Government proposals to limit lawyers’ fees in defamation cases risk ‘restricting access to justice’ according to claimant solicitors, while those representing defendants say they do not go far enough. Following Lord Justice Jackson’s report on civil costs, justice minister Jack Straw last week announced a four-week consultation on ‘urgent’ interim plans to cap lawyers’ success fees in defamation cases at 10% of their fee. Lawyers can currently claim a success fee of up to 100% of their fee for winning cases, which Straw said has caused an escalation in costs and hindered press freedom, because newspapers face such high legal fees if they fail to defend a claim. Andrew Stephenson, a partner at libel firm Carter-Ruck, said: ‘The 10% figure is arbitrary and appears to be based on the false premise that claimants always win defamation and privacy cases.’ Stephenson said that if the proposal were implemented, it would make it more difficult for people, including defendants, to find a solicitor to act for them under ‘no, win, no fee’ agreements. ‘It will restrict access to justice for many private individuals,’ he said. Rod Christie-Miller, a partner at libel firm Schillings, said it would be better if other proposals such as the current costs budgeting pilot could be fully assessed before new changes were introduced. ‘The MoJ’s latest addition makes it all a bit of a hotchpotch and there’s an obvious risk that this will result in a less than perfect outcome,’ he said. However, Jennifer Robinson, a libel lawyer at Finers Stevens Innocent who acts mainly on the defendant side, welcomed Straw’s reforms. She said the current high level of costs has ‘a chilling effect on free speech and legitimate publication’.
As a BVC student on an advocacy training weekend, I recall Nigel Pascoe’s dramatisation of the case of the Quakers William Penn and William Mead, charged with riot for carrying out a prayer meeting in Grace Church Street. Ordered by the judge to convict the pair, the jury courageously returned verdicts of not guilty, as the men had done nothing wrong. For their pains the jury were imprisoned in contempt of court. Critics of the jury system often recite the argument that trial by jury equates to trial by the prejudiced and ignorant, suggesting that juries are all to often made up of the long-term unemployed because anyone clever enough can get out of jury service. They question whether jurors can be trusted to go beyond the defendant’s appearance and see through the obfuscation, confusion and clever arguments advanced by lawyers, to determine the truth. Research published this week by the Ministry of Justice does seem to vindicate the jury system. The report, Are Juries Fair, compiled by Cheryl Thomas of the University of London, concluded that juries are fair and do not discriminate on racial grounds, convicting in around 60% of cases. The research did show that many jurors did not fully understand their responsibilities or the legal directions given by the judge before they retire. The blame for this cannot be attributed to the juror system or the stupidity of jurors, but surely indicates that judges should try to be clearer in their directions. Even if the report does not convince doubters of the efficacy of the jury system, the question for them is, with what would they replace it? The alternative to juries – judge only trials – such as the one currently going on at the Royal Court of Justice, is hardly a desirable alternative. Would you rather trust your fate to one person, whose wages and pension are paid by the government, or 12 disinterested people doing their civic duty?
