Archive for November 17th, 2011

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for loss in Contract Law for the students who withdrew –  which raises questions of mitigation (Did they fill the place withdrawn from?)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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