The Ministry of Justice has announced a consultation on funding cuts for police station and Crown court work aimed at ‘rebalancing’ the £2bn legal aid budget in favour of civil help. The reforms outlined in the consultation paper include reducing the fees paid for police station work in what the MoJ calls the ‘most expensive and oversubscribed’ areas of the country. It says costs in this area have been driven up by an ‘over use’ of duty solicitor schemes in some parts of the country, particularly where there are ‘too many firms competing for business’. The MoJ proposes cutting the fee rates for barristers in Crown court cases to bring them more into line with prosecution fees. On average barristers acting for the prosecution receive 23% less pay than those acting for the defence, it says, which could ‘create an incentive for barristers to favour defence work’. The paper suggests combining all committal work done by litigators into one fixed fee paid out of the Litigator Graduated Fee Scheme, rather than the current scheme which pays the litigator one fee to prepare the committal hearing, and a separate fee for consideration of the committal bundle. The MoJ says payments for criminal file reviews will end, to match the fee structure in civil cases. In addition, the MoJ has asked the Legal Services Commission to consider standardising payments made to experts in both criminal and civil cases. The LSC has also been asked to find an additional 5% saving from its administrative budget this year, and 10% next year, on top of the 30% cuts they have already been asked to make over the next five years. Legal aid minister Lord Bach said: ‘The UK has one of the best-funded legal aid systems in the world and it is a vital service for many people, particularly during the current economic downturn.’ ‘More and more homeowners, employees and those facing financial hardship, are vulnerable to civil law problems at this time. We need to do all we can to ensure that legal aid is prioritised effectively so that more people are able to access it to and resolve their legal problems.’ He added: ‘Legal aid practitioners provide a fantastic service and should be paid accordingly; and that means rebalancing some fee structures so that there is greater fairness across the board.’ ‘Today’s consultation paper sets out proposals to make better use of the legal aid budget and ensure access for as many people as possible.’ Law Society chief executive Des Hudson said: ‘Solicitors don’t create the demand for advice in police stations; they simply respond to requests from people who’ve been arrested. How can the government imply that the profession can somehow alter that – solicitors have no control over how many people are arrested. ‘Having access to legal advice in a police station is central to the working of our criminal justice system. It can result in early guilty pleas and can also ensure that innocent people are not prosecuted. It avoids the miscarriages of justice that were seen in the 1970s. Government should be investing in this to achieve future savings. Arbitrarily cutting the fees that are paid will reduce access to this vital service for the people who need it most.’ He added that it would be not just barristers, but also solicitor-advocates who would be affected by the decision to cut the rate of pay in Crown court cases. Hudson said: ‘For the criminal law solicitors whose businesses and livelihood are to be the subject of a best value tendering experiment in Bristol and Manchester this is deeply worrying. While they bid for work the Ministry of Justice introduces a flat rate countrywide fee. This consultation lacks thought for the long-term future of access to justice. ‘We are currently compiling a review into legal aid which we hope will be the base for the future of legal aid. We recognise that there is not a bottomless pit of money for legal services, but government needs to work with the professions to provide long-term solutions. We will be looking into these proposals in more detail and feeding back to the profession as soon as possible, but in the meantime we will be lobbying the government to delay implementation of the BVT experiments in Manchester and Bristol.’ The consultation will run until 12 November. It can be found at: www.justice.gov.uk/consultations/docs/legal-aid-funding-reforms.pdf.
Mystery shoppers will test the service provided by will-writers early next year, as part of a Legal Services Board project. Research agency IFF Research has been commissioned by the LSB, the Legal Services Consumer Panel and the Office of Fair Trading to recruit individuals to report back on their experience of getting a will, which will then be assessed by a panel of solicitors and will-writers. IFF will select 100 consumers looking to obtain a will. Of these, 40 will use a solicitor, 40 will use a will-writer, and 20 will write their own will using an online provider or paper-based DIY will. The names of the firms producing the wills, and the names of those obtaining the wills, will remain anonymous. A pilot study is scheduled to take place in January, with the full study taking place in February and March. The LSB is seeking volunteers to help assess 20 wills obtained by IFF. The board said volunteers will need at least five years’ will-writing experience and relevant CPD in the last three years. Practitioners interested in volunteering should email their name, and a declaration of any representative roles they have held in the past five years, to [email protected] Meanwhile, the LSB’s draft work programme for 2011/12, released this week, indicated that the board will not publish a consultation on the results of its investigation into will-writing until early in 2012. The LSB is examining whether to make will-writing a reserved legal activity.