The break-up of north-west law firm Halliwells was completed yesterday with confirmation that its Manchester, Liverpool and Sheffield operations have been acquired by three former rivals. City firm Barlow Lyde & Gilbert (BLG) has scooped up Halliwells’ Manchester insurance practice, taking on 17 partners, plus other lawyers and support staff. The new team is to be integrated into BLG’s Manchester office and will focus on catastrophic injury, fraud, regulatory and public work. National firm HBJ Gateley Wareing (HBJ) has taken on the remaining 40 partners from the Manchester operation, along with the troubled firm’s banking and finance, corporate, real estate, real estate litigation, corporate recovery, commercial litigation, intellectual property, employment, pensions and construction business units. HBJ is to operate, under its own name, from Halliwells’ present Manchester office. North-west law firm Hill Dickinson has taken over Halliwells’ Liverpool and Sheffield operations. The transaction saw more than 19 partners, 41 fee-earners and 29 support staff from Liverpool and a team of 36 from Sheffield change firms. The Liverpool deal will add to Hill Dickinson’s commercial and property litigation, corporate, insolvency and commercial property practices, and introduce private client work. The new Sheffield practice, comprising health, corporate, commercial litigation and property practice groups, will be Hill Dickinson’s first venture into Yorkshire. Following the sales, Halliwells was placed into admninistration last last night. Commenting, joint administrator Dermot Power, BDO business restructuring partner, said: ‘Securing sales of the business to other highly regarded firms, which will protect approximately 700 partner and staff jobs, is positive news for the employees and the industry as a whole. It is well known that the firm assumed substantial property obligations in recent years which significantly increased operating costs. This, together with the slowdown in transactional activity in the current economic climate, put unsustainable pressure on cashflow and the partnership resources.’ He added: ‘Other professional firms will have to pay far greater attention to management and particularly cash management, following the stress testing of an LLP frame work which has been less than robust.’ BLG senior partner Simon Konsta said: ‘These hires strengthen our position in our core sector and extend our overall offering to clients, who we recognise want increased choice and flexibility.’ HBJ joint senior partner Michael Ward said: ‘We are being joined by a team of partners and staff of the highest quality and they are looking forward to putting the recent past behind them and focusing on what they do best – delivering the very best client-focused commercial legal service.’ Hill Dickinson senior partner Tony Wilson said: ‘We aim to make the transition smooth and seamless… and look forward to supporting our existing and new clients through this exciting period in our history.’
The appellant employees (the type A claimants) appealed against a decision of an employment judge that they could not pursue their equal pay claims because they had failed to comply with step 1 of the statutory grievance procedure contained in the Employment Act 2002 and the Employment Act 2002 (Dispute Resolution) Regulations 2004. The respondent employers (W) cross-appealed against the employment judge’s decision that other employees (the type B claimants) had complied with step 1. The type A claimants had sent a statement to W which was headed ‘Statutory Grievance and Questions Pursuant to Section 7B of the Equal Pay Act 1970’. The statement sent by the type B claimants was identical to the type A claimants’ statement save that it was headed ‘Statutory Grievance’. The employment judge found that the type A claimants’ statement had a dual purpose in that it was intended both to be a grievance and to invoke the questions procedure under section 7B of the 1970 act. She concluded that regulation 14 of the 2004 regulations did not allow for that possibility and that it operated to prevent the document from being a statutory grievance. As to the type B claimants’ statement, the employment judge held that the fact that the heading clearly identified it to be a statutory grievance, and did not identify it as being intended to ask questions for the purpose of section 7B, was sufficient to remove it from the ambit of regulation 14. The employees argued that both documents should be construed as classic ‘dual purpose’ documents, which both made complaints complying with the statutory grievance procedure and included some questions or requests for information relating to those complaints; regulation 14 should be construed literally so as to exclude only those questions which were outlawed by regulation 14 and to leave the statements which complied with the statutory grievance procedure intact as constituting valid statutory grievances. Held: Recognising the dual purpose of documents such as those in the instant case and construing regulation 14 as excluding only the questions from constituting the step 1 grievance was the correct approach. It ensured that the draconian effect of denying a remedy to a woman seeking to assert her fundamental right to equal pay at work was avoided. It also accorded with the reality of the case. Both the type A and the type B documents were held otherwise to satisfy the grievance requirements, and the documents were initially regarded as satisfying those requirements by W. The complaints made were in fact far more detailed than the