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Sunday, 29 December 2019

Clipping the wings of the Supreme Court and other Christmas tales

The Government has promised a review of the UK constitution in order to - "restore trust in our institutions and our democracy." According to the BBC this will include steps reduce the power of the Supreme Court. This would, if it wasn’t legal nonsense, be an act of revenge for the decision in September 2019 that Boris Johnson’s unlawful prorogation of Parliament was unlawful.

The BBC report quotes a Whitehall ‘source’ as saying that the plan is to ‘clip the wings’ of the Supreme Court by reinstating its – ‘more modest role - as the appellate committee of the House of Lords.’

I think another brief history lesson is called for.

The House of Lords has exercised a judicial role since, at least, 1399. This role was formalised in the Jurisdiction Act 1876 when it became the final Appellate Court and the highest court in the land. . All appeals ended there. The House had the final say. The judges were Lords of Appeal in Ordinary and were known as Law Lords, who also had the right to sit in the House itself

UK Courts follow a system of precedent. This means that courts must follow decisions of a higher court. So, the High Court is bound by the Court of Appeal. In most cases the Court of Appeal must follow its own previous decisions. The House of Lords was the only court that could overrule its own earlier decisions. 

In 2009 The Supreme Court was created by the Constitutional Reform Act 2005. The aim was to separate the judical functions from the legislative. The Law Lords became Supreme Court Judges. Their role was judicial only. They no longer sat in the House of Lords. But apart from that, there was no real change in the role of the court. It remained the final court of appeal. It was the highest court in the land, just like the House of Lords.

All of which begs the question. How does the government or anyone else propose to ‘clip its wings’? Its previous role was far from ‘modest’ as suggested by the BBC report. The judges would presumably become Law Lords again, rather than Supreme Court Judges. In all other respects it would revert to what it was for centuries. It would be supreme rather than Supreme!

It really is nonsense or something worse. 

What it really looks like is an attempt by politicians to exercise control over the judiciary, to eliminate judicial independence.

The report also mentions enhancing the role of the Lord Chancellor who has to swear –

“…that in the office of Lord High Chancellor of Great Britain I will respect the rule of law, defend the independence of the judiciary and discharge my duty to ensure the provision of resources for the efficient and effective support of the courts for which I am responsible.”

So will the ‘enhanced’ role involve the removal of that oath? That would surely diminish the role.

Judicial scrutiny of the executive remains a vital constitutional safeguard. It is a safeguard that must stand above political revenge.      

Monday, 16 December 2019

Legal Aid - the arguing is over. What now?

So, the General Election frenzy is over – probably for another 5 years.

There will be many questions asked about why those who opposed the government failed so miserably. No doubt we will see many changes over the next few months. But there is one thing we can be certain about; there is not going to be any miraculous return to the halcyon days of legal aid for all. I mentioned in my last blog that Labour’s manifesto gave positive signs. But as Jonathan Freedland wrote over the weekend –

“Labour’s “radical” manifesto of 2019 achieved precisely nothing. Not one proposal will be implemented, not one pound in it will be spent. It is worthless.” 

I mentioned in my last post, that the Conservative manifesto was silent on access to justice. When legal aid was mentioned in the campaign, the ‘party line’ was the familiar mantra that we had the most expensive legal aid system in Europe! The days of arguing are now gone. We can look forward to at least 5 years of ever reducing, publicly funded access to justice. We must accept that the argument is finished or at least ‘on hold’ for the foreseeable future.

But the problem isn’t going anywhere. People will still need advice on welfare benefits, housing, debt, family problems, immigration. They can no longer expect any significant help from the state. We all have to look at alternatives.

As recently as 2014 I wrote –

‘Why should ordinary people with a genuine case have to find a lawyer who will do it for free? In what other profession would that sort of expectation exist?’

I can now tell you why. Because no one else will, and the need for help is going to grow beyond anything that we could have imagined. 

The legal profession and advice sector have no choice. We must work together to ensure that those in need are not abandoned. In fairness, Pro Bono work has been growing over the last 10 years. In 2014 it accounted for 3% of the turnover of all firms. This has enabled thousands to get legal help. But, earlier in 2019 the Master of the Rolls said that there was only so much that could be done and there was a risk that the sector would be overwhelmed –

But it has to be done.

