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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