The Lord High Chancellor of Great Britain knows a thing or two about the law. Whilst other Minster’s were gaily ‘troughing’ to the fury of tax payers forced to fund their excesses, he managed to skate elegantly round the rules and prove that having a constituency home within 17 miles of parliament, not to mention a couple of buy-to-let apartments, was no reason for the tax payer not to legitimately fund yet another home in Pimlico for those essential late nights at the bar.
Not that sort of bar, for Chris Grayling – it is he – is not a barrister, nor a solicitor; heavens, nor even took a law degree. He was a BBC producer with a mediocre history degree. The ideal qualification to sit in judgment on our historic judicial system?
Do, please, read the rest of this excellent article by Anna Raccoon
Legal Aid Sentencing & Punishment of Offenders Act (LASPO)
On the 01 April 2013 the Legal Aid Sentencing & Punishment of Offenders Act (LASPO) came into force.
The Act represents some of the biggest and far reaching changes to the legal profession in decades. These critical changes that will affect anyone who now has a need to obtain legal advice and assistance after 01 April 2013. These changes have come into being virtually unopposed as the public at large knew little or nothing about them and would only become aware of them as when the need to consult a solicitor or barrister arises.
The most vulnerable people in our society will now be refused Legal Aid and assistance under these changes. No win, no fee agreements have been affected under the changes. The effect is that a success fee that was claimed from the losing party can no longer be claimed. Therefore, if a claimant is offered a no win, no fee agreement in future the claimant will be solely responsible for the payment of their own solicitor’s success fee.
The basis of a no win, no fee agreement is a recoverable success fee and often an insurance policy known as After Event Insurance too. The no win, no fee agreements were championed as the answer to the first cull of Legal Aid in the late 90s, The Woolf Reforms.
The Woolf Reforms were the first overhaul of the withdrawing of Legal Aid. The government of the day championed the no win, no fee agreement as the answer to many of the Legal Aid services that were withdrawn under the Woolf Reforms.
Legal Aid was still available for certain actions and vulnerable individuals. One area where Legal Aid was still available was divorce. Subject to a contribution, Legal Aid was available to people divorcing. Typically, divorcing couples needed legal assistance to resolve personal finances, sell property and decide upon the custody of any children involved.
People could obtain legal assistance under the Legal Aid scheme until their finances were settled. A contribution or repayment of the Legal Aid would then be taken upon settlement of the divorce and the sale of any property involved.
The current position is that there is no longer any help or assistance in these matters. Therefore, options available for divorcing couples is go to court and represent themselves or fund their divorce action themselves on a pay as you go basis.
No win, no fee agreements are still available for certain actions but under the new changes with LASPO it has stopped solicitors and barristers from claiming their success fees from the losing party. This means that if you bring a successful action under a no win, no fee agreement the successful party will have to pay the solicitor or barrister’s success fee.
This makes the whole no win, no fee agreement less attractive and solicitors and barristers are going to be unwilling to take matters on a no win, no fee agreement due to the fact that there is too much risk in carrying their fees to the end of an action with the prospect of not recovering their success fee or having to forfeit it.
The knock on effect of these changes is that we are likely to see many more people trying to undertake complex actions through the court system as litigants in person. Whilst the small track system accessed through the County Courts is suitable for litigants in person, the higher courts where multi track and complex actions are heard are definitely not a suitable arena for litigants in person.
The Judiciary who operate independently to the government policy makers are very concerned by the prospect of litigants in person attempting to ‘go it alone’. The procedure and protocol of the higher courts should deter litigants in person but for those who do attempt such a course of action the consequences could be dire and could cost the litigant in person the chance to successfully bring the action or prejudice an action to the point where it is struck out and expensive reinstatement or the use of the expensive appeal process will be required.
Gary Smith is a representative from Access2Barristers Direct, who provide a value for money service putting you into direct contact with the right barrister for you. Instructing Access2Barristers Direct will save you on average £ 150.00 to £ 175.00 per hour, which is a significant saving throughout the life of a matter.
I cannot speak for other worlds – but from my experience over forty years in legal education and through many friends on both sides of the profession, I can at least broach the subject and draw your attention to a very important article in The Times today and on The Times website: Manxiety: how to know whether you need therapy.
Lawyers work under increasing pressure – pressure to do a good job for the client, financial pressures – particularly in an era when legal aid is under attack from The Ministry of Justice – and the pressures of the work life balance. Many are able to cope with these pressures. Others may not be so good at doing so and, in extreme cases, some resort to alcohol and drugs as a means of relieving those pressures.
For men who believe suffering in silence is a sign of masculinity not martyrdom, therapy can literally be a lifesaver
Manxiety: how to know whether you need therapy.The Times 1st February 2014
A good friend of mine drew my attention to this important article in The Times and I am glad he did. I urge you to read it and, if you think you need help or to talk to an experienced counsellor you can contact Caryn Nuttall and Jean-Claude Chalmet directly. They have the expertise to help.
You may also find this article on the work done by Caryn Nuttall and Jean-Claude Chalmet useful. The Times: Family therapy in the comfort of your own home
While the focus of the article relates to the pressures felt by men – it is clear that women practitioners in the law may also be subject to the same pressures and experience similar problems.
