Archive for November, 2011

Dear Reader

Lord Chancellor and  Secretary of State for Justice, Ken Clarke QC MP, one of the ‘big beasts’ in the Tory party, has been in politics for a long time – a former Chancellor of The Exchequer – and (until recently?) regarded as one of the more liberal and informed members of the current government.

It was therefore a surprise to watch him express the extraordinary view on a YouTube film briefing a group of backbench peers in the House of Lords  (I paraphrase) that an “army of lawyers were advancing behind a line of women and children…not concerned with the income of the profession.. but are  only concerned that these vulnerable clients  will be adversely affected if they are not paid at the rate they currently are.”

I don’t practise law and, therefore, I am not open to the disingenuous charge of ‘cowardice’ implicit in the ‘advancing behind a line of women and children’ metaphor.

We live in difficult times.  Money is tight.  We also live in a country proud to assist the vulnerable and poor overseas.  The overseas development aid budget is protected.  The cynical may see this Tory policy to be part of a strategy to project ‘soft power’ abroad and to ‘facilitate’ enthusiastic commercial involvement with Britain. We live in a country where charity thrives, where provision is made for the vulnerable not by government but by the people.  We live in a country where lawyers like the author of the Pink Tape blog – thankfully – are prepared to write in detail about the erosion of access to justice through the pillage of the legal aid budget.

Barrister Lucy Reed, author of Pink Tape, does the biz with this most interesting blog post.  I don’t really need to comment further, save to say.. using the old cliche… “I concur”.

Above is a working draft / construct for one of the paintings I shall be doing in December as part of F*ckART Returns.. I shall do some law blogging, of course… but I fancy taking a break from  the daily grind and return to the more surreal side of law and life…. there is no shortage of material to comment on.. be sure.  I have the first paint down on the canvas for the painting above. Francis Bacon aficionados will, of course, recognise the inspiration and derivation of the ‘style and setting’. I am toying with the idea of calling the painting…. Disingenuous 2011..

The original F*ckArt series may be viewed here... this year it may well be darker?   We shall see…. I may find that I get the Christmas spirit…and change my mind, of course!

Best for the coming Advent..



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Friday seems to be upon us once again.. so time for Rive Gauche

I thought I would kick orf with a wonderful piece from The Guardian…

European judge slams UK ‘xenophobia’

The Guardian: Sir Nicolas Bratza criticises hostility of senior government figures towards European Convention on Human Rights

Europe’s most powerful judge has publicly complained about “senior members” of the UK government fostering hostility towards the European Convention on Human Rights.

Citing the “vitriolic” and “xenophobic fury” directed against judges on the European Court of Human Rights, Sir Nicolas Bratza has acknowledged that relations between Strasbourg and the supreme court in London are under “strain”.

Sir Nicolas, the UK’s own nominee on the court and currently its president, made his comments at a conference earlier this year but they have only recently been published in a law journal. The paper has been referred to approvingly several times this month by supreme court judges.

Read more…

Quality stuff…. and well worth a read.  Lord Phillips and Lord Judge gave evidence recently to a Joint Committee and this speech by Bratza is, I presume, the speech they referred to.  The film of Phillips and Judge giving evidence is also worth looking at.

Before the Gin & mango juice I am taking to exorcise a rather tedious cold I have takes hold – a few more serious pieces:  This from barrister Francis Hoare is an interesting read…

‘Defend the Children of the Poor and Punish the Wrongdoer’: Why the Government’s Legal Aid Reforms are a Recipe for Injustice

Huffington Post

And speculation continues on the sale of the College of Law.

Education Investor reveals: “Pearson is slugging it out for the College of Law deal with at least two private equity firms, EducationInvestor understands. The private college is considering bids from Palamon Capital Partners and Providence Equity Partners, as well as the giant education firm….

…The college is expected to fetch at least £175 million, but some put the likely value of any sale as high as £250 million.”

I’ve commented on this before on the blog.  Pearson was an obvious ‘contender’.  BPP – now with added University cachet – was purchased for a bit more than that by US firm Apollo some time back.  The two big beasts will be able to ‘slug it out’ as private companies if the sale of The College of Law goes through in the brave new dawn envisaged by David ‘Two Brains’ Willetts MP, Minister for Universities.

RollonFriday.com will, no doubt, be on the case soon – with a picture of CEO Nigel Savage mocked up to look like a looter, no doubt. In the meantime, they content themselves with a story about crap food at The College of Law’s Guildford branch. RoF is / are keen to expose crap food in law schools all over the country – so if you are a victim of crap food… enter the RoF competition

The Law of Unintended Consequences 101

Predictably, in the wake of the recent success for The Law Society in closing down the Solicitors from Hell website… this… as reported in The Lawyer:

Host of Solicitors from Hell-style sites appear following court action

But madness does not begin nor end there. Solicitor David Allen Green weighs in on ‘The Freemen’ quackery with a rather good piece in The Lawyer

The Freemen, law blogging, and the public understanding of law

Carl Gardner picks up an interesting twist to the Freemen story… Why would BNP activists be at a “freemen on the land” stunt?

Carl Gardner writes…“I don’t accuse “freemen” generally, and certainly not “commonly known as dom”, of supporting the BNP. No doubt many of them were unaware that BNP activists were present in Birkenhead. But it’s important for anyone who comes into contact with “freemen’s” pseudolegal ideas – especially anyone who thinks of themselves as a radical who meets them, say at a protest – to be aware of the right-wing nature, attraction and potential of “freemanism”. It seems the BNP are aware of it.”

Many lawyers like a drink.  Many lawyers may drink too much.  I have, on occasion, bashed the Rioja a bit at the weekend – fun though it is, it does take a toll on the head and the brain.