Court of Appeal held in Suffolk Mental Health Partnership NHS Trust v Hurst  EWCA Civ 309,  ICR 1011 was necessary to comply with the statutory grievance procedure. Both sides had been legally represented and understood exactly the issues being raised. No one had been misled. The grievance process should not become a trap for the unwary or unnecessarily technical or complicated. The questions or requests for information made in both documents were easily excised, leaving the remaining statements intact and thereby compliant with the statutory grievance procedure, Suffolk, Shergold v Fieldway Medical Centre  ICR 304 EAT, Canary Wharf Management Ltd v Edebi  ICR 719 EAT and Burns v Killgerm Group Ltd, unreported, 2 February  EAT applied, and Holc-Gale v Makers UK Ltd  ICR 462 EAT distinguished, as in that case the employee had not sent her questionnaire as a grievance. Appeal allowed, cross-appeal dismissed. Employment – Equal pay questionnaires – Statutory grievance procedures Philip Engelman (instructed by Stefan Cross (Newcastle upon Tyne)) for the appellants; Timothy Kerr QC, Shabbir Lakha (instructed by in-house solicitor) for the respondents. DM Birch and 99 others v (1) Walsall Metropolitan Borough Council (2) Housing 21 Ltd (3) Sodexo Healthcare Services Ltd (4) Pinnacle Housing Ltd: EAT (Mrs Justice Cox): 10 September 2010
The number of sole practitioners whose practices were intervened in has fallen in the past 12 months, while interventions into small firms are on the rise, figures revealed today. The figures also show a sharp rise in the number of solicitors struck off by the Solicitors Disciplinary Tribunal in the past year. Solicitors Regulation Authority statistics show that the number of sole practices intervened in fell 20% in the year to 30 September 2010, to 53. Sole practitioners now make up 70% of all interventions, compared to 76% in the previous year. Small firms with two to five partners have been subject to a growing number of interventions, however, with 23 such firms intervened in the 12 months to 30 September. This represents a 15% increase in the number of small firms intervened in last year. Small firms now comprise 30% of all interventions, compared to 23% in 2009 and 19% in 2008. Overall, the number of interventions in the year to 30 September 2010 was 13% lower than in 2009. The most common ground for intervention was ‘protection of client interests’, which was cited in 78% of cases. The number of cases where there was reason to suspect dishonesty has decreased, from 30% at 30 September 2009, to 26% at the end of the third quarter this year. The SRA figures also show a significant rise in the number of solicitors struck off by the SDT in the past 12 months. Some 82 solicitors were struck off by the tribunal in the year to 30 September, 21% more than last year. There was also a 7% rise in the number suspended, to 48, while there was a drop in the number of lawyers who received only a reprimand or against whom no order was made. The overall number of SDT orders grew slightly, by 2%. The SRA figures also showed that claims against the Law Society’s compensation fund are substantially higher than in previous years. The total amount claimed in the third quarter of 2010 was £38m.
Solicitors have welcomed a Supreme Court ruling that domestic violence extends beyond physical contact to include other forms of violent conduct. Giving judgment in Yemshaw v London Borough of Hounslow last week, Lady Hale said that ‘domestic violence’ in section 177(1) of the Housing Act 1996 includes physical violence, threatening or intimidating behaviour and any other form of abuse that, directly or indirectly, may give rise to the risk of harm. She said ‘physical violence’ is not the only natural meaning of the word ‘violence’; another is ‘strength or intensity of emotion, fervour, passion’. Hale added that international and governmental understanding of the term had developed beyond physical contact. The case concerned the council’s duty to provide housing for people who had become homeless. The appellant left her home with her two children because of her husband’s behaviour, which included shouting in front of the children. She told housing officers she was afraid he might hit her if she confronted him. The officers decided she was not homeless because her husband had never hit her or threatened to do so. They said the probability of domestic violence was low and concluded it was reasonable for her to stay in the matrimonial home. Christina Blacklaws, Law Society council member for child care, said the ‘hugely significant and extremely welcome’ judgment would give victims of domestic violence greater access to justice in the context of family and housing law. She said: ‘Having the Supreme Court recognise the multi-faceted and complex nature of domestic violence is of enormous importance and should herald a return to better decision-making by local authorities.’ Blacklaws said the decision will also be important in relation to proposals in the green paper on legal aid, in which domestic violence is given an ‘inappropriately narrow’ definition. ‘This judgment gives us ammunition to challenge the government’s plans so we can ensure victims of domestic violence continue to receive expert legal advice and assistance,’ she said. Elspeth Thomson, partner at Newcastle firm David Gray, said: ‘It is ironic the Supreme Court made this decision at a time when the government is seeking to limit the definition to mean not just violence, but circumstances where that violence is evidenced by court proceedings or criminal records.’
