Obiter wonders if he really believes this to be a decent rate of pay to ensure quality representation. But if you are a legal aid lawyer, don’t despair. Maybe your friends in better paid jobs, which would be almost anyone you know except postmen, traffic wardens and road sweepers, will give you something extra special for Christmas. Legal aid lawyers may recall – with no particular fondness – the speech justice secretary Jack Straw gave back in March advising them to reconsider their earnings expectations. ‘There is certainly nothing ordained by the Almighty which says that of those paid for by the public purse, lawyers should be any higher than other professions.’ He went on: ‘I know that many legal aid lawyers… have earnings comparable to people in the public sector itself.’ Well, as it turns out, that rather depends on with whom you are comparing legal aid lawyers. Figures released recently by the Office for National Statistics on public sector pay, and collated into a helpful spreadsheet by the Guardian, reveal that legal aid solicitors are in fact among the worst paid in the public sector. Their average salary is £25,000, well below that of junior doctors, nurses – even those without degrees – and firefighters. Indeed, readers may be surprised to learn that even sewage workers get paid more, though legal aid lawyers, with the mountains of bureaucracy they now face, might argue that they have to deal with more crap. Straw said in his speech: ‘I think it is entirely proper that lawyers are paid decent rates; indeed it is essential to justice that high-quality legal representation is preserved.’
Mark Stephens, of law firm Finers Stephens Innocent, said that Davenport Lyons’ methodology for handling illegal file-sharing cases conforms to industry best practice, and has been adopted in the Digital Economy Bill currently going through parliament (See ‘File-sharing “bully tactics”’,  Gazette, 11 March, 4)’. We believe Mr Stephens completely misstates the Digital Economy Bill. Davenport Lyons were following a course of action which we think is completely at odds with what the Digital Economy Bill proposes. Under the bill, if copyright holders want to take action against illegal file-sharers, unless the file-sharing is so flagrant as to warrant immediate legal action, they will not be able to get their lawyers on the case immediately. Instead, they will first have to ask the ISP to write to suspected file-sharers – the identity of the file-sharer will not be disclosed to the copyright holder. Both rights-holders and ISPs expect this initial letter will be educational and consumer-friendly – it won’t demand payment of compensation or be aggressive in tone. Indeed, the consensus is that the chief aim of the initial letter should be to help consumers understand how to prevent unauthorised use of their internet connection and to explain the risks that they run if they are illegally file-sharing. This is in contrast to the ‘explain, pay up or be sued’ tactics employed currently by some law firms. Deborah Prince, Head of legal affairs, Which?
Law Society Council member Derek French withdrew his motion proposing to allow barristers and legal executives to become members of the Law Society, at the Society’s council last week. However, French said the Society’s Membership Board has agreed to prepare a paper on the issue, which will be put before the council for discussion by next May at the latest. French said he had not dropped his plans to push for other lawyers who are not solicitors to be able to gain Law Society membership. However, he said he accepted that the proposal was more likely to be accepted by council, if council members had had the opportunity to read a ‘fully thought through’ paper on the subject by the board before making a decision. French said he had received a ‘mixed reaction’ to his proposal from colleagues on council, but that many senior council members were in favour of it. He said the board had assured him that it would prepare a discussion paper on the possibility of widening Law Society membership to other lawyers, and this would be put before council either in April or May, so that a decision could be made in time for the Law Society’s Annual General Meeting in July. French added that if this did not occur, he would resubmit his own motion on the matter. French’s original motion proposed that the Law Society should accept membership applications from all sectors of the legal profession, with fully-qualified non-solicitors entitled to seek full membership, and trainees and support staff able to apply for associate status. Background papers to French’s motion indicated that the Society’s membership board is already considering whether membership or affiliate status should be offered to non-solicitors. French is the Law Society Council member for the Birmingham District.