Law’s problem with alcohol is slowly being addressed – but is still hush-hush | Alex Aldridge

I read with interest this brutally honest and well written account of alcoholism –  Law Society Gazette: Anthony Bogan, a former Law Society Council member who stood for President in 1996, endured the terrifying realisation that he was an alcoholic, but found that there was light at the end of the tunnel

AND FINALLY… a few blogs and articles  which caught my eye…

Auntie Em from Legal Cheek writes: I want to jack in law to become an artist

Adam Wagner of the UK Human Rights blog comments: Rights on the rocks: Some Bill of Rights Commission responses

One way or another, by the end of this Parliament, rights protections in the UK will look very different. If you could pull yourself away from the spectacle of actor Hugh Grant giving evidence to the Leveson Inquiry into phone hacking, the main event in yesterday’s live legal transmission bonanza was the second debate on the Legal Aid and Sentencing of Offenders Bill in the House of Lords.

Although the bill is likely to pass, it is likely to do so in slightly revised form – knowledgable tweeters were predicting that the domestic violence and clinical negligence provisions were most likely to be affected.

Read more…

Lords give legal aid bill ‘a good bashing’

Jon Robins in The Guardian:  examines the highlights of the Lords debate on the legal aid bill being considered alongside welfare reform and health

And babybarista has this.. Those pesky solicitors – OldSmoothie complains that they should never have let solicitors anywhere near court

Old Square barrister saves a life on his way to court

The Lawyer reports: Old Square Chambers barrister Charlie Woodhouse has been hailed a hero by fellow members of the bar after an unlikely turn of events at the Central London County Court saw him go over and above the call of duty.

On Tuesday afternoon Woodhouse, who specialises in personal injury and clinical negligence, was making his way up a staircase en route to a courtroom when he witnessed a man tie a nylon rope around his neck and jump from the first-floor balcony.

According to sources, Woodhouse caught the man by the shoulders of his suit jacket and supported his full body weight for several minutes. He then managed to haul the man over the banister before police arrived.

Read more…

And end with a couple of tweets… enjoy Friday….

UPDATE: Unfortunately.. I woke up at 3.00 on Friday morning … far too early…and had to suffer the misery of early morning BBC telly News…. at 5.00… before the excellent Today prog on Radio 4

AND… really.. finally…

I shall.. naturally.. ensure that my ‘novel Snell on Equity Christmas Tree’ has  a fairy with very clean hands on top.

There are a couple of podcasts below which may be of interest….

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Lawcast 200:  James Vine on Bribery and social media

Today I am talking to barrister James Vine about Bribery and then his thoughts on social media.  James is also a farmer, enthusiastic tweeter  and author of The Bung Blog

Listen to the podcast

(Sorry, but there were a few helicopters going by as we recorded  – the pleasures of living in Battersea-on-Thames.)


And…thank you to Cassons For CounselJustgodirect.co.uk and  David Phillips & Partners Solicitors , Contact Law UK Solicitors for sponsoring the podcasts and the free student materials on Insite Law.

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Lawcast 199: Ashley Hayman on taxation and tax planning for Barristers

Today I am talking to Ashley Hayman, senior partner of Cassons for Counsel Chartered Accountants, about certain peculiarities that relate solely to barristers and which are not always picked up by non bar specialist accountants.

1. Compliance matters – there are certain peculiarities that relate solely to barristers and which are not always picked up by non bar specialist accountants.  Barristers need to know to watch out for it!
a.     For their first 7 years, barristers are taxed on the cash basis as opposed to the earnings basis (ie what they are paid as opposed to what they bill).
b.     They are then subject to a catch up charge for any unpaid tax once they reach 7 years.  This can be spread over 10 years – the spreading charge.

2.  Watch out also for changes to the late penalty regime.  We know of barristers who pay estimated amounts for the tax bill but who have not submitted a tax return.  So far there has been no penalty as tax has been paid.  The regime changes for April 2012 when both tax return and tax payment have to be submitted on time otherwise penalties will be incurred.

3.  Tax efficient planning
a.     Pensions
b.     VCTs  (Venture Capital Trusts)
c.     EIS (Enterprise Investment Schemes)
d.     ISAs
e.     Choice of year end date
f.      Tax efficiencies via Chambers (eg TPAs  – see Ashley Hayman’s article in Counsel)


Listen to the podcast


And…thank you to Cassons For CounselJustgodirect.co.uk and  David Phillips & Partners Solicitors , Contact Law UK Solicitors for sponsoring the podcasts and the free student materials on Insite Law.

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Welcome to Without Prejudice one on one with David Allen Green.  We have a spirited discussion about a range of issues – Hackgate – Freemen ‘Cod’ Law – Politicisation of judges – Legal Aid – Privacy Law.

David Allen Green is a practising solicitor, author of The Jack of Kent blog and legal correspondent for The New Statesman.  He also covers media matters for The Lawyer

It is fair to say that the format was more discursive.

Listen to the podcast


In association with The Lawyer

I’d like to thank Lawtel, WestlawCassons For Counsel, City University Law School David Phillips & Partners Solicitors, Inksters SolicitorsIken, LBC Wise Counsel, Carrs Solicitors,  JMW Solicitors – Manchester, Pannone and Cellmark for sponsoring the podcast  – and the free student materials on Insite Law – appreciated.

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Professor JR Spencer QC University of Cambridge, has pointed out that the latest episode of Garrow’s Law was a travesty.

“The first instalment of the new series of Garrow’s Law (The weekend’s TV, G2, 14 November) showed William Garrow, habitual advocate for the underdog, defending the madman Hadfield, accused of high treason for shooting at King George III. It was a travesty. The heroic defender who secured Hadfield’s acquittal was not Garrow, but Thomas Erskine. Garrow was indeed involved: but as junior counsel for the crown. So his role was precisely the opposite of the one the BBC assigned to him.”