Christopher Geeson (assigned by the Registrar of Criminal Appeals) for the defendant.Laura Pitman (instructed by the Crown Prosecution Service) for the Crown. Trial – Verdicts – Robbery – Logical inconsistency R v Mohammed: Court of Appeal, Criminal Division: 23 September 2011 The defendant and co-defendant, D, having consumed alcohol, went to a park where a number of youths had gathered. The two groups had a discussion. At some point, D took out a knife and walked along a row of people demanding that they hand over their mobile phones. The defendant and D were subsequently arrested. They were tried for two counts of robbery (counts one and two) and for one count of having a bladed article (count three). The prosecution case against the defendant was that he had been party to a joint enterprise to commit robbery with D, in that when D had required the victims to hand over their phones, the defendant had taken out a knife and waved it at the victims in support of D as part of the joint enterprise. The defendant’s case was that he and D had been drinking, that he had seen D with the knife committing robbery but that he had not had a knife and had not taken part in, or encouraged, the robbery. The judge summed up the case in line with the prosecution case, namely that the jury had to be sure that the defendant had produced a knife to convict him of the robberies. The defendant was convicted at a retrial of the two counts of robbery, for which he was sentenced to two years’ imprisonment. He was acquitted of having a bladed article. D pleaded guilty to the two counts of robbery and to having a bladed article, for which he was sentenced to two years’ imprisonment. The defendant appealed against conviction. He submitted that the verdicts were logically inconsistent in that the only evidence to support the prosecution’s case on joint enterprise was the fact that he had allegedly taken out a knife and had waved it at the victims. The robbery counts had been based on the premise that he had had a knife, whereas the jury had to have rejected that in acquitting him of having a bladed article. The appeal would be allowed. In the instant case, the verdict of the jury on count three, acquitting the defendant of having a bladed article, was inconsistent with the verdicts on counts one and two, namely robbery, and could not stand. Whilst it was true that a defendant could participate in a robbery as part of a joint enterprise without having a knife, in the light of the evidence in the instant case, and the judge’s summing up, there was an inconsistency in the verdicts. Once the jury had not been satisfied that the defendant had had a knife at the relevant time, as was implicit in the verdict on count three, it had not been open to it to convict on counts one and two. The convictions would be quashed.
A new law firm has entered the personal injury market promising neither to pay nor charge referral fees. Acorn Law, backed financially by national firm MTA Solicitors, says it is the first to be set up since the government announced plans to ban referral fees in personal injury cases. Chief executive David Green said the current practice of PI firms paying up to £800 to a claims management company for an accident victim’s details is harming the profession and creating a ‘referral fee merry-go-round’. He said: ‘The ban on referral fees will reinvigorate the personal injury market, allowing law firms to focus on the quality of service they provide to clients rather than who can pay the most for a case. The ban will hopefully drive out the worst excesses and allow lawyers to do what they do best: act in the best interests of their clients.’ Acorn Law will market itself on the quality of its work and is looking to recruit an advisory panel of former personal injury claimants to provide an insight into the claims process. The panel will meet twice a year and will set about drafting a client charter at its first session. The firm, based in Bromley, Kent, was set up in September – just days after the referral fee ban announcement – and currently has eight solicitors. As well as PI, it will also provide services in employment law, wills and probate, driving law, conveyancing, debt recovery and general litigation.
The government is spending £2.5m a year maintaining dozens of redundant courts across England and Wales, the Gazette can reveal. A reply to a freedom of information request shows 69 former court buildings remain vacant, with no imminent chance of them being sold. Justice minister Jonathan Djanogly announced in December 2010 that 142 courts would close to save money. It is understood that 121 have since shut, most by April 2011. The FoI request confirmed that HM Courts and Tribunals Service is spending £206,000 a month maintaining them. Commercial property experts warned that it will be difficult to sell many former court sites because of the cost of refurbishment and the stagnant market. Just five of the 121 have been sold, at sites in Witney in Oxfordshire, Blandford Forum in Dorset, Abertillery in Gwent, Llwynypia in the Rhondda Valley and Brentford in west London. Land Registry records show the closed magistrates’ court in Witney was sold for £330,000 to Abingdon and Witney College, but through money borrowed by another branch of government, the Department for Communities and Local Government. The Abertillery site sold for £80,000 to an accounting firm. HMCTS confirmed that 19 former courts have had terms agreed, seven are subject to ‘serious negotiations’, seven have agreed to surrender leases and 14 have been retained as planned. It is understood that some of the remaining 69 will prove more complex to dispose of as police or local authorities share ownership. A spokesman for HMCTS said the closure was always intended to be on a ‘phased basis’ over four years to meet local needs. But Labour has accused the government of reneging on its promise to save money. Shadow justice minister Andy Slaughter said: ‘It is outrageous that more than a year later they are wasting hundreds of thousands of pounds every month by keeping the buildings empty and useless. ‘If the loss of local justice was controversial, the outcome – dozens of local buildings soaking up public money – is indefensible and incompetent.’ Nick Parker, senior analyst at commercial property agent CBRE, said the current market weakened in January and was one where ‘buyers currently hold the cards’. John Fassenfelt, chairman of the Magistrates’ Association, said his own court in Sittingbourne, Kent, was one of the courts that closed and remains vacant. He said magistrates across the country are travelling much longer distances since the closure programme began and some had chosen to leave their roles. The situation will become more difficult when HMCTS imposes an annual allowance for mileage capped at 1,000 miles, he added. The government has estimated that the closures will eventually save at least £15m a year in running costs, plus £22m in building maintenance.
