Month: September 2020
Four weeks later… You: Yes, but it’s not how we do it now, so it’s an enhancement. Client: But the form asks me to write down again everything I’ve just asked you to do. You: It’s with our enhancement request committee and I’ll let you know when they make a decision. Client: Please could you change the way in which you write letters of claim on my behalf? You send them to me for approval and I have to keep changing the content in the same way each time. You: Well, I could do that, but it’s an enhancement to the service and I’m not sure I can devote the time. You: You can be assured that you will be told when a decision has been made…’ Et cetera. I hope that the answer is ‘No way would we treat a client like that! They would walk out the door and tell everyone they knew what a shower we are.’ You might, however, recognise the theme and guess where this sort of treatment is not uncommon. Does your software company do this to you? I hear from lots of clients and other contacts about their experiences with their various software companies, some good and some of the variety illustrated above (which is pretty much a replica of what happened to one client). The Gazette’s In Business editor, Rupert White, has written elsewhere about demanding more of your suppliers and I wholeheartedly support this. The companies that supply the profession with software generally do a very good job, but client care is one area, as we all know, where any service company has to be on the top of its game, and it does no harm to remind them of this. Client: Oh. After four weeks I had hoped there would be a decision by now. Can you tell me when I am likely to hear something? You: Sorry, but we can’t do anything unless you complete the form. Client: Actually, it’s not an enhancement. If you sent the letters out in the form you draft them each time, the content would be plain wrong. Client: I’m not very impressed with that, but I want the job done, so here’s your form. Client: Any news on that ‘enhancement’ I requested? You: Well, we’ll consider it, but first you have to complete this form. Can you imagine this scenario in your firm? Client: I’m sorry, I don’t agree, but could you do it anyway please?
The Solicitors Regulation Authority will appoint an independent reviewer to oversee the way it handles complaints in a bid to improve efficiency. The SRA plans to introduce a single complaints-handling policy that will deal with all complaints, including those involving discrimination. The complaints consultation proposes a three-stage process, whereby complaints will initially be dealt with internally by the SRA. But where a complainant is not satisfied or the matter is serious, it will be referred for an external independent review. To date, the SRA has developed a number of different mechanisms, depending on the nature of the complaint. The consultation closes on 13 November and can be accessed.
Stability and modernisation are the key themes of Nick Green QC’s tenure as the recently installed chairman of the Bar Council. Stability in respect of the publicly funded bar, and modernisation in so far as the bar must urgently adapt to a ‘fast-moving and changing legal landscape’. In his inaugural speech as bar leader, Green spoke of the ‘accumulation of storm clouds’ that are darkening the outlook for barristers. Legal aid cuts, the ‘ambitious’ expansion into advocacy of the Crown Prosecution Service, and the growth in competition from solicitor higher court advocates all present serious challenges: ‘The effect of such pressures coming to bear upon the bar at the same time is potentially devastating,’ he stresses. In the spacious surroundings of Brick Court Chambers, Green vents his spleen over the way the government has behaved over criminal legal aid fee cuts. The bar is ‘furious’, he says, because after telling the profession to ‘trust Carter’ during the reform process, the government has effectively torn up the recommendations. ‘Carter set a fair rate, and now across the criminal defence profession we’re being asked to accept cuts of 18% below a fair rate,’ he explains. Green concedes that public spending cuts are inevitable in a recession, but claims the bar has been singled out for ‘unfair treatment’ and ‘irrational’ economies. When others in the public sector face a pay freeze or negligible increase, he emphasises, lawyers at the sharp end of the administration of justice are being forced to stomach a fall in their remuneration of nearly a fifth. Such cuts are ‘irrational’, he adds, because the government has no evidence of – or seeming interest in – the unintended consequences of ‘squeezing the pips out of defence lawyers’. ‘The bar has a difficult job to do, because selling the notion of the efficient administration of justice is not as alluring as the Florence Nightingale image of the nursing profession,’ says Green. ‘You get the popular press who say the money is paid to people to defend criminals who ought to get banged up.’ The truth, Green says, is that legal aid barristers deal with many of the most vulnerable and dispossessed people in society and it is fundamental to our democracy that they are treated properly and fairly. Unfortunately, he adds, ‘that is not a sexy thing to tell the public – not in the months in the run-up to an election’. Perhaps as a sign that their patience has run out, the Bar Council and Criminal Bar Association last week instructed solicitors to take the first steps towards judicial review proceedings regarding the Ministry of Justice and Legal Services Commission consultations on fees, on the basis that they are ‘inadequate and unfair’. Nicholas Green attended King Edwards Grammar School in Birmingham, spending a good portion of his formative years with his head under chlorinated water as an international swimmer specialising in the 100 and 200 metre freestyle and butterfly events. He took a law degree at Leicester University, followed by a masters in Toronto. Green later taught for four years at Southampton University while doing a PhD, before ‘escaping poverty to come to the bar’. A specialist in EU competition law, Green took silk in 1998 and became a recorder in 2004. He is married, has two children and lives in Islington. His interests – as well as swimming – include collecting 18th century British art. Modernisation agendaSurely the most significant development of last year, however, was the Bar Standards Board’s decision to allow barristers to practise in partnership with other barristers or in legal disciplinary practices, subject to the necessary rule changes being approved by the LSB. In this regard Green says he is on a mission to ‘lead our troops into modernisation’. The bar – and not just the publicly funded bar, parts of the civil bar too – needs greater flexibility, he believes, and barristers need to wake up to the opportunities the new rules will give them should they wish to take advantage. He is not convinced that many of his colleagues will be keen to go into partnerships, because the conflict rules make it unattractive: ‘Moreover, there is a very strong feeling at the bar that they like being self-employed and independent.’ But there are, he suggests, lots of other things the bar can do. The idea that has gained the most currency recently is that of establishing procurement companies. ‘It’s a very unglamorous name, but it simply means using corporate or commercial vehicles to wed together advocacy, litigation, advisory and other legal skills.’ He explains that procurement companies would be commercial vehicles that would not themselves provide legal services, but rather administer and bid for legal services. They would enable barristers to practise in the traditional chambers model, and set up a separate company with other barristers or solicitors to bid for bulk contracts from volume purchasers of legal services, such as the Legal Services Commission, insurance companies or local authorities. Such purchasers want to contract for a composite service, covering advice, litigation and advocacy. So if you want to compete for that work you will have to be able to provide all of it, Green explains. At present barristers are excluded from this bidding process, but a procurement company would provide them with a vehicle through which they could engage and take control. ‘We’ll bid for the work, but we’ll have our own panel of solicitors and we’ll instruct them, not the other way round – you reverse the normal order of things,’ says Green. Over the last 12 months Green says he has spoken to a large number of barristers around the country and been impressed, and pleasantly surprised, by the thought that many have given to the impact of the Legal Services Act and what it will mean for them. ‘I asked as many as I could for their business plans for the next two or three years. A lot of them said “what on earth are you talking about?”, but a surprising number agreed to tell me and had really very detailed blueprints,’ he says. ‘It really surprised me how many sets are really thinking about what they need to do for the future, and have actually sat down and thought about the corporate implications, the tax implications, the employment implications and have ready-made solutions which they will roll out once they are allowed to,’ he adds. In summary, then, Green is in for a testing stint as the bar’s titular chief. And what of the future? ‘My clients won’t all go away – some of them will come back – I hope. God forbid I might have to go and become a judge,’ he smiles. In the swim CPS expansionAnother headache for Green and his bar colleagues is the CPS and its rapid expansion into the world of advocacy. In the interests of conciliation, however, Green is slightly more diplomatic on this subject. ‘I want to do a deal with the CPS on prosecution work,’ he confirms. To that end, the bar has been participating in a series of confidential discussions with the director of public prosecutions, Keir Starmer QC. The CPS introduced its strategy to increase in-house advocacy in 2004. According to its annual report, points out Green, in the Crown court the CPS now does around 27% of cases by value and 50% by number. If this expansion continues, he says, there is a risk that the damage to the self-employed bar will be permanent. ‘In our discussions we have to find a way of reconciling the fact of life that the CPS is in the court advocating, and stability for the self-employed bar,’ he adds. Once that stability is secured, he says, there will be benefits for both sides, such as joint training, secondments and the emergence of ‘revolving doors’ between the CPS and the self-employed bar. At the moment, however, Green says the bar is ‘psychologically scarred’ and therefore unwilling to help, because barristers ‘see the CPS as just constantly taking away their work’. For Green, one of the most regrettable consequences of this dispute with the CPS is that it has caused a fracture between the self-employed and the employed bar: ‘Colleagues are falling out with former colleagues and that’s very sad.’ Despite the challenge presented by the success of solicitor higher court advocates, which inevitably also takes work away from the self-employed bar, Green has little to gripe with solicitors about. ‘Bob Heslett [Law Society president] said to me we were disappointingly ad idem on a lot of issues. And we agreed that the Ministry of Justice had succeeded in binding us together in a way that no-one or no other issue has,’ says Green. The bar chairman believes it will be important for the two branches of the profession to stand together in 2010 on a number of fronts. One important task will be for them to agree on their relationship with the Legal Services Board. ‘The Law Society and the Bar Council are the [approved] regulators, not the LSB. The LSB has a valuable role to facilitate and to encourage, but it is not to take decisions.’ Although he emphasises that he does not intend to cross swords with the LSB if he can help it, he notes: ‘We have to carefully draw the lines of demarcation.’ ‘I’ve agreed with David Edmonds [chairman of the LSB] that if we have a real spat we’ll talk about it, as there is no sense in regulators litigating with each other,’ he says good humouredly. The professions, he says, could also work on a joint approach to raising funds for litigation, following Lord Justice Jackson’s recommendation that success fees and after-the-event insurance premiums should no longer be recoverable from losing defendants in civil cases. For example, there will be a decline, he says, in access to justice, with personal injury victims unable to get financial support. In his view it is in the legal profession’s interest to try and find alternative ways of raising funds for litigation. He suggests the Law Society and Bar Council could put their heads together and form a working group to look at raising funds in the market place for litigation. ‘We both have an interest in access to justice and in protecting funding for litigation and the profession. If we come forward with sensible, worked-out proposals that we jointly agree on, frankly there’s no reason why a government shouldn’t grab them with open arms.’