Great work is being done by Universities and Colleges who run legal advice clinics. This is a great opportunity for students to experience the real world of legal advice. It has also become an important piece in the legal advice jig saw. I have long argued that this can never replace a properly funded legal aid system. But for the time being at least, we are not going to get one. You can read more about Pro Bono work at  -

In the meantime there will still be Law Centres and other agencies which provide free legal advice. Many centres are already struggling. In the absence of any public funding they are going to need help from us all. I am involved in the North West Legal Support Trust – which is part of the Access to Justice Foundation – . The trusts raise funds and provide grants. In 2020 there will be a series of Legal Walks across the UK. Imagine the difference it would make if lawyers and firms committed to walk or support an event.

Our resolution for 2020 must be – what can I or my firm do?

Wednesday, 27 November 2019

Is this a strike off too far?

I have often talked about the catastrophic consequences when a solcitor makes a mistake and then tries to cover it up.

In a very sad case, a solicitor of over 20 years’ experience, and an apparently unblemished career has been struck off for dishonesty. This was despite the fact that nobody had been misled.

Geoffrey Hart acted for a friend of his wife in connection with a Personal Injury Claim. The claim succeeded and she was due to recover £48k after costs were deducted. The client persuaded him to write to her advising different terms. This was to enable her to persuade her ‘controlling’ husband that she had received less. Mr Hart duly wrote two letters. The first advised that she would receive just £30k. The second advised that payment had been made.

The solicitor soon realised the implications of what he had done and told his firm. The letter was recalled. It was never seen by the husband or anybody else. He made to attempt to hide or to justify his actions.

The case proceeded to the SDT which heard that Mr Hart had been under considerable pressure. His wife had suffered a miscarriage in the past and he knew that they would have difficulties having children going forwards. The client had shared that she had had a similar experience. This had clouded his judgment.

The tribunal found that he had been deliberately dishonest and failed to meet the ‘high standards of the profession’. He did not contest the decision, nor did he argue that his difficulties constituted ‘exceptional circumstances’.

I have to say that this seems to be a very unfortunate outcome. He agreed to write fake letters which were sent to the client, who knew exactly what he was doing. He soon regretted his actions. He was fully open with his firm. The problem was rectified, and no damage was suffered. Notwithstanding this, his career is now finished. What else could he have done?

In fairness, he did not strongly oppose the outcome and you wonder if it would have been different if he had done.

What this does show, is that dishonesty of any sort is likely to lead to a strike off. That will be the case even if the solicitor does all they can to rectify matters and no harm is done. Whatever pressure you might feel under, you just do not go there. It is a red line that cannot be crossed. 

It is also a reminder that you should, if possible, avoid acting for a client where you have any personal connection.

Tuesday, 26 November 2019

Conservative Manifesto - whatever happened to justice?

We are well and truly into the General Election Campaign season. The major parties traditionally compete for our votes on the basis of – anything you can do; we can do better. That has certainly been the case this time around until we get to the crucial matter of our justice system and in particular, access to justice.

The Labour Party’s proposals have been modest, compared with of the rest of their manifesto, but positive. They have pledged to reinstate legal aid for early advice in key areas such as housing, debt, immigration and family law. They have also promised to develop a network of law centres –

The Conservative Party manifesto, sadly, demonstrates their contempt for our justice system. On legal aid and access to justice there is an almost deafening silence. They promise to get around to it at some point.

On Criminal Justice there is a familiar populism. They promise 20,000 more police officers and a ‘fair justice system’ that stands for the law-abiding majority.  In other words, they will be tough on crime. The problem is that they have no plan at all about how to address our criminal justice system that is in a state of collapse. Defendants, witnesses and victims are waiting years for trial dates. Cases are not adequately prepared because of a lack of resources within the CPS. Every week, courts are sitting empty due to a lack of judges –

All MPs were sent a free copy of the Secret Barrister’s – Stories of the Law and How it is Broken. Has Mr Johnson read it? If he has read it, has he not understood it? If he has understood it, does he simply not care. Hence the reference to Homer Simpson! Unless these fundamental problems are addressed, then these are empty promises. In fact, they are worse than empty, they are dangerous.