Men feel they should be able to solve any issue, alone. Just as they typically refuse to see a doctor despite lumps growing or bits falling off them, they can also be reluctant to reach out when having psychological difficulties. Unlike women, they don’t see it as natural or normal to discuss their problems with friends. For many, admitting they have a problem and asking for support is an alien concept.
I found the article fascinating.
The article focuses on a number of issues: Depression, Anxiety, Status insecurity and job dissatisfaction, Fear of commitment, Excessive drinking (and drug use) to identify but a few of the issues raised.
Alcoholism and drug use is widespread throughout many fields of work in the United Kingdom. Pressure is experienced by many in this country. Over forty years in legal education and having had the pleasure of meeting many practitioners from both sides of the profession, I have some insight into the pressures faced by practising lawyers today and the serious consequences that self medicating with alcohol and the use of illegal drugs can bring.
There are excellent NHS doctors in London and elsewhere who specialise in alcohol dependency and drug use – but before it reaches that stage where medical intervention is required and necessary, it may be useful to talk with a counsellor like Caryn Nuttall and Jean-Claude Chalmet. It could, without over dramatising the matter, be a ‘life’ saver both in terms of health and quality of life.
4 High Profile Court Cases
Most high-profile court cases are easy to identify – they attract significant coverage in the mainstream media, and often the scrutiny of legal experts due to the presence of important legal issues or major celebrities.
However, aside from media coverage and notoriety, there are several other factors that can influence whether or not a court case is noteworthy and high profile. These can include landmark legal issues, massive financial stakes, topics that have been in the news, and important issues related to domestic or international policy.
The four court cases selected for this article range from high-value commercial cases to noteworthy courtroom battles. Criminal cases have been excluded. Many of these cases may be replaced by other, more noteworthy cases in the news reports of the future, as the top high-profile court cases are in a constant state of change.
While many of these cases will undoubtedly be replaced by other, more noteworthy examples in the future, some may continue to stand up as important commercial or civil court cases.
- Barclay Brothers v. Paddy McKillen
Irish businessman Paddy McKillen’s failed attempt to take control of the Claridge’s hotel chain cost him a huge amount of money. He now owes £20 million in fees due to his failed claim, in addition to the costs of the Barclay brothers’ successful appeal.
This case is particularly noteworthy because it shows the large sums involved in a lot of modern commercial cases. McKillen’s attempt to force the Barclay brothers to sell their shares in Claridge’s left him with significant bills and nine years of wasted time spent on the case.
- Graiseley Properties v. Barclays Bank
This case is particularly important because of the huge amount of money involved and immense topical interest. With over £350 trillion in financial transactions put aside as a suggestion for compensation claims, Barclays faces an incredible costly case.
Other banks, including Bank of America and JP Morgan are likely to be affected by the outcome of this case, making it an important event for the financial services industry as a whole.
- Prest v. Petrodel Resources
As a divorce case that involves ownership of several large, lucrative companies, this case is of particular importance. The case has a five-year history and a combination of family and corporate law involvement, making it a diverse and interesting case.
One important point of this case is that the court found that the companies owned by the husband were not, as stated, controlled by shareholders, but by a trust that he controlled. This has allowed the court to piece the “corporate veil” and access a range of assets that would otherwise have been concealed.
- Berezovsky v. Abramovich
This court case reads like a Hollywood movie screenplay. Russian billionaires, a $5 billion claim, and a London courtroom all make this dispute between oligarchs Boris Berezovsky and Roman Abramovich of particular interest to the public.
Berezovsky’s untimely death following the case added to its intrigue. The billionaire had been described as “an unimpressive and inherently unreliable witness” during the case, while rival Abramovich was labelled a “competent witness” by the court.
This article was written by Vannin Capital. Visit their website to learn more about Legal Funding.
The New World of Legal Work
Lawyers On Demand reveals the changing rules for the 21st Century
“The future of work has arrived! There’s only one problem: It doesn’t look quite the way most of the experts predicted.” Jordan Furlong
A new report released today [insert date] has revealed an impending ‘employment revolution’ within the legal industry that is predicted to have a profound impact on legal jobs and the way in which legal work is undertaken in the 21st Century. The report, commissioned by Lawyers On Demand (LOD), the alternative legal services provider launched by BLP in 2007, envisages radical changes to the way lawyers are employed, legal work completed and the way in which firms are run.
LOD’s New World of Legal Work report forms part of a wider BLP initiative running throughout 2014 and exploring A Future in Law from a number of different stakeholder perspectives.
Written by leading Canadian legal consultant, Jordan Furlong, the report highlights why change in legal employment and workflow is both necessary and desirable, and also how lawyers, law firms and in-house counsel can begin to implement change in measured and decisive steps.
A key theme to emerge from the report is the rise in ‘agile working’, a point highlighted by the author, with a degree of caution, as something that needs to be implemented by legal teams and adopted by a new generation of lawyers if the legal industry is to remain sustainable long term. By becoming more agile in its working practices, the author also claims that the legal industry will be able to adapt and catch up with other industries in areas such as technology, division of labour and business process.
