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#41
ESSENTIAL READING FOR BARRISTERS
2ND J une - 31 st J uly 2009 TRINITY TERM ISSUE
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In the last three years, the debate was stoked by two full public consultations1 which canvassed views about media access to the family courts; opinion was strongly divided. Unsurprisingly, 100% of media representatives who responded to these consultations agreed with the proposition
that they should be admitted as of right; 72% of members of the public and 54% of voluntary sector (charities for children, adults or others) organisations who replied also apparently agreed. A significant percentage (up to 72%) of the judiciary responding expressed views against media access, as did 77% of the responses from local and devolved government and Non-Departmental STEPHEN COBB QC Public Bodies Family Law Specialist (NDPBs), and 78% of responses from legal practitioners or bodies representing them. p.28
A British Bill of Rights and Responsibilities It all looked so different in July 2007 - a new prime minister: a new approach. A green paper heralded the ascent of Gordon Brown by promising to make ‘the executive more accountable’. It even speculated that we might need ‘a concordat between the executive and Parliament or a written constitution’. Now, we have a further green paper, Rights and Responsibilities: developing our constitutional framework. The political territory occupied by proposals for a bill of rights - with or without additional duties or responsibilities - is getting crowded. Northern Ireland was promised one in the Good Friday Agreement and its Human Rights Commission finally came up with a draft last December. The UK Parliamentary Joint Committee on Human Rights took it upon itself to draft one last August. David Cameron has called for one over the last couple of years. We can now add the government’s proposals. Debate on the latter can be followed on its own website
(http://www.governance.justice.gov.uk/). This allows you to keep up with the debate on Twitter, webcasts, webchats and emailed discussion. Indications are, alas, that trade is slow. Only four people, for example, contributed to the thread on responsibilities during the whole month of April. Reasons for such low response to the Ministry’s big debate are not hard to find. Gordon Brown, with the saving of the economy on his mind, appears to have lost interest in the democratic project. Even if he had not, his cabinet are reportedly hostile to anything that might be interpreted as extending rights. The original proposal for a ‘British Bill of Rights and Responsibilities’ has fallen foul of a number of somewhat recalcitrant forces in devolved jurisdictions, notably the Scottish National Party, that see little to gain from linking themselves to such a Westminster initiative. Anyway, public attention is switching from Labour to the Tories. Finally, the latest green p.10 paper offers only a consultation without
price £3.00
ISSN 1468-926X
Where there is no publicity there is no justice? Jeremy Bentham, the Eighteenth Century jurist, philosopher and social reformer, believed that “…in the darkness of secrecy, sinister interest and evil in every shape have full swing. Only in proportion as publicity has place can any of the checks applicable to judicial injustice operate. Where there is no publicity there is no justice … Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself while trying under trial …”. These opinions have lain at the heart of the debate, conducted inside and outside of the family courts for many years, about the extent to which its processes should be exposed to public scrutiny.
E st . 1999
Features 3
Dangerous minds
6
Sentencing solutions
The ‘directing mind’ defence has survived the judgment in Ferguson but to escape liability, large companies will need to consider the relevant statute, argues Thom Dyke.
The unsustainable levels of people imprisoned in Britain today is indelibly linked with short-term sentencing. A significant proportion of prisoners housed in UK prisons are on sentences of one year or less, and it is the magistrates who primarily hand down sentences to this group By Roma Hooper, Director, Make Justice Work
18
Jackson: a ‘review for review’s sake’ or a ‘valiant effort’? On 8 May the attention of the legal world turned to the subject of civil litigation costs as Jackson LJ revealed the terms of reference of his year-long review of the matter in his preliminary report. By Bob Gordon, CEO, 1st Class legal
News p.20 Bar Council Welcomes Lord Justice Jacksons's PrelimIinary Report
p.21 Cherie Booth urges Manchester firms to nurture female talent
editor: nigel simmonds 0870 766 2715 email: info@barristermagazine.com publishers: media management corporation ltd publishing director: derek payne Design and Production: Alan Pritchard email: info@soinspire.me.uk Printed by: NewNorth, Milton Keynes
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03
Dangerous minds The ‘directing mind’ defence has survived the judgment in Ferguson but to escape liability, large companies will need to consider the relevant statute, argues Thom Dyke.
T
he Court of Appeal in
for whose acts the company would be
Corporate ego
Ferguson v British Gas
vicariously liable, or someone with sufficient
By rejecting the corporate liability argument
[2009]
46
seniority to be regarded as the ‘directing
raised by British Gas, has the Court of Appeal
sent a strong message
mind’ of the company. Furthermore it was
effectively neutered the requirement to bring
that it was not prepared
argued by counsel for British Gas, that as the
an action against a ‘directing mind’?
to accept any attempt
threats had been generated by an automatic
common law has traditionally been quick
to escape liability for criminal and tortious
computer system, Ms Ferguson should have
to allow civil claimants to recover against
acts by hiding behind what was termed by
known to not take them as seriously as if they
corporate bodies through the mechanism
Sedley LJ as ‘the privilege of incorporation’.
had been from an individual.
of vicarious liability.
EWCA
Civ
The decision provides a timely warning for
determining
criminal
The
When it comes to liability
however,
large organisations who rely on automated
The Court of Appeal had little sympathy with
courts have been required claimants to
systems to provide customer services, but
these arguments, and rejected the appeal in
jump through the hoop of the ‘identification
what effect will it have in practice for the law
a robustly worded judgement. In particular,
doctrine’.
of corporate criminal liability?
Sedley LJ noted the absurdity which would result
from
a
situation
whereby
large
The classic formulation of this principle
Facts
organisations could hide behind corporate
was laid down by Viscount Haldane LC
Ms Ferguson brought her claim against British
structures to defend their actions. ‘It would
in Lennard's Carrying Co Ltd v Asiatic
Gas under the Protection from Harassment
mean that the privilege of incorporation not
Petroleum Co Ltd [1915] AC 705:
Act 1997 in respect of their threatening
only shielded its shareholders and directors
behaviour following her move to another gas
from personal liability for its debts, but
“A corporation is an abstraction. It has
supplier in May 2006. From August 2006,
protected the company itself from legal
no mind of its own any more than it has a
British Gas sent Ms Ferguson an unstoppable
liabilities which a natural person cannot
body of its own; its active and directing will
torrent of bills and threatening letters. The
evade.’
must consequently be sought in the person
letters consisted of three variously connected
of somebody who for some purposes may
threats; disconnection, legal proceedings,
Counsel for British Gas came in for particular
be called an agent, but who is really the
and reporting to credit rating agencies. Ms
criticism over the failure to provide ‘as full a
directing mind and will of the corporation,
Ferguson attempted to contact British Gas by
citation of authority about corporate liability
the very ego and centre of the personality of
phone, through writing a number of letters
as might be appropriate’ (per Jacob LJ). As a
the corporation.”
(including two to the Chairman of British
result, the Court of Appeal asked their judicial
Gas), and indirectly, via a complaint to
assistants to carry out further research into
This doctrine has had the effect of imposing
Energy Watch. Her attempts were met by a
the recent case law.
a tough burden on claimants.
combination of unresponsiveness, apologies
further cases being considered, including;
a claim against a small company will be
and additional threats.
Essendon Engineering v Maile [1982] Crim
relatively easy, where there may be only one
LR 510; Group Newspapers v SOGAT [1987]
or two individuals who comprise the entire
British Gas applied unsuccessfully to strike
ICR 181; Tesco v Brent [1993] 1 WLR 1037;
management structure.
out the claim. On appeal from the decision of
Re Supply of Ready Mixed Concrete (No.2)
will be much more difficult to bring against
HHJ Seymour QC, they argued, inter alia, that
[1995] 1 AC 456; Meridian Global Funds
larger organisations with complex internal
they could not be held liable as she had not
Management Asia v Securities Commission
structural arrangements.
brought the claim against a ‘named employee’
[1995] 2 AC 500; Re British Steel [1995] 1
of the company.
WLR 1356; and Cambridgeshire CC v Kama
It is worthy of note that the House of Lords
[2006] EWHC 3148.
in Lennard's, considered that where the
They contended that Ms
Ferguson needed to sue either an employee
This led to a raft of
Bringing
However, claims
04
the barrister
‘directing mind’ defence was raised in
‘identification doctrine’, stating that he could
the company itself from legal liabilities which
response to an action, the responsibility for
‘not believe that Parliament intended the
a natural person cannot evade’.
discharging the burden of proof lay with the
large company to be acquitted but the single-
company raising it.
handed shopkeeper convicted’.
As the defendant had
We’d like the job
Future developments There has been a recent legislative push to
failed to call the relevant individual to give
Statutory interpretation
restrict the loophole created by the ‘directing
In Ferguson, the relevant statute was the
mind’ principle. The Corporate Manslaughter
Protection from Harassment Act 1997.
It
and Corporate Homicide Act 2007 has made
does not contain a defence of corporate
it significantly easier for the police and
Applying the doctrine
‘due diligence’, or ‘accidental’ harassment.
Health and Safety Executive to bring an
The doctrine of identification has resulted in
Instead it uses comparable language to the
action against a large corporate body for
a situation where large anonymous corporate
Video Recordings Act.
For instance, s.1(2)
manslaughter occurring as a result of fault on
entities are better placed to escape criminal
refers to the knowledge, or presumption of
the part of the body itself. Following on from
liability than their smaller counterparts. As
knowledge, of a reasonable person, in relation
this landmark piece of legislation, the Health
the subsequent case law shows, the courts
to the offence. Perhaps unfortunately, as the
and Safety (Offences) Act 2008 introduced
have made some attempts to mitigate against
case only concerned an application to strike
the option of custodial sentences as well as
its worst effects.
out, the court was not addressed in detail as
an unlimited fine in cases involving a breach
to the question of the level of knowledge of
of health and safety legislation.
evidence, the House of Lords held that he should be regarded as the directing mind of the company for the purposes of the claim.
