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Thursday, 1 December 2011

Pro Bono - have we found what we're looking for? (update)

I first wrote this last year before the full extent of the legal aid cuts was known.

Since LASPO received Royal Assent the Law Society has called upon all layers to increase the amount of Pro Bono work that they do.

 This is of course nothing to do with any U2 fan club.

In simple terms pro bono refers to  the provision of free legal services by the legal profession. Last year Michael Napier QC talked about setting aspirational hours of pro bono work. He says that his own firm Irwin Mitchell encourages its lawyers to do 14 hours of pro bono work a year.

Most lawyers I know, will probably do more than that per month. Much of the work done in preparation for public funding in a clinical negligence in the case is done at no charge. This can involve anything from the screening of new matters to initial investigation work in order to establish whether or not this is a potentially viable the case. How often do we advise potential clients in person and by telephone of the alternatives to litigation and to set them on the right path? This is often also the case in employment and criminal injuries cases. 

In addition to this and many lawyers do huge amounts of voluntary work; attending advice sessions at citizens advice bureaux and law centres. Many Courts also have a resource for free legal advice manned by volunteers.

What concerns me here is that the politicians could use up all of this talk about pro bono work as an excuse to justify cuts in public funding. The reality is that lawyers will always do their bit ; in fact they do a lot more than a bit!

This should not be seen as a replacement for a properly funded legal aid scheme giving equal access to justice to all citizens.

Of course it might be necessary for lawyers to do even more free work if this is the only alternative to a total collapse of our court system. With this in mind it is interesting to note the comments from Lady Hale of the Supreme Court indicating that these cuts are a false economy.

So I think we should expect the amount of unpaid work done by lawyers to increase but this should not deflect us from the tireless and continuing opposition to the cuts.

Monday, 28 November 2011

Blunting the cutting edge

My first real job as a lawyer was at the Vauxhall Law Centre in Liverpool. In the early 80s this was in one of the most deprived areas in the UK. We took action against public and private landlords for tenants in atrocious living conditions. We took on cases that private law firms could not or would not.

 I recall one client who said she wanted advice about her husband's 'infidelity'. I listened with interest as she went on to say that the social said he could work and were stopping his infidelity benefit!

It was the Law Centre that I first experienced law at the cutting edge. Cases were taken on to develop the law as it affected some extremely vulnerable clients. These were normally backed by legal aid. One case, about disturbance allowance,  was run to trial in the High Court with a possible value to the client of a couple of hundred pounds but potentially worth millions to displaced tenants generally. This has been one of the unsung benefits of a healthy, publicly funded scheme. Our laws have developed through the use of precedent as such cases are pursued through the higher courts.

This is highly unlikely to happen much in the future.

In so many areas of law cases can only be run on a no win no fee basis as funding has been eroded. The nature of these cutting edge cases is that they are risky. How many law firms can stake their business to change the law. Some do. Most cannot. This is bound to continue as whole areas of law are excluded from legal aid.

The capacity of our laws to develop through creative ltigation has made our system the envy of many.

It does seem a shame that only the safest of cases will be pursued - and many of them will not!

What future for our common law apart from those pursued for and by the wealthy?

Sunday, 27 November 2011

Welfare Benefits Sting

Anyone claiming Disability Living Allowance (DLA) has their medical condition assessed by ATOS – a private company contracted to the DWP. Their refusal rate is alarming. According to a report in the Guardian complaints are made by some disabled claimants that their centres have no or little disabled access!

But a more disturbing matter is the number of wrong decisions.

According to the same Guardian report; as many as 40% of appeals succeed.

Another site has a success rate as high as 70%

What is this costing the taxpayer?

But something far more disturbing is on the horizon. When the infamous Legal Aid Sentencing and Punishment of Offenders Bill (LASPO) becomes law in 2012, it will no longer be possible to get any publicly funded legal advice for welfare benefits. Such advice is entirely removed from the scope of legal aid under the bill. This can be a very complex and technical area of law. The removal of legal aid will cover all benefit related advice and assistance including appeals to the Supreme Court!

So we have a major problem. There is the classic inequality concern – the state has the unlimited resources of its legal departments. A claimant refused DLA by an agency that has a remarkable ability to get it wrong, has no recourse to advice.