Obiter was intrigued to read in the Guardian’s education section last week that those who have had a brush with the law are often inspired to go on and study the subject during their stay at Her Majesty’s pleasure. Apparently an increasing number of prisoners are studying law, though some worry that their criminal past will prevent them from being admitted as a solicitor (the Solicitors Regulation Authority acknowledges that the ‘overriding consideration is public protection’). Particularly illuminating was an account by serious offender ‘Gary’, spurred on to study law after the thrill of successfully representing himself in getting one aspect of his punishment reversed. He says that when he returned from his successful appeal, there was a long queue of fellow inmates all waiting to see him. ‘They wanted me to work on their appeals for them,’ he said. ‘My nickname became “the QC”; even some of the prison guards came to see me, to ask advice about their divorce cases. ‘You need a lot of books to study law, and when I was inside it was difficult to get them. ‘Eventually, I decided to write to every judge, barrister and solicitor I could find, asking them to donate books they didn’t need any more. ‘Lots of them did – in the end I had 40 or 50 books, so many that I had to be moved to a bigger cell!’ Gary is now out of prison and continuing his law degree in the hope of practising as a solicitor. ‘I’d like to work in criminal and family law,’ he said. ‘I don’t feel the lawyers I encountered served me as well as they should have done. I want to be a better lawyer for some other defendant in the future.’
video platform video management video solutions video player Brands will dominate the legal market when alternative business structures are introduced this October – and firms that have not joined a network such as QualitySolicitors or do not do work for larger brands will find the market ‘very small indeed’. So argues a bullish Craig Holt (pictured), QS chief executive, in the exclusive and searching video interview below.
Law firms do not face higher insurance premiums because they conduct residential conveyancing work or are run by black and ethnic minority lawyers, an authoritative study has indicated. Law Society-commissioned research into last year’s professional indemnity insurance renewal found that while more firms overall had experienced difficulties during the 2010/11 renewal period compared to the previous year, the ethnicity of firms was unlikely to have been a factor. The survey of 399 firms and a further 359 BME practices, conducted by market researchers Exodus, found that whereas 79% of firms had reported ‘no difficulty’ in renewing their PII in 2009/10, this dropped to 64% of firms last year. The smaller the firm, the more likely they were to have experienced problems, which was partly explained by the withdrawal of insurer Quinn from the PII market. Firms also faced higher premiums than previously, with 70% reporting an increase on the amount paid in 2009/10. Sole practitioners paid a median premium of £6,350, while firms with more than 25 partners paid a median premium of just under £500,000. In terms of the impact of ethnicity on premiums, only 4% of BME firms felt that their ethnic origin had affected the amount they were charged. The report suggested that where BME firms had experienced difficulties, this was likely to be due to their small size rather than ethnicity. However, BME firms were seven times more likely to have been required to submit their CVs to insurers. The study noted that BME firms are disproportionately represented in the Assigned Risks Pool. In relation to conveyancing, the findings did not indicate a statistically significant relationship between the amount of conveyancing work undertaken and the rate of premium charged. The Society noted that this was at odds with the ‘common perception’ that insurers attribute a higher risk to residential conveyancing work. Last week the Gazette revealed that a Financial Services Authority investigation had concluded that there was ‘no evidence’ of discrimination against BME solicitors by insurers. Law Society chief executive Desmond Hudson said: ‘It is encouraging to see that the survey findings shows only 4.4% of BME firms felt that their ethnicity had an impact on the premium they paid and that the size of a firm, its claims history and in-year changes to the number of fee-earners have the biggest effect the firms’ PII premium. ‘The Law Society, Equality and Human Rights Commission and others including the Solicitors Regulation Authority have worked together to attempt to ensure that any potential for any form of discrimination is removed. ‘The Association of British Insurers and the FSA have also undertaken some work in this area. ‘However, collectively, we must continue to work ensure insurers continue to move towards a PII process that is transparent and that risk factors are properly understood by firms. ‘We have requested to be informed of the ongoing progress in this respect so that any differences in treatment between groups of our members can be seen to have legitimate objective justification.’ As in previous years, the Law Society will be providing a PII telephone helpline to assist firms in the build up to this year’s renewal.
