Welcome back to Pro-Vide Law

Pro-Vide law commenced in 2013. The aim was to provide a focus for education and training involving practising lawyers, expert witnesses, clinicians, and legal academics. The projects’ emphasis was achieving communication and debate.
Like so many other activities, Pro-Vide Law became moribund in the lockdown. In 2021 the website was taken down with the intention of re-launch. Again as with so many other activities, re-launch has taken longer to achieve than initially anticipated.
As we re-launch now in 2023 it is appropriate to reflect on the changes in the last decade. In relation to personal injury and clinical negligence litigation the most conspicuous differences can be seen in funding and cost recovery. The bonanza in such litigation which followed the abolition of legal aid and the identification of much more lucrative ways of offering ended with the Jackson and subsequent reforms. Whilst law firms have attempted to achieve similar levels of profitability since 2013, this has met with at best mixed success. In fact ,it is hard to find any real winners in the changes over the last decade. The most conspicuous losers are individual claimants who would struggle to find a lawyer unless the claimant had a very strong case and was prepared to forego a substantial proportion of their damages under a DBA.
What about the law itself? My perception is that it has become increasingly subject to internal and retrospective focus. Skeleton arguments and judgments are constantly growing in size with citation of authority and intricate argument.
I read the Tate Modern judgment in the Supreme Court with interest. The issue could be simply formulated albeit the answer was always going to be controversial since as evidenced in the judgments in the case different views could reasonably be taken. Accepting that residing in an urban area inevitably involves being overlooked by others should this acceptance extend to the creation of a facility where crowds of people can look directly into your home being lawful? The question could be seen as a broad one reflecting social and personal expectations in the early 21st century. The speeches in the Supreme Court involved a minute analysis of the development of the law. Over 80 cases were cited either in argument or in the speeches with the earliest authority being from 1752.
Similar comments can be made about any number of appellate judgments over the last decade with the law being treated as some form of historic given as opposed to a living entity. Whilst this approach could be described as being good for business, both for practising lawyers and academics, the unnecessary and increasing complexity of the law creates a level of costs which makes litigation prohibitively expensive for most individuals within the community.
We are re-launching Pro-Vide Law with two webinars filmed at Wadham College, Oxford in April. The first webinar on material contribution was live streamed. It was refreshing to be joined by Professor Sandy Steel and John de Bono KC for an open and stimulating exchange of views. With Sandy’s assistance we were able to identify in each context why the law is the way that it presents. However , the debate should not stop there. The next question is whether the law should be so? In relation to material contribution the reasonable question arises that if the standard of proof is going to be attenuated, why there should not be an apportionment of damages even though the same would have no scientific basis? In relation to patient fault and contributory negligence, the question is reasonably asked why a person who through serious misconduct causes themselves significant injury should not have that fact reflected in the assessment of damages for subsequent clinical negligence?
These, and other issues are those which we hope to consider and debate through Pro-Vide Law.
Charles Feeny