Far be it from me to suggest that there is agenda here…

So what do we do LASPO had a severe mauling in the House of Lords last week. So might there be concessions – possibly.

But the only other advice is – don’t get sick or injured for the next few years at least.

Monday, 21 November 2011

Domestic violence - Back to the future

Although I am not a family lawyer the proposed restrictions in cases of domestic violence defy all logic.

Under the proposed new regime a victim of domestic violence will find it virtually impossible to get legal aid to apply to the court for protection. The victim will have to establish that there is a ‘high risk of violence’, before legal aid will be available.

Most commentators and practitioners accept that in reality this means that there will have to have been reports to the police. Statistics show that very few women report violence to the police. Speaking recently in the House of Commons Helen Goodman MP said – ‘most women experience 20 episodes of domestic violence before they reported to the police.’

Firms who specialise in family law and have recently audited files and report last caseload which numbered hundreds will be reduced to single figures once these cuts take effect.

The reason a civil remedy was brought into existence in the 1970s was to address this very problem. These provisions take us back 40 years and will seen many women trapped in abusive relationships.

Any civilised society has to have a rule of law. However if that rule of law is to be of anything but notional value, there must be an equal right of access. To deny that some of the most vulnerable members of society the support of that society to seek protection is a dangerous and retrograde step. I certainly hope that these provisions will be opposed in the Lords

Friday, 28 October 2011

National Shrine or National Shame

So St Pauls is to re-open and legal moves begin to forcibly remove the protestors.

This has led to the decision of Cannon Giles Fraser to resign. In expressing his concern about these developments he told the Guardian -

"St Paul was a tentmaker. If you looked around and you tried to recreate where Jesus would be born – for me, I could imagine Jesus being born in the camp,"

He went on to say  - 

"The church cannot answer peaceful protest with violence."

This again raises the question of the point of a Cathedral like St Pauls. It is a beautiful building which attracts many tourists who bring in healthy revenue. But it is essentially a church - a place where people remember and think about the life, works and message of Jesus Christ. He unequivocally identified with the poor and vulnerable and would have stood alonside Giles Fraser.

The BBC's religious correspondent Robert Piggot says on their website - 

'But the truth is that St Paul's is a national shrine, a theatre for the finest religious music and worship. That role was reasserted today.'

Well call it a national shrine and theatre if you like. But don't call it 'worship' and then disregard those who are campaigning for issues at the heart of the Christian message. Because it then ceases to be any more than a popular tourist venue.

Thursday, 27 October 2011

How do we judge cuts?

A couple of weeks ago I raised the question of cuts to public funding and the knock on effect to Access to Justice. I was adding my voice to those arguing that this was a false economy; in both social and economic terms. One major fear concerns the capacity of the courts to cope with the inevitable increase in unrepresented parties before the courts.

This concern was shared yesterday by the country's leading judges.

Lord Hope, one of the Supreme Court judges said -

"It doesn't affect us [in the supreme court] but lower down the system it has a major effect. I well understand the huge concern about public expense but people who take these decisions must understand that narrowing legal aid has a cost implication on the system and its efficiency and quality."

Our Senior woman judge, Lady Hale added - 

"The judges, of course, worry about the extent to which denying people access to legal representation and legal advice will … change radically the role of the court in seeking to do justice. I think all the judges are worried about this."

I hope that this contribution will help the penny to drop with the MOJ and the Treasury. Restricting funding for representation will lead to a cosmetic saving in the legal aid budget. But there will be a far greater cost to the Administration of Justice alongside diluting the system for which we have been rightly proud.

Wednesday, 26 October 2011

Unfair dismissal - sacked??

According to today's Daily Telegraph, a report commissioned by David Cameron has recommended the abolition of Unfair Dismissal!

According to the report its author Adrian Beecroft complains of “the terrible impact of the current Unfair Dismissal rules on the efficiency and hence competitiveness of our businesses and on the effectiveness and cost of public services."

The Telegraph report goes on to say that the Chancellor George Osborne has a similar views in relation to the dismissal laws. It also states that the report has the support of both the Chancellor and the Prime Minister.