What about Civil Justice. We are going to have a Democracy Commission!! This will look at ‘updating’ the Human Rights Act. This has been a familiar refrain from the Conservative since the Act came into force. Unless they want to take us out of the European Convention on Human Rights, they cannot change it.

There is also the anticipated reaction to the unanimous Supreme Court decision that the PM acted unlawfully when he prorogued parliament. The manifesto promises to ensure that judicial review is not used to conduct politics or create unnecessary delay. This is another way of saying that they will do all they can to ensure that the law is not used to prevent them from doing what they like, when they like!

For those who are interested the whole manifesto is here- 

And that, as they say is that. The law will become even more broken – possibly beyond repair.

But they will get Brexit done…honest…

Monday, 11 November 2019

The latest round of nonsense about the Human Rights Act

There are many areas of our legal system which are crying out for reform. For starters, there is the almost total collapse of Criminal Justice with hundreds of courts sitting empty due to a shortage of funding. Defendants, witnesses and victims are waiting years for cases to be concluded. The Government’s answer is to pile on even more cases with no additional resources –

Then there is the increasing scandal of Access to Justice being systematically eroded by cuts in legal aid funding with important areas like Housing Law being described by the Law Society as 'catastrophic’ legal advice deserts.

As we approach the December election, what does the Government have to say about this? Nothing. But they have dragged up one of their favourite subjects – The Human Rights Act. Today they have pledged to ‘amend’ the Human Acts 1998 to prevent ‘frivolous’ prosecutions of members of the armed forces. They could not be more inaccurate if they tried.

The Human Rights Act 1998 is relatively short. Its purpose was to bring into English Law, the rights enshrined in the European Convention on Human Rights. The UK was the first country to ratify the Convention, in 1951. For those who like history here is a brief lesson –

It did not create any new rights. It gave our courts jurisdiction to hear cases arising from the Convention.

You can’t take away rights contained in the Convention without amending the whole thing. You can’t do that unilaterally! All that you can do is opt out of it altogether. This would isolate us from every nation in Europe apart from Belarus –

In short, it is nothing to do with the Human Rights Act.

The Government say they want to change the Act to prevent prosecutions of soldiers. The decision to prosecute is made by the Crown Prosecution Service. If they think that there are reasonable grounds to bring criminal proceedings, then that is a mater for them. Is the government saying that a member of the armed forces who commits a crime, thought by the CPS to justify prosecution, should be immune?

The reality is that no change in our law is required. There are enough checks and balances to ensure that there are no ‘frivolous’ prosecutions.

This is an unfortunate gimmick to earn tabloid headlines.

There is no attempt at all to address the real problems that are dragging out system into the ground.

Wednesday, 18 September 2019

Concerning a mistake, contempt of court and other errors

I have previously talked about tragic cases where lawyers, often young and inexperienced, have found themselves in difficulties when something goes wrong. In the worst cases, we have seen careers brought to an end as a result of desperate attempts to hide the error. Most recently I covered the case where deadlines had been missed by a few days and where the matter might well have been capable of resolution –

This case and others raised the importance of openness. I have said repeatedly that honesty is always the best option. My mantra has been that mistakes are not the end of the world but trying to cover up the mistakes, can be.

It was with some horror that I read the unfortunate case of paralegal, Nasrullah Mursalin. He made a mistake. He lodged a bundle of documents in an immigration case. He wrongly included papers relating to family proceedings concerning children. In the absence of permission from the Family Court this was contempt of court.  It was a genuine error. He thought he was complying with a directions order. The immigration tribunal referred him to the family court.

It came before HHJ Judge Moradifar who said –

“This breach is so serious that in my judgment it can only attract a custodial sentence.”

He was given a 6-month suspended prison sentence for a genuine misunderstanding. So much for my advice! This could well have ended any hope of a career at the bar.