The report also suggests that traditional legal jobs will increasingly be joined by other ways of working as firms embrace market change., These new legal employment opportunities promise more choice, flexibility, and customisation than seen in today’s market. So how will law firms, lawyers and legal work look in the future and how can such huge changes be implemented? The report’s key findings and recommendations can be found below.
Commenting on his predictions, the author of the report, Jordan Furlong, said; “What many legal teams don’t yet appreciate is that the efficient deployment of talent and systems to accomplish legal work will not only reduce personnel costs, but also increase efficiency. The pent-up productivity potential in the legal market is off the charts and the employment revolution described earlier will play a key role in unleashing those benefits. The means by which legal work can best be done, in terms of productivity, sustainability and effectiveness, will become a primary consideration for legal service providers and their clients.”
Simon Harper, Co-Founder of LOD, said; “The rise of agile employment is already having a huge impact on the way lawyers, firms and clients engage with one another and LOD has been part of the revolution since we began in 2007. Aided by technology and changing attitudes to work, companies now have the opportunity to boost output, cut costs and offer employees more freedom over how they work. Agility will soon become as commonplace a labour concept in law as it is in many other industries. We now have the means and motive to re-design how we work to a degree unprecedented in the profession’s history.”
Neville Eisenberg, Managing Partner of BLP, said: “LOD’s report on A New World of Legal Work is an important part of our broader campaign on A Future – in Law that is running throughout this year. “It is widely recognised that law firms are having to change to meet new market challenges, and that the legal industry of the future will be quite different. However, what is less evident is a deep understanding of the impact of these changes both in organisational terms and at a personal level for individual lawyers. The opportunities and challenges facing newly qualified lawyers entering the profession are dramatically different today than those from previous generations. In addition, the ambitions of younger lawyers today are being shaped by these market changes as well as the evolving work and priorities of the younger generation generally.”
In 2007, recognising that both clients and lawyers were looking at ways to work differently, LOD was launched to shake up traditional models. LOD now has a team of 120 high quality lawyers working with clients such as Barclays, Channel 4, Google, Porsche and Royal Mail Group.
Key findings at a glance:
1) Future Change
Changes to lawyers:
o Private-practice lawyers will increasingly be, for all intents and purposes, entrepreneurs. Some will continue ‘sole practice’, although with much more specialised niche practices.
o High-quality project lawyers will evolve and compete to join rotating teams of professionals on an ‘as-requested’ basis whilst others will develop hybrid careers such as ‘lawyer-knowledge curator’, ‘lawyer-analyst’, ‘lawyer-technologist’ or ‘lawyer-educator’, serving either fellow lawyers, clients or the general public.
o Some lawyers will still remain as permanent members of staff but only if they are critically important partners or are en-route to joining those ranks.
Changes to law firms:
o Firms will be smaller with fewer permanent lawyers and staff occupying less square footage – offices will be reserved only for the most influential partners and business developers.
o Meeting spaces will replace law offices offering collaborative zones where lawyers, staff and clients can gather to review matters and execute plans in comfort and confidence.
Changes to legal work:
o Current ‘lawyer work’ will be re-classified as ‘legal work’ – carried out by a variety of performers (not just lawyers) with basic tasks such as boilerplate contracts, document review and fillable forms reduced to programming language and consigned to computers, reducing costs and raising accuracy and quality.
o Mid-level tasks will be given to trained paralegals or overseas lawyers and higher-level work farmed out to teams of independent project specialists, reporting to the permanent full-time lawyers at the firm or directly to the client. Even the most complex and challenging matters will be broken down into component parts, assigned to a performer whose skills and price best align with the value of each part.
With the report indicating such huge changes in the way lawyers, clients and firms work with one another, how can such changes be implemented? Here are thereport’s recommendations at a glance:
Recommendations for Law firms:
o Firms need to embrace the new models of sophisticated process mapping. An internal inventory of skill and performance imbalances can help identify talent surplus or deficits and allow the rebalancing to begin.
o Reassess talent acquisition strategies – many are vestiges of an outdated market. Develop a system to accurately identify and develop the firm’s future leaders looking at both newly recruited graduate lawyers as well as currently employed associates.
Recommendations for lawyers:
o Future legal employment will be agile and entrepreneurial so the word ‘independence’ should be kept at the forefront of lawyers’ minds.
o Instincts and capabilities of a bold entrepreneur will become essential. Project lawyer work will flourish so the self-starter able to build a reputation for value, effectiveness and foresight will be in high demand.
o Lawyers should learn to anticipate problems before they occur, calculating risk and charting a course to avoid or minimise problems and making themselves indispensable.
Recommendations for in-house counsel:
o Think about alignment and action, identifying and appointing the right provider/s according to the complexity, urgency and sensitivity of each task. A simple inventory of the most commonly tackled tasks in your department, and list of providers, can help tackle this piece-by-piece with a simple decision tree.
o Do not be afraid to grasp the opportunities that are being presented – the pace for change will ultimately be determined by the buyers, not the sellers.
The full report can be downloaded at www.lod.co.uk/newrules.
How CCTV balances the scales of justice
Iain Gould, solicitor and specialist in civil actions against the police, comments on the upside of the surveillance state
It is often said that Britain is the CCTV capital of the world.
According to a report from the British Security Industry Association there are between 4 million to 5.9 million CCTV cameras operating in the UK.