The rule was applied in the leading case
British Gas in this particular case. While the ruling in Ferguson does not close
of Tesco v Nattrass [1972] AC 153. This concerned a prosecution under the Trade
The court was careful to limit the application
the door to raising a ‘directing mind’ defence,
Descriptions Act 1968. Tesco escaped liability
of its decision in Ferguson to the instant
it does raise serious questions about its
through the defence provided under s.24(1),
case.
As Jacob LJ noted, ‘one cannot just
application in future cases. The question of
which applied where the offending action
jump from one Act to another and say the
how Ferguson applies to future cases is likely
had been undertaken by ‘the act or default
rule for one is the rule for the other’. Whilst
to be subject to a considerable amount of
of another person’ and Tesco had ‘exercised
it is still the case that each statute will need
debate by lawyers on all sides of the issue.
all due diligence to avoid the commission of
to be approached sui generis, some general
such an offence’. Responsibility rested on
points can be discerned from the authorities.
------------------------------------------------------
the actions of the individual employee, and
Crucially, where the legislation in question
Thom Dyke is a barrister.
it was held that on the appropriate statutory
does not contain a due diligence defence,
V:\FERGUSON
construction the company could avoid liability
or refers to real or imputed knowledge, it is
BARRISTER\FERGUSON - THE BARRISTER
via the s.24(1) defence.
unlikely that companies raising a ‘directing
[TD 15-04-09].DOC
V
BRITISH
GAS\THE
mind’ defence will be successful. Tesco was subsequently involved in a case which turned on the application of the same
The approach of the courts has been
principle to a different statute. In Tesco v
largely sympathetic in relation to individual
Brent [1993] 1 WLR 1037, the Divisional
claimants bringing actions against large
Court rejected the argument that Tesco as a
corporations. Indeed, the judgment opens
corporate entity could not have knowledge
with Jacob LJ opining that ‘it is one of the
about the age of a 14-year-old purchaser
glories of this country that every now and then
of an 18 certificate video.
However, the
one of its citizens is prepared to take a stand
court noted that the language in the Video
against the big battalions of government or
Recordings Act 1984 referred to knowledge
industry’. Sedley LJ highlighted the disparity
and information and not due diligence.
of arms, noting that ‘it would be remarkable
Staughton LJ recognised the potentially
if…the privilege of incorporation not only
harsh effect that could arise as a result of
shielded its shareholders and directors from
taking too strict an approach to applying the
personal liability for its debts but protected
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06
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Sentencing solutions The unsustainable levels of people imprisoned in Britain today is indelibly linked with short-term sentencing. A significant proportion of prisoners housed in UK prisons are on sentences of one year or less, and it is the magistrates who primarily hand down sentences to this group By Roma Hooper, Director, Make Justice Work
B
which can offer a more holistic, wrap around
safety and well-being and cannot reduce the
re-offending and most importantly, reducing
set of rehabilitative interventions such as
likelihood of low level offenders continuing
the number of victims. Let common sense
drug and alcohol treatment programmes,
to re-offend. More low-level offenders need
prevail – it is not just about saving money but
literacy, accommodation and job /training
to be funneled into robust alternatives to
it also about what works.
opportunities – the system will continue to
custody rather than sucked into the prison
perpetuate an unrealistic expectation that
system. If things continue as they are
building more prison places is the answer to
magistrates will soon find themselves in a
all ills. The reality is that prison does little
position where 12 months custody seems
to reduce the number of victims and does
inadequate. The real imperative is to support
absolutely nothing to reduce re-offending for
magistrates to ensure that they are confident
short sentenced prisoners.
in their choice of community sentences for low level offenders. Surely in this economic
ritain is locking up its
crimes which has created a net widening
community sentences for low-level offenders
citizens at record rates.
phenomena criminalising more members
who require, for example, drug treatment
The number of prisoners
of society. The proposed solution by the
and mental health orders are inconsistent
in England and Wales
Magistrates
the
and vary from area to area. Furthermore,
has increased by 30% in
sentencing powers of magistrates – giving
national and local funding cuts mean that
the ten years from 1997
them the ability to sentence offenders to a
a magistrate is often hamstrung when
to 2007. When Labour came to government
maximum of one year in prison instead of
deliberating about accessible appropriate
in 1997, the prison population was just
the current six month limit – may provide
community sentences for those on the cusp
over 60,000.
temporary respite for the public but does
of custody.
Previously it took nearly
Association
to
increase
four decades (1958 to 1995) for the prison
not
population to rise by 25,000. The buildings
that prisoners receiving less than a twelve
that house them are bursting at the seams
month sentence receive no support from
All this adds up to an over-reliance on prison
and overcrowding is endemic.
It is in this
the probation service after custody, unlike
for offences that – while unacceptable and
context that the debate over the sentencing
if they were serving a community sentence.
damaging to victims and wider society –
powers of magistrates was reopened in April
The suggested change would inevitably have
should not warrant a custodial sentence. The
with the announcement that the court system
an immediate knock-on affect for Britain’s
lack of options open to magistrates when
will soon undergo an overhaul.
prison system by potentially driving up
sentencing is a symptom of a government
the short
which has blindly followed a “lock’em up”
to Magistrates are a vital and important part of
address
the
fundamental
problem
sentenced prison population
unmanageable
levels
in
an
already
overcrowded system.
approach to criminal justice in attempt to appear tough on crime.
Rather than
the UK court system but the number of cases
adequately distributing funds into establishing
they are dealing with has fallen away by
a coherent and robust set of alternatives
between a quarter and a third over the last
The
people
to prison for low-level offences which can
few years - due in part to the abandonment
imprisoned in Britain today is indelibly linked
reduce re-offending, the government has
of Custody Plus when magistrates could have
with short-term sentencing. A significant
created a sentencing culture where custody
sentenced someone to an under 12 month
proportion of prisoners housed in UK prisons
has become the default option. Doubling
sentence, most of which would actually have
are on sentences of one year or less, and
the length of custodial sentences magistrates
been served in the community. At the same
it is the magistrates who primarily hand
can hand down to 12 months is counter
time, police powers to deal with more minor
down sentences to this group. In response
intuitive to their role as volunteer members
offences have reduced the number of cases
magistrates say that rather than increasing
of their local communities. It remains totally
coming to magistrates’ courts
Yet, since
their powers to reflect the changing face
appropriate for those more serious cases to
1997, 4,000 new criminal offences have been
of Britain’s laws, the sentencing options
be dealt with in the Crown Court.
created. That’s seven laws a day, and it is
open to magistrates when hearing cases has
the magistrates’ court that largely has to
contracted or at best stayed still. Unlike
implement them. More of a concern is that
custodial sentencing where a magistrate’s
So unless we divert money away from prisons
there has been an up-tarrifing of certain
options are clearly defined by guidelines,
into badly needed community sentences –
unsustainable
levels
of
07
recession it is time to divert money away In conjunction with pressure from magistrates
from building new prison places into robust,
there needs to be a wide spread challenge to
well managed alternatives to custody so
government by our judiciary, campaigners,
that magistrates' powers are not reduced.
key stakeholders and members of the public
On the contrary, rather than focusing on
pushing the line that the existing prison
sentencing people to prison for ineffective
system is utterly disingenuous to victims and
short sentences, they can confidently use
the public. Imprisoning low-level offenders
community sentences. Evidence confirms
does not improve the public’s sense of
these are more successful at reducing
08
the barrister
the barrister
Financial Loss Modelling in Litigation Financial loss modelling is a valuable and cost effective tool in dispute resolution. By Frédérique Hardy, senior manager in the London office of RGL Forensics
C
omplex
mathematical
from railway stations, hospitals, schools,
that operate in areas of industry with complex
models have been widely
to corporate entities and sporting events
revenue and cost structures, which do not
used and relied on to value
with consumption patterns which differed
respond well to accounting simplification. In
the assets, the returns,
significantly between outlets.
such cases, although accounting data may be of a manageable size, the loss can be
and the risk profiles of It would have been neither cost effective
more accurately computed if it reflects the
credit
nor feasible to review the purchases of each
complex underlying economic principles of
crunch crisis. These models have come under
individual outlet separately, nor indeed,
the company’s operations.
severe criticism for becoming so complex
to
that their end users could not understand
calculations.
them properly and so disconnected from
establish which outlets had been compliant
the underlying economic reality they sought
with, and which outlets had been in breach
to reflect as to become misleading (not to
of, the supply agreement.
the
securities
which
mortgage-backed
precipitated
the
prepare
several
thousand
Another
difficulty
individual was
to Case study - the airline Take a hypothetical example of the financial loss suffered by an airline following the crash
say costly). Paradoxically, in the current climate, companies are more keen than ever
To overcome this, a financial model was
of one of its aircraft. The airline could suffer
to quantify financial losses of increasing size
created. A large amount of financial data
disruptions to its entire operations, with a
and complexity, which makes financial loss
was collated for each outlet, and input into
diminished fleet flying emptier planes and
modelling all the more relevant.
the model. Outlets were then grouped by
losing both revenues and profitability against
category of cost behaviour and divided
the relatively high cost base of maintaining
between those that were compliant and those
its flight schedule. Loss modelling can be
Handling large amounts of data
not, depending on whether their actual spend
used to measure the impact of the accident
Loss modelling in the context of legal disputes
with the supplier was deemed to be in line
on each revenue stream as well as each
is the task of assembling financial data and
with expected usage over the period under
cost line. For instance, passenger revenue
variables to arrive at a single or a range of
review. The data within the compliant group
can be modelled for each plane on each
calculations. One of the key advantages of
was used as a benchmark to calculate losses
route and analysed between scheduled flights
a loss model is its ability to handle large
at the non compliant outlets. A key area of
and charter flights. Costs can be computed
amounts of data in a comprehensive and
discussion was how to determine the level of
for each flight depending on the route and
controlled manner.
spend which would show exclusive reliance
aircraft used. The results are accumulated
on the supplier. The strength of the model
into a calculation which accurately reflects
was that this assumption could be changed
the causal link between the accident and
with one click; all several thousand outlets
calculated consequential losses. The model
Case study - the catering firm
being automatically re-categorised between
can be flexed for sensitivity analysis of a
In the case of a dispute between a large
the compliant and the non compliant, and
number of key loss drivers such as; aircraft
catering firm and one of its suppliers, the
the calculation would update in a moment.
swapping between routes, changes to seat
supplier alleged that the catering firm had
Furthermore,
pricing, reductions in flight occupancy ratios,
purchased consumables from alternative
integrated into the model to assist legal
suppliers in breach of a sole supply agreement.
teams in understanding the financial issues.