Disclosure – Misrepresentation – Mortages – Spouses The appellant (W) appealed against a decision ordering her and her former husband (H) to give possession of their house to the respondent lender (F), together with a money judgment, by way of enforcement of a mortgage. H and W lived in their matrimonial home with their children and her mother. H got himself into financial difficulties by overspending on his credit cards. He persuaded W that they needed to remortgage their home to manage his debts. Shortly after they granted a mortgage to F, W found out that H had been having an affair. In due course they divorced, and then H lost his job and was made bankrupt on his own petition. W acquired H’s interest in the house from his trustee in bankruptcy for £1. She found it impossible to maintain the instalments due to F and it started possession proceedings. The judge rejected W’s defences of undue influence and misrepresentation by H, finding that she had made her own choice to participate in the mortgage. It was common ground that F had had constructive notice of any undue influence or misrepresentation that might have been perpetrated by H, so its position would be affected by the outcome. W submitted that the court could, on the judge’s primary facts coupled with her own evidence, decide by inference that by the time of the mortgage H had decided to leave her, and that the mortgage involved three fraudulent misrepresentations, each of which was sufficient on its own to justify the setting aside of the transaction: first, that it was the only way to preserve the house as their home; second, his false promise that he would pay the instalments to F; third, his deliberate concealment of his affair. Held: (1) The starting point was that the judge had been entitled to conclude on the evidence that by the time of the mortgage H had not decided to leave W and his family. As to the first alleged misrepresentation, the court should not interfere with the judge’s conclusion that it had not been shown that H did not honestly believe that the mortgage was the only way of protecting their home from his creditors. (2) As to the second alleged misrepresentation, H’s subsequent track record in staying at the house for another year, even after W found out about his affair, and in paying the instalments due to F during that period, was a sufficient basis for the judge’s conclusion that his promise to W to pay those instalments was not dishonest. (3) H’s concealment of his affair from W did amount to undue influence sufficient to vitiate the mortgage transaction as between them. A finding of undue influence did not depend, as a necessary prerequisite, upon a conclusion that the victim made no decision of her own, or that her will and intention was completely overborne. A conscious exercise of will could nonetheless be vitiated by undue influence, Drew v Daniel  EWCA Civ 507,  2 FCR 365 applied. The first question was whether W reposed a sufficient degree of trust and confidence in H to give rise to an obligation of candour and fairness on his part, Royal Bank of Scotland Plc v Etridge (No2)  UKHL 44, (2002) 2 AC 773 followed. For two reasons, she did. First, she regarded H as being in charge of the family finances, albeit not to an extent that excluded her from any participation in important decisions. It would be wrong to confine a husband’s obligation of candour and fairness when proposing a risky financial transaction to his wife to cases where she meekly followed his directions without question. The purpose of an obligation of candour was that the wife should be able to make an informed decision properly appraised of the relevant circumstances. Second, the specific transaction that H put to W required her to take on trust his sworn promise to pay the instalments due to F. There was therefore both a pre-existing relationship of trust and confidence, and an intensification of it derived from the very basis of the proposed transaction, Thompson v Foy  EWHC 1076 (Ch), (2010) 1 P & CR 16 considered. The second question was whether H’s affair was something which his obligation of fairness and candour towards W required him to disclose in connection with his request that she charge her interest in their home as security for his debts. Given the difficulty of the choice she faced, and that her decision to agree to his request was based on her assumption that he was as committed as she was to their marriage and family life, there was no doubt that his affair should have been disclosed, Royal Bank of Scotland Plc v Chandra  EWHC 105 (Ch) considered. Moreover, his non-disclosure of it was deliberate. Appeal allowed. Jayne Hewett v First Plus Financial Group Plc: CA (Civ Div) (Lords Justice Jacob, Leveson, Mr Justice Briggs): 24 March 2010 Simon Redmayne (instructed by Hatch Brenner (Norwich)) for the appellant; Jeremy Lightfoot (instructed by Eversheds (Cardiff)) for the respondent.