Anthony Edwards, TV Edwards The courts have made it difficult to stay criminal proceedings for abuse of process. Abuse can be argued in two ways: either that it is not fair that there be a trial; or that it is not possible for any trial to be fair. The first approach has been examined by the Supreme Court in Warren v Attorney General for Jersey  UKSC 10. Following the principles of its earlier reasoning in R v Maxwell  UKSC 48, the Supreme Court held that whether it is fair for there to be a trial is not based on fairness to the accused but on a balancing exercise between the public interest in bringing serious matters to trial, and the public interest in ensuring that executive misconduct does not undermine public confidence in the criminal justice system. The court identified the relevant factors as including: the seriousness of the violation by the police; whether there had been bad faith or improper motive; whether there was an urgent need for the conduct; the availability of other sanctions; and in particular the seriousness of the offence. Faced with serious crime the conviction was allowed to stand. In the terrorist case of R v Ahmed  EWCA Crim 184, the court held that a case would have been stayed had there been any material before the court gained by the use of torture, but there had in fact been no connection between any alleged wrongdoing and the trial. In R v F  EWCA Crim 1844, the Court of Appeal reviewed the issues surrounding whether delay could prevent there being a fair trial. It directed that only this decision and that in Attorney General Reference 1 of 1990 (1992 QB 630) should be referred to as authority. An application to stay cannot succeed unless, exceptionally, a fair trial is no longer possible owing to the prejudice that cannot fairly be addressed by the trial process. A lack of explanation for delay going to the credibility of the complainant is not itself enough to justify a stay. The principles are: Proceedings could only be stayed if the court was satisfied on the balance of probabilities that, by reason of delay, a fair trial would not be possible; In considering prejudice the court should consider what evidence directly (and not merely speculatively) had been lost by the passage of time; The court had to consider how any such prejudice could be compensated by appropriate directions, whether by excluding some of the Crown’s evidence or by an appropriate summing up; and Unjustified delay by the complainant was relevant, but allowance had to be made for the reluctance of the victims of sexual abuse to come forward. Change of mind The extent to which the Crown may change its mind has been examined in two recent cases. In R (Smith) v CPS  EWHC 3893 (Admin), the Crown, in the absence of the defendant, indicated that it would offer no evidence in return for a restraining order made on the acquittal. It then sought to rescind that agreement on the basis that the restraining order could not be made in the absence of evidence being received and the Crown had not complied with consultation requirements. The first ground was held to be bad in law; the second had to be examined to see if the defendant suffered prejudice. In this instance that was clearly the case – had he been at the earlier hearing he would already have been acquitted. The procedure to follow in a case where a restraining order was to be made in the absence of a court hearing evidence was considered in R v Kapotra  EWCA Crim 1843, emphasising the need for compliance with rule 50 of the Criminal Procedure Rules to allow time for the defence to make full representations. In R v Killick  EWCA Crim 1608, the recommencement of discontinued proceedings was not an abuse because no representation not to prosecute had been made. In the absence of prejudice the recommencement was in accordance with the Code for Crown Prosecutors. To challenge a CPS decision on prosecution the defence must show that the policy being adopted by the CPS was not lawful or that the CPS had not acted in accordance with that policy (R v E, S and R) v DPP  EWHC 1465 (Admin).