Although
the
consumables
various
scenarios
were
cost inflation, and fuel surcharges. The detail of the analysis combined with the
represented
a small proportion of the catering firm’s
Reflecting complex revenue and cost
ability to flex the model for changes in key
overall cost base, the claim was significant
structures
assumptions gives a high level of assurance as to the accuracy and reasonableness of the
as the breach was alleged to extend over several years and across several thousand
Financial modelling is also useful when
catering outlets. The catering outlets ranged
quantifying damages arising in companies
overall calculation.
09
Bringing together various areas of
would the costs be if it was shut in phases
best and worst case, which can be helpful
expertise
instead? This financial model relied on both
when establishing areas of strength and
Complex cases often require input from
factual data and assumptions. The factual
weakness in a case, and also for Part 36
various
loss
data, such as actual historic sales and rates
offers.
modelling can be used to bring together
of profit, did not change. Assumptions were
and summarise the findings of experts from
applied to this data, for instance the length
Financial loss models are also useful in
different disciplines.
of repairs, the level of disruption during
highlighting areas of disagreement between
repairs, or the impact of the economy on
experts. Whereas factual data should be
the tenants, to project losses both for the
relatively easy to agree, disagreement on
experts.
In
this
context,
Case study - the copper mine
building as a whole, and for each individual
points of methodology or assumptions can be
In the case of an open pit copper mine
tenant separately. These assumptions were
segregated and their monetary value isolated.
which suffered a landslide, a financial
segregated from factual data and could be
model was created to quantify economic
changed easily, enabling users to request
They
damages. The mining plan was reviewed by
alternative
understand
matters which are outside the expertise of
mining experts, costing by accountants, and
how numbers changed depending on the
the accountant, and presenting the Court
causation by lawyers. The model was set up
assumptions input into the model.
with alternative scenarios depending on the
scenarios
and
are
also
helpful
when
isolating
findings of a team of experts.
to calculate various loss scenarios depending on alternative mining sequences submitted
This scenario analysis was carried out at
by the mining engineers. The model output
round table meetings, with the model shown
Their flexibility is also an asset when it
was used to determine which course of action
on screen and its various inputs and outputs
becomes necessary to quickly incorporate the
would minimise the economic loss while
being updated and debated live. The legal
impact of new disclosure during the litigation
maximising operational safety. The model
team, who was not involved in the detail of
process, especially when deadlines are tight
was also used to compare and reconcile
the financial review, found this a very helpful
and there is no time to prepare a completely
actual losses incurred after application of
tool to gain a better understanding of the key
new set of calculations.
various causation issues, as advised by the
drivers of the loss. Finally, by their very nature, they are ideally
legal team.
Assisting in dispute resolution
suited to developing a settlement matrix in alternative dispute resolution.
The flexibility of the model meant that, as review of the loss progressed, each team
As illustrated in the various examples above,
could update its findings, and the calculations
loss modelling has a number of strengths
Such versatility, when used appropriately,
could be updated quickly and effectively.
•
makes loss modelling a surprisingly cost
Enhancing understanding of a loss
Accurate
and
comprehensive
handling of large amounts of data
effective tool. It is robust in producing
•
accurate calculations that rely on complex
Integration of various areas of
expertise into a single calculation model
underlying analysis, and it has one-click
Although financial models are usually relied
•
flexibility in updating those calculations
on in cases where matters of quantum are
assumptions
for new information, as well as producing
complex, they also offer a unique opportunity
•
ranges of alternative scenarios. This makes
to stress test quantum for common sense.
and sensitivity analysis
Models which are designed with extensive
•
Segregation of factual data from Flexibility in producing scenario
it an essential tool in calculating damages.
Live one-click updating
’what if?’ analysis in mind can help enhance the legal team’s understanding of how the
It is these characteristics that make loss
numbers work.
modelling such a strong tool in dispute
Case study - the commercial building
-----------------------------------------------------
resolution. Loss models are useful throughout
Frédérique Hardy is a senior manager in
the litigation cycle.
the London office of RGL Forensics, who specialise in forensic accounting and the
Following a temporary shutdown at a
Loss models can be used by a legal team in
commercial building due to a construction
the development of a pre-litigation strategy.
defect, a financial model was created to
This is because they can be set up to quantify
compare
planned
the financial value of individual legal issues,
remedial work. What would the losses be
as well as measure the combined effect
if the building was shut fully over a short
of issues which may overlap in terms of
period of time, and then re-opened? What
quantum. Assumptions can be changed for
several
options
for
quantification of damages. www.rgl.com
10
a time limit. This, in the parlance of government, is an idea being kicked into ‘the long grass’. The fundamental problem is that the proposal for a bill of rights brings together too many contradictory themes. For a start, any use of the phrase itself is a claim of resonance with the great Bill of Rights 1689 that still sets the course for the modern British state – a constitutional monarchy, the establishment of a protestant religion, a sketch of modern liberties and a line of succession that cuts out the Stuarts. These are big boots in which to strut and only really justified by a degree of political consensus, currently unrealistic, combined with significant content, currently unclear. Any proposal for a bill of rights necessarily entails consideration of the Human Rights Act 1998, the role of the European Convention on Human Rights and the position of the European Court of Human Rights. The government explicitly rules out any qualification of the European Convention in its green paper. David Cameron is not always so clear. In a 2007 presentation to the Police Federation, he promised to repeal the Human Rights Act and give the police more power. Ken Clarke, now brought in to give additional weight to the shadow cabinet, previously called his boss’s proposals for a bill of rights ‘xenophobic and legal nonsense’. The Daily Mail, meanwhile, continues its near-hysterical demonisation of human rights, making little distinction between the Human Rights Act, which could be amended or repealed, and the underlying European Convention, to which the UK is a signatory and by which it is realistically bound for the foreseeable future. UK foreign policy is in enough global difficulty without having to explain to the world the attraction of joining Belarus as the only country in geographical Europe that spurns membership of the Council of Europe. The government apparently wants to keep the Human Rights Act but is attracted to the idea of adding a list of additional duties and responsibilities. It would like to reenforce British identity by restating a list of duties on those within the country. It is also interested in exploring whether there are any home-grown rights that could be added to those of the Convention. The authors of the paper are, happily, not entirely devoid of a sense of irony – or perhaps a gallows humour - as they go about their endeavours. They speculate that a list of duties might include
p.1
11
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the responsibility to pay taxes. Their example is the Italian constitution. This requires ‘everyone to contribute to public expenditure in accordance with their capacity’. However, those currently suspected of Italian tax evasion include Silvio Berlusconi, Fabio Capello and the Venetian gondoliers – the latter shopped by way of an ugly divorce and vengeful wife of one of their number. Italy is not a good precedent for the efficacy of such a general provision. New rights are equally tricky. Both Labour and the Conservatives mention the possibility of a right to jury trial as a specific British right as traditional as roast beef. The green paper mentions that 89 per cent of people supported protection of this right in a recent opinion poll. The difficulty, however, lies, with the devil, in the detail. The green paper points out that juries currently try only 5 per cent of all criminal cases. S43 Criminal Justice Act 2003 even allows the removal of the right to jury trial in certain cases of serious fraud, a proposal that has, in the past, appealed to Conservative as well as Labour governments. So, any statement of the right is likely to be pretty guarded – probably along the lines: ‘Every one has the right to a trial by a jury in a serious and appropriate case’. Fear of public opinion currently keeps the government from bringing section 43 into force. It is difficult to see that a guarded general statement of the kind proposed adds much. Proposals for the articulation of rights in relation to social, economic or environmental matters become even more complicated. The British public, inconveniently for government finances, overwhelming support the statement of a right to health care. Indeed, they seriously want to enforce it in the courts if it relates to such matters as the refusal of anti-cancer drugs on the grounds of expense. Neither Gordon Brown nor David Cameron is too keen. The gGreen Ppaper suggests that we might articulate a series of declaratory rights that are articulated by, but not enforceable through, a bill of rights. No lawyer, and few members of the public, can see much benefit in that. The European Convention on Human Rights sets out a minimum set of rights that apply to everyone – be they Roma, gypsy, paedophile, asylum-seeker, criminal, prisoner. Majority public opinion sometimes wants to qualify those rights. People ask, for example, why obnoxious foreigners
cannot be sent to their home states even if they practice torture routinely or will not get a fair trial. Politicians are uneasy about explaining that decisions of the European Court of Human Rights mean that someone cannot be sent back from the UK to a country where there is a real risk that they will be tortured. They want to hint that there might be qualifications, restrictions, reservations that deprive undesirables of such protection. In reality, not even full abolition of the Human Rights Act would do that. The UK is bound by treaty to comply with the Convention and decisions of the court in which the UK is a party. To be fair, the green paper, though not every Cconservative commentator, explains that. But, the government is drawn to the notion of drafting a declaratory or otiose list of responsibilities as a degree of recognition of the problem. The jostling of both main political parties around some idea of a bill of rights suggest that both see political advantage in hedging their bets on the subject of human rights and, implicitly, the Human Rights Act itself. However, this Aact is, technically, a rather elegantly drafted bit of legislation, the effect of which is now becoming clearer and its jurisprudence more settled and predictable. The European Convention on Human Rights is a largely unexceptional statement of values, drafted by a British team at the Foreign Office. Things could be improved. Parliament could have the courage to legislate on privacy and freedom of expression instead of leaving it to the judges. The quality of the European Court could be improved; the Russians could be pressured to agree to measures to speed up its work. UK politicians could celebrate the protection of liberty that the European Convention gives – such as the prohibition of the retention of the DNA of innocent people. The Human Rights Act retains the supremacy of Parliament and does not allow a court to strike down legislation. Would it not be much better if we just let the Human Rights At settle into the architecture of the constitution and, a decade or so further on, see if we need to address other elements of the constitutional edifice? But that would be logic: this is politics. -----------------------------------------------------By Roger Smith OBE, Director, JUSTICE
Student Barristers Negotiate the Long Road to Competition Success By Charles Shoebridge
A
s with so much in
This was to be our first experience of
of course to get along with the opposition,
life,
invitation
formal negotiation other than as the conflict
working
seemed
harmless
resolution we had learned on our course.
acceptable resolution.
enough.