This report follows hot on the heels of the conference announcement by Mr Osborne of the proposed introduction of a fee of £250 for bringing a claim before an Employment Tribunal with an additional fee of 1000 payable in the case proceeds to a hearing. He also announced the intention to extend the qualifying period of employment to 2 years before a sacked worker can take his case to the tribunal.

There is an agenda here which must clearly be of major concern to anybody with an interesting justice in England and Wales. There was a time in the distant past, when workers could be disposed of without any accountability. There was always an imbalance of power between employers and employees which has been addressed the last few decades. We are now in modern democracy where somebody can go to work and know that they will not be arbitrarily sacked at the whim of an employer who no longer sees them as a useful asset.

This is another proposed attack access to justice the weakest and most vulnerable members of our society. It is to be hoped that this goes no further than being the report.
Presumably Mr Cameron's coalition partners would never support such a move which could never be described as either liberal or democrat.

Sunday, 23 October 2011

St Paul's - where would Jesus be?

There has been much hand wringing about the decision to close St Paul’s Cathedral to the public in the light of the continuing occupation by those protesting against the financial institutions which are the Cathedral’s neighbours.

Commentators have criticised the protestors for interfering with those who wish to visit St Paul's. In an open letter on the Cathedrals’ website The Right Reverend Graeme Knowles acknowledges the significance of the protest –

There is something profound about protest being made and heard in front of this most holy place: a gathering together of those concerned about poverty and inequality facing the great Dome of this Cathedral Church.’

But he also asks the protestors to leave because –

‘ is about our ability, practically, to carry on our mission with free and open access to this public space and treasured place and I hope that the protestors will understand the issues we are facing, recognise that their voice has been legitimately heard, and withdraw peacefully.’

There is some irony there as ‘free and open access’ currently costs £12.50. But the wider issue relates to the words ‘carry on our mission.’

Whatever one’s religious views, it cannot be denied that St Pauls is a Christian establishment. So it cannot be denied that its main role is as a place of worship of and teaching about Christ. Those issues must outweigh the need to provide a place for tourists for a reasonable fee.

So the question must be WWJB? (Where would Jesus be?). His first public words give a clue –

‘The Lord’s Spirit
Has come to me
Because he has chosen me
To tell the good news to the poor..’

He was the one who told a rich young ruler to give away his wealth to the poor. He was the one who said –

‘But you rich people
Are in for trouble
You have already had
An easy life..’

So it seems that given the choice Jesus – and presumably his most famous follower St Paul. Would be less concerned about whether the grand old building can continue to accommodate the flow of paying tourists. He would be in the tent outside identifying with those who are concerned for the weak and vulnerable. He would be eating and possible feeding (!) the protesters.

I’m afraid that if the Cathedral has to forego visits for a while that is a small price to pay to make the point that the poor are more important than the building.

Thursday, 20 October 2011

A Memorable Typo

Remember the days of Temps - before we outsourced extra work or used voice recognition??

The quality was always mixed. For some reason I just remembered a classic typo from a few years ago.

I was acting for the family of a child. The family were visiting a local store and ascending the stairs. A large wooden bannister came away from the wall and fell onto the child causing a bit of an injury. I duly despatched a letter of claim to the store and got a cryptic reply from insurers. They said that they had noted the circumstances and wondered whther we had complained to the Bar Counci. Huh??

I checked the file and noticed that letter said - 'as our client was ascending the stairs a heavy barrister fell on her head.'!

Now that would have been a sight to behold! 

Wednesday, 19 October 2011

Four Years for FB Defendants...too much?

I have to say that I was initially shocked by the four year jail sentences handed out to the to the defendants who had set up a Facebook features encouraging riots. Jordan Blackshaw and Perry Sutcliffe Keeling each set up Facebook pages encouraging riots in their home towns. This was all that happened. Nobody turned up in either town that to take part in any disturbance. It would seem therefore that a four-year jail sentence in these circumstances was very disproportionate.

However on 18 October the Court of Appeal disagreed. The Lord Chief Justice felt that the sentences were justified. The riots in August 2011 were so serious and shocking that severe sentences were appropriate for those involved. As far as social media was concerned he referred to “the rapid movement and congregation of disorderly groups in new and unpoliced areas " In other words although nobody actually turned up to riot at the time, there was a potential for a serious disturbance just by the use of the Facebook pages. This in itself was sufficient to justify the sentence.