The Prof is, of course, correct – but I am not over bothered.  It is only telly after all.

RollonFriday.com continues to be the scourge of the law schools with their latest revelations about the College of Law…

Exclusive: College of Law agrees compromise over student fees dispute

The College of Law has shown an unlikely chink in its armour by offering a compromise to settle a claim against a student for non-payment of its fees.

Recently the College’s solicitors, Nelsons, have been claiming the full amount of fees from students who accepted a place on their courses but then withdrew before the course started. But there is at least a glimmer of hope for students who would prefer not to fund Ferraris for the College board without ever having received a single lecture in return.

One student has told RollOnFriday that when he cancelled his place after the CoL’s deadline, Nelsons pursued him endlessly for £4,080 in fees. Eventually he gave in and sent them £2,000, saying that that was all he could afford. And while Nelsons wrote back to say that this wasn’t acceptable, it did indicate the College would be prepared to take £3,080.

Read more…

Interestingly.. as one commenter on the RollonFriday site pointed out – one assumes that the College of Law is suing for loss in Contract Law for the students who withdrew –  which raises questions of mitigation (Did they fill the place withdrawn from?) and damages for loss sustained et al.   [From memory – law schools are validated to run courses for a specific number of places.  I assume that the College of Law is subject to a maximum on each validated course]

I taught Contract law for 30 years.  In fact I have a free textbook online with lectures on the subject.  I seem to recall there are five general principles which I quote from my book:

8.2 Damages for Breach of Contract – General principles

The general principles applicable to damages claims can be summarised as follows:

1. Breaches of contract are actionable per se

2. The object of damages is to compensate

3. There is a requirement to mitigate loss

4. Damages can be recovered only for loss sustained

5. The loss must be caused by the breach.

I would have thought that the College – even in these dark days – would have had no difficulty filling the  ‘withdrawn from ‘ place on the course. Puzzling.  I may have to revise my own knowledge of penalty clauses, terms and conditions, object of damages and quantum.   I have downloaded The College of Law terms and conditions for some light bedtime reading.

It being Friday – and Rive Gauche day – here is something not only from ‘left field’ but orf the farkin planet.  The film shows a group of ‘freemen’ (and assorted tin foil hat wearers ?) arresting a ‘treasonous judge’ and seizing a court.  This is world class nonsense – the claimant standing on the table asserting some fantastic cod law, citing Magna Carta and claiming that HM The Queen will back him up.  Remarkable and well worth a watch to see how little some people know about our  law. The comments on the YouTube film are ‘revealing’.

Just to take you unawares – I am slipping in a bit of sensible law.  Neil Rose at Legal Futures is always worth reading if you want to keep up with what is going on in the world of practice and alternative business structures et alThis latest piece is worth a look.

Is it time to split the Law Society and the SRA?

I particularly enjoyed this tweet from Neil Rose…

And still in the realm of the serious…  but interesting… this from the United Kingdom Supreme Court blog caught my eye as I took some Gin and Mango juice on Thursday night: It is a truth universally acknowledged …

… that white men in possession of large fortunes are overly represented on the bench. Yet, while it is easy to label the judiciary as “too white, too male, too posh”, constructive solutions to the situation have proved difficult to implement. The 2010 report on judicial diversity recognised that “there is no quick fix to moving towards a more diverse judiciary … Sustained progress on judicial diversity requires a fundamental shift in approach from a focus on selection processes towards a judicial career that addresses diversity at every stage.” It is hoped that the current inquiry being carried out by the Lords Constitution Committee into the appointments process contributes a step towards this shift in approach.

Read more…

One of the “great unspoken problems” about human rights law

Rosalind English, 1 Crown Office Row, writes: “... is at the core of Jonathan Sumption QC’s  FA Mann Lecture.  His central point is not human rights as such, but our misconception of Parliament and the perceived need for judicial constraints on the action of the state.”

Given that Jonathan Sumption QC is about to take his seat in the Supreme Court after finishing the The Battle of The Oligarchs case – the post is worth a read.

And this from Editor of Legal Week, Alex Novarese is excellent: If judges don’t want to get involved in politics, maybe they should stop giving speeches

I enjoy popping over to Alex Aldridge’s latest blog Legal Cheek.  We share a taste for winding lawyers up – and, on occasion,  each other.  This latest post from a young woman seeking a training contract is interesting: KEEP CALM AND CARRY ON

The hidden burden of the general counsel role

Paul Gilbert, writing in the Lawyer blogs section, states: In another life I once held positions as general counsel in two major companies and so watching the News International phone hacking story play out in the press and on television I cannot help having a thought for Tom Crone and wondering what he must be going through now and what it was like for him when he was at N.I.”  Read more…

Well.. mustn’t overdo the law for Rive Gauche… so.. on to other matters of interest…first:  the Human Condition…

A selection from the tabloids: Drunk zoo visitor ends up in hospital after climbing into monkey enclosure ‘to playPilot causes mid-air terror scare by locking himself in toilet and then sending passenger ‘with Middle Eastern accent’ to cockpit for help| PC Anthony Wallyn is Britain’s tallest police officer at 7ft 2in

And… on that note... Salut to you for Friday… orf for a bit of BBC Question Time and read the ranters view of it on twitter..

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Will those legal aid lawyers stop at nothing?
Chris Gawne, Medical Negligence Partner and birth injury specialist at Pannone examines the spin behind the removal of legal aid for medical negligence cases.

“In the lobbying of this house and the upper house we have had an army of lawyers advancing behind a front row of women and children – vulnerable claimants who say they would not be represented if they are not paid as much as they are now. I am afraid I do not believe that.”
Kenneth Clarke – Justice Secretary

Referring to the Legal Aid, Sentencing and Punishment of Offenders Bill (LASPO) which will be debated by the House of Lords in the coming weeks, this is the view of the Justice Secretary who suggested in a House of Commons debate that we solicitors are using vulnerable clients as a front to protect our own interests. Has the sharp legal mind of the Justice Secretary rumbled clinical negligence lawyers? Is it all a sham?