Arriving
The techniques taught however appeared to
in
the
November
together
towards
mutually
2008,
be equally suited to a deal-making scenario.
Determined therefore to be more submissive,
the email from Anna
Thus, having spent hours analysing facts and
or
Cheunviratsakul, senior lecturer on the Bar
issues likely to arise, researching relevant
approach, on 28 January we went into the
Vocational Course (BVC) at the Bloomsbury
law, assessing our strengths and weaknesses,
final of the college competition, judged
Branch of the College of Law, invited students
and attempting to anticipate our opponent’s
live by Anna Cheunviratsakul and Stephen
to enter the annual college negotiation
positions and tactics, we hesitatingly entered
Illingworth, Acting Head of the Bloomsbury
competition.
our first competition - the negotiation mantra
BVC. On this occasion, a new partnership
of ‘position, question, bargain, conclude’ very
agreement was needed between squabbling
much in mind.
osteopaths – complicated, in what appeared
Negotiation is one of twelve core assessments comprising the BVC finals and, therefore, it
perhaps
more
collaborative,
in
our
to be a developing theme, by two of the
seemed sensible to pursue any opportunity
With around a third of BVC students taking
partners having a relationship without the
for practice. That, at least, was the logic I
part, the first round was decided on a knock
knowledge of the third.
put to my classmate Charlotte Whitehorn, as
out basis. Teams recorded their twenty-five
I suggested we should take part. “Yes,” she
minute negotiation on a DVD, to be assessed
The following day, we learned we had been
replied, “it will be fun.”
by a course tutor who then delivered detailed
selected, from the ten who had reached the
written feedback to each team.
final, as one of two teams to represent the
Notwithstanding, perhaps, the memories of
college at a regional heat of the National
those who once studied for Bar Finals, the
The second round, to which nineteen teams
Negotiation
workload on the BVC is heavy. If however
including ourselves progressed, was decided
undergraduate and postgraduate law school
our decision to take on yet more work, along
in similar fashion.
in England and Wales.
with mooting, pro bono and other activities,
rural neighbours were in dispute in relation
was questionable, it was one also made by
to boundaries, nuisance and trespass –
With the arrival soon afterwards of our
the thirty-seven other teams of two who,
all of which, in the interests of avoiding
emailed instructions, winning the college
likewise, entered the competition.
embarrassment and costs, as well, no doubt,
championship soon didn’t appear to have
as a wish to adhere to the spirit of the CPR,
been quite such a good idea. A contract was
Within days some two thousand words of
the parties desired to resolve by negotiation
to be negotiated for the construction of a
common facts and confidential instructions
rather than recourse to the courts.
stadium in Georgia for the rugby world cup
in relation to our client arrived.
This time, aristocratic
Singing
Competition,
open
to
every
in 2015. Along with competing interests to
sixties television pig stars Pinky and Perky
Our feedback noted that in both rounds
consider and spreadsheets to complete, we
were coming out of retirement, and we were
we had, apparently, rather dominated our
were also faced, by now almost inevitably it
to represent our client in his bid to become
opponents. For weeks, we blissfully assumed
seemed, with the wife of one board member
agent for the pigs’ now retired, and somewhat
this comment to be positive, until our tutors
having run off with another, taking half his
reluctant, creators.
pointed out that, in negotiation, the idea is
prized possessions with her.
12
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Arriving for the regional heat in Birmingham
planning, and legal and factual research,
------------------------------------------------------
on 21 February, teams performed two fifty
together with argument, compromise and
Charles
minute negotiations, each judged by a panel
concession to secure agreement and the
International History and Politics (Leeds),
of three academics or practitioners in a sort of
client’s interests on the day.
was awarded the Graduate Diploma in
negotiation X Factor that assessed negotiation
Shoebridge
is
a
graduate
of
Law with Distinction in 2008, and is due to
outcomes, preparation, flexibility, teamwork,
By seven in the evening, competing was at an
complete the Bar Vocational Course at The
ethics, and relationships with the opposing
end. A gala dinner for competitors, coaches,
College of Law, Bloomsbury in June. Having
team.
Following each negotiation, teams
judges and sponsors followed, after which
won the National Negotiation Competition, he
were further assessed in a ten minute period
the time for announcing the winners arrived.
and Charlotte Whitehorn will now represent
of critical self reflection - an opportunity to
Notwithstanding the mistakes which Charlie
England and Wales in The International
demonstrate potential improvements having
and I realised we had made, we considered
Negotiation Competition, to be held in July
been identified, and lessons learned.
it still possible that we might have won third,
2009 in Chicago, USA.
We now for the first time negotiated against
this was not to be.
He can be contacted at
students from colleges other than our own
The use and abuse of motives and rationality in the financial services industry What makes motives in the investment sector unique is the dual-motive situation. In a criminal case, only the suspect either did or did not have a motive to commit the crime, not the victim. But in the financial sector, there are potential motives on both sides of the transaction By Dr Brian Bloch FATM - University of Muenster Introduction
as a means of illuminating the reasons for
really willing to take extreme risks with their
committing a crime. However, in criminal
money? Not many, and for those unfortunate
the
law, the courts are less concerned with why
few,
dropping,
the defendant committed the crime, than they
evidence to demonstrate such motives and
investors who lose money
are with whether. In the investment industry,
patterns of behaviour. And no one would take
try to figure out whether
by contrast, the whether is there for all to
truly ridiculous, downright foolish risks with
their brokers or banks did
see, but the why is absolutely fundamental in
their own money.
something wrong. When
negligence and damages cases.
E
specially
or even second prize. We soon learned that
c.shoebridge@ukonline.co.uk
13
markets
when are
there
is
generally
sufficient
hard
and, to our relief, found that the basic
Just as I apologised to our coach Anna
techniques
appropriately
however, it was announced, much to our
adapted, be deployed effectively in most
delight and not a little surprise, that we had
there are substantial losses, investors may
situations. Of the sixteen teams at each of the
won the competition.
We were the new
come to the conclusion that the real problem
three regional heats, twelve in total, including
national negotiation champions - a status put
lies not with the markets, but with the
Charlie and myself, were selected to compete
to immediate practical use by the securing of
investment itself and/or the seller. If they feel,
Firms wishing to evade liability for misselling
firm or advisor should be permitted to defend
after the fact, that it was too risky for them, or
or recommending unsuitable investments
himself by claiming that it was the investor
in some way mismanaged or misrepresented,
will generally extrapolate almost any kind
who really wanted to proceed with what was
they may seek compensation or damages. In
of experience into an assumption that the
somewhere between a lousy investment and
taught
could,
in the national final.
free wine for everyone in compensation for the fire alarm disruption of the night before.
The competition is sponsored by the Centre
The classic false argument
But the seller may undoubtedly take such risks with someone else’s money. Consequently, no
such instances, it is common for the seller (or
investor was well aware of the nature (of
financial suicide. It is essential to examine
for Effective Dispute Resolution and, as a
Whilst our success in the competition could
their lawyers) to point the finger back at the
almost any kind) of investment and the
damages or negligence cases in this context
prize, the twelve winning teams attended an
be credited to intense preparation, effective
investor, claiming that he or she understood
attendant risks. Conversely, investors will
of credible movies.
the risks and was willing to take them.
claim that they would never have gone
excellent advanced negotiation techniques
teamwork and flexibility of approach, the
training day at their London offices. Thus
success of the competition itself resulted
equipped, on 28 March battle was joined at
from the hard work of all who participated
Liverpool’s John Moores University, the home
and,
of the 2008 competition winners.
Mark Saunders, principal lecturer in law at
in
particular,
the
organisation
of
Kingston University. For the teams, suffering sleep deprivation
ahead, had they but known. In the face of
The double motive in financial cases
Often, the seller will point to previous
such defences, it is necessary to consider
investment experience as a justification
the motives, not only of the investor, but of
that the investor knew what he was getting
the seller, and to take a long hard look at the
The crucial point is whether a rational and
and “wanted it”. The issue of what really
investment itself.
informed investor would have had a plausible motive to take on a particular asset and level
constitutes such investment experience is
of risk. And equally crucial, how strong was
indeed a significant topic in itself. However,
the motive of the seller to sell? Was this a
from a night of last minute preparation and
As a means of making deals and resolving
the purpose of this article is to consider the
Alternatively expressed, when the losses
false hotel fire alarms, the competition proved
disputes the future of negotiation is assured
issue of motive as the key to determining
are there, firms attempt to justify their
particularly lucrative item? It is the interplay
whether the investor would realistically,
recommendations
of motives - or lack thereof - on both sides
and on a balance of probabilities, have gone
extremely generalised desire to make (a lot
ahead with an investment if he/she had really
of) money, largely irrespective of whether or
understood its nature and context.
on
the
basis
of
an
a feat of endurance. Over some seven hours,
and, notwithstanding its uncertain future
three relatively complex negotiations were
as part of the BVC, the ability to negotiate
interspersed only with preparation, feedback,
effectively is, arguably, a core advocacy skill.
not the decision to proceed really made any
What makes motives in the investment sector
reflection,
preparation.