Next Tuesday the Legal Aid, Sentencing and Punishment of Offenders bill will be back in the Commons for MPs to consider amendments made by peers. It is likely that many of the amendments will be reversed and the bill, which removes huge areas of law from the scope of legal aid, will receive royal assent before the end of May. If that happens, many law centres, including the 100-year-old Mary Ward Legal Centre (MWLC) say that they may be unable to survive. The centre, based in London, gives free legal advice to people on a low income living or working in the capital. It specialises in casework and representation in debt, employment and discrimination, housing and welfare benefits. It has published a report demonstrating the impact its work has had on the lives of some of the 3,000 people it has helped over the last year. Once the legal aid cuts are implemented, here are some of the people who, the centre said, will lose out: Brian’s story: Brian’s landlord got a court order awarding him possession of the flat that he had lived in for 30 years. Brian represented himself at court and was concerned he was going to be evicted. He saw a specialist housing solicitor at MWLC who talked to him about the case and pointed out some of the mistakes he’d made when representing himself. The solicitor submitted an appeal and arranged for Brian to get a barrister. Brian says: ‘After MWLC contacted the landlord and he heard that we were appealing, and that I had engaged a barrister, he threw the towel in. ‘I’m still in my home and not on the street which is where I thought I would be when I lost the hearing. If the MWLC hadn’t helped me sort things out I could have been on the streets with a suitcase.’ Pablo’s story: has cancer and HIV. He was training as a dietician and nutritionist until funding cuts meant his course was cancelled. He had taken out bank loans to pay for his training and owed £14,000. He had tried unsuccessfully to negotiate with his bank. He was becoming unwell as he couldn’t afford to eat properly, his debts were getting him down and he says he thought about ‘bringing it all to an end’. He was referred to the MWLC who helped him apply for a debt relief order and he is now debt free and has returned to work as a volunteer providing nutrition services for people with HIV. He says: ‘I am now able to deal with my life again after getting out of debt. Thanks to Mary Ward Legal Centre I’ve had a real boost. I’ve been fighting cancer and HIV for years and can now feed myself properly again.’ Claudia’s story: 20-year-old Claudia had been living on the streets and with friends for 10 days after leaving home because of domestic violence. She approached the local authority next door to where she lived, but they told her she had to go to authority in the area where she had most recently lived. When she went to her own local authority, they also refused to help her and referred her back to the first authority. But when she went back there she was told that they would not provide her with accommodation. She attended a drop in session at MWLC and a solicitor wrote to the second local authority telling them they would have to house her or they would make a judicial review challenge to the High Court. Claudia was placed in interim accommodation by the local authority. She says: ‘The solicitor made me understand what was going on, They lightened my spirits and made me feel that I could do more than I thought was possible.’ The services provided by the MWLC have helped many vulnerable people get their lives back on track – many say that the centre saved their lives. The help they received has led to clients being housed, getting training and jobs, improving their health, and given many the ability to help themselves and retain their self-respect. Aside from the impact on the individuals, the advice and help given by the centre has undoubtedly saved huge expenses for the state – from the costs of NHS care, homelessness and unemployment. The government claims its cuts will save £350m, but what will be the cost if centres like the Mary Ward close? Join our LinkedIn Legal Aid sub-group