The simple facts are that legal aid for medical negligence cases is currently only available for those on benefits and those in households with very low incomes. Because of the strict financial eligibility criteria, legal aid tends to be used most often for children’s cases. Quite rightly, legal aid is only available where the likely value of compensation is significant. Those whose compensation is likely to be significant tend to be the more seriously injured. Often legal aid is used to fund investigation of claims for children with birth injuries.

These cases can only be investigated through reports from independent expert doctors who will advise on whether negligent care was provided and, if so, whether it caused injury. The NHS will only pay compensation where the claimant can prove his case using independent medical expert evidence (sometimes they are pretty resistant even then, but that is another story). In the absence of legal aid from the likes of Barristers Stobart, even if solicitors are willing to work for nothing, somebody will have to pay for those reports to be obtained. So it is those with very limited means and significant injuries; often children, those with brain damage from birth injuries, those with cerebral palsy; those who will require hip replacements in their twenties because hip dysplasia was not diagnosed, truly vulnerable people who stand to lose out under LASPO.

Ken Clarke is right in one respect: people shouldn’t worry about the lawyers. We can and will find a way to survive and prosper. Some of those clients whose cases are currently pursued using legal aid will be able to use alternative funding. But many won’t. Legal aid in medical negligence cases is performing exactly the role it should: that of a safety net for people with no other options to ensure that their rights are protected. LASPO removes that safety net.

Don’t just take my word for it. Even Jackson LJ, author of last year’s long awaited and influential report on the costs of civil litigation, and one who is hardly seen as an apologist for solicitors representing claimants in injury litigation, has gone on record that LASPO is wrong to remove medical negligence from the legal aid scheme:

“Let me make it plain that cutbacks in legal aid are contrary to the recommendations in my report… of all the proposed cutbacks in legal aid, the removal of legal aid from clinical negligence is the most unfortunate.”
Jackson LJ, 5 September 2011, Cambridge.

Even the body which represents NHS Trusts in medical negligence litigation is in favour of retaining legal aid for medical negligence claims:
“We question whether CFAs are likely to be readily available to fund many of the more serious claims currently brought via legal aid, particularly those involving brain damaged children and adults…Overall we are strongly in favour of retaining legal aid for clinical negligence cases using current eligibility criteria.”
NHS Litigation Authority,
Response to MOJ Consultation on the Reform of Legal Aid

But the views of Jackson LJ, the NHSLA as well as those of the vulnerable people who would be affected by LASPO and those of us who represent them, fell on deaf ears. Kenneth Clarke is continuing to contest the importance of public funding in enabling children injured at birth access to the justice they deserve.

LASPO has passed through the bastion of democracy that is the House of Commons. In the coming weeks, ironically, but not for the first time, it falls to the privileged, unelected members of the House of Lords to protect the most vulnerable members of society.

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While Lord Judge expressed reservations about judges being called before Parliamentary select committees too often, It was fascinaing to watch as The Right Honourable The Lord Judge,  Lord Chief Justice of England and Wales, and The Right Honourable The Lord Phillips of Worth Matravers, KG, President of The Supreme Court gave evidence on the impact of the Human Rights Act and the relationship of domestic law and the European Convention.

The Guardian noted:

They were both asked by the Liberal Democrat peer Lord Lester whether UK courts have been too strict in following ECHR case law. “We have a tendency to be too strict,” Phillips said. “We pay great attention to the decisions and rulings of higher [UK] courts. That’s what we are used too and sometimes we do it too much. Perhaps we analyse it in too much detail.”

Judge said that he agreed “with great emphasis”. He added: “We have approached a lot of the decisions of the European court system in the manner we would approached a decision of our own court. I think we have not been sufficiently flexible.

“Most of the decisions [in the ECHR] are not dealing with principles they are dealing with facts and that’s not a precedent for anything.

“There’s been a tendency to follow much more closely than we should. I think judges are generally aware of this and are examining the decisions of the [ECHR] much more carefully to see whether they are just looking at facts or principle.”

The archive film of the evidence given by Lord Judge and Lord Phillips is a must watch for law students and will be well worth a watch for all interested in human rights law.

Watch the film

And so to… ‘cod’ law.

Carl Gardner writes at his Head of Legal blog: Hilarious – but dangerous – cod legalism

I wrote in August about the ridiculous “freemen on the land”, and didn’t expect to return to the subject – but have written a piece for Comment is Free today in response to yesterday’s contribution from “commonly known as dom”. What he said was rightly criticised by both Legal Bizzle and Adam Wagner at the UK Human Rights Blog but I’ve taken a slightly different angle – focusing on why protesters and the left, in particular, should give freemanism short shrift:

The “freemen on the land” meme isn’t just dangerous: it’s politically unattractive, too. Freemen’s love of common law seems romantic at first, until you realise it implies a wish to turn back the clock to a time before democratic legislation, a time when some people really were lucky to be free and when others really were enslaved.

All of the links are worth a read. It is remarkable how many, including professional journalists, seem to get  the law wrong – a point noted wryly by Lord Phillips when he gave evidence to the select committee.

And.. this idea may not prove to be the most sensible way of getting a pupillage?


Jobless law graduates should follow the St Paul’s protesters’ example, argues OccupyTheInns

As the Occupy Wall Street camp is cleared, and the City of London commences legal action against the Occupy London protesters, why am I proposing the occupation of the Inns of Court? Simple. Because I, and many law graduates like me, are angry. As we have seen in Egypt, New York and at home in London, anger can be a great energiser.