Having thought about further I can therefore understand the reasoning of the Court of Appeal. Potential rioters could well have responded to those pages and disturbances could have resulted from the actions of the two defendants. One can appreciate therefore why, in the circumstances, custodial sentences were appropriate. However I should say that the length of the sentence is still seems to be excessive. The reality remains that nothing actually happened, apart from the setting up of the pages and it does not appear that either defendant actually did anything further by way of planning any disturbance. Whilst one can appreciate the deterrent aspect of the severe sentence; four years still appears to be the much too high.

Whilst we are on this subject I do think that there has been too much emphasis on the negative impact of social networking as far as the riots are concerned. It should not be forgotten that in the aftermath of the riots a whole series of cleaning up exercises were launched via Facebook and Twitter. Social  Media clearly influential. The impact can be good or bad depending on the motivation of the users.

To that extent it is simply a reflection of the society in which we live

Friday, 14 October 2011

Learned Friends

Something light for a Friday afternoon!

Allegedly true - but who cares?

COUNSEL: Doctor, before you performed the post mortem, did you check for a pulse?
COUNSEL: Did you check for blood pressure?
COUNSEL: Did you check for breathing?
COUNSEL: So, then it is possible that the patient was alive when you began the post mortem?
COUNSEL: How can you be so sure, Doctor?
WITNESS: Because his brain was sitting on my desk in a jar.
COUNSEL: But could the patient have still been alive, nevertheless?
WITNESS: Well, I guess it's possible he could be practicing law somewhere.

Sleeping bag my Lord?

The Government has said that the cuts to Legal Aid are due to general savings required across the economy. I have already discussed in an earlier blog whether these are real savings.

In fact the cost of justice to the taxpayer could significantly increase. In the Law Society Gazette for 13 October there is a report about a big rise in litigants in person. In the Principal Registry of the Family Division in London this is reported to be as high as 19%. That is within the system as it currently exists. Once access to lawyers is significantly restricted then that this figure is bound to rise.

For example it will only be possible to obtain legal aid in the case of domestic violence if there is some objective evidence of physical violence. In other family cases it will be virtually possible to obtain legal aid. This will clearly mean that anybody seeking the protection of the law will have to go through the intimidating experience of attending court without any legal representation – when they are already vulnerable. However, in addition to that as there is bound to be a massive increase in the time that it will take for cases to be dealt with by the courts. A reasonable estimate is that it would take twice as long for the court to deal with the case involving an unrepresented party. So will this means more judges? Will it mean longer opening hours for the courts? Judges with sleeping bags? Or will it mean parties waiting longer for justice? Any possible savings by way of cutting legal aid will be wiped out those additional costs.

In addition the there is likely to be a marked increase in the demands placed on Members of Parliament and Local Councillors. One can imagine surgeries becoming crowded with unhappy constituents. This again is likely to involve a further time and cost.

People will still need to have their cases heard by the courts. Whether they are those seeking protection from domestic violence, those are seeking to protect their own income due to welfare benefit cuts, those who wish to protect the rights of themselves and family to stay in this country etc. These cases will not go away. The result will be that our justice system will become more overloaded, even slower and ultimately more expensive.

End of rant.

Tuesday, 11 October 2011

Tweeting in the house?

A few months ago I did a small piece in the Liverpool Daily Post on the landmark decision of the Supreme Court to allow tweeting during court proceedings. I said that twitter was the way the world communicated in the 21st Century and it was encouraging that court reporting was allowed to catch up. Lord Judge gave a very sensible summary -

“Subject to this consideration, the use of an unobtrusive, hand-held, virtually silent piece of modern equipment for the purposes of simultaneous reporting of proceedings to the outside world as they unfold in court is generally unlikely to interfere with the proper administration of justice.”

There is no better way to get and to give immediate live news. When I was in Southern Egypt in January, I was rivetted to the live tweets coming from Cairo.
It is a shame therefore that there are moves to block tweeting from the heart of our democracy - the House of Commons itself. On Thursday the House will debate an amendment from two conservative MPs who wish to restrict the use of twitter as it 'disrupts' debate -

Tweeting is tolerated in court. It should be positively encouraged in the house. There is no better way for me to track what is happening at the place where I am represented. If tweeting is not likely to interfere with the proper administration of justice then it hardly likely to interfere with debate. It is virtually silent.