Full implementation of the Legal Services Act 2007 could ‘substantially influence’ legal markets around the world, according to the new president of the International Bar Association. Akira Kawamura (pictured), partner at Japanese firm Anderson Mori & Tomotsune, last week became the twenty-second IBA president and the first from Japan. Looking ahead to the coming year, he said he would be observing with great interest the developments in the European legal market following the implementation of the LSA and EU moves to liberalise professional services throughout the continent. He said: ‘It is possible that the resulting developments may substantively influence the transformation of markets in other jurisdictions that would like to achieve the status of a highly-regarded and independent legal jurisdiction.’ Kawamura told the Gazette that industrial growth in Brazil, Russia, India and China was fuelling dramatic growth in the legal professions of those countries, which he predicted would continue. ‘In each one of those BRIC countries, large and organised law firms are mushrooming and providing their clients with world class legal services, and further increases in cross-border transactions will see the demand for legal services continue to rise,’ he said. The new president said the global financial crisis had negatively impacted access to justice around the world. ‘This is a widespread problem and the bars and law societies across the globe face the challenge of ensuring that access to justice is not denied to people during these difficult financial times,’ he said.
Simon Butler, Johnathan Payne (instructed by Stone Rowe Brewer) for the appellant; Lord Faulks QC, Quintin Tudor-Evans (instructed by Barlow Lyde & Gilbert) for the respondent. Negligence – Hospitality and leisure – Breach of duty of care – Foreseeability The appellants (E) appealed against a decision dismissing their claims for damages for personal injury arising from an incident at a nightclub, owned and managed by the respondent company (C), when they were injured in a knife attack perpetrated by another guest (G). The nightclub was part of a hotel. Use of the nightclub was restricted to members and their guests and hotel residents. E were guests at the nightclub. It was said that one of the group they were with touched a waitress (K) on the bottom. She did not complain but the incident was witnessed by a member (B) who was aggrieved on her behalf. He told her, more than once, that those responsible would apologise to her before the end of the evening. B was later joined at the nightclub by G. K was concerned that there might be a confrontation and went to speak to the manager. At that time E decided to leave the nightclub. B asked for an apology which was not forthcoming. G then attacked E and stabbed them with a knife. The judge held that C could owe a duty to protect its guests from the actions of a third party, on the basis that there might be such a degree of proximity between the parties that a legal duty would arise. However, he held that no duty of care arose in the circumstances because, at the time when K left the bar to speak to the manager, there was not a sufficiently great risk of injury; she was not under a duty to do anything about G at that stage. If she had done nothing, she could not have been criticised. All she had was a suspicion that there might be some sort of confrontation. But it was not known that G had a weapon and there had been no history of B or his associates being violent. E submitted that in the circumstances the judge should have concluded that there was a duty of care and that there had been a breach. C contended that there should be no duty on the managers of a bar to protect guests from violence by other guests and, if there was any duty at all, it should be drawn very restrictively. Held: (1) The test for the existence of a duty of care was the threefold test of proximity, foreseeability and whether it was fair, just and reasonable to impose a duty, Caparo Industries Plc v Dickman  2 AC 605 HL and Van Colle v Chief Constable of Hertfordshire  UKHL 50,  1 AC 225 followed (see paragraph 24 of judgment). (2) The relationship between the management of a nightclub and its guests was of sufficient proximity to justify the existence of a duty of care. It was foreseeable that there was some risk that one guest might assault another; that was recognised by C’s own risk assessment. It was fair, just and reasonable to impose a duty of care on the management of a nightclub in respect of injuries caused by a third party, provided that the scope of the duty was appropriately set (paragraphs 31-33). (3) Thus there was a duty on the management of a nightclub in respect of the actions of third parties on the premises, but the standard of care imposed or the scope of the duty had also to be fair, just and reasonable. As between the managers of a nightclub and guests, there should not be a higher degree of foreseeability than was required under the common duty of care in the Occupiers Liability Act 1957, Home Office v Dorset Yacht Co Ltd  AC 1004 HL considered. The degree of proximity, including the economic relationship, between the two was so close that no special rule of foreseeability was required in the interests of fairness, justice and reasonableness. The judge did not misdirect himself when he adopted the Australian case of Chordas v Bryant (Wellington)  91 ALR 149 Fed Ct (Aus) (Full Ct) as the basis of the duty, Chordas considered (paragraphs 34, 35). (4) In all the circumstances, K had not been in breach of duty. She had realised that there was a possibility of a confrontation between G and one or more of the members of E’s group. But there was no reason to think that a confrontation was imminent. The incident to which B had taken exception had occurred a considerable time earlier. B had no previous history of causing trouble, either himself or through his associates. K could not have been criticised even if she had done nothing. As it was, she went to speak to her manager. That was a reasonable thing for her to do. There was no apparent urgency; it was not as if a confrontation had begun and the risk of violence was imminent (paragraph 37). Appeal dismissed. Everett and Anor v Comojo (UK) Ltd (T/A the Metropolitan and Ors): CA (Civ Div) (Lords Justices Rix, Richards, Lady Justice Smith): 18 January 2011