Thankfully the sentence has been quashed by the Court of Appeal. The appeal judges acknowledged that it was wrong to file the sensitive documents but also that there had been no significant consequences. Baker LJ noted that the judge had not actually seen the documents in question. There was a failure to set out the details of the contempt and there was a clear suggestion that his employers were at fault. There had been procedural failings in relation to the issue of contempt that were arguably as serious as those in relation to the documents.

The sentence was set aside and the order made against Mr Mursalin was to be removed from the record.

This is clearly a correct decision which brings us back to the real world. The case again highlights the responsibilities on managers to ensure that young workers are not exposed to this type of incident. Where was the supervision? Where was the support? Why did nobody with full knowledge of the rules not check what was being filed?

If anything, this reinforces the view that legal businesses must cultivate an environment on openness which can support their staff and also avoid incidents like this occurring in the first place.

Monday, 9 September 2019

My top 5 Legal Blogs 2019

Back in 2014 I posted about my top 5 legal blogs.

We are now in 2019 and it is fair to say that the world has changed. 

At that that time we were just getting used to LASPO. Most people had not heard of #Brexit. We still had, what seemed to be, a functioning criminal justice system. As far as we knew the law was breaking but not yet broken…quite. There are also many more blogs than there used to be. Many firms now produce their own very high quality blogs. Since I finished full time legal practice I have developed a greater interests in previously unfamiliar areas of law such as criminal justice. 

Now seems a good time to stand back and look at the best blogs for lawyers in 2019.

1.      Civil Litigation Brief

Yes – 5 years after my original past, Gordon’s regular Civil Litigation update still rules the charts. It has grown into an essential point of reference for all civil litigators. Most recently we have – Proving Things 161 – Documents Being Destroyed and Experts who were of very Limited Assistance. 

The fact that this singe topic has reached that number says all you need to know about the breadth of topics that he covers. One very useful feature is ‘search this site’ which enables you to research a particular topic and also to have a nose into what others are looking for!

From Gordon’s tweets we can see some wonderful searches –

"do opposing solicitors talk to one another"

"i've been committed to prison for contempt of court in london, where am i likely to be sent?"

This blog is a daily ritual alongside toast, coffee and Naga Munchetty

2.      Nearly Legal

Solicitor, Giles Peaker’s blog about all things housing has become an equally important resource. I began life in a Law Centre and housing law was never seen as the most fashionable work, even though it affected many of the most vulnerable in society. There has been a mini explosion of firms who now want to get into Housing Disrepair work as an alternative to whiplash. They think it will be an easy source of income because of the favourable rules on costs recovery. Anyone who has done the work knows that it is a potential minefield. Giles’ wisdom and experience is an important guide for those who are serious about the work. 

His work on the Homes (Fitness for Human Habitation) Act 2018 has been invaluable –

He covers all areas of Housing Law with intellectual depth and clarity of writing that this blog should be the main reference for any lawyers who advise tenants.

3.    Secret Barrister

Most lawyers should now have read the ‘book’, which has topped best selling lists and informed the world of the scandalous demise of our criminal justice system. The blog is an equally important read.

Recent posts have included – Don’t fall for Boris Johnson’s Criminal Justice Con Tricks –

SB has also written the important, A Letter to My Younger Pupil Self –

with great words of wisdom for those who are starting out on life at bar. Trainee solicitors should also read…

It is not a daily post but every one is a gem.

4.    Costs Barrister

The whole area of legal costs has grown massively over the last few years. This began with the infamous costs wars of the early noughties. The pace of change has not eased! Solicitors are now having to get to grips with the possibility of clients claiming back success fees following Herbert v HH Law, the growing dominance of fixed costs and the shambles of QOCS – the topic which is covered in this recent post –

Andrew Hogan has long been a leading authority on costs issues and this blog is a must.

5.      Legal Cheek

Another blog which is still right up there 5 years on.

It is an antidote to the perception that the law is dull! It is aimed at those who are new (ish) to the profession. It covers important issues such as today’s post about trainee retention at a city firm –

But you are just as likely to come across a witty cartoon, quirky news and most memorably a post on photos of dogs dressed as lawyers!

I said in 2014 that I did not think that blogs would overtake the classic law books. But the quality and range of available blogs will soon call that into question…