Most of those are privately owned but not all.
A 2009 Freedom of Information request made by the BBC’s Newsnight programme showed that both Shetland Islands Council and Corby Borough Council have more CCTV cameras than the San Francisco Police Department.
Wandsworth Borough Council in London has just under four cameras per 1,000 people, more than the police departments of Boston (USA), Johannesburg (SA), and Dublin City Council combined.
This contributes to the 7,431 public CCTV cameras in London, almost 23 times as many as Paris.
In my day-to-day work as a solicitor who sues the police and those who act with police-like powers I am regularly told about situations where the police have over-stepped the mark. CCTV footage is often instrumental in proving how.
CCTV in a Supermarket Proves Police Lies
I represented a client (who wishes to remain anonymous) after he was prosecuted for a breach of Section 5 of the Public Order Act (allegedly using ‘threatening, abusive or insulting words or behaviour’) after he spoke to a Leicestershire police officer in his local Morrisons Supermarket.
Mr. X (as I will refer to him) saw the officer shopping for shoelaces and approached him. He asked,
‘There is a 9.2 million pound deficit for the next 3 years and you are here shopping for bloody shoelaces and shoe polish. Do you think this is acceptable?’
To which the officer replied that he needed new laces to catch criminals.
The officer then warned Mr. X that his conduct amounted to a breach of Section 5. Mr. X disagreed and said he would lodge a complaint.
Two months later he received a summons to attend court in connection with the alleged offence.
At trial the police officer gave evidence that Mr. X had been aggressive and intimidating during the exchange.
The police and/or Crown Prosecution Service failed to disclose the supermarket’s CCTV footage so, without evidence to the contrary, Mr. X was convicted at Magistrates’ Court.
He was sure he had done nothing wrong so appealed his conviction to the Crown Court. In advance of the appeal hearing the CCTV footage was disclosed.
Although there was no audio, the footage showed that Mr. X was neither aggressive nor intimidating towards the officer. Crucially, the officer showed no signs of alarm or distress.
As a result, the appeal was allowed and his conviction was overturned.
I later sued Leicestershire Police for damages for malicious prosecution and assault.
Despite the CCTV footage, Leicestershire Police denied liability, leaving me with no alternative but to issue proceedings and prepare Mr. X’s case for trial.
Mr. X’s claim settled out-of-court for 15 times more than the police’s original offer, plus full legal costs. Read his case report on my website for more.
Assault by Security Guard Caught on Train Station CCTV
In a similar case which settled this week, my client Mark Holt (pictured and again, details used with permission) has received a five- figure compensation award after an assault by a security guard (or ‘byelaw enforcement officer’) employed by Carlisle Security. You can read his case report here.
Mark Holt, 53, is a prominent local businessman and peace campaigner who has never been in trouble with the police before. On 10 January 2012 he was returning home from a day out in Liverpool with his wife.
He and his wife had shared a bottle of wine over a meal, and he had a double whiskey later on. He was not drunk when they went to the train station at 9.45pm to go home.
Both had valid tickets. Mrs Holt went through the barriers. Mark stopped just short of the barriers as he attempted to find his ticket. A ticket inspector (now known more grandly as ‘revenue officer’) came up to him and said, ‘you’re drunk, you’re not travelling’.
Mr. Holt, who was not acting in a disorderly way, calmly found his ticket and put it into the barrier machine. The ticket inspector ordered that all barriers be locked, and called for help.
A security guard, or ‘byelaw enforcement officer’, grabbed Mark in a headlock and wrestled him to the ground.
Mark fell heavily face first onto the station floor, breaking his right front tooth and cutting his lip.
Another guard helped restrain Mr. Holt while British Transport Police were called. The first guard told the police that Mark:
- was drunk and abusive;
- swung a punch (which missed;
- so the guard, fearing for his own safety, wrestled him to the ground.
The police did not question this version of events and arrested Mark for a breach of Section 4 POA.
He was taken to a local police station where he was kept for 12 hours before being released on bail.
Mark instructed me to bring a compensation claim.
I obtained the CCTV footage from the station operator, Merseytravel.
Although it confirmed Mark’s version of events, the guard’s employers, Carlisle Security, denied liability.
In a letter which will cause concern to anyone interested in the over-reaching powers of private security firms, they claimed that Carlisle Security byelaw enforcement officers have the power to arrest and detain, so that they were acting within their rights.
I had no alternative but to issue court proceedings. A fresh pair of eyes working for Carlisle’s insurers sensibly settled Mark’s claim for substantial compensation and costs, four times as much as their original offer.
CCTV Provides Equality of Arms
Without CCTV footage Mr. X would now have an unjust criminal conviction and both he, and Mark Holt, would have lost their legitimate compensation claims.
Police and defendant insurers routinely fight cases even after they have viewed the CCTV footage.
They plan on fighting to trial where they have a distinct advantage. The officers involved invariably have exemplary records. They turn up at court confidently prepared and trained to give evidence in full uniform. Juries are impressed. No one wants to call a policeman a liar.
By contrast, any independent eye-witnesses, even if they co-operate, can be unreliable. And my clients are ordinary people who have often never been in trouble with the police before, let alone given evidence in a trial. They can be nervous, which sometimes comes across as unsure. The burden of proof is on the claimant. It is easy to create doubt in the mind of a juror.