In person for the appellant; Christopher Brown (instructed by Thompson & Co) for the respondent. Legal profession – Course of conduct – Defence statements – Harassment X had previously worked for D as an assistant solicitor. During that period D had had clients whose legal fees had been guaranteed by an individual (B). X ceased his employment with D and later ran his own firm. D issued proceedings against B under the guarantee and B instructed X to act for him in those proceedings. Within the following month D wrote three letters to X alleging a conflict of interests and acts of impropriety by X and questioning his motivation for acting for B. The third letter made allegations of illegality and impropriety by an individual with whom X had previously run a partnership. X made a claim under the Protection from Harassment Act 1997. D served a defence in which they made further allegations against X including of bigamy and forging a statement of truth. X’s claim was later struck out. On appeal the judge found that: the third letter was arguably capable of being described as harassing but that it was only one instance and so did not form a course of conduct; the defence did not amount to an occasion of harassment, partly because the cause of action had to be established as at the date of the claim form and what was said in the defence occurred thereafter; a partnership could not be a ‘person’ within the meaning of the act. The instant court was required to determine: (i) the difference between the third letter and the first two letters; (ii) whether, even if the first two letters by themselves were not capable of constituting harassment, they could amount, together with the third letter, to a ‘course of conduct’ within the meaning of the act; (iii) whether the defence could be relied upon as evidencing a course of conduct and whether it mattered that the defence post-dated the claim form; (iv) whether a partnership could be a defendant to a civil action under section 3 of the act. Held: (1) The three letters, particularly when viewed in light of each other, and especially the last two, arguably amounted to a deliberate attack on X’s professional and personal integrity, in an attempt to pressurise him, by his exposure to his client, the court or both, into declining to act for B or else advising B to meet D’s demands. Each letter, when considered side by side, arguably evidenced a campaign of harassment against X. They were arguably capable of causing alarm or distress and were arguably unreasonable, or genuinely offensive and unacceptable. Where a professional man’s integrity was deliberately and wrongly attacked, a potential claim lay under the act, Thomas v News Group Newspapers Ltd  EWCA Civ 1233,  EMLR 4 and Majrowski v Guy’s and St Thomas’s NHS Trust  UKHL 34, (2007) 1 AC 224 considered (see paragraphs 41-42 of judgment). (2) The act was concerned with courses of conduct that amounted to harassment, rather than with individual instances of harassment. The course of conduct had to amount to harassment, both objectively and in terms of the required mens rea. The judge therefore erred in failing to ask himself, in light of his finding as to the third letter, whether the three letters as a whole could amount to a relevant course of conduct, Kelly v DPP  EWHC 1428 (Admin),  166 JP 621 considered (paragraphs 45, 51). (3) X could refer to the defence as throwing evidential light on the proper understanding, interpretation and assessment of the letters. If it was doubtful that they arguably amounted to a course of conduct amounting to harassment the question could be looked at with the evidential assistance of the defence. For those purposes it did not matter that the defence post-dated the claim form. Further, in as much as X sought to rely on the defence as a second occasion making up a course of conduct, the judge erred in excluding it from consideration because it occurred after the claim form. That was a rule of practice, rather than a rule of law, and it could be departed from when the justice of the case required. Under the act a victim could seek an injunction before a course of conduct had been established if they could show a suitable case of fear of such a course of conduct. That was part of what X sought to do. In those circumstances it was profitless and harsh to force a claimant back to the issue of a further claim form where a defendant provided a further occasion making up a course of conduct amounting to harassment in the course of proceedings (paragraphs 52-53). (4) There was no reason why ‘person’ in section 3 should not be given its natural meaning, Majrowski considered. Therefore, a partnership could be a defendant to a civil action under that section (paragraph 63). Appeal allowed. The appellant (X) appealed against a decision upholding the striking out of his claim of harassment made against the respondent firm of solicitors (D).
No win no fee agreements have been blamed for a sharp rise in the number of medical negligence claims. The Medical Defence Union says claims increased by almost 20% in 2010 after several years of stable figures. More than half of the allegations were made against GPs for delayed or wrong diagnosis, with 15% resulting from a failure to refer patients and 10% from medication errors. The MDU, which indemnifies more than half of GPs in the UK, today claimed that Conditional Fee Arrangements (CFAs) may be the cause of the rise. Head of claims Jill Harding said: ‘While we cannot know all the reasons behind an individuals patient’s decision to bring a claim after an adverse event, a factor in this increase may be the availability of ‘no win, no fee’ arrangements which enable claimants to litigate with no financial risk. ‘The current difficult economic times may also be a factor. ‘We see no evidence, however, of any deterioration in standards of care or in the professional relationships between our GP members and their patients.’ The MDU is continuing to lend its support for legal reform of the claims system, due to be debated in Parliament this summer following the recent publication of the Jackson Report.