This needs to be opposed. Go to Find out how to contact your MP and tell them to oppose this proposal.

Monday, 10 October 2011

Who leading who?

A few weeks ago I was at a fringe meeting during the Labour Party conference in Liverpool. This packed event was jointly organized by the Law Society's Sound Off For Justice Campaign and Justice For All and focussed mainly on the Legal Aid cuts.

During the question time the voice of the Association of British Insurers (ABI), Mr Nick Starling, was heard. He embarked on a predictable attack on the claims culture and why we all pay higher insurance because too many people seek justice for injuries. But he then made a comment on referral fees that left me speechless! He said that the lawyers' fixed fees for a straightforward Road Traffic Claim should be reduced from £1200 to £400. The reason was that lawyers paid £800 in referral fees for a case so when referral fees were banned they would not need it and could take the reduced amount and be no worse off. Well, apart from those of us who would never in a million years pay £800 a go - to pay twice as much for a case as you might earn is reckless to say the least! Unless quality is sacrificed altogether. Mr Starling was put in his place by someone who had been on the RTA portal working group and reminded him that £1200 was agreed to be a reasonable fee for the work. 'Ha' - thought !, 'that put him in his place. What sort of idiot would be taken in by that kind of ludicrous thinking? THE MOJ kind apparently.

Yes, the very next day the Law Society Gazette reported that the MOJ was proposing exactly what Mr Starling had said -

Is this a remarkable coincidence of ideas? Or are the ABI writing policy? Or is the government passing ideas to the ABI? Well they are clearly of one mind. Government policy on justice is at least being influenced by the insurance industry who have the most to gain by a massive reduction in claims. .

This would be more alarming if a key minister behind the changes had a stake in that industry -


Legal Aid Savings - What Savings?

The Government is proposing major cuts in public funding.

Many arguments have been put forward about the devastating effect on access to justice for the most vulnerable. These arguments are well made and will certainly be repeated here in the coming months. But is is also a false economy. No more so than in the case of Clinical Negligence.

My firm recently handled a case for a woman who had developed, over seven days, a severe headache. She attended, on two occasions at Accident and Emergency, at her local hospital. On each occasion they failed to carry out appropriate investigations and in particular on the second occasion failed to do an X Ray. The client was negligently discharged.

She subsequently had a brain haemorrhage and was left with a major disability as a result.

The Claimant was eligible for public funding and Legal Aid enabled us to investigate the standard of care provided by the hospital and to obtain independent medical reports.

The Trust eventually admitted liability and the case was settled in the sum of £900,000.

We were contacted very close to the expiry of the limitation period. On the basis that Legal Aid was available we were able to issue protective proceedings and investigate.

The cost of the investigation alone was substantial and the Claimant would never have been in a financial position to pay for it. In reality she would probably have been deterred from claiming at all.

Because the claim succeeded all money paid out by way of Legal Aid was recouped. So the cost to the taxpayer was NIL.

So the question is not only - where is the justice? The question is also - where is the saving? It might cost the NHS less if it can no longer be held accountable. Is that the real agenda?

Tuesday, 4 October 2011

Employment Justice - Political Ping Pong

In his speech at the Conservative Party Conference the Chancellor George Osborne announced a number of measures designed to make it more difficult for workers to take their cases to a Tribunal. The first was to extend the employment requirement. You now have to work somewhere for 2 years before you can bring a claim for Unfair Dismissal. This has been a case of political ping pong over the years. Under the Wilson/Callaghan governments it was 6 months. Thatcher upped it to 2 years. Blair dropped it to 1 year. Cameron now ups it to 2 again. I suppose that was to be expected. It is more worrying that prohibitive fees are to be introduced from April 2013. £100 - 200 to bring a claim and £1000 on top if a case goes to a hearing. This will cover all proceedings. This is not by any stretch of the imagination an encouragement to small businesses to employ people. The same rule will apply if a multi-national unfairly sacks or discrminates against a worker. It is already difficult to pursue employment claims. There has never been public funding for advocacy. There is no right to recover costs if you win - apart from in extreme cases. This further obstacle is bound to lead to a massive reduction in claims regardless of the merits. In the last few months we have been told of cuts in public funding, attacks on conditional fees and now this. You have to like a challenge to be a lawyer these days.

