Archive for April, 2013

Tour Report #21:  Podcast with Michael Turner QC, Chairman of The Criminal Bar Association,  on the legal aid reforms

To set the context, I quote from an article in The Express:

High Street solicitors could be forced to close by Government legal aid changes
MORE than 1,500 High Street solicitors will be forced to close branches “within a year” if the Government’s controversial legal aid reform plans succeed.

The loss of High Street solicitors would also have a severe impact on barristers. Michael Turner QC, head of the Criminal Bar Association, warned: “Our barristers’ system will fail. Our brilliant judiciary comes from the Bar. Once you have Tesco and G4S providing advocates, you will get Tesco and G4S judges in 10 years’ time. Make no bones about it, we are facing absolute devastation to what is the finest legal system in the world.”

He rejected claims that Britain’s legal aid was the most expensive in Europe. “You have a different system there, with investigative magistrates who interview witnesses, and the big cost is the judicial spend.”…..

Access to justice in a civilised society is fundamental to the Rule of Law and the rights enshrined in our Human Rights laws to a fair trial.

The Independent covers the theme:

New legal aid reforms end ‘justice for all’, lawyers warn

England’s 800-year-old tradition of fair and open access to justice for all will be destroyed by sweeping Government plans to reform criminal legal aid, senior judges and magistrates warn today.

In an attempt to save £200 million by 2018, the Justice Secretary Chris Grayling plans to stop paying solicitors for the work they do – and instead give them a fixed fee for each case they represent.

Lawyers will be incentivised to recommend guilty pleas to their clients, a coalition of judges, magistrates and civil liberties groups warns. Their fears are backed by the Criminal Cases Review Commission, which investigates miscarriages of justice on behalf of the Government.

Criminal suspects will lose their rights to choose or dismiss a solicitor, and the number of accredited legal aid firms will drop from 1,600 to less than 400 – raising the possibility that hundreds of small high street firms could be replaced by huge contractors like G4S.

“The Government is creating a system where potentially the same company could defend you, lock you up in prison and then rehabilitate you when you come out,” said one judicial source……”

 Under plans to save £200m solicitors will be paid fixed fees, with contracts going to firms like G4S

Interestingly, two well regarded judges have commented on the issue…

The current President of the Supreme Court, Lord Neuberger of Abbotsbury, is understood to have deep reservations about Mr Grayling’s plan. Sources suggest that he believes it undermines the right – first enshrined in the Magna Carta – that “to no man shall we deny justice”.

The former Lord Chief Justice Lord Woolf told The Independent on Sunday that the proposals would lead to a “factory of mass-produced justice” and miscarriages of justice.

“It is the complete privatisation of justice.”

Michal Turner QC has robust views on the proposed reforms which will have a considerable impact on access to justice, the profession, the public and have a devastating effect on the very cornerstone of our democracy.

Listen to the podcast

iTunes version of the podcast


Some useful links:

Michael Turner QC

Criminal Bar Association

The Independent: New legal aid reforms end ‘justice for all’, lawyers warn

David Allen Green, The New Statesman: How the Ministry of Justice’s proposal for the tendering of criminal legal aid is misconceived and illiberal

The Ministry of Justice consultation document: Transforming Legal Aid: Delivering a more credible and efficient system

Barrister 999: Legal Aid – some thoughts

Crimeline: DO NOT expect others to do things for you. It is your justice system at risk. Do something – here are some ideas.


Crimsolicitor: The right to choose…

(Sorry about the minor technical recording difficulty at the beginning of the podcast – thankfully we only lost the  introduction – and a very brief summary of the Ministry of Justice proposals which are linked above under the links section.  We also had the sound of crockery being laid out in an adjoining room – which accounts for a very brief pause in recording eight minutes in!

Michael Turner gave me a short history of the Garden Court Chambers building and an excellent tour.  Fascinating. 

Please spread the word about this podcast – #SaveUKJustice)


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Clinical Negligence & the Law

Usually, people think of medical professionals such as doctors and nurses as providers of only the best quality of care and bedside manner, but this is not always the case. In the majority of events, medical professionals do provide excellent service for their patients, but sometimes things can go wrong, as they can in any other aspect of life.

This is essentially the definition of clinical negligence. It occurs when you, as a patient, have been failed by your carers. Whether this is through a chance accident, a mistaken diagnosis or a general lack of care, if a medical professional has breached his or her duty of care, this is known as clinical negligence.

If you (or a close friend or relative) are the victim of clinical negligence, it’s only natural to feel angry and upset, and it can leave you wanting some sort of explanation, apology or even compensation.

Unfortunately, because it is hard to prove, and because the case will be taken against the medical service as a whole, any court cases regarding clinical negligence tend to be costly and drawn out, and a win is rare.