Even for that reason alone, taking part in the
sense at the time – for the buyer in question.
unique is the dual-motive situation. In a
Continuing the rugby theme, they included a
Negotiation Competition is recommended for
However, even if people are truly greedy and
criminal case, only the suspect, either did or did not have a motive to commit the crime,
and
yet
more
that reveals the truth.
three way negotiation to decide a semi-final
anyone embarking on a legal career, and our
The nature and meaning of motives
out to make a quick profit, they are likely to
venue, a multi-faceted hotel dispute, and a
experience of doing so was overwhelmingly
In law, and particularly criminal law, a motive
act in a certain way and not in another. That
not the victim. But in the financial sector,
is what induces people to act in a certain
is, they will act rationally.
there are potential motives on both sides of
collaborative exercise to create and agree a multi-million pound closing ceremony. All involved many hours of prior analysis,
positive. And, yes, a lot of fun too.
way. It causes the decision or behaviour. The
the transaction. The buyer is motivated by the
legal system allows a motive to be proven
desire to make a profit and the seller likewise. After all, how many investors out there are
If it was an essentially bad investment from
14
the barrister
the barrister
Irrationality and Mistakes
15
and ethical obligations, a serious mistake on
interrelationship that reveal who did what
the part of the buyer is not much of a defence.
and why. A comprehensive investigation of
the start, but one that made money for the
a 45 year old man would be very foolish to
Especially in the context of a risky portfolio,
seller, on a balance of probabilities, this was
have such an undiversified and “all-the-eggs-
passivity and reliance on the fund manager
a misselling. If, on the other hand, the asset
in-one-basket” portfolio. On the other hand,
are signs of an inexperienced investor who
There are indeed people who get carried away
was basically sound, but went wrong for
a stockbroker would have a very compelling
was taken for a ride.
by greed, but in such instances, one needs to
legitimate reasons beyond the control of the
motive to foist such an investment on the
A continuum of probabilities and the zone of
look for credible evidence of behaviour of this
seller, there should be no damages claim.
unwary. After all, that is his stock in trade
uncertainty
kind, and at the seller in order to establish
Why would an investor go ahead with
of the investments themselves. On this basis,
whether meaningful warnings should have
a particular purchase?
There has to be
firms, courts and ombudsmen should make
been and were given. Such a warning must go
something in it for them, unless they are
decisions as to negligence, misselling and
The above examples are particularly clear
considerably beyond small print stating that
irrational, crazy, making a mistake or –the
awards of damages.
cut, but this is not always the case.
“the value of your investment may go down
victim of some form of misselling. Most acts of
and he does well out of the deal. Motives and the perennial conflict of interest
the actors on both sides of the transaction
Conclusions
is
indispensible.
This
includes
the
circumstances, laws, obligations and nature
The intrinsic problem in the investment
Similarly, no one would invest a large
industry is that higher-risk investments
proportion of his/her wealth in what is
as well as up”. Particularly, but not only where
investment cannot fairly be attributed to greed,
------------------------------------------------------
are more profitable for the seller than low-
nothing more than a so-called “closet tracker”,
there is a “duty of care” to the investor, any
imprudence or error, and neither should such
Dr. Brian Bloch
risk ones. Simultaneously, however, the
a standard collection of equities that simply
In terms of motive to buy, investments run
honest and indeed prudent firm would ensure
behaviour constitute a defence for the seller,
FATM - University of Muenster
investment literature has demonstrated quite
goes up and down with the market. There is
the gamut from being totally undesirable to
that an appropriate warning is issued to the
beyond true “execution only” situations. The
Fliednerstrasse 21
clearly that most people are risk averse.
no motive for the buyer in this instance, but
extremely promising. Subject to the crucial
buyer that the investment is risky and may not
person must stand to gain something, or have
48149 Muenster
Finally, investment psychologists have proven
the seller, once again, earns handsomely from
condition that the investor understands
be suitable.
reason to believe that this is the case - if there
Germany
that people suffer more from losses than they
a low-maintenance product. The point is that
the true level of risk and real nature of the
are to be claims that he agreed to it knowingly
Tel: +49(0)251 83 29921 (office)
enjoy the equivalent level of gains.
if the investor wanted to “buy the market”,
investment, the likelihood of a knowing and
Similarly,
and deliberately.
Tel: +49(0) 251 857 0199 (home)
he would do through a real index tracker at
deliberate purchase can therefore be divided
mistakes are not necessarily liable for them.
lower cost and complete transparency.
into five groups along a continuum:
Where a mistake was indeed made, the
customers
who
simply
make
Fax: 0049 (0) 251 83 31438
This means that in both psychological and
motive was then misconceived, being based
Motive is a reliable behavioural guide in the
Main email:
financial terms, sellers are more likely to
on misunderstanding, ignorance or deceit and
financial services industry. But the motives
brian.bloch@marketing-centrum.de
push high-risk products than buyers are to
Talking of transparency, excessively complex
1. Impossible – a clear dud that any genuinely
thus not genuine. Accordingly, depending on
on both sides count, those of the buyer and
Alternative email:
buy them - knowingly and deliberately, that
and cost-laden certificates or insurance
experienced, fully informed and rational
the selling situation and the attendant legal
the seller, and it is the plausibility in the
brianjbloch@hotmail.com
is. There is probably nothing more important
policies which are commission-heavy and
investor would avoid
in the context of investment motives than this
financially inefficient are similarly purchased
2. Unlikely
point. In the absence of clear and convincing
only by the naïve and exploitable. To ascribe
3. Possible
evidence of risk-friendliness or risk-aversion,
implausible motives after the fact is an old
4. Probable
it should be assumed that investors want a
trick, and a very unjust one.
5. Definitely – an outstanding investment.
Where people are genuinely risk friendly, they
The extreme positions of 1 and 5 are crystal
would invest in a sensibly diversified portfolio
clear, and 2 and 4 should also not present
of high-risk assets, such as a prudent mix of
major investigative problems. Number 3 is
foreign funds or corporate bonds, venture
more problematic. But even so, it is generally
capital, hard assets etc. The prices of these
possible to determine whether one is dealing
Even if someone is really risk friendly,
assets would also not be inflated, but fair
with
such motives cannot be ascribed unless the
and with the promise of good rates of return.
that went wrong, as such things can, or
investment made sense. A truly “adventurous”
Furthermore, they would normally ensure
whether this was a misselling, an unsuitable
investor will obviously still attempt to avoid
that the portfolio is monitored regularly and
investment or something even worse.
stupid risks that are statistically likely to
managed actively.
moderate to low level of risk. Few investors are really risk friendly, and certainly not those who really cannot afford to lose money.
Irrational versus rational high risk
a
reasonable,
rational
investment
end in disaster. If the investment in question
The continuum and the associated motives
was, to put it bluntly, quite mad, it is absurd
to invest are also subject to the usual key
to assume that the person really understood
If such investment/s go wrong, it will, in most
contextual factors, such as the investor’s
and wanted it.
cases, subsequently be quite clear that there
age, personal circumstances and risk profile.
was a valid and rational motive to take the
And let’s not forget the state of the market
risks at the time of investment. This is a far
at the time of investment! There is no
For instance, an 80 year old lady would be
cry from post-loss allegations that an investor
plausible motive to plunge in grand style into
irrational indeed to put 80% of her assets
understood and wanted an investment that
overheated and euphoric markets.
into the stock market, particularly if equities
really made no sense at the time for the
were relatively expensive at the time. Even
buyer, but was clearly beneficial to the seller.
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180x125-IQ-en_UK.indd 1
19.02.2009 14:02:06 Uhr
16
the barrister
the barrister
Change you can believe in: What new rights against associative discrimination mean for claimants By Matthew J Smith BA Oxon, PGDL Brookes, LLM Inns of Court School of Law
T
1. COLEMAN v ATTRIDGE LAW he recent European Court of Justice case of Coleman v Attridge Law1 demonstrates the potentially radical changes the Tribunal System can affect in day-to-day life. Sharon Coleman worked as a legal secretary for a firm of solicitors called Attridge Law. Her son was disabled within the meaning of the Disability Discrimination Act 1995. She was not. His disability required that she take more time off and consequently more paid leave to care for her son. Attridge Law refused to grant her the same flexibility in her working arrangements as those of colleagues with non-disabled children. She was then subjected to disciplinary action and Attridge Law failed to deal properly with a formal grievance she lodged against her illtreatment. Sponsored by the Commission for Equality and Human Rights she brought a claim for constructive dismissal and disability discrimination against the firm.
At the prehearing review the tribunal chair decided that the question of whether discrimination by way of association with a disabled person is prohibited by the Equal Treatment Framework Directive2 should be referred for a preliminary ruling. On 17th July 2008 the ECJ decided that the Directive and, in particular, Articles 13, 2(1)4 and (2) (a)5 had to be interpreted as meaning that the prohibition of direct discrimination laid down by those provisions was not limited only to people who were themselves disabled. Moreover, Articles 1 and 2(1) of the Directive had to be interpreted as meaning that the prohibition of harassment laid down by those provisions was not limited to applicants who were themselves actually disabled. Sharon Coleman, as an associate, was found to have an action against Attridge Law for disability discrimination and harassment. On 2nd April 2009, nearly a year on,
Harriet Harman’s Equality Bill if enacted will extend the law on direct discrimination to include discrimination by association and
perception to disability, sex, gender reassignment and age in both the employment field. This article considers where a Coleman claim might emerge and the difficulties posed by existing arrangements which associates will still need to overcome in order to bring their cases to tribunal.
2. WHO BENEFITS? ASSOCIATED CARERS The first group of beneficiaries are associates. But where is the greatest incidence of association? There are currently 6 million people providing unpaid care in Britain, most of which are women. Moreover 2.6 million employees juggle the role of unpaid carer with their job6. Carers UK7 have raised the profile of carers who find themselves in the same position as Sharon Coleman. In the context of an ageing population, greater medical recognition of psychological and anxiety related conditions, cultural diversification and changes in government policy pertaining to schooling for the mentally disabled and the shift from care in the community to care in the home are all factors contributing to the need to re-assess the rights of carers and associates of disabled individuals. Progress in the understanding of disability The status quo before Coleman arguably saw disability discrimination law in the UK fail to keep pace with our understanding of disability as society has evolved. The great majority of disability discrimination claims turn on whether someone actually succeeds in being classified as being disabled. Now if someone is sacked from work owing to absences related to depression, then their claims no longer exist purely in unfair dismissal alone, now they also arise under disability discrimination. Discrimination based on perception This is an area that still needs clarity. If there is a perceived disability, how do you prove this? This issue is especially relevant
to cases which concern perceived illness. Instances of discrimination against an individual on the basis of perceived disability is also complicated because barristers are dealing with the infliction of an act which in itself tends to cause an illness in the form of stress. These situations might also involve religion and belief for instance there may be cases where in a civil marriage one party is a Muslim, the other is not and adopts and Islamic surname. However issues of association and perception occur far more frequently in cases of disability’8. Sale of goods and service cases A major source of such claims in associative discrimination will be sale of goods and services cases. These are situations such as where someone tries to enter a cafe attended by a disabled person and is turned away because of their disabled partner. Similarly one can imagine the scenario of a disabled person trying to get into a nightclub and his or her associates being turned away because of their disabled partner.