Darren White, Deighton Guedella Solicitors, London EC1 In ‘Equality law is victimising Christians’ (28 April), Andrea Minichiello Williams makes the statement, ‘law cannot be divorced from Christianity’, while criticising totalitarian ideologies like fascism and communism. Does is not occur to Ms Williams that Christianity, if it is taken seriously, is also a totalitarian ideology, in that it purports to provide an exclusive definition of the truth, comprehensive answers to all life’s questions and an infallible guide to conduct? In other words, to say ‘law cannot be divorced from Christianity’ is as nonsensical and dangerous as to say ‘law cannot be divorced from Marxism’.
A fresh breeze is blowing through Whitehall. After years of benign neglect, the commercial legal sector has been recognised by the government as an engine for economic growth, deserving of support abroad. In its action plan published last week, Plan for Growth: Promoting the UK’s Legal Sector, the Ministry of Justice undertakes to promote UK legal services abroad by seeking to break down regulatory barriers in overseas markets and by facilitating promotional activities. Among other things, British embassies will have access to an online toolkit to assist them in explaining the value of UK legal services, and members of the profession will be included on ministerial and lord mayoral visits. The initiative has been warmly welcomed by TheCityUK, whose legal services and dispute resolution committee will be assisting the ministry in devising a core script for communications. Most importantly, it signals a recognition by the government that investment in the legal sector will yield rewards for the wider economy. Why has there been a change of heart now, and what more can the government do? Here are some interesting facts and figures. In 2009, legal services generated £23.1bn, or 1.8% of UK GDP. This included £3.2bn in exports – a staggering three times more than in 1999. A large slice of these exports is generated by dispute resolution in London. In the Commercial Court, over 80% of the cases do not involve any English parties. This success is mirrored in arbitration. According to a recent survey by Queen Mary University of London (sponsored by White & Case), 30% of respondent corporations preferred London as a seat for arbitration, with Geneva second on 9%. The integrity and expertise of English judges and the legal profession are vital components of this success. But the key ingredient is the widespread preference for English law to govern business relations conducted abroad, particularly in the emerging markets. So why is the MoJ stepping in now? Well, although there is a real opportunity for English law to take a dominant position in international business, there is competition. For example, a combination of French and German bar associations recently published a booklet arguing that civil law is to be preferred to common law for business transactions. This is supported by the French and German justice ministers and the Fondation pour le Droit Continental, an organisation set up to unite continental law legal professionals in the promotion of codified civil law around the world. Alongside this, despite the absence of any evidence that it is needed or desirable, a group of MEPs is pressing ahead with a long-running initiative to introduce a new ‘optional instrument’ of European contract law, under the guidance of an ‘expert group’. This group largely consists of academic lawyers, many of whom have been closely involved with the promotion of a European civil code for some time. Elsewhere, in the emerging markets, English jurisdiction is also under threat from a growing number of regional arbitration centres, such as Maxwell Chambers in Singapore. It is therefore an opportune time for the government to lend its support, and the Plan for Growth is a good start. It also coincides with the opening later this year of the Rolls Building, a new state-of-the-art home for business courts in London, and the biggest of its kind in the world. But it should not end here. For example, more can be done by the government to resist continental ambitions for a European contract law. Closer to home, any thoughts of imposing daily trial fees for commercial cases, or otherwise hiking court fees, should be dismissed. Even if only a handful of cases were lost to London as a result, the additional fees raised would be outweighed by the loss of revenues to the Exchequer. As a nation, we have a history of taking our world-leading industries and institutions for granted until it is too late. Investment by the government in the legal sector will be for the benefit of all, and will help build on the undoubted success of English law and lawyers around the globe. Ted Greeno is a senior litigation partner at Herbert Smith
Mark Anderson, Anderson Law, Shillingford, Oxfordshire Your report ‘Euro patent court “ruinous for business”‘ will have left readers who are not specialists in patent law uncertain as to whether the main issue is the principle of the court, its location, procedural rules, languages used, or the training of judges. Most pertinent is the quote from Philip Westmacott, that ‘international patent law is complex and for SMEs… potentially ruinous’ and the issues ‘must be debated and discussed in detail’. There are two pressing issues for English solicitors: (a) articles 6 to 8 in the draft legislation, and (b) the location of the central court. Articles 6 to 8 were introduced by the European Commission’s legal team. The effect would be to make decisions of the court subject to appeal to the European Court of Justice. This would be disastrous. To quote the president of the European Patent Lawyers Association: ‘There are various important issues – one is a timing issue. The involvement of the ECJ will delay infringement proceedings for years. Second is the cost… and third, which is maybe the most important, is that the judges at the ECJ do not have patent law expertise.’ As for the location of the court, patent lawyers have estimated that the value to the UK economy of having the court in London would be about £120m per annum.
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