What Should I Do?
Firstly, you should take a step back from the situation and calm down. This can be difficult, but you need to remove any emotional impact from the case and look at it analytically. It can be tempting to get angry and demand compensation for any injury you’ve incurred, but it’s important to not let that cloud your mind – if it’s very minor or just hard to prove, you’re unlikely to receive anything.

If you feel as though an explanation is all you need, this is much more easily achieved. Simply contact the hospital or professional involved and ask for a face to face chat. Doctors don’t want to make mistakes; by their profession they are care givers. You will usually receive a full explanation for whatever happened, and often a sincere apology.

If you’re finding it difficult to get in touch with the people responsible, pick up the phone and talk to PALS – the Patient Advice and Liaison Service, they should be able to help.
If, however, you have set your mind on trying to win some compensation, read on.

Taking It to Court
Firstly, you might wish to talk to some professionals. Speak to your local Citizens Advice Bureau, then contact a solicitor who specialises in medical negligence. Some of these are no-win no-fee, but the majority will at least offer a free consultation.

Some medical cases have taken up to ten years to even come to court, and even then are exceedingly difficult to win. You need to conclusively prove that the medical professional was at fault, as well as the fact that you have been damaged in some way by the outcome, whether physically or psychiatrically. The first can be difficult to prove, but if you’ve had your kidney removed when it should have been your appendix (for example) then it’s clearly a case of clinical negligence.

You should only pursue litigation if you have good reason to do so. If you have incurred great financial loss or lifestyle change, or if a young child has lost a parent, or if you end up needing expensive treatment for the duration of your lifetime; these are all good reasons.
Because court cases involving the medical profession are so costly – in terms of time, money and stress – you have to make sure it is definitely what you want to do before you set the ball in motion.

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On Monday, I am recording a podcast with Michael Turner QC on the legal aid reforms / QASA – with particular emphasis on criminal justice.

I have written by email a formal request to the Lord Chancellor, Mr Grayling, to ask if he would prepared to do a podcast on the matter as well.  I await a response.

In the meantime – may I draw your attention to two excellent pieces of writing on the subject – which are thoughtful, incisive and provide food for thought:

By David Allen Green, writing in The New Statesman: How the Ministry of Justice’s proposal for the tendering of criminal legal aid is misconceived and illiberal

The government has a contradictory approach to the legal profession.

On one hand, there appear no limits to its extravagance when the legal work is for particular issues hotly favoured by ministers. For example, the Home Secretary used taxpayers money to fund three QCs on successive hopeless appeals in the Qatada case. And the Chancellor of the Exchequer has, without any apparent public procurement exercise, hired City law firm Slaughter and May to provide advice on a business finance project  Remarkably, it appears the Treasury is even paying Slaughter and May for tax law advice on this particular project, even though there are over 120 tax lawyers already employed by HMRC.

In respect of the legal rights of the citizen, however, the government’s approach is very different. Not only is the government seeking to reduce the amount it spends on ensuring defendants in criminal matters have access to legal advice and representation, it is not even thinking its proposals through.

Take, for example, the Ministry of Justice’s current “consultation” on a scheme of “competitive tendering” for criminal legal aid.  To a large extent, the consultation is a sham, as ministers have already blithely decided that they are in favour of such a scheme in principle and, regardless of the consultation, that “competitive tendering” will be introduced within months. However, the government says that it wishes to consult on the proposed “model” for the scheme, which is just as well as the proposed model is about as misconceived as it could be.

AND… from a practising solicitor – Crimsolicitor – an excellent analysis: The price of everything, the value of nothing…

Let me make one thing very clear from the outset, I and my colleagues increasingly vocal opposition to the proposed reforms to criminal legal aid have nothing to do with the risk it poses to mine and their lifestyle, the loss of our jobs and incomes. We all appreciate that we do not hold any high position in society that means we are entitled to a job for life.

Our opposition is to the very real loss of access to justice, choice and fearless representation that will inevitably follow if these proposals are allowed to go ahead. The loss of protections afforded to the people that need it the most and because we see these proposals as a further step down the road to the end of a justice system that is rightly regarded as one of the best in the world. My concern is that these proposals will simply be nodded through without any real consideration of the long term effects and once in place will become almost irreversible.

Of greater concern is the lack of general awareness to the whole issue by the general public as to how it may affect them and the fact that they are being fed an argument that I initially thought was ill-conceived but now believe is intentionally misleading….

Please read the entire article



See also Professor Richard Moorhead’s detailed post – drawing attention to Roger Smith’s article on the subject: Legal Aid Cuts: Some Thoughts


Ironic that Home Secretary, Theresa May, signs ‘fair trials’ treaty with Jordan to deal with Abu Qatada – yet UK Govt cutting back on legal aid so many in need will be unrepresented – is that ‘fair’

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The Electronic Portal Processes Effect on the Legal Sector

2012 has been a difficult year for the legal industry. Not only is the imminent implementation of major civil justice reforms on the horizon, but they have also had to spend much of the year trying to prepare for the proposed expansion of the road traffic accident portal scheme. Recently however, the Ministry of Justice released a statement that suggests it will re-evaluate and examine the RTA portal plans before April 13.