Through no fault of our own, a generation of Bar Professional Training Course (BPTC) and Legal Practice Course (LPC) graduates find ourselves with no jobs – or no jobs as lawyers anyway. The lucky ones are paralegals. The unlucky ones work in bars (not the Bar).

Read more….

I sympathise – although, it is fair to point out that most law students know the odds when they start the BPTC (Bar Professional Training Course).  The odds are stacked against new entrants to the profession – particularly The Bar side.

I have a feeling that any plan to occupy the Inns of Court on the part of angry prospective barristers may lead to ‘unintended consequences’.  We shall see (a) if anyone comes forward with a tent and, if they do (b) whether this direct action leads to offers of pupillage.

Finally… back to some good legal analysis…

Carl Gardner writes:  “Yesterday the joint committee of the Lords and Commons on privacy and injunctions took evidence from bloggers including not only the notorious Guido Fawkes, but I’m pleased to say my old Without Prejudice colleague and leading law blogger David Allen Green, who of course was able to give evidence from the point of view not just of a blogger but of a media lawyer.”

I am doing a podcast with  David Allen Green on this issue and #Hackgate – and anything else we fancy talking about –  tomorrow evening.

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How to become a barrister seventies style…
BY The White Rabbit

They did indeed do things differently then. To say I became a barrister by accident overstates things but the haphazard did figure prominently. My degree is in economics – a subject as to which I know nothing and care less if it is possible to care less than nothing – as is evidenced by my financial arrangements or conspicuous lack of them. After graduating, I got by variously as a builder’s labourer, a play leader in an adventure playground (!) and, via a year’s tedium at the British Standards Institute before becoming the first person in the history of that body to be sacked, as a schoolteacher. In those days anyone possessed of a degree and sufficiently desperate for a job could walk into London’s County Hall and leave having a ‘temporary’ placement in a London school. Thus sacked by the British Standards Institute, I repaired to County Hall.

I ended up at Stockwell Manor in south London, shortly after the conviction of a number of pupils of that educational emporium for a murder planned in the school playground. I was sent to the H Block (yes, it really was called that), supposedly a place for the education of the slower learner and pal the less able child but also used as a dumping ground for bright black pupils who kicked over the traces. I resolved that if I didn’t like it then I was outta there as soon as possible; I was not going to be a career teacher and also decided that if I did like it, I would stay for a maximum of two years.

I loved it. But at the beginning of the second year, I reminded myself of the promise – no more than two years. I considered the possibility of doing the bar exams (they were reputedly easier than solicitors exams). Problem: there were all sorts of fees and there was no grant (younger readers will excuse the ‘g’ word) for what was then the Bar Part I course. I had two year’s teacher’s superannuation, which could then be cashed in and with signing on in the holidays (I’m pretty sure you can’t do that anymore as a student) and working my way through a list of educational charities I could probably get by for a year except for one problem. There were fees for everything: fees to join an Inn, fees for the course, blah, and blah. I decided to apply the Diceman principle. For the uninitiated, the Diceman is a novel by Luke Rhinehart. The idea of the novel is that there is a guy who takes every decision in his life, from the most trivial to the most momentous, by the throw of the dice.

In the particular case, the dice were a Duke of Edinburgh scholarship. If I got one the fees would be paid and doing the Bar Part I became a runner. There was nothing indicating that applicants had to hold the Duke of Edinburgh in good opinion. So it was resolved. I would apply for the scholarship and if I got it, I would do the Bar Part I.

And if I didn’t get the scholarship? Oh yes, I had a plan B. I would cash in my superannuation and head off to the States and become a Deadhead, following the Grateful Dead – a popular beat combo – from concert to concert until the money ran out or something otherwise happened. I wonder from time to time how my life would have been if I hadn’t got the scholarship and implemented plan B instead.

As you will have guessed, I got the scholarship. I duly completed the Bar Part I’s. It is embarrassing to record that I did rather well in the bar exams. ILEA of blessed memory gave me a grant and paid my fees to do the Bar Finals (yes, younger readers, that sort of thing actually happened).

In Bar Finals year, the question of pupillage reared its ugly head. They did things (very) differently as regards pupillage then too. I wrote to the late, great John Platts-Mills QC. ‘Tell me O wise one’ I didn’t quite write. ‘I am sure there are no pupillage opportunities in your set for one as insignificant as I, but could you advise me as to how to get pupillage?’ Bless him, he took the hint.

‘It is very kind of you to offer to do pupillage in my chambers’ wrote the great man. I paused to ponder my kindness in so doing and read on. I’d better use initials for now on. I was to present myself to S, who was in charge of pupillages. ‘Just do a first six with us’ he advised. ‘It’s most unlikely we will offer you a tenancy and you are better placed to find a tenancy wherever if you do your second six somewhere else’. This was good advice.

I was sent to see W.

‘Are you political?’ he asked. The chambers were well-known for – well – politics.

My answer was too embarrassingly pompous to record even after all these years. I was young and excitable. Suffice it to say that it was not well received by W who I suspected of coming from a different part of the woods – the one that saw soviet tanks as an entirely reasonable instrument of foreign policy. John Platts-Mills, who was otherwise delightful, also had a weakness for soviet tanks. I was sent down the corridor to see D.

‘Are you political?’ he asked.

‘Yes’ I said somewhat wearily.

‘Well I’m not’ he replied.

‘Oh good’ I thought. I agreed to start pupillage with D.

There remained the problem of the second six pupillage. This was resolved in a dodgy – and now closed – pub in Brixton called the Railway. I met a friend there called L who worked for Lambeth Law Centre.

‘Have you got a second six yet?’ she asked me.

‘No, not yet’.

‘Come and meet the chambers we instruct’ she said. A big part of the Lambeth Law Centre’s work then was defending local youths prosecuted under the ‘sus’ laws. In the corner were J and N, both still friends. They were attired in badges saying ‘STAMP OUT SUS’ and appeared somewhat the worse for wear, drink plainly having been taken. I had a second six pupillage arranged before they sobered up.