The scales of justice weigh heavily in favour of the police and those who act with police-like powers. CCTV footage can help balance the scales.
|Iain Gould is a solicitor who specialising in suing the police. You can read more about his work on his blog, and follow him on Twitter, LinkedIn, and +IainGould.
Image credit: cc licensed ( BY SA ) flickr photo by Quinn Dombrowski: http://flickr.com/photos/quinnanya/4697813093/
In the meantime… a view from my sardonic past….
Charon QC on Tea Making, 4th Supplement to the 29th Edition (Maninahat Press) £780 + VAT
“This inter-disciplinary and seminally important update to the 29th edition of this internationally acclaimed tractatus from leading and very contemporary law diva, Charon QC, explores the commoditisation of law students from the academic stage of legal education all the way through to the industrial tribunal when they are finally fired by their law firm as 50 year old partners. Given recent Government reviews and consultations, resulting in access to justice being withdrawn from all save for wealthy injunctioneers and footballers unable to engage their brains before exercising their membrum virilis, commoditisation of law students is very much an issue exercising the public agenda and ‘direction of travel’ at present. Charon QC deftly argues that most discourse in legal education, and indeed the profession, is driven by sociological perspectives involving large amounts of money. His aim is to interrogate the supply and demand of paid work for law students through a wider range of disciplines including tea making, flipping burgers, flogging off Olympic memorabiliatat and sandwich boarding. This is laudable, as complex social issues like failed expectation demands a truly interdisciplinary analysis and given the broad range of opportunities now available to law students within law firms, other than actual employment as a lawyer, Charon QC, remarkably, despite his fondness for the nectar of the gods, has succeeded in producing a largely coherent, integrated and well organised volume that should be of interest to a diverse readership. We, at Muttley Dastardly LLP, are certainly interested in providing opportunities for highly qualified law students who understand the intricacies of the Japanese tea making ceremony or chadō (茶道) as The Partners at Muttley Dastardly call it.”
I commend this volume to the world urbi et orbi – a bodice ripper of a book from The Diva!
Dr Erasmus Strangelove MA (Oxon), MBA, Ph.d, FRSA, Barrister, Director of Psyops, Education and Strategy, Muttley Dastardly LLP
Head of Costs department
Joseph Frasier Solicitors
Historically, Noise Induced Hearing Loss claims (“NIHL”) have been classed as a disease claim for the purpose of recovering a 62.5% success fee pursuant to CPR 45.23 (3) (e) – Section V “Fixed Recoverable Success Fees in Employers’ Liability Disease Claims”.
However, it appears that some Defendants are successfully arguing at detailed assessment that a NIHL claim is not a disease claim but is a “bodily injury” and as such the automatic 62.5% uplift normally allowed in these cases does not apply.
One such reported case is that of Kevin Smith v. Secretary of State of Energy and Climate Change [20.09.2013], Mansfield County Court, in which District Judge Davies, having heard submissions from both parties, ruled in favour of the Defendant (represented by Nabarro LLP) and held that NIHL is not a disease within the meaning of CPR 45.23 and therefore the 62.5% success fee did not apply.
Whilst first instance decision only and consequently not binding, the judgment makes for an interesting read. Great reliance was placed by the District Judge upon the High Court decision of Patterson v. MoD  EWHC 2767 (QB) in which Males J held that a non-freezing cold injury was not to be classed as a disease claim. The main points to be noted from the decision in Patterson are that:-
Section IV (“Fixed Recoverable Success Fees in Employers’ Liability Claims”) applies where the dispute arises ‘from a bodily injury’ but cannot apply where the claim related to a ‘disease’. However, some injuries can be regarded as diseases and fall within Section V (e.g. psychiatric injuries and upper limb disorders) even though they would not be regarded as disease in everyday language;
The term ‘disease’ appears to have a more extensive meaning for the purposes of Section V than its meaning in everyday language given the above definition;
Where there is a dispute as to whether section IV or section V applies, the main point to consider is whether the condition qualifies as a disease and, if so, it does not matter whether the disease also constitutes or results from a ‘bodily injury’.
His Lordship in Patterson considered and noted that there was no definition of ‘disease’ and that he would objectively interpret the word ‘disease’ and that dictionary definitions, including medical dictionaries, were unhelpful and that the word ‘disease’ was to be understood in its ordinary sense and that, within the context of ordinary, everyday language, a non-freezing cold injury could not be applied as a disease.
That was the basis upon which District Judge Davies approached the definition of the word ‘disease’. The District Judge then considered the specifics of NIHL and whether it could be classed as a Section V disease.
The Defendant placed reliance on academic works such as Hunter’s Disease of Occupations and “Mechanisms of Noise Induced Hearing Loss” and defined NIHL as being caused by:-
“…increased oxygen free radical production within the ears, a process already taking place naturally, as a result of the stress caused by excessive noise where, due to the clear relationship between the exposure and the condition, it is clearly akin to an injury. Damage is caused by a discreet albeit repeated external stimulus and represents an acceleration brought about by external factors similar to other acceleration cases. A normal metabolic process is sped up by the trauma caused by excessive noise. NIHL is the result of an external insult speeding up a natural process which occurs with ageing”.