The statement, which was backed by lawyers associations, has been widely accepted as a positive move from the Ministry of Justice. Back in December, the government announced that it was going to look at the timing of the proposed portal expansion, primarily to include personal injury claims up to £25,000. This decision was prompted by a pre-action letter from the Association of Personal Injury pushing for a judicial review of the current system.

Karl Tonks, president of the Association of Personal Injury Lawyers (Apil) believes that the government has made a lot of friends by acknowledging the fact the current system may need review. Furthermore, he also commented that the legal industry is looking forward to government’s results of the review, but also warned that key loopholes that currently plague the industry should not be ignored in order to keep to expansion deadlines.

From the outset, Apil have stated that they wholly accept the proposed changes to the RTA portal, not least because they will improve and speed up the civil justice system for all parties involved. Furthermore, the delay by the government when implementing current RTA portal plans reflects the need to evaluation.

Reasoned Approach

The chairman of the Motor Accident Solicitors Society, Craig Budsworth, believes that re-evaluation of the timing of the implementation of the portal portrays a considered and reasoned approach by the government.

Not only will this give confidence to shareholders within the motor claims firms around the country, but it will also continue to reduce false claims and benefit real accident victims. From a personal injury solicitor in Liverpool to a family law lawyer in London, this re-evaluation is on course to flip current industry regulation on its head.

Although the review has gained applause from the motor claims industry, it is not expected to affect the level of recoverable costs within the current scheme, which ends on January 4th. Additionally, if implementation of the new scheme does go ahead in April, the RTA Portal Co concedes that some manual changes may be needed to maintain industry stability.
Responsible for the development and management of the portal, the RTA Portal Co has revealed that new software is already being developed based on the new proposed draft rules. This means that the portal will still be available for delivery in April if final versions are not significantly different.

Until the first amendment to the software is given the green light towards the end of 2013, the RTA Portal CO has acknowledged that manual processing may be needed to keep current systems in line with industry regulation. Such changes are likely to be minor however. In extreme circumstances, software users may have to input codes to the system, but only when it is not being automatically generated by the software itself.

This post was provided on behalf of Jigsaw Law solicitors near Chester and based in Ellesmere Port please follow them on Twitter here @Jigsaw_Law or visit their address location at: Jigsaw Law, Pioneer House, Pioneer Business Park, North Road, Ellesmere Port, Cheshire CH65

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Lancashire Suffers Record Compensation Payout
Helen Grieves,  Founder and Principal at Grieves Solicitors


Hopefully not many of us will ever have to suffer a life changing injury, but for those that do, it’s surprising how innocuous many of the causes are. We hear plenty of stories about extreme sports incidents, bad rugby tackles or falls when hiking or climbing, but very often the causes of serious injuries are nothing more than a slip or a trip: unfortunately it’s all it takes.

New evidence for this came to light last week as, under the Freedom of Information act Lancashire County Council revealed they’d been forced to pay a massive £1.3 million in compensation and legal costs because of the bad quality of the roads. Though some of the payouts were to drivers, a great majority were to people who had slipped or fallen walking along the pavement or trying to cross the road.

This increase in compensation claims for trips, slips and falls comes party from the extremely poor weather we’ve suffered over the last two winters. Bad roads have crumbled under persistent snow and ice and the cold doesn’t seem to show much sign of stopping yet.

Nevertheless, it does go to show that the courts take these claims immensely seriously. According to the Compensation Act of 2006, compensation for these sort of incidents isn’t solely based upon the circumstances of the incident itself, though that is factored in when it comes to judging who is liable, it’s often based on the consequences of the claim. Expensive hospital treatments, extended leave from work and potential damages to future quality of life all need to be factored in when assessing the compensation due from a claim of this sort and more often than not they can be extremely serious.

This level of claims is, of course, something that the council will need to look into with great seriousness over the coming months. It is a sad twist of fate that the cost of compensation to injuries could probably have covered at least a portion of the costs of repairs and there will no doubt be investigations into how accidents like this can be prevented in the future.

Trips or falls might seem innocuous at the time but the costs to you as an individual can be unprecedented. What is good is that in the UK we have a legal system which is extremely sympathetic towards that and that claims, however minor, are taken with seriousness and very often compensation is awarded based upon the likely costs that will be incurred.


Helen Grieves is Founder and Principal at Grieves Solicitors, personal injury specialists, based in Huddersfield. Grieves Solicitors work with clients across the UK to claim the maximum amount of compensation possible for serious personal injury claims.

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This product…. I like.  Seems a pretty good idea?…

Tray Selector – save time, money and improve your green credentials

Even in today’s IT rich legal environment Law firms still require paper. Our stock in trade is words and more often than not these find their way onto hard copy. A modern legal office now stocks paper of various thickness, colours, textures and finishes as well as expensive letterhead which no self-respecting legal firm can do without despite its frightening cost.

