Archive for November, 2011

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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