The question which the District Judge therefore asked himself was whether NIHL is a ‘disease’ or an injury brought on by an external cause, which in NIHL, would be excessive noise. Applying the guideline set down in Patterson, the District Judge found that a disease, unless specifically included and incorporated into the rules, is a:-
“biological process caused by a virus, bacteria, noxious substance or parasite”
And, based upon that definition, NIHL could not be considered a disease.
Clearly the case has long reaching ramifications. Even if Courts in the future accept that NIHL is not a ‘disease’ claim for the purposes of Section V then how will it approach what success fee should be applied? Section IV (25% success fee where the matter settles before trial) can only apply where the injury is sustained before 01 October 2014. The majority of NIHL claims are sustained over a long period of time and well before this date and Section IV appears to imply a singular accident rather than one which occurs over a period of time. Therefore, it is certainly arguable that Section IV should not apply either. Therefore, if neither Section IV nor Section V apply then are we left with a situation in which the uplift is not fixed and is to be assessed according to the old Costs Practice Direction 11.7 and 11.8? If so, arguably this may be even better news for Claimant Solicitors who can argue that such claims are difficult to win given the higher risk of failing on liability, require more investigation which carries a greater financial risk to Solicitors than other EL claims and consequently should attract a higher success fee (this emphasises the need to ensure comprehensive risk assessments continued to be carried out in these type of cases).
Secondly, the judgment is contrary to the basic objectives of CPR 45 IV and V which was to avoid arguments about the level of success fees.
Thirdly, the judgment is inconsistent with the “notes of guidance” given for the pre-action protocol for disease claims. This specifically mentions and includes NIHL and states:-
“This protocol covers disease claims which are likely to be complex and frequently not suitable for fast-track procedures even though they may fall within fast track limits. Disease for the purpose of this protocol primarily covers any illness physical or psychological, any disorder, ailment, affliction, complaint, malady, or derangement other than a physical or psychological injury solely caused by an accident or other similar single event”.
In both Patterson and Smith, the Court effectively ignored the pre action protocol on the basis that it is for the purposes of the protocol itself and before the commencement of CPR and that it does not form part of the formal CPR. It seems rich for the Courts to have effectively ignored the pre action protocol and applied its own definition of ‘disease’ when clearly the pre action protocol imposes sanctions for parties who fail to comply with it!
Fourthly, and perhaps of most importance, is that under the new claims notification process for low value personal injury claims in employers liability disease claims, FORM ELD1 clearly stipulates deafness as one of the possible diseases which the Claimant has suffered. It is therefore arguable that it was the intention of the Rules Committee to have included deafness claims as a disease claim within the original Section V rules.
Although in time this argument will become of less significance given the post April 2013 position as to success fees, it remains to be seen how far Defendants will push the issue on existing pre April 2013 cases.
Roberto Carassale – Head of Costs Department – Joseph Frasier Solicitors
Roberto is Head of Joseph Frasier’s Costs Department and an expert on all aspects of the Civil Procedure Rules. He has a wealth of experience in costing Personal Injury and Disease cases, Commercial matters and Clinical Negligence cases, and he is a fountain of knowledge when it comes to offering training on Jackson reforms and preparation of Costs Budgets.
Could listening to music players put your hearing at risk?
Hearing loss is something which could be frequently associated with those who work in traditionally noisy occupations, such as construction, demolition or engineering. Fortunately, legislation exists in this country which aims to prevent staff members from damaging their ears.
For example, The Control of Noise at Work Regulations 2005 requires managers to implement appropriate safety measures – such as providing suitable personal protective equipment; when employees are exposed to sounds louder than 80dB on a daily or weekly basis.
If they fail to do so, those adversely affected could suffer varying degrees of hearing loss ; and might be entitled to claim industrial deafness compensation as a result.
However, it seems employees in noisy occupations are not the only people in danger of damaging their hearing. According to some sources, individuals could be going deaf by listening to their music players at an excessively high volume.
A recent survey carried out by the New York City Health Department supports this claim. After interviewing a range of participants who stated they frequently used headphones, the researchers discovered that almost 25% of these respondents suffered from some degree of hearing loss.
Although these findings suggest that many American individuals could be damaging their ears by listening to music players at an excessively loud volume, it seems this problem might also be affecting people in Great Britain.
The NHS states that hearing difficulties used to be primarily associated with noisy occupations; however, it appears the organisation now regards “recreational loud noise” as the most common cause of problems amongst individuals. This description covers potential hazards such as music players, live music and nightclubs.
To demonstrate how dangerous music players can sometimes be, The Control of Noise at Work Regulations 2005 states individuals must not be exposed to a daily or weekly sound volume of 87dB.
Meanwhile, the NHS states that levels as low as 85dB can also result in permanent hearing damage if individuals are exposed to these noises for excessive periods of time. Worryingly though, the organisation claims that some music players can reach sounds of approximately 112dB; potentially placing listeners at risk.
Unfortunately, as their damage would probably be self-inflicted, it seems unlikely that those adversely affected by music players would be able to claim compensation for deafness. However, if an individual is worried about their hearing, then there are a number of simple solutions which could prove beneficial, such as reducing the volume or listening to music through noise-cancelling headphones.