The amended part 36 came into effect on 6 April 2007 – shortly after the offer letters were sent to the claimant. The amended part 36 made substantial changes to the old rules (see Gibbon v Manchester City Council  EWCA Civ 726,  1 WLR 2081 and C v D (also named Middlegreen LP v Dominion Developments (2005) Limited)  EWCA Civ 646). The need for a payment into court was dropped, but it became an essential feature of the part 36 regime and its consequences that the part 36 offer was identified as such (rule 36.2(2)), was not time limited, could only be withdrawn formally (rule 36.9(2)), and, if withdrawn, would not carry with it the costs consequences of part 36 (rule 36.14(6)(a)). The part 36 consequences where a part 36 offer had not been beaten by a claimant after judgment applied ‘unless [the court] considers it unjust’, but those consequences did not apply, Lord Justice Rix observed, where the offer did not meet the requirements of part 36. The former rule 36.1(2), which expressly gave the court the power to apply the costs consequences of part 36 to an offer not made in accordance with part 36, was removed and instead the new rule 36.1(2) provides as follows:‘Nothing in this part prevents a party making an offer to settle in whatever way it chooses, but if the offer is not made in accordance with rule 36.2, it will not have the consequences specified in rules 36.10, 36.11 and 36.14. ‘(Rule 44.3 requires the court to consider an offer to settle that does not have the costs consequences set out in this part in deciding what order to make about costs).’ Thus the rule 44.3 discretion to take account of all the circumstances, including the conduct of the parties and any ‘admissible offer to settle made by a party which is drawn to the court’s attention, and which is not an offer to which the costs consequences under part 36 apply’ (amended rule 44.3(4)(c)) lies in the background. It will be recalled that at the time of Stokes that rule had simply concluded – ‘(whether or not made in accordance with part 36)’. Therefore, Lord Justice Rix found that the defendant’s offer could not be considered as attracting part 36 cost consequences as the offer was not made in accordance with the specific requirements of part 36. Considering the working of part 36 Rix stated: ‘Thus there appears to be a new determination in the amended rules to specify carefully what does or does not count as a part 36 offer with part 36 consequences. All other admissible offers are relevant to the part 44 discretion, but they do not carry with them the costs consequences of part 36.’ What of the court’s discretion to consider a settlement offer which does not comply with part 36 requirements (see above rule 44.3)? Lord Justice Rix weighed up the factors in favour of the defendant and the claimant. As for the factors in favour of the defendant’s offer, Rix found that the offer was a serious one; the offer transpired to be more than what the claimant recovered at trial; and there was no valid reason for the claimant to have rejected the offer. For the claimant, the fact that the claimant was initially a litigant in person was a relevant factor. The offer was time-limited and expired after 21 days which contrasted with the current regime under part 36 which requires removal of the offer by formal notice. Therefore, for the claimant to suffer the costs consequences under part 36 it should still be open for acceptance. The offer was not expressed to be a part 36 offer and therefore did not comply with the current part 36 requirements. The offer included the claimant’s costs, which a genuine part 36 offer would not, and therefore it was difficult to now calculate the true value of the offer. As Rix observed: ‘Groupama’s offer was long dead and buried when proceedings commenced in March 2009 or trial approached.’ The defendant always had the opportunity to serve a formal part 36 offer in compliance with the necessary rule – this was not done. Finally the defendant’s defence and counterclaim had complicated matters whereas the claimant’s claim was straightforward and this led to a lengthy six-day trial. In the light of the above, Rix found in favour of the claimant and dismissed the defendant’s appeal. The lesson to be taken from French is clear: if a party to litigation wishes to place his opponent at risk as to costs it should ensure that the offer is drafted in accordance with the strict requirements of part 36. Although a settlement offer which does not comply with part 36 will be considered by the court pursuant to part 44, the severe costs consequences under part 36 will not apply. How should pre-litigation offers to settle be treated in the light of part 36 of the Civil Procedure Rules (CPR) and Trustees of Stokes Pension Fund v Western Power Distribution Power Distribution (South West) plc  EWCA Civ 854,  1 WLR 3595 (Stokes)? This was the question before Lord Justice Rix in the Court of Appeal case of French v Groupama Insurance Company Ltd  EWCA Civ 1119. The claimant (initially acting as litigant in person and later instructing solicitors) commenced proceedings against the defendant insurers for breach of contract. In 2011 the claimant succeeded in