Obiter confesses to being a bit of a grouch when the tummy is rumbling, but it seems he is not the only one. This fascinating graph supplied to Obiter by science journalist Ed Yong reveals an interesting relationship between the grant of parole and the time of day. Compiled by academic Shai Danziger from Ben-Gurion University of the Negev, and based on 1,100 parole hearings in Israel over a year (40% of the total during that time), the vertical axis shows the proportion of hearings where parole was granted, while the horizontal axis shows the time of the hearings during the day. The two dotted lines are the points where the judges went on a snack and lunch break. So the odds that prisoners will be successfully paroled start off fairly high at around 65%, and plummet to nothing over a few hours, until they rise again after break time. It seems justice is served, but more so after lunch is served. See Ed Yong’s blog.
A Court of Appeal Judge has lost his licence for 56 days after speeding through a red light – his fourth motoring offence in eighteen months. Sir Mathew Thorpe (pictured), 73, could have been disqualified for six months, but convinced District Judge Daphne Wickham that this would cause ‘exceptional hardship’ to his farming work. Thorpe admitted failing to comply with a red light in Victoria Embankment on 3 February. He was also fined £250, with £250 costs. City of Westminster Magistrates’ Court heard that Sir Mathew had clocked up nine penalty points for speeding in November 2009, July 2010 and April this year. An additional three penalty points were added for the red light offence, making him liable for disqualification. His Skoda Fabia was snapped by a traffic camera jumping the red light at 39 mph at 6.55am. ‘I do rely on the car to get between my two places of work, but more importantly for my farming in Wiltshire,’ Sir Mathew told the court. ‘The farm buildings are the hub of the wheel. Cattle have to be fed by driving around the hub. I work three days a week on the farm.’ Thorpe told the court he is separated from his wife and has one part-time employee to help him, insisting it was not practical to find more staff. ‘It would be difficult, I can’t say impossible, but in a small community I can’t think of anyone qualified or suitable. ‘I would want somebody who knew what they were doing on a farm.’ Thorpe said he needed to drive animal feed a distance of one-and-a-half miles to take care of his cattle. His lawyer Yvette Kresner said: ‘It is a very difficult junction. There is a large bike lane and two other lanes. ‘It was a split-second decision by Sir Mathew not to cause danger to other road users, and go through the lights.’ District Judge Wickham – who knows Sir Mathew professionally – said: ‘He is entitled to put these circumstances in front of me and six months would be a long time for the defendant to be disqualified if he was able to maintain that aspect of his life.’ A spokesman for the Judicial Office said that accrording to normal procedures, the matter would be referred to the Office for Judicial Complaints for inquiries to be made, and for ‘consideration in due course by the Lord Chief Justice and the Lord Chancellor’.
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Subscribe to Building today and you will benefit from:Unlimited access to all stories including expert analysis and comment from industry leadersOur league tables, cost models and economics dataOur online archive of over 10,000 articlesBuilding magazine digital editionsBuilding magazine print editionsPrinted/digital supplementsSubscribe now for unlimited access.View our subscription options and join our community Subscribe now for unlimited access Get your free guest access SIGN UP TODAY Stay at the forefront of thought leadership with news and analysis from award-winning journalists. Enjoy company features, CEO interviews, architectural reviews, technical project know-how and the latest innovations.Limited access to building.co.ukBreaking industry news as it happensBreaking, daily and weekly e-newsletters To continue enjoying Building.co.uk, sign up for free guest accessExisting subscriber? LOGIN
Subscribe now for unlimited access Subscribe to Building today and you will benefit from:Unlimited access to all stories including expert analysis and comment from industry leadersOur league tables, cost models and economics dataOur online archive of over 10,000 articlesBuilding magazine digital editionsBuilding magazine print editionsPrinted/digital supplementsSubscribe now for unlimited access.View our subscription options and join our community Get your free guest access SIGN UP TODAY Stay at the forefront of thought leadership with news and analysis from award-winning journalists. Enjoy company features, CEO interviews, architectural reviews, technical project know-how and the latest innovations.Limited access to building.co.ukBreaking industry news as it happensBreaking, daily and weekly e-newsletters To continue enjoying Building.co.uk, sign up for free guest accessExisting subscriber? LOGIN