If they have any further queries, they should seek advice from a qualified medical practitioner.
Legal Aid Funding for DNA Paternity and Relationship Analysis
In the past 12 months there have been some significant changes to Legal Aid funding. The Government stated that the expenditure was too high and cuts had to be made.
1. The range of cases that Legal Aid can be claimed for has been reduced:
o In family law cases Legal Aid is not available for matters that “do not justify the use of public funds”.
o In immigration cases, visa applications for relatives to visit/reside with relatives already resident in the UK are now excluded.
2. A reduction of 20% in the fees payable to experts (e.g. Cellmark) for the same work.
The new guidance, which was published in November 2013 and came into effect for cases registered from December 2nd last year, sets a lower level of funding for DNA testing.
|Pre 2/12/13||Post 2/12/13|
|DNA – testing of sample*||£315 per test||£252 per test|
|DNA – preparation of report||£90 per hour||£72 per hour|
*The guidance states that a test comprises a father and child (plus mother if required). For each additional child the limit of funding is a further £133. If there are a number of alleged fathers, each father and child/children tested would constitute a separate test.
Cellmark will (from January 1st 2014) reduce its prices for standard DNA paternity testing to comply with the new guidance. Our new price will be £324 ex VAT.
Included in Cellmark’s paternity price will be the following:
· All sampling kits and the cost of sending them to UK sampling locations
o Pre-paid return envelopes to safely transport the samples to our laboratory
· The cost of testing the samples once they have been received at our laboratory
· The cost of producing and sending the final test report to the “customer”
· Our standard turn around time of 3 – 5 days (routinely 80% are reported in 3 working days)
· Our FREE advice service for the duration of the case – before and after the final test report – accessible via email, FreePhone 0800 036 2522, and our web Chat service
The Government’s own impact assessment on the 20% reduction in the level of fees that can be claimed under Legal Aid highlighted several risks:
· Lower income might cause a reduction in the number of experts available
· Numbers of public law family cases will continue to rise
· Lower fees might mean experts deliver a lower quality service
As the UK’s most recommended DNA testing service and the world’s first private DNA fingerprinting company we would like to take this opportunity to restate our commitment to continuing to provide the same, industry leading, quality of testing, analysis and customer service that we have since June 1987.
Are you eligible for Legal Aid?
The Legal Aid Agency has produced a range of information to assist solicitors and individuals in establishing whether their case is eligible for Legal Aid funding and this can be accessed via the following web page - http://legal-aid-checker.justice.gov.uk/ we recommend you use this as a starting point before embarking on the complex process of applying for legal aid.
If you can’t get Legal Aid you may be able to get free advice from one of the following:
You can also pay for advice from a local legal advisor or solicitor – a number of firms are responding to the changes by offering fixed price services.
Harvest Learning in conjunction with Metro Bank invite you to attend ‘Three Steps to Communication Excellence Taster’ with Nick Looby owner of Feet on the Ground Training on 23 January 2013 from 6pm –7pm at O2 Tottenham Court Road, 229 Tottenham Court Road London, W1T 7QG. Networking from 7pm – 8pm at Metro Bank, Tottenham Court Road.
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Come along and learn techniques that will enhance the effectiveness of your communication, enable you to win more business and increase your confidence in every imaginable situation.
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I often marvel that my academic brother – R.D. – continues to have thoughts. He ran riot some years ago – so I now have to spend valuable time – which I charge for, naturally – checking his posts before I post them.
‘Approved Post’ from Professor R.D. Charon
It is some time since I marvelled at the ability of law students to come to terms with the principles of law and, indeed, our legal system. Before the appointment of a non-lawyer to the role of Lord Chancellor, we had a fighting chance of ensuring that our legal system, our law, would act in the interests of our people.
Unfortunately, because of cuts to the legal aid budget, it may be that those who need access to good legal representation won’t get it. I have no doubt that many lawyers will do what they can to help, but we don’t expect bankers to work for free – or, indeed, in the national interest – so why should Mr Grayling expect lawyers to do so?
I have no other thoughts to share with you this day – so I will leave you to get on with watching the opiate of UK television. Pity that Strictly Come Dancing has ended…. kept many of us occupied and amused and not causing riot and affray on the streets of our fine nation.
The Law Society Gazette reports that a mass cull of high street law firms has taken place because they could not secure professional indemnity insurance.
“The list includes Grants Solicitors of Croydon, the firm set up by the former justice minister Helen Grant and Alastair J Brett of London, the firm set up by the former legal director at The Times newspaper. In all, 23 of the closed firms are in London….
…President Nicholas Fluck said: ‘There will be a number of reasons why firms have closed and some of these will have been positive decisions by the partners involved. However, thanks to the EIP many firms were able to find insurance and continue practising.”
I am often astonished by the activities of the Kippers – but this story is truly astonishing. And UKIP wants political power in Britain?
HatTip to @MckRich
And on to other matters…
I always enjoy my visits to The Legal Cheek website – an irreverent (rightly) look at the law and the workings of lawyers.
And a recent post may give you a reason to visit them…
CAN AN OXBRIDGE LAW DEGREE PUT YOU OFF BECOMING A LAWYER?