This creates problems: how to manage your printer trays or different printers so that those expensive multi-coloured letterheads are used only for page 1, that only wills and deeds use the thick velum paper, or so that drafts and file and client copies are printed on the cheapest, thinnest paper?

If your office has a swear box, printer problems are probably its biggest friend. Printing to the wrong paper type or tray costs time, money and perhaps more importantly hair loss from those who can seldom afford it. Unless, that is, you have installed the software which is the subject of this review.

Tray Selector  is a tiny ‘add-in’ for Microsoft Word which does what it says on the tin. It selects the trays for each type of print job so that in a single click the output goes where you want. You can send a print job to a range of trays or if you prefer different jobs to different printers. Tray Selector is clever enough to handle it all.

The user can create user-defined printer profiles, up to a maximum of 12, of for the typical print jobs they perform each day. Once a profile is saved to a toolbar or ribbon bar button when it is clicked it sends the print job to the trays specified in that profile. Each button can be given a friendly name to remind the user what it does. It really is that simple!

Suppose when printing your letters page 1 goes to pre-printed letterhead, page 2 onwards on plain but quality paper and then 2 additional copies on draft paper. In Tray Selector you would create a button called “letters” setting it up this way in a matter of seconds. Once done you can just click it each time.

There are loads of bells and whistles so the add-in can prompt for page ranges each print, ask for number of copies, print additional copies, run macros each click to do things like check the letter has the correct date or add watermarks, handle duplex printing and mail merges etc. etc. Users buttons are stored safely per user and the product works fine with Terminal Server or Citrix.

Tray Selector comes in two varieties a .Net version for Word 2010/2013 which adds buttons in the ribbon bar and a standard version for earlier versions of Word. It is simple to install and comes with a free, fully functional, 30 day trial so there really is nothing to lose trying it out. New features are constantly added and released for free. A user license is a one off very reasonable cost of $29.99 (About £20) and includes a year of free email support and upgrades. There is no maintenance fee to pay and volume discounts available. Tray Selector is the sort of easy to use time, paper, toner and frustration saving product that every modern law firm should own. You can get more information from http://www.trayselector.com.

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Osborne Clarke

Larger version of the infographic

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Best endeavours vs. Reasonable Endeavours
Michael Lowry, partner and Team Leader for Stephens Scown’s Cornwall Family Team

Frequently, when parties reach a divorce settlement, the Applicant Solicitor will draft a Consent Order to include an obligation as an undertaking to the Court that “best endeavours” will be used to procure the release of one party (usually the Husband) from liability under a mortgage of the former matrimonial home.

This undertaking is usually accepted without any debate recognising that it would be impossible for the party to accept an absolute obligation as opposed to best endeavours considering it is a third party; here the mortgage company, who will ultimately release the party from the mortgage.
However, the definition of “best endeavours” is a classic grey area with little family case law as guidance. A term which evidently invokes an expectation of performance also carries a risk of non performance as there is no set definition on what must be achieved through the performance of a best endeavour.

Guidance can be found in the case of Lyons v Lyons [2010] where Rimmer LJ comments that a best endeavours undertaking is “one that imposes a high burden of responsibility”.

It is in commercial cases that the most useful guidance can be found. An obligation to use best endeavours has been held to constitute as following:

1. To do what can reasonably be done in the circumstances (Terrell v Mabie Tood & Co Ltd (1952))

2. To leave no stone unturned (Sheffield District Railway Company v Great Central Railway Company (1911))

3. Will not require actions which would be detrimental to the financial interests of the company or would undermine commercial standing or goodwill (Rackham v Peek Foods Ltd (1990))
Performance of a best endeavour obligation steers towards the necessity to take all practicable action.

In comparison, “reasonable endeavours” imposes a fair less onerous performance on the obligor. Rhodia International Holdings Ltd v Huntsman International LLC [2007], another commercial case, presents the obligation to follow one course of action and not all courses of action.
A comparison of the two definitions then determines that a reasonable endeavour obligation probably only requires the obligor to take one reasonable step, whereas a best endeavours obligation most likely requires the obligor to take all reasonable steps available.
Commercial law evidently is attempting to define the boundaries between best and reasonable endeavours. However, within the family context, the grey area in definition remains open to interpretation by the Courts. A Solicitor must therefore be comfortable with the degree of difference between the two. Such knowledge on board, a Solicitor would be mindful to advise their client what specific action must be taken in compliance. Similarly, a draftsman will be wise to set out a particular course of action specifically required to guide not only the Obligor but also the Court in determining if the clause or paragraph has been complied with.

Appropriate advice and accurate drafting therefore will limit the inherent risk which comes with a best or reasonable undertaking to the Court.