INTERSECTIONAL DISCRIMINATION Claims of an intersectional nature have the potential to multiply the likelihood of discrimination by association. In Bahl v The Law Society9, an Asian woman claimed that she had been subjected to discriminatory treatment both on the grounds that she was Asian and also on the grounds that she was a woman. The Court of Appeal preferred to try discrimination in this case under separate heads. The powerful minority judgment of Madame Justice L’Heureux Dubé in the case of Canada (A.G.) v Mossop10 stated: ‘... categories of discrimination may overlap, and individuals may suffer historical exclusion on the basis of both race and gender, age and physical handicap, or some other combination’. Sexually transmitted diseases Discrimination law practitioners might anticipate claims of an intersectional nature involving those who cared for people with HIV and groups with whom HIV is associated
in the public mind such as gay men, black Africans, injecting drug users, family members of those injected with HIV, carers and health professionals working in the field. Cultural differences Associative Discrimination claims may arise in different measures across different cultural groups. It is an established fact that because of social changes, an increasing proportion of single mothers in the UK are of Afro Caribbean origin. Furthermore, another cultural factor at work here is the number of Asian families and households where there are more than one generation live under the same household’ stonetime.co.uk11. Women There is also talk of the ‘Sandwich’ phenomena. This concerns women in their 30s and 40s who have young kids and elderly parents. Poverty Viewing discrimination law in its proper social context, the state of being a carer is in a large part a correlative of being poor. Instances of associative discrimination are going to hit the most vulnerable people first. There is a practical question to be asked here: What length does a parent go to support their disabled child? Do they go as far as to lose their job?
YES WE CAN? The press made much was made of the general phenomenon of floods of claims resulting not from changes in the statute but changes in the case law. This generated the impression that Coleman had granted the right to reasonable adjustments to carers of disabled children. In reality Sarah Coleman was found to have rights in direct discrimination and harassment. Coleman is therefore limited to old fashioned prejudice cases, direct and indirect discrimination cases and harassment. Moreover the irony might be that in all probability Coleman actions will make up only a small number of disability discrimination cases.
These cases may prove to be too complex and require the attention of committed practitioners. Employment law Bar How prepared is the employment law bar? There is no legal aid for discrimination law work. People suffering this form of discrimination are going to be poor people, vulnerable people. It is very rare then that these cases are going to be picked up by solicitors and barristers. If Sarah Coleman had a sufficiently high paid job she would have paid for a nanny and there would have been no problem in the first place. The most important practitioners in this field will turn out to be those who will feel that associative discrimination needs to be pushed as part of the wider social landscape. Tribunals Associative discrimination is like any legal development. The effectiveness of a legal right depends on how receptive a judge is to it. Judges will need to act fairly and speedily. If a claimant in Sharon Coleman’s position was faced with a hectoring cross examination, this would have to be stopped by a tribunal chair acting within the Overriding Objective. General awareness Frequently somebody who is mentally disabled will not be aware that they are subject to acts that are intended to cause injury and hurt to feelings. People in the caring professions are potentially very vulnerable. In many situations, claims will be a last resort. Sarah Coleman had the benefit of good advice at an early stage. Employers At the end of the day it is employers who will drive changes in this area. This is a question of accommodation. Employers will want to stay ahead of the game because they want a compliant workforce. Employers will address associative discrimination and orientate their policies appropriately irrespective of what the law says.
HOPE SPRINGS ETERNAL Practical difficulties Referral agencies Community Advice Bureaus and Law Centres will have little involvement here precisely because there is no legal aid funding for discrimination law claims. Moreover the financial incentive for referral agents to take up volume cases creates difficulties for claimants in associative disability discrimination cases. Associative discrimination cases will make up a much smaller proportion of cases overall.
The emergence of rights against discrimination for associates highlights the extent to which discrimination law can be conceptualised as a social weapon. It will be interesting to see how intersectional and associative discrimination develop in terms of the language used before tribunals. How long will it be before we start thinking of employment law in terms of human rights? It could be argued that human rights could well encapsulate intersectional and associative discrimination.
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Equality meaningfully understood consists of human dignity and personal autonomy. One way of undermining the dignity and autonomy of people who belong to a certain group is to target not them, but third persons who are closely associated with them and do not themselves belong to the group. A robust conception of equality entails that these subtler forms of discrimination should also be caught by anti-discrimination legislation. In the words of Sharon Coleman, “we are one step nearer to stopping people with caring responsibilities like me from being badly treated and harassed at work. It has taken a lot of courage to fight this case, but no-one should have to choose between caring for disabled relatives or their job”12.
1Coleman v Attridge Law C303/06 2EC Equal Treatment Framework Directive 2000/78 ‘Establishing a framework for equal treatment in employment and occupation’, formally adopted on 27th November 2000. 3‘The purpose of this Directive is to lay down a general framework for combating discrimination on the grounds of religion or belief, disability, age or sexual orientation as regards employment and occupation, with a view to putting into effect in the Member States the principle of equal treatment’. 4‘For the purposes of this Directive, the ‘principle of equal treatment’ shall mean that there shall be no direct or indirect discrimination whatsoever on any of the grounds referred to in Article 1’. 5‘For the purposes of paragraph 1: (a) direct discrimination shall be taken to occur where one person is treated less favourably than another is, has been or would be treated in a comparable situation, on any of the grounds referred to in Article 1; (b) indirect discrimination shall be taken to occur where an apparently neutral provision, criterion or practice would put persons having a particular religion or belief, a particular disability, a particular age, or a particular sexual orientation at a particular disadvantage compared with other persons unless: (i) that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary, or (ii) as regards persons with a particular disability, the employer or any person or organisation to whom this Directive applies, is obliged, under national legislation, to take appropriate measures in line with the principles contained in Article 5 in order to eliminate disadvantages entailed by such provision, criterion or practice. 6Carers UK. 7www.carersuk.org 8Appendix V: SR 4 9[2004] IRLR 799 10[1993] 1 SCR 554 at p 645 11Appendix V: JIL 20 12Commission for Equality and Human Rights: ‘Mother’s landmark legal victory could herald new rights for Britain’s six million carers’.
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the barrister
the barrister
19
Jackson: a ‘review for review’s sake’ or a ‘valiant effort’?
a key is to understand their interaction with
Indeed we know from the conversations we
access to commercial (or other) justice:
third party funding. Furthermore, the picture
have had to date with LJ Jackson and his
surely we are all agreed in principle that the
is not a static one – indeed the market for
committee, that they recognise just how much
way litigation is funded should not prevent
ATE products is particularly fast-moving,
of the recent innovations in litigation funding,
any individual or corporate, large or small,
involving all manner of innovation. This is
and thus access to justice, have come from
asserting their commercial rights when
By Bob Gordon, CEO, 1st Class legal
a complex picture and to oversimplify it is to
the ATE corner of the market. The point here
they have a meritorious claim. Those of us
misunderstand it.
is that there is so much more to come - even
heavily involved in this area, who understand
O
n 8 May the attention of
As a consequence…has the real potential to
nevertheless has significance in terms of
the
deliver’ (Anthony Hughes, president of the
leveling the playing field between plaintiff
Forum of Insurance Lawyers).
and defendant – and thus significance in
to
legal the
world
subject
turned of
civil
litigation costs as Jackson
terms of access to justice: this is the issue
LJ revealed the terms of
One of the main discussion points around
regarding payments into court providing
reference of his year-long
the Jackson Review, particularly within the
security for costs. The key question is, why
review of the matter in his preliminary report.
media reports surrounding it, and in the
is it assumed that only plaintiffs may have
corridors of law firms around the City and in
difficulty in covering the legal costs on losing,
The subject of reducing litigation costs is
the regions, as well as at the Bar, concerns
when the point applies equally to defendants?
close to most lawyers’ hearts as it is critical to
the English Costs Rule - the award of costs
Why should this rule only play to the benefit
London’s competitiveness as an international
against an unsuccessful party – and whether
of defendants?
centre for litigation – and we all have a
it is now time to adopt a different approach.
those funding litigation – and here I should
vested interest in preventing any further
Certainly media reports to date have focused
state my interest quite clearly, as a seasoned
loss of ground to the world’s other centres.
on LJ Jackson’s apparent ‘leaning towards the
provider of funding for big-ticket commercial
Whilst we lead on matters of certainty of law,
modernisation of conditional fee agreements’.
litigation - we would be both prepared
transparency of process and enforceability
The English Costs Rule certainly has its flaws,
and able to back far more cases were both
of our judgments in other jurisdictions, we
but is this alternative that is most often talked
plaintiffs and defendants providing security
cannot say the same when it comes to the
any better? Or to put the question another
for costs. The dynamics of this argument are
matter of cost: on this point our competitors
way, could this pave the way for the type
simple: it’s all about the effect of this on the
have some advantage.
of litigation excesses that commentators
balance of risk and potential reward, in the
From the point of view of
complain of in the US, where a mischievous
eyes of the person underwriting the litigation
So the various strands of the profession
plaintiff bears virtually no risk of having to
costs. This may be a small point of detail,
may be united in a keenness to reduce
pay the other side's costs in addition to their
but given that the advances in litigation
litigation costs, however this does not mean
own, and where the existence of Contingency
funding products have potentially such a key
that everyone has welcomed the idea of LJ
Fee Arrangements means that even if they
role to play in improving the cost dynamic of
Jackson’s review, despite its promise of a
lose, their own costs are covered by the
the London litigation market, and access to
fundamental re-think of issues dear to their
arrangement with their lawyers: thus these
justice for people who believe they have been
hearts.