So that is how it was done back in the day. Frankly, pupillage is like prison, hospitals and airports, all anyone wants to do is get it over with and move on. What happened in pupillage? I remember various odd things: an elderly German lady bringing a harassment action against her landlord. ‘And zen he threatened me with violins’ she announced. She meant violence. The late Auberon Waugh glared me at in the canteen at the Bailey. I hadn’t done anything. I think he just glared on principle. I felt honoured in some bizarre way. I earned £10 per issue libel reading the Labour Party Young Socialists’ paper. All I can remember about that was that it was buttock clenchingly dull and that the only time I advised then that something might be defamatory they said ‘so what?’ and published it anyway. Still, the tenners came in handily. I was able to take on my own cases in my second six. I went down to the Camberwell Green Magistrates’ Court to defend in ‘sus’ cases. Largely unsuccessfully, it must be said. The Brixton riots followed and the  ‘sus’ laws were repealed not very long afterwards.

Footnote: the portrait of John Platts-Mills is by his wife Janet, who was an artist of some note. The walls in his room in chambers were covered with paintings by her. There was also one other painting that was in stark contrast with the rest. It was the kind of painting a child would do: a hill as green bump below a blue sky, a house with four windows and an elongated rectangle as a door, a red roof and a puff of smoke from a chimney. Seemingly taking up all of the bottom right quarter of the painting was the artist’s signature…



BY The White Rabbit

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Medical Negligence Claims To Reduce Significantly Whilst Negligence Rises?
BY 1st Claims for Medical Negligence
The proposed changes to No Win No Fee Medical Negligence Claims which will, if they proceed, mean that the innocent victim will no longer be able to keep all of their compensation. Whilst at the moment the success fee is paid by the losing party, on many occasions the National Health Service, the changes suggest that this should now be paid for by the claimant. Imagine on the one hand explaining to your client that their claim is worth £500,000 and that is the amount needed to rebuild their life, and then in the next sentence explaining that they will only receive £375,000 as you need the rest to pay your legal fees. How long will it take, do you imagine, for the press to pick up on this and come chasing after these “money grabbing” lawyers who are taking lots of money from all of these innocent medical negligence victims? Can you already see the pressure you are going to face to stop taking your success fee from the victim?

Yet we all know that in medical negligence cases there is a much more significant risk that you will lose a claim as against a standard personal injury claim. So on many occasions you will be carrying out all of the investigatory work necessary to establish whether there is a viable claim only to find out that you cannot proceed, and all of that work which is supposed to be compensated by your success fee from other cases will not be paid for.

The harsh truth is that this will make you much more careful about which claims you can or cannot take on. You will only be able to act for clients with high volumes of compensation and low levels of risk, vastly reducing the victim’s access to justice. What is perhaps more important, and more frightening, is that this means that in a high percentage of cases where there has been negligence no action will be taken. That will leave practitioners free to continue to keep on committing the negligence without punishment or improvement in systems being made, leading to more people suffering. As so often happens with this country we focus on the symptoms not the cause. If the Government put as much time focusing on the cause of all of the medical negligence, rather than trying to stop people making claims, we would live in a country with far less medical negligence, far less injury, and far less suffering for innocent victims.

1st Claims for Medical Negligence, Whiplash & Personal Injury Claims 

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The Real Impact Of Changes To Referral Fees
BY Loyalty Law
Whilst all solicitors are rightly focusing on the impact that banning referral fees will have on their business model; namely going from a steady supply of new client leads to suddenly having to generate all new enquiries themselves, there are other perhaps even more important matters to consider.
I believe that the biggest problem with these changes will come some months after the new rules (whatever they are when they are finalised) have been put in place. At the moment clients can make a claim following an accident and keep all of their compensation which I believe is the only fair model. After all, one day a victim is minding their own business, the next someone has injured them and their life might be changed forever through no fault of their own, so why should they then suffer financially too?
However, Jackson believes that the claimant should have a financial interest in the claim, so is suggesting that any after the event insurance premium, and the success fee (capped at 25%) should be paid out of the claimant’s compensation. So in future the court or a negotiated settlement will tell a victim that they need £500,000 compensation to rebuild their life, and then if Jackson gets his way in the very next breath up to £125,000 will be taken straight off the victim to cover legal fees. Clearly that is not fair.

However, that is just one small part of the problem, because in my opinion with a few months of this system coming into place, the press will start attacking solicitors for taking compensation from these innocent victims. They will not be interested in the fact that it was the Government who changed the law to make this happen. They will have no concern that the success fee is designed to compensate you for running every case without payment of your legal fees until the end of the action, or that it is also designed to cover all of those cases that you run to trial but which ultimately fail, leaving you with absolutely no payment for all of your time and effort.
No, all they will care about is making sure that no solicitors ever charge a success fee, leading to a huge reduction in the number of firms who can act for accident victims, and a dire reduction in the quality of service available for personal injury clients.
Loyalty Law for whiplash claim compensation, accident and injury claims experts


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Not a sunny day in Tuscany
Charon 2011 (ish)

I developed a taste for Italian wine and the language (which I speak astonishingly badly having completed 16 Chapters in the BBC book Buongiorno Italia) some years ago in Tuscany. Interestingly… it isn’t always sunny in Tuscany.  The Italians did, after all, have a word for ‘Ombrella’..and it wasn’t always for sun…

I feel like painting again… so… I hope to bring F*ckart back from 1 December…


I haz paints, boards, brushes and a KNIFE!!



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And… on that note… back on the morrow with a blog about law bloggers… and… I may even have time to do a ‘Postcard’..

It is fairly obvious that I am not enamoured of ‘technocrats’.