By Michael Lowry

Michael is a partner and Team Leader for Stephens Scown’s Cornwall Family Team. With offices in Exeter, Truro and St Austell, Stephens Scown Solicitors support some of the South West’s key sectors with specialist legal advice. For more information please visit http://www.stephens-scown.co.uk/

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How To Deal With Bullying At Work

Workplace bullying is more common than what people may realise. Employees that are being bullied can suffer from stress, lose self-confidence and not do their job properly, not to mention how miserable it makes them.

What is bullying?

Bullying can be described in several ways – an abuse of power that undermines, embarrasses or hurts a person and also behaviour that can be offensive, insulting or intimidating. Some examples of bullying in the workplace could be having someone spreading malicious rumours about you, intimidating you physically, making threats about your job or using abusive language towards you.

What can you do?
This can be a tough one to deal with. Firstly you should talk about it. Don’t keep quiet about it, as this is probably what the bully wants you to do! Talk to as many work colleagues, family and friends about it so that they know what is going on. They can offer you a great level of support and may have some advice for you.

Don’t retaliate! As tempting as it may be, this only makes things worse and is a BAD idea!

If you think you are being bullied at work you could start by keeping a diary of all the incidents. Note down date and time and what occurred. If you have witnesses you can also ask them to record what happened. If you are suffering from stress, you should seek medical advice and keep a record of this also. You can then bring this to your employer’s attention. A good idea is to write a formal letter to your employer so you are clearly bringing the bullying to your employer’s attention and there is a permanent record of this if needed for future reference. Remember to keep a copy for your own records!

Your employer may not be aware of the situation you are in and you need to let them know. It is then your employer’s responsibility to sort the issues out. Hopefully your employer will sort things out successfully and professionally and you can go back to getting on with your usual work. It is up to your employer to provide a safe environment for you to work in and take action when required to keep it that way.

If you don’t have higher management to turn to you could try seeking out your union official and asking them for advice or else a health and safety officer where you work.
If your employer does nothing, you could then file a personal grievance against your employer for failing to provide a safe workplace.

If things do not turn out as you hoped and do not get resolved, they could in fact make the situation worse and you may have to seek legal advice to see where you stand and what you can do about your situation. Before you look to head down that track it might pay for you to think seriously about looking for employment elsewhere. Court cases can become stressful and you may be in for a battle so ask yourself first if it is worth it?

Unfortunately, leaving your job should not be something you are forced into. It should be the bully that is leaving. If you leave then the bully will probably find another target and the cycle will continue. So try leaving this as a last resort if you can.

This article was written by Diane Povey who is a specialist in accident at work claims and employment law.

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On April 1 cuts of £350 million from the legal aid budget of £2.1 billion came into effect.

As of now, there is no free legal advice for employment cases, non-asylum immigration cases, consumer rights and, most perniciously, welfare benefits.

Those needing welfare benefits advice are, obviously, the poorest in our society. The Department for Work and Pensions (DWP) should of course get its decisions on who is entitled to what right.

Yet 40 per cent of challenges against DWP decisions succeed, showing that it freq­uently gets decisions wrong, most scandalously when disabled people are certified as fit for work.

From now on it will be almost impossible to get independent advice on whether to challenge a DWP decision.

There is now no legal aid available for family disputes, unless domestic violence is involved. This will actually lead to more disputed court cases and more acrimony between separating couples….

The full article by Liz Davies – The Fourth Pillar of The Establishment –  is a severe indictment of the current policy on legal aid and is well worth reading

The present Lord Chancellor, Chris Grayling, is not a lawyer.  This may not matter if he had a good understanding of the way his policies are likely to impact on people and the legal profession.

Interestingly, Simon Myerson QC tweeted this weekend in response to a tweet from Adam Wagner

@AdamWagner1 Hmm that’s such a difficult question. Yes. The AG said yesterday that Grayling didn’t understand the impact of his proposals…

Adam Wagner tweeted: Grayling in today’s Times: “cuts were .. painful for many in the law. But were they really the wrong thing to do?” http://www.thetimes.co.uk/tto/law/article3740749.ece …

It is an unfortunate state of affairs, to say the least,  when the Attorney-General feels obliged to make a comment of this nature about a Cabinet colleague.

With the row over QASA – many barristers are opposed – and the dire reforms of legal aid,  the government is compromising the quality of legal advice and representation available – often to the most vulnerable in society -and access to justice is being denied.

PJM QC@pjm1kbw 19 Apr

It can come as no surprise whatsoever to MoJ or HMCTS or the Judges that finally things have come to a head? #QASA

#FailingGrayling – as he is becoming known on twitter by lawyers – will, I am fairly sure,  reap the consequences, including unintended consequences, of his lack of grasp and understanding.

And if you still have any doubts about Grayling’s plans being overblown in the media – please read this article

High Street solicitors could be forced to close by Government legal aid changes
MORE than 1,500 High Street solicitors will be forced to close branches “within a year” if the Government’s controversial legal aid reform plans succeed.

