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Tuesday, 19 March 2019

Shocking Landlords, bad tenancies and the need for reform!

Did anyone else watch the jaw dropping documentary on BBC about the millionaire landlord Fergus Wilson who is carrying out mass evictions of his tenants so that he can retire? He has previously hit the headlines for refusing to accept tenants on benefits, single parents and anyone on zero hours contracts. He became unstuck in 2017 when a court granted an injunction against his refusal to let to Asian tenants – because of the curry smell –

Throughout this documentary he showed nothing but contempt for his tenants and proudly declared his mantra – 

‘Basically, we have got two types of tenants – those who agree with me and ex-tenants.’

He reminded me a bit of Bradley Hardaker the wealthy mill owner in the comedy, Brass who complained that his workers enjoyed the beautiful view of his mansion while he had to look done on their miserable hovels!

But what he did do, intentionally or otherwise, was make out a strong case for the reform of tenants’ security. He openly declared – 

‘I can do what I like, you don’t want me to lie about it do you?’

And he has a point. Most private tenants have assured shorthold tenancies. These tenancies began back in the late 1980s. I remember speaking at an event in 1989 and warning of the damage that would be done to blameless tenants! I was an angry young lawyer then. I'm an angry old lawyer now. Nothing has changed! They are now covered by the Housing Act 1996. They are fixed term tenancies normally of 6 – 12 months. At the end of the term the tenant can agree a new tenancy, but the rent will almost certainly go up, or they can stay put. In the latter case the rent stays the same, but they have no real security at all. So long as the landlord serves proper notice – how many references were there in the BBC documentary to s21 (Housing Act 1988)?? 

So Mr Ferguson spoke the truth. After the end of the initial term the landlord can pretty well do what he/she likes.

This has even seen the growing usage of the phrase ‘revenge eviction’ for those who complain of disrepair. One young couple in the documentary agreed in principle to a rent increase but asked about repairs. They were promptly served with an eviction notice. The forthcoming Homes (Fitness for Human Habitation) Act is great news for tenants but could be a double edged sword for some. 

Surely the time has now come for a root and branch reform of these outdated and unfair tenancies. They were bad enough back in the days when people could still afford to raise mortgage deposits, when tenants knew that their benefits would cover rent and when there was no housing crisis. In the current climate they must now be put to rest for good.

Monday, 11 March 2019

Molly Russell, Instagram and Legal Aid

I cannot remember when I last posted twice in one day. But the decision of the Legal Agency to refuse Legal Aid to the family of Molly Russell for representation at the inquest into her death is crying out for comment.

Molly died in November 2017. She took her own life. Her family discovered Instagram posts about depression and suicide. Her father has said that he has no doubt that Instagram helped kill his daughter –

This has led to a huge public debate about the influence of social media and the responsibility of these platforms for the safety of their young users. Instagram has pledged to ‘blur’ images of self-harm on its site which now boasts over a billion users worldwide.

This is a major issue which affects us all – both at home and across the world. Molly’s inquest is an opportunity for many questions to be answered. Questions that concern families everywhere.

Back to the Legal Aid Agency. Families are not entitled to legal aid to be represented at inquests. But funding is available if there are exceptional circumstances. There are guidelines published by the Lord Chancellor –

Paragraph 28 says –

'28. In the context of an inquest, the most likely wider public benefits are the identification of dangerous practices, systematic failings or other findings that identify significant risks to the life, health or safety of other persons.'

The whole argument here is whether there are dangerous practices which present significant risks to the lives of young people in the context of a particular child.

This debate had made national news. The refusal of legal aid has made national news. If ever a case was ‘exceptional’, this is it. The public is entitled to a full inquiry into the role of social media in Molly’s death, so that the lives of others can be protected. There is little doubt that the social media industry will have access to the best, and most expensive, legal representation.

This refusal of legal aid beggars belief. It makes you wonder if any case can satisfy the guidelines.


Following the predictable outcry the Legal Aid Agency has now reversed this decision!!

The new SRA Code - a lingering concern!

According to a report posted in today’s Legal Futures, Solicitors in smaller firms are more concerned about the imminent, new SRA Code of Practice than they are about Brexit.  Mind you, boredom might have a role to play there! It seems that a major concern is staff retention in a relaxed legal services market –

This brings me to an issue that, for me, has a major concern since the changes were first proposed. 

Under the present regulations a Solicitor can only provide legal services to the public via an organisation regulated by the SRA or other approved regulator. Some legal work is ‘reserved’ and some is ‘unreserved’. Reserved work can only be carried out by an authorised person such as a Solicitor. This is a surprisingly limited category of work and includes the power to conduct litigation, to appear before certain courts and the drawing up of certain documents. Almost all other legal work is unreserved which means it can be provided by anybody. You don’t have to be a Solicitor to set up a business offering advice in say, employment law or welfare benefits. But if you are a solicitor you must still operate through a regulated body – such as a solicitors’ firm. The reason for this is that there are standards and protections that go with the solicitor brand. For example, all solicitors’ firms must carry professional indemnity insurance. They also must contribute to a compensation fund.
If a client instructs a solicitor, they know that if anything goes wrong there are levels in protection in place. If solicitor is negligent then the insurers must meet any claim. If the solicitor is guilty of misconduct, including failing to take out insurance, then the compensation fund is a safety net. This has been a foundation stone of our legal services.