her claim and was awarded £126,963 and £5,000 in interest. The defendant then made submissions on costs and interest and sought to rely upon a settlement offer of £115,000 which it had made several years previously to the claimant. The offers were set out in two separate letters. The trial judge found the offer worth more than what the claimant had in fact now recovered. Although the claimant may have seemed to have recovered more than she had been offered, nevertheless when allowance had been made for the additional damages that she had continued to suffer in the meantime, she would have been some £20,000 better off had she accepted the offer. But what was the status of the offer? The claimant argued that the letters which contained the offer were privileged, whereas the defendant maintained that the parties had agreed for the letters to be open and admissible. The judge held simply that they had always been open letters. On that basis, he applied the judgment in Stokes in order to rule that, even though it was accepted on behalf of the defendant that neither letter was an offer within part 36 of CPR, nevertheless the second letter, which had at least allowed 21 days for its acceptance, met the conditions laid down by Stokes for a quasi-part 36 offer which ought to be accorded the same effect as a payment into court. Therefore the claimant ought to recover no costs herself, but instead pay the whole of the defendant’s costs. CPR 36 and Stokes Rix LJ then went on to consider the offer in the light of CPR 36 and Stokes. Rix found the defendant’s letters failed to meet the requirements of the original part 36 (part 36 as it stood in 2006/2007) in a number of ways: the letters were sent before proceedings began; the offer was not supported by a payment into court; it was time-limited to expire after 21 days so that it was not available for acceptance thereafter, but had effectively been withdrawn; and the requirements of rule 36.10 had not been observed. In the circumstances, there was no requirement that the court would even take the offer into account, let alone apply the consequences of part 36.20. What was the status of the offer in the light of Stokes? Stokes was decided in the context of the original part 36. In Stokes, Lord Justice Dyson set out the following conditions which must be met in order for an offer to have the same effect as a payment into court: first, the offer must be expressed in clear terms so that there is no doubt as to what is being offered; second, the offer should be open for acceptance for at least 21 days and otherwise accord with the substance of a Calderbank offer; third, the offer should be genuine and not a ‘sham or non-serious in some way’; and fourth, the defendant should clearly have been good for the money when the offer was made. If these conditions were met then the offer should, according to Dyson, have the same costs consequences as payments into court. Applying Stokes, Lord Justice Rix observed that the defendant’s offer had only met the third and fourth condition. The second condition, in particular, had not been met, for all of its 21-day life until it expired was covered by privilege (as was subsequently agreed). It was not a Calderbank offer. At the time when the offers were made, it was (and remains) uncertain whether the offers were open or privileged, but they were subsequently agreed to have been privileged. It was only after the offers had expired that the privilege was waived by agreement for the purpose of matters such as costs consequent to judgment. Open or privileged letters? The amended part 36 Upon appeal, Rix first considered the status of the letters – were they open or privileged? It was found on the evidence that the letters had been agreed to be privileged, but that the parties had subsequently agreed to allow the letters to be shown to the trial judge after judgment. Rix held that it had been wrong for the judge to have held that the letters were open (that they had been written as open letters). The important issue was that the parties had agreed that the letters were privileged and therefore the judge was not allowed to go beyond that agreement. Masood Ahmed, Birmingham City University
District Judge Wendy Backhouse sits at Woolwich County Court What is the test when a tenant applies to set aside a possession order made in their absence? Following Estate Acquisition and Development Ltd v Wiltshire  EWCA Civ 533,  All ER (D) 50 (a case of forfeiture of a lease), it seemed that the answer lay in rule 39.3(3) of the Civil Procedure Rules 1998 (CPR). This rule requires the tenant to satisfy all three limbs of CPR 39.3(5), namely a good reason for not attending the hearing, acting promptly on learning of the possession order and having a reasonable prospect of successfully defending the claim. However, in Forcelux Ltd v Binnie  EWCA Civ 854,  HLR 340 (another forfeiture case) the Court of Appeal decided that a possession hearing before the district judge was not a ‘trial’ and that the court therefore had the power to set aside the possession order under CPR 3.1(2)(m), and should apply the checklist for relief from sanctions in CPR 3.9. That approach makes it