Indeed some commentators have
mischievous plaintiffs quite literally have
wronged, the perspective of litigation funders
gone on record to say that far from needing
nothing to lose by bringing the most spurious
on this point has a significance and so it is not
a new set of rules to help contain costs, what
claims. Indeed, many commentators blame
one to ignore. Let us hope it is given a proper
is far more needed is for the rules that we
precisely this for the growth of the US's so-
airing in the consultation period which has
have in place already to be followed by those
called 'Litigation Culture'?
The UK's far
just kicked off for Justice LJ’s review – and
managing and judging cases. Other cynics
better response, surely, has been to innovate
that the views of practitioners on the ground
claim the idea of a fresh review is doomed
and find superior ways to back litigation and
are listened to in particular.
from the start, as its roots are in the abject
underwrite the costs – and in this regard we
failure of the Woolf reforms to control the cost
have undoubtedly led the way.
As we all
Good news in the preliminary report was
of civil justice. Immediate reactions from the
know, the market for After The Event (ATE)
the extent to which it did separate out the
big law firms as the 1,000-page preliminary
insurance has mushroomed in the last 12-18
issues surrounding the use of ATE insurance
report was published on 8 May ranged from
months in the commercial litigation market:
in relation to personal injury cases, from
‘Oh God! It’s so big!’ (David Green, Chair of
once seen as the preserve of personal injury
its use in other very different areas of civil
the London Solicitors Litigation Association),
cases, ATE insurance has now entered
and commercial litigation (referred to in
to ‘Here we go again – another review for
the mainstream for increasingly big-ticket
the Report as 'commercial cases'). Indeed,
review’s sake’ (anonymous senior partner)
commercial litigation.
from our own discussions with the Review
to ‘A valiant effort.. that helpfully articulates the
issues’
(Clare
Canning,
partner
committee, we know that they appreciate how
in
There has however been far less discussion,
different the issues are that arise around ATE
the Litigation & Disputes team at Mayer
both at the preliminary report stage and the
depending on the context of the particular
Brown) to ‘The report is neutral in tone and
period leading up to it, about a more detailed
category of litigation involved. However, the
apparently free from political interference.
aspect of the costs dynamic, but one which
point is that these issues do not sit in isolation:
more comprehensive funding methodologies
the dynamics and complexities of the issues
A similar point arises in the review of
that will take to another level entirely the
involved and how they play out in the real
regulation of third party funders which has
current models that the marketplace is only
world, let us ensure that we make the most
been running alongside the Jackson Review.
now starting to become familiar with. These
of the consultation period to make our views
The picture is convoluted because a number
innovations will rely on exactly the kind of
known.
of strands are threaded together and each
interaction between ATE insurance and third
has its own complexities: ATE is an insurance
party funding referred to above and this is
product so it needs to be understood in that
why it is critical that this is fully addressed
------------------------------------------------------
context; but to understand the components of
during the consultation period. This presents
Bob Gordon is CEO of 1st Class legal, a
the risk analysis at the heart of the product,
a significant challenge for anyone tasked
pioneer in the field of ATE insurance and
you need to view it also as a legal issue and to
with reviewing or regulating this area –
litigation funding who has been involved in
understand how it operates in its very special
simply in terms of keeping up with the detail
a number of discussions with LJ Jackson
context of litigation (and now increasingly
of precisely what it is they are regulating!
and his review committee as the preliminary report was prepared – and indeed his
big-ticket and complex); and of course it is a financial product at the same time, bringing
Critical points are at stake here: yes, it is
company is specifically referred to in the
another layer of issues and complexity.
about the financial dynamics of cases, but
report.
Moreover, the market for ATE insurance is
we should also remember the role that
expanding fast – and, crucially, innovating.
costs play in providing, or indeed blocking,
20
the barrister
NEWS ROUND UP
NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS BAR COUNCIL WELCOMES LORDNEWS JUSTICE PRELIMINARY NEWS NEWS NEWS NEWS NEWS NEWS NEWSJACKSON’S NEWS NEWS NEWS NEWS NEWSREPORT NEWS NEWS NEWS NEWS The Bar NEWS Council welcomed Lord Justice Preliminary Report reviewing theNEWS cost of civil litigation which was NEWS published on NEWS NEWS NEWS NEWSJackson’s NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS 08 May 2009. NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Responses will be sought by Lord Justice Jackson from interested parties over the summer, before a final report and recommendations are NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS published in late 2009. The Bar Council welcomes the initiative to review costs in civil matters. NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSa NEWS NEWS NEWS NEWS NEWS NEWS The Bar NEWS Council has already established Jackson NEWS WorkingNEWS Group which willNEWS consider the issues raised by theNEWS JacksonNEWS Review. NEWS It is chaired NEWS NEWS NEWS NEWSQCNEWS NEWS Representatives NEWS NEWSofNEWS NEWS NEWSBar NEWS NEWS are NEWS NEWS NEWS by Michael Todd QC, with NEWS Susan Rodway as Vice-Chair. a number of Specialist Associations members of the NEWS NEWS NEWS NEWS NEWStheNEWS NEWSinNEWS NEWS Group and they will be able to represent diverseNEWS views ofNEWS those working the various civilNEWS fields. NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS The Bar Council also notes with great interest Lord Justice Jackson’s provisional view (see page 172, paragraph 5.5 in the report) on ‘no win NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS no fee’ agreements. The Bar Council recognises that these agreements can provide enhanced access to justice but believes there is scope for NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS reform and improvement. The report’s eventual recommendations will be of great interest to those outside of the legal profession including NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS those in publishing, insurance and healthcare. NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSof NEWS NEWS Report NEWSbyNEWS NEWS NEWSMichael NEWSTodd NEWS NEWS NEWS NEWSJackson NEWSWorking NEWS Commenting on the publication the Preliminary Lord Justice Jackson, QC, Chair of the Bar Council NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Group, said: NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS ‘The Working Group will consider the issues raised in the report and produce a draft response for the Bar Council which commands the widest NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS possible support from practitioners across the civil field. I note that Lord Justice Jackson has focused on questions relating to cost shifting, NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS fixed costs, personal injury claims, controlling the costs of ‘heavy’ litigation, CFAs and ATE insurance, and alternative methods of funding NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS access to civil justice. We are concerned that the ever-increasing costs burden of civil litigation results in a denial of access to justice for the NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS many people who cannot afford those costs. That is clearly not in the public interest.’ NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS CALL NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSHIGGINS NEWS NEWS NEWS PROFESSOR DAME JOAN LAWYERS FOR URGENT ACTION NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS APPOINTED CHAIR OF QUEEN’S ON JUVENILE DETAINEES IN NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSHELD NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS COUNSEL SELECTION PANEL GUANTANAMO BAY NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSNEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Professor DameNEWS Joan Higgins has been appointed as the new The Bar NEWS Council, NEWS the Law NEWS Society, NEWS the Criminal Bar NEWS Association, the NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS lay Chair of the NEWS Queen’s NEWS CounselNEWS Selection Panel,NEWS replacing Commonwealth Association and the Bar Human NEWS NEWSLawyers’ NEWS NEWS NEWS NEWS NEWSRights NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSGBE. NEWS NEWS applicants NEWS NEWS Baroness Butler-Sloss TheNEWS Panel assesses for Committee has called on the Attorney General of the UnitedNEWS States NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSgiven NEWS NEWS NEWS the award of Queen’s Counsel, to those whoNEWS demonstrate of America to take urgentNEWS action inNEWS cases where those detained in NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS excellence in advocacy in the higher courts, following an Guantánamo Bay were captured as juveniles. These concerns are NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS objective assessment by it. The Selection Panel set out inNEWS a letterNEWS sent today to theNEWS US Attorney General, Eric Holder.NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSundertaken NEWS NEWS NEWS NEWS NEWS is independent, and includes lay members, as well as senior NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS The cases include those of a young Canadian, Omar Khadr, and an NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS barristers and solicitors. Afghan, Mohammed Jawad, both detained without trial by the UnitedNEWS NEWS NEWS NEWSsince NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS States military 2002,NEWS and who have now spentNEWS nearly aNEWS third NEWS NEWS The Chair was appointed by a group led independently by Sir NEWS NEWS NEWS NEWS NEWS NEWSGeneral NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS of their lives in US detention. The NEWS letter asks the Attorney Roger Jackling KCB CBE, joined by the Chief Executive of the Bar NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS to dispose of the NEWS cases of NEWS Khadr and JawadNEWS – as well as those of Council and the Chief Executive of the Law Society. NEWS NEWS NEWSinNEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS other juvenile detainees Guantánamo - in a manner consistent NEWS NEWSobligations NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS with American under the Optional Protocol of theNEWS UN Professor Dame Joan Higgins has been a lay member of the QC NEWS NEWS NEWS Convention on theNEWS Rights NEWS of the Child. ThisNEWS requestNEWS follows NEWS repeatedNEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Selection Panel since 2005; she also chairs the NHS Litigation NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS calls for action from the UK’s legal profession, which have included Authority, and is a member of the House of Lords Appointments NEWS NEWS NEWS NEWS an Amicus brief to the USNEWS Federal NEWS Court inNEWS JanuaryNEWS 2008, and lettersNEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Commission. NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS to formerNEWS President BushNEWS and Canadian Prime Minister Stephen NEWS NEWS Harper inNEWS February 2008. NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Commenting on NEWS the appointment of Professor Dame Joan NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Commenting on the continued detention of Omar Khadr and Higgins, David Hobart, the Chief Executive of the Bar Council, NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Mohammed Jawad, Chairman of the Bar Desmond Browne QC said: said: NEWS NEWS NEWS NEWS NEWS NEWS NEWSNEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS ‘The lengthy detention, putting on trialNEWS for warNEWS crimes, NEWS of NEWS NEWS NEWSand NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS “Dame Joan has been a lay member of the Panel since 2005, and someoneNEWS who appears to NEWS be a “child soldier” is contrary to the NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS this has given her a very firm grasp of the role and the value of special protection to which Khadr NEWS and Jawad are entitled virtue NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSbyNEWS NEWS NEWS NEWS NEWS NEWS NEWS Queen’s Counsel and of the work of the Panel. I am delighted of the Optional provides forNEWS the rehabilitation and NEWS NEWS NEWS NEWSProtocol, NEWSwhich NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS that she will now be able to lead selection for the award of Silk. social reintegration of former childNEWS soldiers. We hope that the new NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS She will be the third Panel Chair, following her predecessors administration take this opportunity reconsider the detention NEWS NEWSwill NEWS NEWS NEWStoNEWS NEWS NEWS NEWS NEWS NEWS NEWSand NEWS NEWS NEWS NEWS NEWS Baroness Butler-Sloss Sir Duncan Nichol CBE. Their of those NEWS held in Guantánamo who NEWS were captured juveniles.’ NEWS NEWS NEWS NEWSasNEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS hard work over the past few years has been instrumental in Paul Marsh, President of the Law Society, NEWS NEWS NEWS NEWS NEWS said: NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS establishing the new system as robust and transparent.” NEWS NEWS NEWS NEWS NEWSStates NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS ‘The ad hoc process devised by the United under the previous NEWS NEWS NEWS NEWS NEWS NEWSisNEWS NEWS NEWS NEWS NEWS NEWS of NEWS NEWS NEWS administration to try so-called “enemy combatants” both illegitimate Des Hudson, theNEWS Chief Executive the Law Society, said: NEWS and irreparably It has no basis in international law andNEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSflawed. NEWS NEWS NEWS NEWS NEWS contravenes well established laws of war andNEWS humanitarian NEWS NEWS NEWS NEWS NEWS NEWSlaw. NEWS NEWS NEWS NEWS Professor NEWS NEWS NEWS NEWS NEWS NEWS "I congratulate Dame Joan Higgins as the new Chair Prosecution in thisNEWS system,NEWS and indeed any system of NEWS military tribunals, NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSCounsel NEWSSelection NEWS NEWS NEWS NEWS NEWS of the Queen’s Panel. I'm sure her invaluable is grosslyNEWS unsuitedNEWS to meeting the requirement of the NEWS Optional NEWS Protocol NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS experience will bring a safe pair of hands to the tiller and will to provide for the rehabilitation and social reintegration of former child NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS continueNEWS the good work of Baroness Butler-Sloss". soldiers such as Mr. Khadr and Mr. Jawad.’