Bread and circuses.. or as we say at The Duck and Biller... a fine bar in my imagination…  …. panem et circenses…  aided by Wikipedia… “is a metaphor for a superficial means of appeasement. In the case of politics, the phrase is used to describe the creation of public approval, not through exemplary or excellent public service or public policy, but through diversion, distraction, and/or the mere satisfaction of the immediate, shallow requirements of a populace.The phrase also implies the erosion or ignorance of civic duty amongst the concerns of the common man (l’homme moyen sensuel).”

Jeez… tell me that Prime Minister Camcorderdirect didn’t get his farkin Big Society idea from Wikipedia?  Nothing, however, would surprise me.

I did like this quote – also in Wikipedia – “American author Robert Heinlein said, “Once the monkeys learn they can vote themselves bananas, they’ll never climb another tree.”

Enjoy the weekend…

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I am doing a podcast on this astonishing issue with Jack of Kent over the weekend… should be interesting.


In the meantime, you may enjoy this wonderful stuff from Private EyeDon’t tell him, Pike

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In this Without Prejudice ‘Special’ I talk with Carl Gardner about a range of quite important topical issues:

The recent speech by the Attorney-General Dominic Grieve on Human Rights, The European Court of Justice and the principle of subsidiarity

The impact of the Assange judgment on European Arrest Warrants

Lord Chancellor Ken Clarke’s new sentencing proposals on mandatory life sentences and knife crime

The Brodie Clark v Home Secretary spat:  In particular we consider the potential problem of Absolute Parliamentary Privilege being invoked on Theresa May’s statements in Parliament and the potential for an unfair trial should it be an issue.

Legal Aid cuts and the rise in DIY lawyers

All in all a spirited and lively discussion which we hope you will enjoy.  It is about an hour long – so you may wish to take it in ‘bites’.

The picture above showing my absurd tache is for my ‘Movember’ support of prostate cancer charities.  Having suffered from prostate issues – caught early, fortunately, I am more than aware of the value of screening and speedy treatment.  I also happen to enjoy absurd taches.

Listen to the podcast


Brodie Clark’s tribunal claim – and Parliamentary privilege

Carl Gardner analyses – in great detail – the Parliamentary privilege point we discussed in the podcast – a good read.


In association with The Lawyer

I’d like to thank Lawtel, WestlawCassons For Counsel, City University Law School David Phillips & Partners Solicitors, Inksters SolicitorsIken, LBC Wise Counsel, Carrs Solicitors,  JMW Solicitors – Manchester, Pannone and Cellmark for sponsoring the podcast  – and the free student materials on Insite Law – appreciated.

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In the wake of allegations on Newsnight tonight about  Farrer & Co’s involvement in #Hackgate and the setting of the surveillance dogs on solicitor Mark Lewis – picked up by RollonFriday.com today…..

Sources have told us that the behaviour of Julian Pike, a prominent Farrers’ partner, is to be the subject of a report about News International and the on-going hacking cases. And the allegations against him are explosive. It’s alleged that Pike suggested that News International instruct private investigators to look into the backgrounds of lawyers representing phone hacking victims. Sources say that the private investigators were told to obtain birth certificates of the one of the partner’s children…..

It is just as well Julian Pike has a reputation for reputation management.  He will be able to phone himself up and take some advice to deal with this explosive issue?  I suspect, if these allegations are true (one assumes that Mr Lewis and the BBC know what they are doing in reporting the issue?), that Her Majesty will not be amused – given that H M the Queen is Farrer & Co’s most important client.

The Guardian considered the issue this morning…. News of the World hired investigators to spy on hacking victims’ lawyers


BUT.. it isn’t all doom and gloom down at Farrer & Co…

Farrer & Co named London Legal Team of the Year at the STEP Private Client Awards held last week

Date Posted: 20/09/2011

Farrer & Co were named London Legal Team of the Year at the Society of Trust and Estate Practitioners (STEP) Private Client Awards last week with the following words from the judges: ‘Our winners  have skilfully fused a famous history of effective advice giving, with a thoroughly up-to-date and open approach to their clients’ issues. This is not an easy balance to achieve, and their youthful, wise and energetic leadership sets a suitable tone.’ Jim Edmondson (Joint Senior Partner) and Mark Bridges (Partner) collected the award from Alistair McGowan.

(HT @PegasusCorpInfo)

The BBC reports:

The Metropolitan Police gave Mr Lewis documents, including emails from March 2010, which indicate a partner at News Group’s lawyers, Farrer, raised the idea of surveillance.

Newsnight’s Richard Watson says Derek Webb has spoken out because he says he is owed money by News International

But there is no evidence surveillance was commissioned by Farrer as a result and the firm told Newsnight it could not comment without permission from its employers, which it did not have.

Mr Lewis told Newsnight that he was “devastated” to hear the revelations.

“To follow my teenage daughter, my youngest daughter and video her is nothing short of sick,” Mr Lewis said, urging that the matter be investigated.

AND FINALLY… here is a transcript of evidence given by Julian Pike to the Culture, Media and Sport Select Committee in relation to #Hackgate – worth a detailed read.

And… it is, of course, not a criminal offence to engage in surveillance – assuming that no burglary or other criminality involved!

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“Fairness and equality are central values of the law, and the courts should reflect this. Everyone should be able to see the courts as their courts, there for all sections of society and not just for some.”

Baroness Hale, Justice of The Supreme Court of The United Kingdom

Lady Hale, rightly, has expressed the view that the judiciary is not diverse enough – drawing attention to the fact that she remains the only female justice in The Supreme Court.  Jennifer MacLeod, in The Guardian, has an interesting article on the theme: Resistance to diversity among judges is misguided and writes “Lady Hale’s right, diversity is a constitutional issue but a more representative bench would make for better decisions.”