more likely that the order will be set aside because of the prejudice the tenant is likely to suffer if it is not. In Hackney LBC v Findlay  EWCA Civ 8,  All ER (D) 149, a possession order had been made in Mr Findlay’s absence and he had been evicted. Setting aside the order was his only way of recovering his home. It was argued, on behalf of Hackney, that the stricter test in CPR 39.3 should apply, as otherwise local authorities would face substantial difficulties if tenants could choose not to come to court and could easily obtain the setting aside of a possession order, even after eviction. The appeal court noted that in Forcelux the lessee had a compelling claim for relief from forfeiture, and that had the possession order not been set aside the lessee would have lost a valuable asset. Allowing Hackney’s appeal and remitting the matter for reconsideration, Lady Justice Arden declared that ‘in the absence of some unusual and highly compelling factor as in Forcelux, a court that is asked to set aside a possession order under CPR 3.1 should in general apply the requirements of CPR 39.3(5) by analogy. This is in addition to, and not in derogation of, applying CPR 3.9 by analogy’. However, while the court should consider all the circumstances, it should normally give precedence to the provisions of CPR 39.3(5) above those in CPR 3.9. There is a further qualification in the case of a secure or assured tenancy, where there is a statutory right at any time before eviction to apply for the date for possession to be postponed, or for execution to be stayed or suspended. Lady Justice Arden held that, in such a case, the requirements of CPR 39.3(5) need not be applied ‘with the same rigour as in the case of a final order that does not have this characteristic’, so as not to frustrate the intention behind the statutory provisions. In Bank of Scotland v Pereira & Others  EWCA Civ 241,  3 All ER 392, the appeal court considered the relationship between an application to set aside an order made at trial in a party’s absence and an appeal against the order itself. In that case, the defendant applied to set aside the order some two years after it had been made. Unsurprisingly, she failed on at least two of the tests in CPR 39.3(5), namely promptness and good reason for non-attendance at trial. While recognising that it is impossible to give rules to cover all situations, Lord Neuberger gave some general guidance. A party who believes they can satisfy the tests in CPR 39.3(5) should generally make an application to set aside the order, even if there are independent grounds for appealing the decision. If they cannot satisfy the requirements of promptness and/or a good reason for non-attendance, they should seek to appeal the original order. If the application to set aside the order fails, the party should generally seek to challenge that refusal, rather than appealing the original order. On an application under CPR 39.3, a party can put in evidence as to the merits of their case which was not before the court which made the order. However, in an appeal, a party will find it difficult to rely on evidence which was not before the trial judge if it would have been before the court had that party attended the trial. Two recent cases have considered the application of these decisions. In Fineland Investments v Pritchard 9/11/2011 Lawtel AC9300987, Mr Justice Norris gave some latitude to a litigant in person who made her application to set aside seven weeks after she knew of the making of the possession order, holding that she acted sufficiently promptly. However, she had not provided any medical evidence to support her assertion that she could not attend the trial through ill-health and therefore failed to establish a good reason for not attending, and she had no reasonable prospect of success on the merits. Her application accordingly failed. (It is not clear whether Mr Justice Norris was aware of the previous history of this matter – see  EWHC 113 (Ch), Lawtel 3 January 2011, and  EWHC 1424 (Ch), Lawtel 17 May 2011.) In Williams v Hinton  EWCA Civ 1123,  All ER (D) 162, the appeal court considered an appeal by landlords against a judgment made in their absence on their tenants’ counterclaim for damages for disrepair. Judge Gareth Jones had concluded that the landlords had known of the trial date and had chosen not to attend without explanation. The appeal court considered that the appellants should have applied instead to set aside the order but, as the appeal had been issued before Pereira was decided, the court went on to consider it before dismissing it. However, Lord Justice Gross emphasised the need for litigants to follow the guidance in Pereira. Although there is no absolute bar on a party seeking to appeal when the correct course would have been to apply under CPR 39.3, there would need to be ‘unusual facts’ before the court would entertain the appeal. From these cases, it seems that the answer to the question at the beginning of this article is generally that CPR 39.3(5) applies, but that in appropriate cases the court’s approach will be to apply the tests less rigorously.
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