The new code promises to change all of this.

Here is a summary that was published by the SRA last year –

There will be two separate sets of professional rules. One will cover individual solicitors and one will cover regulated firms. The proposal is that solicitors will be allowed to provide ‘unreserved’ services through unregulated organisations. So someone can set up an HR Consultancy and will be able to employ solicitors to offer legal advice to the public even though that consultancy is not regulated. The thinking behind the plans is that solicitors are a commercial disadvantage. The cost of regulation means that some organisations can provide the same advice at much lower cost. Insurance is one of the biggest overheads in most forms.

Why is this a concern? Firstly it threatens to devalue the solicitor brand. If someone can see a solicitor in an unregulated firm with no insurance or other regulatory protection then the security of knowing that there are guaranteed protections will disappear. This is not something that can be defined purely by cost. 

I can also see dangers, particularly for young lawyers. The SRA say that all solicitors will be subject to the rules that will apply to all solicitors regardless of where they work. But this will put huge pressure on those individuals. If an inexperienced solicitor is working for an unregulated organisation, they can find themselves conflicted between the demands of the business and their personal professional rules. Such solicitor might well have a strong claim for unfair dismissal but someone with a mortgage and a young family can still find themselves in a very vulnerable position.

We should all encourage moves to bring legal services into the 21st century. The more bodies providing access to legal advice the better. I am also all in favour of easing the burden of regulation. That would give compliance officers fewer sleepless nights! But there are also minimum standards of service and protections that must hand in hand with instructing a solicitor. Without this we will have a two-tier profession offering services to a confused public.

I do foresee major issues arising when the rules come into force later this year.

Saturday, 9 March 2019

The day the guns were blazing at Liverpool County Court

A nostalgic exchange on Twitter this morning has reminded me that this year will see the 60th anniversary of, probably the most remarkable incident to have occurred in Liverpool County Court, one which made a legend of a local District Judge (or Registrar to those of us of certain age). 

In August 1959 Graeme Bryson, known to us all as Paddy, was sitting in the bankruptcy court in Liverpool. The party in court drew a gun and shot at him. One bullet grazed his ear before it damaged a portrait of Judge Fraser Harrison, another wounded an unfortunate court official. The gun then jammed enabling the courageous judge to wrestle the assailant to the ground.

Most Liverpool lawyers are familiar with this story and it often put things into perspective when I had a difficult hearing. It gives a whole new meaning to a bad day at the office –

Bryson went on to be a highly respected Registrar and was President of Liverpool Law Society in 1971.

In my year as President, 2012, I was at the ceremony when Liverpool University gave him an Honorary Doctorate at the age of almost 99. Following the many tributes, he took to the lectern and said –

‘Thank you for those moving tributes. I will be meeting St Peter soon and they might come in useful!’

I was helping to plan a dinner for his 100th when he sadly passed away on 28th September 2012 just a 5 months short of the big day. 

Just 3 weeks earlier he had attended a social event that I had put on at Everton FC (where else?). He sent me this lovely note afterwards, apologising for leaving early because of a weak constitution at 99yrs 7 months. 

If I have any sort of constitution at that age there is no justice!!

Saturday, 2 March 2019

What will 'New Politics' mean for Access to Justice

One recurring theme from the new Independent Group of MPs is that our politics is broken. Their Twitter hashtag is #ChangePolitics. 

One of the most popular hashtags used by lawyers over the last year has been #thelawisbroken, largely due to the brilliant @secretbarrister. I have often talked about the access to justice waste land.

This new grouping could of course fizzle out. But it includes some very strong politicians. One recent poll had them at 18% even though they are not yet a party.

So, it is worth asking the question. What would their version of a changed politics do for access to justice? What difference, if any, would the new group make. I just had a look at their website. To be fair it is quite light on detail at this stage. The statement of values is silent on the matter apart from –
‘Our free media, the rule of law, and our open, tolerant and respectful democratic society should be cherished and renewed.’

The rule of law gets a mention and is something that is not only to be cherished but also renewed – we all agree this is needed! If they wish this statement to be taken seriously, they should firmly commit to restoring unfettered access to justice for all. There is little point in having an effective rule of law if those most in need of it are excluded. In their momentous judgment when they set aside the iniquitous fees payable in order to bring an employment tribunal claim the Supreme Court said in 2017 –

Courts exist in order to ensure that the laws made by Parliament, and the common law created by the courts themselves, are applied and enforced. That role includes ensuring that the executive branch of government carries out its functions in accordance with the law. In order for the courts to perform that role, people must in principle have unimpeded access to themWithout such access, laws are liable to become a dead letter, the work done by Parliament may be rendered nugatory, and the democratic election of Members of Parliament may become a meaningless charade’ Lord Reed

If we are going to cherish the rule of law we must ensure that this goes hand in hand ‘unimpeded access’.

I would encourage the new group to take this message on board and commit to doing something that really will change politics and make a real difference to the lives of many.