Back soon with a bit more… perhaps, even a post from Lord Shagger who is still in Monaco amusing himself….
While my younger brother grapples with the technical aspects of wordpress and works out how to give me posting rights under my own ‘moniker’ I shall post with my avatar.
I began my academic career at a good university, but one, unfortunately placed geographically, far too distant from where I wished to be, so I did not spend much time there. I did make occasional journeys to the university town, with the intention of visiting the law school, but often found myself waylaid by the attractions of a fine pub situated about half a mile from the Law School and was not always able to make it to the school. I do, however, remember the Dean giving all the new students an address. The Dean was a solemn man, newly elevated to professorial rank, a man whose knowledge of criminal and other law stupefied the judges when he was at the Bar, to a point where it was felt that his talents might be better used in academe – which, indeed, they were.
He looked straight at us all. His eyes flickered and darted from side to side. He spoke quickly as he told us that of the 100 in the theatre only two would get a First, twelve, possibly, fifteen, would get an Upper Second, the herd would get Lower Seconds (and find solace practising law in modest firms), a few would get Thirds (and find little pleasure in a life in the law) and, sadly, – looking menacingly around the theatre: “Five to six of you will get pass degrees – a certificate of incompetence.”
I’m afraid, possibly though mild intoxication, that I found this absurdly funny and burst out laughing.
“Mr Charon” the Dean asked “Perhaps you find that amusing? Why so?”
I cannot, of course, remember the exact words which I used to reply (It always amazes me how people who write biographies can remember almost every word they spoke in their lives) but I will give the gist (and in future posts, should I need to resort to dialogue, I will ask you to imagine that I can remember every single word.)
“Well it is rather amusing, Professor ‘X’. How can anyone spend three years of their lives studying something and end up with a certificate of incompetence? Better to cut the losses after the first year and run.” The Dean merely smiled and passed on to other matters. I could, however, see a few anxious looks on the faces of my fellow students. There were eight women on the course. This was most disappointing. Things have changed – a theme to which I shall return when I next post.
R D Charon
Monday 6th of January was a momentous day for the British legal system. For the first time in the history of their profession, barristers staged a strike in protest over proposed cuts to the legal aid bill.
Hundreds of trial lawyers, dressed head to toe in their traditional garb – black gowns, grey wigs, white bands – took part in vocal demonstrations outside the Old Bailey with the aim of convincing the justice secretary, Chris Grayling, to reconsider the planned reductions.
The Ministry of Justice claims that the cuts will slash £220 million from government spending, but the 30% reduction is just another in a long line that has seen legal aid fees budget for criminal cases decrease by 40% since 1997. Many law firms around the country, including Manchester-based criminal law solicitors Maguires Solicitors, rely on Legal Aid funding from the government to carry out cases where the financial situation restricts them from paying the costs.
There are legitimate fears among legal professionals that the new proposals will result in a lower quality of legal representation, more miscarriages of justice and fewer convictions. Nigel Lithman QC, Chairman of the Criminal Bar Association, feels that barristers are being unfairly singled out and that many will leave the profession if the cuts are implemented: “Why not publish the incomes of top surgeons?” Lithman asked. “Why not show the politicians who have incomes from property? We are being singled out. Why such contempt for the criminal bar?”
Lithman’s comments are a reaction to the MoJ’s attempt to paint criminal lawyers as wildly overpaid, a claim that they say is greatly exaggerated. Official figures show that 1,200 barristers (of the some 15,500 the Bar Council say practise in England and Wales) earned a minimum of £100,000 each from criminal legal aid. But barristers counter that after all their expenses are taken into account, including chamber fees and pension provision, they are left with £50,000 in taxable income.
The median income for barristers was shown to be £56,000 but Lithman explains that this doesn’t show the real picture: “Some barristers are earning as little as £13,000 a year. We are seeing more and more bankruptcies in the junior bar. Many are earning less than £25,000 a year.”
However, the MoJ still contend that the current system is too generous. A spokesperson for the department said: “At around £2bn a year we have one of the most expensive legal aid systems in the world, and it would remain very generous even after reform.”Latest figures show more than 1,200 barristers judged to be working full-time on taxpayer-funded criminal work received £100,000 each in fee income last year, with six barristers receiving more than £500,000 each.
“We entirely agree lawyers should be paid fairly for their work, and believe our proposals do just that. We also agree legal aid is a vital part of our justice system – that’s why we have to find efficiencies to ensure it remains sustainable and available to those most in need of a lawyer. Agencies involved in the criminal justice system will take steps to minimise any upset court disruption could cause for victims and witnesses involved in trials.”
As well as cuts, the MoJ’s Transforming Legal Aid consultation comes with a whole host of propositions, the most radical of which include:
- Prisoners who challenge their treatment in jail will no longer be entitled to legal aid.
- Judicial reviews will become more difficult. Those cases deemed to have a less than 50% chance of success will no longer be funded through legal aid (making it harder to hold the government accountable for unlawful actions).
- A residency test will exclude those with “little or no connection to this country” from receiving support for civil legal actions in England and Wales. The Catholic church has condemned it as harmful to recently arrived victims of human trafficking and domestic abuse.
- A financial eligibility threshold will prevent those with a disposable household income of £37,500 or more from receiving legal aid in the crown court.