Sunday, 2 October 2011

Human Rights - two bad words?

It is no great surprise that the Human Rights Act has been a big topic of discussion as the Conservative Party Conference begins in Manchester. Home Secretary Teresa May has called for it to be scrapped because it interferes with what they want to do.

She was supported by her leader David Cameron who told BBCs Andrew Marr that if his party was in government alone he would abolish the HRA.

Those two words seem to mean very different things depending on the context.

So if we are talking about countries that we dislike Human Rights are a good thing. So when Libya was removed from the UN Human Rights Council William Hague said - "I strongly welcome the UN General Assembly's resolution to suspend Libya from the Human Rights Council.” And continued - "Suspension from the Council puts yet more pressure on the Libyan regime to listen to the clear message of the international community; crimes will not go unpunished and will not be forgotten; there will be a day of reckoning and the reach of international justice is long."

Mr Hague has also called on the UN to take a tough line with Iran over Human Rights

So don’t mess with Human Rights – unless they get in the way of our own government.

The same two words become swear words when applied to domestic rights as far as the government and right wing press are concerned.

After the August riots the PM said that he had the HRA in his sights. The rhetoric continues. It is hard to believe that we are talking about the same thing here. But we are.

These are the basic rights developed after WW2 by Britain and the USA. Eleanor Roosevelt said that her work on the Universal Declaration was her greatest achievement. The European Convention on Human Rights has been with us since the 1950s and we have been signatories for over 60 years. The rights enshrined in these historical agreements are those that we all take for granted including – Right to life, rights not to be tortured or enslaved, freedom of expression and of assembly, and the right to family life. These were not rights imposed on us by Brussels! And they are the same rights whether we are exporting them to other nations or enjoying them at home.

The Human Rights Act 1998 did not create any new rights. It incorporated those rights into UK Law. So whereas a person had to go to the European Court in Strasbourg to enforce the rights they could now go to UK courts. This is why the Conservative and Daily Mail’s fixation with the HRA is perplexing. To abolish the Act would simply mean that powers would go back to Europe. Is this really what the Mail wants? Or maybe the intention is to take us out of the Convention altogether which in turn would mean our leaving the EU – something that Mr Cameron has repeatedly denied. And if the intention is to remove some or all of these rights, which of my rights does he have in his sights.

It seems the Act has become a scapegoat of desperation. We can’t think of anyone else to blame so let’s blame the HRA! If the government holds these rights in such contempt they should come out and say so and openly declare which ones they have in mind.

Monday, 25 July 2011

My Favourite T Shirt

This is my favourite T Shirt at the moment. I bought it for a tenner in London a few weeks ago. It is an image by famous graffiti artist Banksy. I sometimes get curious looks because it looks at first like a violent image. A terrorist with masked face is about to throw a .... bunch of flowers! The Molotov cocktail is transformed by the artist into a gift of love. When you think about it that is a powerful message.

One of my heroes Martin Luther King once said that hate cannot drive out hate - 'only love can do that.' Reconciliation is more powerful than revenge. There is a similar image in the bible. In the book of Isaiah we read about a time when swords will become plowshares and spears pruning hooks. This is surprising as there is so much violence in the Old Testament but the message is the same. Tools of destruction transformed into tools of creativity.

This is important on two levels. On a personal level we love to get even with someone who offends or upsets us - especially when we are in the right. But that need to have our revenge can eat away at us. It never quite feels right!

This is even more important at the political level. How often in recent years have we gone to war to get even. Nobody even pretends to believe that we invaded Iraq to look for WMDs. It was to get 'him'. Same with Afghanistan. In both cases we have seen more and more destruction and little sight of resolution. Former US President Jimmy Carter once said - 'War may sometimes be a necessary evil. But no matter how necessary, it is always an evil, never a good. We will not learn how to live together in peace by killing each others children.'

This is why I have been opposed to our recent wars. This is why I try, not always with success, to avoid harbouring grudges. And it is why this is my favourite T Shirt.