The loss of High Street solicitors would also have a severe impact on barristers. Michael Turner QC, head of the Criminal Bar Association, warned: “Our barristers’ system will fail. Our brilliant judiciary comes from the Bar. Once you have Tesco and G4S providing advocates, you will get Tesco and G4S judges in 10 years’ time. Make no bones about it, we are facing absolute devastation to what is the finest legal system in the world.”

He rejected claims that Britain’s legal aid was the most expensive in Europe. “You have a different system there, with investigative magistrates who interview witnesses, and the big cost is the judicial spend.”

I shall leave the last word in this post to Simon Myerson QC…“Sundays in chambers. All it needs for perfection is that I have to do it for nothing. Oh wait. @MoJGovUK.”

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Iain Gould, Solicitor and Partner at David Phillips & Partners
TourLawcast 15

The Police and the Crown Prosecution Service  play a pivotal part in the criminal justice system – but, what happens when the Police break the rules or are negligent?

Solicitor Iain Gould has built up specialist expertise in the field of actions against the police and shares his thoughts and experience in this podcast

Listen to the podcast

iTunes version of the podcast

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What are DBAs and do they need Re-examination?
Lee Foster, Solicitor and Head of Motor Litigation at Spencers Solicitors.

So, April has arrived and that long-forecasted wave of reform has finally hit British law.  Practitioners up and down the country are adapting to change right now and a couple of new legal abbreviations have spawned as a result.  Here’s my breakdown of what they mean…

Damage Based Agreements Explained
First of all, let’s look into a descendant of the ‘no win, no fee’ model we’re all familiar with – Damaged Based Agreements (DBAs). The Director of my law firm outlined the acronym’s definition in a recent blog post:

“A contract between the claimant and his or her solicitor, in which the solicitor agrees to be paid a percentage of the damages recovered in the case.”

So, with a DBA the solicitor would have vested interest in the compensation pay-out, instead of claiming fees separately from the losing side; the theory behind this being the lawyer becomes more inclined to get the best pay-out for their client (which I’d argue the best solicitors do this regardless).

The government has stamped a 25% cap on personal injury DBA fees, meaning representatives are paid no more than a quarter of the claimant’s total pay-out.

Concern from MASS about DBAs
As with any major change, there has been a certain level of concern from professionals on the frontline of the legal industry.  The Motor Accident Solicitors Society has expressed concern about the indirect negative impact this cap could have on ethics in law…

If the lawyer will only ever be paid 25% of the total damages and not according to the amount of hours invested into the case, it could urge practitioners to settle claims as early as possible.  This takes away from the ethical duty a personal injury solicitor has to their client, as rushing a case will likely result in an under-settlement, through inadequate representation.

This reason alone gives cause for concern and so it’s understandable why some UK lawyers still have their reservations about DBAs.

What we are doing instead…
Conditional Fee Agreements (CFAs) are slightly different and more rigid as a claims model in my opinion.  Solicitors are free to charge ordinary rates as well as attach a ‘success fee’ if they win the case.

Before the Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act this success fee was recoverable from the losing party, now it is taken from the client’s compensation.
Still, the CFA is more ideal as solicitors are paid according to the hours they put in and rewarded for delivering results.  It remains akin to the ‘no win no fee’ model and all parties can benefit.

CFAs were first introduced in the ‘90s and although they have now been modified by LASPO, to me, they are more reliable than the fresh-faced DBA – which could do/have done with further assessment before adoption en masse.

About the Author

Lee Foster is a Solicitor and Head of Motor Litigation at Spencers Solicitors. A lawyer with over twelve years’ experience in personal injury litigation with an extensive background in road traffic accidents and industrial disease claims. Lee has been involved in a number of high profile Court of Appeal cases including ground-breaking litigation in the fields of industrial deafness and solicitor’s negligence. Lee is a Law Society PI Panel Member, Deputy Regional Co-ordinator ofMASS and an APIL Senior Litigator.

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There are three distinct legal systems in the United Kingdom:  Scotland, Northern Ireland and England & Wales – each subject to the appellate jurisdiction (save for criminal cases in Scotland) of the United Kingdom Supreme Court.

Over the course of the next year, as I resume my UK Tour, I shall be looking at, among many other issues, the many and various ways law is practiced in the UK from sole practitioners to traditional High Street firms through to the new models arising from the Legal Services Act like Riverview Law and Lawyers On Demand and on to the rarefied echelons of ‘City’ practice with the ‘Magic Circle’ and BIGLAW law firms of the City and other commercial centres.