It isn’t, of course, simply a matter of gender diversity. To gender we must add ethnicity and background – or, to be blunt about it, class background.  Professor J.A.G Griffiths published a seminal book in 1977 – The Politics of The Judiciary. I remember reading it and enjoying it at the time. The charge was made that the English judiciary was middle aged, middle class and white.  Middleminded may well have also been mentioned as an epithet.  I can’t recall if Griffiths or  another commentator  added the latter.

I found this on Google when I searched for Griffiths’ book… I just cannot resist..

Wikipedia, interestingly, notes Lady Hale’s membership of The Athenaeum.

I’m afraid I tend to the Groucho Marx school of thought about clubs these days: “I sent the club a wire stating, PLEASE ACCEPT MY RESIGNATION. I DON’T WANT TO BELONG TO ANY CLUB THAT WILL ACCEPT ME AS A MEMBER.”

I will admit to having been a member of several – East India, Reform and Queen’s Club – the latter two as part of a corporate deal.  I believe that I am still a member of The Union in Soho – but haven’t been for years and my membership may have lapsed.  I  was not a member of The Groucho Club in Soho but I had far too many amusing evenings there as a guest to need to be or wish to be.

Anyway, I digress – back to diversity and the best judge for the job.  The clue is in the last phrase ‘ the best judge for the job’.  I am all for diversity – but I am not keen on positive discrimination or tokenism;   it demeans the appointee and does not serve the system well.  In that, I am possibly in a minority – but I can see no benefit in selecting second best.  The better question is – are women, ethnic minorities and those from less privileged backgrounds getting a fair crack of the whip? I am not a practitioner.  I am not a sociologist – but I do keep my eyes and ears open and I have come to the view that there is a fair amount of ‘bird flocking togethery’ going on in the legal profession and this leads me, ineluctably, to a personal conclusion that the answer is NO.

I do accept that the profession is trying to bring in greater diversity.  I do accept that the selection of judges is more open – but I suspect that we have a fair way to go before we get a genuinely diverse legal profession and judiciary – a judiciary which is representative of society as a whole and one which will be more highly regarded because it will be seen to be so.

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Gone Writin’…

Taking a very short 2-5 day break to write about things other than law – and also to plan “Van Rouge” Tour.

Haven’t had a break since 2006 – time for a few days off…. possibly….  may be tweetin’ and bloggin’ light… for a few days.

A duck texted me earlier after learning about the imprisonment of the Pakistan cricketers….”I shall be giving up bowling no balls… and stick to insider dealing on the stock exchange and short selling.  The authorities don’t seem to be as bothered by the latter!”

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“From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law. This noble ideal cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him.”
Gideon v. Wainwright (1963)

On the 25th August 2011 our deputy prime minister, Nick Clegg, said “I will refuse to let human rights laws be weakened” – but these words are meaningless if those who need to claim their human rights before a criminal or civil court of law have to do it themselves because they cannot get legal aid to pay for a lawyer. It is ironic that our prime minister, David Cameron, is now lecturing overseas countries on their human rights, threatening to link British aid to human rights issues, while at the same time presiding over a government which has reduced access to justice in our country through a desire to reduce spending on justice.

The Guardian notes: Liberal Democrat push to amend legal aid reforms provokes fury – “MPs accused of ‘trying to have their cake and eat’ it by voting against Labour amendments that had same effect as their own.”

Obiter J, writing on his Law and Lawyers blog notes:  “Rights” without access to justice are not rights at all” and quotes Lord Pannick…

‘There are countries where the Government win all their cases in court – but they are not places in which any of us would wish to live.’ Well, buckle up people, because the legal aid bill before parliament is a last call to all passengers on a one-way ticket to just such a country.

This is an extract from an excellent article describing how the legal aid cuts will effectively remove access to justice from the vast majority of people.  If you read nothing else, please read  Justice Gap – Jules Carey –  “What price liberty?  Too much for legal aid.”

Obiter J then goes on to draw attention to a thoughtful piece by barrister Lucy Reed in her Pink Tape blog:

The Pink Tape blog looks at whether Judicial Training will ameliorate the problems caused by a surge in litigants-in-person.  The answer is not encouraging and such litigants – usually ordinary people fighting for their rights – will often be facing the power of government with a bottomless purse and no restrictions on the lawyers they can hire to fight their corner.  Litigants in person are at an enormous disadvantage.  The law is difficult and it is, as Chief Justice Coke said many years ago in words aimed at King James I:

” … an art which requires long study and experience, before that a man can attain to the cognizance of it; …”  Case of Prohibitions del Roy [1607] EWHC J23 (KB); 77ER 1342; 12 Co rep 63.

It is utterly wrong to expect the ordinary citizen to represent themselves before courts and tribunals with their complex law and procedural rules.  “Rights” without access to justice cannot be properly described as rights at all.

I leave you with this quotation: All human beings, whatever their cultural or historical background, suffer when they are intimidated, imprisoned or tortured . . . We must, therefore, insist on a global consensus, not only on the need to respect human rights worldwide, but also on the definition of these rights . . . for it is the inherent nature of all human beings to yearn for freedom, equality and dignity, and they have an equal right to achieve that.”

No.. it was not prime minister David Cameron lecturing the Commonwealth leaders last week… it was the Dalai Lama who spoke these words. He has a point – and we will be all the poorer if we end up blithely talking about human rights and the rule of law – without the means to provide a decent rule of law to those who need it.

Our MPs appear not to understand that the relatively modest cost of legal aid – compared to the billions spent  on wars and overseas aid – could be more important than these latter ‘cost centres’  to the well being of our country.

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They didn’t have twitter in 1111…. but if they had… you betcha… I’d have tweeted…. 1.11.1111

and it is worth noting that this year… Remembrance Day will be respected at

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