unjust and indeed the scandal of the working man having to pay out of his own pocket to cover the debts of the wealthy gamblers who have bankrupted our country. Well haven’t we been targeted for years in similar ways but made to feel it was us in the wrong? That it was our fault that Big Business was being ripped off by us and not the other way round. That we’re all chancers out to make a quick Buck at the expense of what have been portrayed as seemingly Charitable Institutions. In this particular case, I’m referring to the Insurance Industry.

Our Government scream at us that we need our Banks. That civilisation as we know it will come to an end without them. Bail them out at any cost, and then repeat as necessary. They take a similar view when dealing with an allied industry, The Insurance Companies. It is not too long ago that the Insurance Corporation of Ireland, owned then by AIB , was ‘Bailed Out’ at the taxpayers expense. So bailouts include the Insurance Companies as well as the Banks. Why? Who owns these Insurance Companies? Do we? Is it a national insurance fund set up for our benefit? One would think so but in reality, well, the same people who own and use our Great Banking System. I’m reminded of an Insurance Individual that had retired as the returns on his investment were returning something like less than 60% profit. Post 9/11 he came out of retirement as profits of in excess of 85% were predicted. So, he had retired because he was not happy that his Profits from the Industry were not Huge as had been the case for years.

In Ireland we see on our Television Screens on a regular basis, the sight of You, yes You going on holiday after you’ve been involved in an accident. The voice over from this Insurance Company advertisement tells you in no uncertain terms that you are so doing at the expense of the rest of us. We have the Television Advert where you are seen as having an ever extending nose ! That exaggerated claims are a crime. That you are a terrible person! That You have caused a Claims Culture and that you are fraudulently claiming money from Insurance Companies that you are Not entitled to. Then our Government (enter Mary Harney)  told us that you cannot have big payouts AND low premiums. We were asked if we wanted Large Awards and abnormally High Premiums or if we want ‘normal’ awards and normal premiums. We are told that the Insurance Companies lose money as a result of our actions. The Insurance Companies don’t highlight the extent to which the ‘losses’ are often much smaller than they make out or not real at all. These ‘losses’ are used to justify steep increases in premiums but they don’t take account of the very substantial interest earned on the years premium that you pay up front and on the money put aside to meet claims made now but not paid for three or four years. The Insurance Industry has admitted in the past that the principle reasons for increases in premiums is the fact that Insurance companies ‘re-adjust’ to compensate rate reductions due to competitive pressure over the past number of years. Even this is not the whole truth.

In the past the Insurance industry persuaded the Government that if they abolished Juries, which were made up by You and your neighbours, that they would be able to reduce premiums. The Government followed suit and abolished Juries i.e. your say in what was fair and just. The Judges then assessed awards, not you. Awards went up but never did the Insurance Industry admit that Juries had got it wrong. That Juries had erred on the side of caution and indeed their awards were tending to be on the low side. That they should have been awarding Higher awards. Then they persuaded the Government to deny the citizen the constitutional right to bring a case before the Court at first instance and established the Personal Injuries Assessment Board, PIAB. This initially was openly labelled as a ‘Lawyer free Zone’. PIAB was and is made up by claims personnel recruited mainly from the Insurance Industry. So the citizen was expected to pursue their claims, on their own, denied the services of a lawyer ,the specialist in this area and deal directly with PIAB.  PIAB, remember have the benefit of their own claims handling specialists and indeed lawyers. Again the citizen, the victim, was being denied his/her rights and made to stand alone. Not dissimilar to the citizen standing alone against the Banks and their Building Societies etc.

BUT we are being conned, yet again. All the ‘competitive pressures’ is a smokescreen. You must hand it to the Insurance industry. They have such a brass neck that they don’t even get a red face when exposed. Insurance Companies are in the business of making money. They are there to make a profit for their shareholders. Those shareholders will get out of the Industry unless they get a high return on their investment. They are quite similar to bondholders who invest in Banks to make a profit. Bondholders have become the enemies of the people with talk such as ‘Burn the Bondholders’ but there is no such talk concerning the ‘Shareholders’ who demand high Premiums to satisfy their lust for, Your Money and on a yearly basis.

One of the best devices employed by the Industry has been to divide and conquer. Allow small business to treat everyone as though they are Frauds. And yes, all this propaganda and the millions of Euro spent on advertising has indeed worked well for them. Insurance companies now want us to regard anyone who makes a claim for whiplash injuries to be viewed as a possible fraudster until proved otherwise! They cite the disgraceful cases where ‘chancers’ and indeed criminals have made fraudulent claims. Yes, unfortunately there have been some and I for one would say that nothing short of prosecution and imprisonment would suffice to deal with such criminal behaviour. Such claims have been few and far between despite what you have been told. The use of Solicitors in the past has been an assist to the Courts in weeding out such cases. No solicitor in his right mind will take a case which he/she knows to be false. The Courts would and do throw such cases out. If a solicitor loses a case it is at great personal cost. Not a practise to be encouraged. If on the other hand you are referring to cases which the Insurance Company settles which you are then told is ‘suspicious’ then be aware, be very aware. In my thirty years plus practising personal injury law I have not seen a case been settled where such has been the case. I’m not saying it hasn’t happened but it would be so rare as to be almost negligible in the whole scheme of things. Of course the Insurance Federation will use such instances to their benefit as ‘justification’ for their actions in promoting their ‘Fraudulent Claims Culture’. That of course doesn’t mean that I haven’t heard Solicitors and Claims Assessors making such remarks and on a regular basis. Many cases where it was claimed that the injuries have been exaggerated have in fact seen people end up in great pain and suffering at a later stage. My view is that we can’t allow them to dictate what is fair compensation. They want higher premiums and lower awards. Courts and Judges, if not you serving on a Jury, must be the decider of what is fair in the circumstances of the particular case. A broken arm cannot be the same to an artist as to an office worker and today PIAB decide on what they alone consider proper. Only after PIAB, or should I say ‘The Injuries Board’ which they now call themselves, disposes or releases your claim can your lawyer take the matter over and pursue your claim through the Courts. Justice delayed is justice denied.

Last week I referred to reform of the legal system. I mentioned providing a level playing field. Well The Law Society at the behest of the Government restricted advertising by solicitors, in particularly those providing personal injury services. It was those solicitors, who for the first time in Irish Legal History, brought cases before the courts for people who could not afford to pursue their cases before the Courts. They made the law accessible to the people for the very first time. Law no longer was just for the rich but for you and me. This was done on a No Foal no Fee basis. That has now been outlawed and although some solicitors still take such cases, they do so at the risk of sanction by their professional body. The old saying is very true today:  ‘One law for the Rich and another one for the Poor’.

LegalEagleStar  Wednesday, 13th. April 2011.