The Law Society of Scotland quoted Lord Wallace in a recent tweet: “We have a very modern legal profession with expertise across a broad range of areas”

Today – and I plan to do a follow up podcast with Brian Inkster, Solicitor of the Year in 2006  – I am looking at the impact a small, but growing, law firm in Scotland has made in but a few short years – Inksters.  I reveal, at once, that Brian Inkster is a friend. My focus is on Brian’s use of social media and blogging as a tool for marketing his firm’s expertise.  I shall ask Brian more about the way he practices law when I do the podcast with him later in the tour.
Scots lawyers have told me that Inksters is a firm that punches above its weight.  A quick look at the history of Inksters will give you an insight into the way Inksters has developed and is an interesting read. It is worth drawing attention to the fact that Inksters, competing against some very well known Scots law firms, was one of six nominees for Litigation Firm of the Year in 2008.

Turning to specialist legal practice  interests and the use of social media (Inksters was the first law firm in Scotland to use Twitter on 11 February 2009).

I met Brian Inkster initially on Twitter and later at an Italian Restaurant – we sat outside on a balmy Autumn evening, I recall, in Battersea Square. I enjoyed the evening and it was very clear to me that Brian, a man with considerable energy, had an innovative approach to marketing and the use of social media.  Those who follow Brian on Twitter will know that he engages well with lawyers and non-lawyers alike.  His many twitter accounts do not simply ‘broadcast’ – ‘they’ respond to questions and are more than prepared to engage in discussion – a valuable lesson some other law firms could benefit from.

Blogging can be a powerful tool for marketing if done well.  There are many good examples of lawyer blogs which provide insight, analysis and comment into specialist areas of law.  I apologise for any omissions – there are too many to list, pleasingly, but here is a small  selection of some of the well known blogs written by lawyers: Nearly LegalConflict of Laws.net, The Bung Blog, Jack of Kent, The UKSC blog, Family Lore, The UK Human Rights blog.

Here is a more comprehensive survey of lawyer blogs which I covered in UK Blawg Review #10.

And on the issue of blogging – Brian Inkster has several styles – the light hearted yet insightful – The TimeBlawg  – and the more serious.

Inksters Solicitors launched a dedicated Crofting Law Blog on 18 March 2013.

 Over the three weeks prior to that Inksters posted eleven crofting law related news items on their general website. Most of these relate to the crofting law debacle created by the Crofting Commission when they suddenly announced that they were no longer processing applications to decroft (i.e. remove land from crofting tenure) made by owner-occupier crofters. The Scottish Government last week announced that it will introduce a Bill to correct the “flaw” in crofting legislation detected by the Crofting Commission. Brian Inkster has questioned whether there is in fact a flaw to remedy and clarity is still awaited from the Crofting Commission / Scottish Government as to what this flaw actually is. To date they have refused to publish the legal advice that they have obtained.

Brian Inkster said “Crofting law appears to be in turmoil in a way that has possibly not been seen since it was introduced in 1886. The time is surely ripe for a crofting law blog to air the issues arising in an open, clear and transparent way.”

While Crofting Law is a specialist legal topic – there is no doubt that Inksters will build their profile in this field with this new legal blog and resource.

Brian Inkster does not take himself too seriously – I thoroughly enjoyed (as did others) his use of Christmas Hat cards as a subtle marketing initiative

In the podcast, later on my tour, I will ask Brian Inkster about his approach to the practice of law.  The Inksters website is well worth a look at as an example of law firm marketing, and for those of you who want to bone up on your crofting law – you know where to go!

Finally – it has to be said that Brian does a ‘mean tango’ – why am I not surprised? This interview on 22 tweets will give you an insight!

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Over the last three months I have been rather ill – an understatement.  It was a close run thing.  I shall leave it at that – but thank you for your kind emails and tweets.

I return to blogging and my Tour – initially, with some profiles and podcasts remotely done over skype, but back on the road in the Jag Rouge soon.

I get a lot of support from law firms and others for my tour – so I try to ensure supporters get something back – hence the many recent guest posts. I am grateful for the support for the project  – not being a rich man!

On this day when Mrs Thatcher dies – I leave you with two tweets I put up before the news broke to leaven the rather unpleasant tweets I have seen on my timeline today.

TWILDEBEEST n. Tweeter armed with pitchfork, flaming torch and general ignorance. Stampedes when struck down with kneejerkitis vulgaris

As John Mortimer QC once observed… people should be offended three times a week and twice on Sundays 🙂

Onwards and upwards…

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Child support in Australia – what you need to know and statistics by Watts McCray Family Lawyers  

In most cases, parents and other family members understand the need to put a child’s safety and emotional well-being first. Parental responsibility and living arrangements for children in separated families (formerly referred to as “child custody”, “residence”, “contact” or even “access”) need to be considered and decided upon following a relationship breakdown. By law the best interests of the child are always the most important consideration.

Where a child will live, how often they spend time with each of their parents, the sharing of special event days such as birthdays, Christmas, and school holidays, and how parents make decisions about the care of their children once separated, are all issues of great importance which should be included in any agreement about children. The role that grandparents, step parents, and other important people in the lives of children must also be considered, and appropriately addressed according to the law.

Please click on the infographic for a larger version:

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Guest Post: Industrial Deafness Claims

Industrial Deafness Claims
Walker Prestons Solicitors

Industrial deafness can manifest itself in varying afflictions and have significant effects upon many aspects of personal and professional life.

Many people who suffer from industrial deafness never seek accurate diagnosis and assume that the condition is a part of the ageing process. This assumption can lead to significant losses of income as certain professions cannot be entered or continued by those who suffer from total or partial deafness. Sufferers of industrial deafness can claim personal injury compensation to offset any monetary and personal losses that come as a result of the affliction.

Industrial deafness is caused by exposure to prolonged or dangerously loud noises without the correct safety measures in place. Employees can suffer from impaired hearing or total deafness as a result of such conditions and it is mandatory that employers supply sufficient safety equipment and training.

The industrial deafness may take a number of years to present itself in user after remaining dormant. Sufferers of industrial deafness can make a personal injury claim up to 20 years after leaving the offending industry.

One of the most common forms of industrial deafness is tinnitus which is an umbrella term for many hearing impairments and afflictions. Tinnitus can manifest itself in a number of different impairments including ringing, buzzing, humming, hissing and whistling in the ear. All of these impairments can make hearing difficult, stressful and even painful.

Tinnitus that has been caused by the exposure to prolonged or loud noise is often untreatable and without cure. The sufferer will be blighted with the condition for the rest of their life. This can be particularly disconcerting for individuals who rely on their hearing to pursue their profession. Tinnitus could in effect end the career of an individual and prohibit further industries that the sufferer can enter.

Partial Deafness

Commonly suffered by employees who work in bars, clubs and pubs; partial deafness is the form of industrial deafness that impacts younger people most commonly. The employer’s duty of care dictates that employees should have access to the correct safety equipment and training. With their whole professional and personal life in front of them; partial deafness could redefine their successes.

Those affected by partial deafness who have suffered a measurable decline in personal and professional successes may be entitled to significant injury claim compensation.

Total Deafness
Total deafness is less common than partial hearing loss or tinnitus but often has more significant repercussions. Often caused by one exceptional loud noise or built up over time; complete and total deafness will impact massively upon the personal and professional life of the afflicted party. Many industries and careers will be inaccessible for the sufferer of total deafness for safety and performance reasons.

Health & Safety Precautions against Hearing Loss
The following health and safety precautions must be made available to all employees who are at risk of industrial deafness. Without such precautions, the employer may be liable for personal injury compensation.

Ear Protection – Over-the-head or in-ear ear protection must be supplied to employees who are exposed to loud or prolonged noises in the workplace.

Full Training – All applicable employees must be given full training regarding any potential noise pollutants. Failure to provide sufficient and relevant training could be considered as negligent.

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New Whiplash Laws could Persecute the Victims
Walker Preston Solicitors

Motorist’s premiums in the UK will decrease dramatically if proposed tighter whiplash rules and regulations are enforced. This is the opinion of the UK’s biggest insurer: Aviva.
However the regulations have been met with widespread criticism, suggesting that changing the law could leave the victim in a vulnerable position.

The new regulations have been designed to decrease the number of superfluous whiplash claims that are made. The changes could stand to save the average motorist £60 a year. Aviva has called for law changes to come into force wherein victims would be forced to put their claims directly to the insurer of guilty party.

The Association of Personal Injury Lawyers revealed: “Putting the injured person entirely in the hands of the guilty party’s insurer would create a profound conflict of interest. Independent advice is key to preventing such a conflict and ensuring a fair outcome for the injured person.”
Whiplash accounts for 80% of injury claims that are made in the UK. Subsequently, insurance premiums have been forced to rise to cover the escalating costs. The costs can be further escalated because of the dues paid to breakdown firms, brokers and even to the insurers.
However, the victim of a crash may find the prospect of dealing directly with an insurance company daunting and difficult. The law which is supposed to protect the public may effectively punish citizens.

It is necessary to balance the rights of the victim with the accuracy of the claims process. The government has already implemented law changes to lower the number of falsified claims. Referral fees paid by lawyers and claims management firms will be banned later this year and a limit will be placed upon legal fees. It is hoped that these steps will save all motorists a considerable amount of money.

Aviva’s proposition would include the victim receiving independent clinical advice.
Dominic Clayden, claims director at Aviva, claimed: “Our primary concerns are that injured parties receive care and compensation as quickly as possible, and that all motorists benefit from a reduction in the excessive costs that have built up in claims over the past few years.”
There are roughly 550,000 whiplash claims made every year in the UK. Aviva claims that 300,000 of these cases could be dealt with more efficiently with the proposed law changes. The proposal does not include any repercussions for parties found guilty of making falsified or superfluous whiplash claims.

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