NEWS ROUND UP
the barrister
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NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NICHOL REVIEW OF QC SYSTEM ENDORSES THE NEWS REVISED NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSPROCEDURE NEWS NEWS NEWS NEWS NEWS NEWS On 08 May 2009 the Bar Council the Law Society published the report of Sir Duncan NicholNEWS CBE’s review of NEWS Queen’s NEWS Counsel NEWS Appointments. NEWS NEWS NEWS NEWSand NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSofNEWS NEWS NEWS NEWS NEWSand NEWS NEWS NEWS The purpose of the reviewNEWS was to examine ways of improving the operation the revised process for the appointment selection of Queen’s NEWS NEWS NEWS NEWS NEWS‘toNEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Counsel NEWS in England and Wales, which is designed serve the publicNEWS interestNEWS by offering a fairNEWS and transparent means of identifying excellence NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS in advocacy’. NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS The scheme, operated by NEWS the Queen’s Counsel Selection Panel, has run two competitions under a reformed system established in 2006. NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSofNEWS NEWS NEWS NEWS the NEWS NEWS NEWS NEWS NEWS NEWS NEWS Sir Duncan has made a number recommendations for improving system (someNEWS of whichNEWS the Selection Panel will apply in the 2009-10 NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS competition), but NEWS his overall findings are that the system works well NEWS in identifying outstanding advocates. NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS As part of his task, Sir Duncan wasNEWS asked to consider whether ‘additional forms of excellence such as NEWS both litigation and non-litigation NEWS NEWS NEWSwork NEWS NEWSinNEWS NEWS NEWS NEWS NEWS Counsel NEWS should NEWSand NEWS work forNEWS partnersNEWS in law firms, or NEWS wholly advisory by lawyers non-judicial fora, or the work of General could NEWS be NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS recognised by theNEWS same award of Silk’. NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Sir Duncan’s report rejects this suggestion, saying that: NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSand NEWS NEWS NEWS ‘It is not NEWS the rightNEWS time to NEWS reignite the debate that was resolved between the Bar Council and the Law Society approved by the Lord NEWS NEWS NEWS NEWS NEWS NEWS immature NEWS NEWS NEWS NEWS Chancellor as recently as NEWS three years ago. NEWS The newNEWS process NEWS is still relatively and vulnerable. It is alsoNEWS capableNEWS of beingNEWS refined NEWS and NEWS NEWS NEWS NEWS NEWS NEWS NEWSofNEWS NEWS NEWS NEWS NEWS NEWS NEWS approvedNEWS within its current purpose and toNEWS that endNEWS the review has made a number recommendations.’ NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSattracts NEWS NEWSleading NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Serle Court private international law and trusts expert NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Professor Jonathan Harris, a specialist in private international law and international trusts, joined leading commercial/chancery chambers NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Serle Court as a tenant on 1 May 2009. He will also continue to hold the position of Professor of International Commercial Law at the NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS University of Birmingham. NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Harris was calledNEWS to the Bar in 2006, and was previously a practising door tenant at Brick Court Chambers. HisNEWS practiceNEWS covers all areas NEWS of NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS commercial and chancery law. He NEWS has a pre-eminent reputation in the field ofNEWS private NEWS international lawNEWS and is an editor NEWS of the leading work NEWS NEWS NEWS NEWS NEWS trusts NEWS NEWSrenowned. NEWS NEWS NEWS NEWS Dicey, Morris andNEWS Collins,NEWS The Conflict of Laws. HisNEWS work in NEWS the areaNEWS of international is equally He is the authorNEWS of The Hague NEWS NEWS NEWS NEWS NEWS NEWSand NEWS NEWS NEWS NEWS NEWS NEWSTrusts NEWS NEWS NEWS NEWS Trusts Convention and a contributor to Underhill Hayton, Law ofNEWS Trusts and Trustees and to International Laws. NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Notable recent cases include Charman v Charman and General Motors Corporation v Royal & Sun Alliance Insurance. He has been instructed NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS in proceedings in Bermuda, the British Virgin Islands and Jersey and is regularly involved in high value commercial disputes, especially with a NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS private international law element. He is also frequently retained in international trusts cases, and divorce cases with an international element. NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS In addition, he provides numerous expert opinions in foreign proceedings. NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Harris isNEWS currently acting NEWS as advisor to the NEWS Ministry NEWS of Justice on the NEWS Proposed EU Regulation Succession and Wills. Previously, he was NEWS NEWS NEWS NEWS NEWS NEWS on NEWS NEWS NEWS NEWS NEWS NEWS involved NEWS in drafting the BVI TrusteeNEWS (Amendment) 2003. NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSAct NEWS NEWS NEWSisNEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS “We are NEWS delightedNEWS that Jonathan joining us”, saidNEWS Serle Court ChiefNEWS Executive, Nicola Sawford. ”His outstanding reputation in private NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSpractices NEWS NEWS NEWS NEWS NEWS NEWS international lawNEWS and trusts will further strengthen our international trusts and commercial and further enhance our reputation as a NEWS NEWS NEWSset.” NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS blue chipNEWS commercial/chancery NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Commenting on his move,NEWS Harris said: “I am delighted to beNEWS taking up a tenancy at Serle Court, widelyNEWS recognised as one of the NEWS leading sets at NEWS NEWS NEWS NEWS NEWS NEWS NEWS suited NEWS NEWS NEWS NEWS the Bar. INEWS believe NEWS that my NEWS interests,NEWS which cover both commercial andNEWS chancery matters, are perfectly to NEWS Serle Court’s areas of practice. NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS The international nature of much of my work makesNEWS Serle Court an ideal choice.” NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS APPOINTMENT HIGH COURT – NEWS NEWS Cherie Booth urges Manchester NEWS NEWS NEWSOF NEWS NEWS NEWS JUDGE NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS KENNETH PARKER QC NEWS NEWS NEWS NEWS firms to NEWS nurture talent NEWS NEWS BLADES NEWS NEWS NEWS NEWS NEWS NEWS female NEWS NEWS NEWS NEWS HM The Queen has been pleased to approve the appointment of Cherie Booth QC spoke to 200 members of pro·manchester NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS KennethNEWS Blades Parker, Q.C., to be aNEWS Justice NEWS of the High about the importance of NEWS gender equality in the workplace at a NEWS NEWS Esq., NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSWealth. NEWS NEWS NEWS Court with effectNEWS from 2 October business event sponsored by Barclays NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS With herNEWS own strong North West roots, Cherie praised 2009 on NEWS the retirement Mr. Justice McKinnon. NEWS NEWSofNEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Manchester as an 'amazing city' and argued that, rather NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSthan NEWS The Lord Chief Justice will assign Mr. Parker to the Queen's women working in isolation to champion their cause, they should NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Bench Division. He will be known as Mr. Justice Kenneth Parker. be working in partnership with men to achieve success. NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Indeed, NEWS she felt strongly that it would be foolish for NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSeconomics NEWS NEWS Mr. Parker, 63, was called to the Bar by Gray's Inn in 1975 and global businesses to ignore half of the population observed NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS and NEWS NEWS took Silk in 1992. He was appointed a Recorder in 2000, a Law that firms with women senior positions fare particularly well in NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSinNEWS NEWS NEWS NEWS NEWS Commissioner in 2006 and is approved to sit as a deputy High difficultNEWS times because their complementary skill sets. NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSofNEWS NEWS NEWS NEWS Court Judge. NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS While women earn 18 per cent less than their NEWS male NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSstill NEWS NEWS NEWS NEWS Mr. Justice [Stuart Neil] McKinnon was called to the Bar by counterparts in the professional world, Cherie recognised NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS the NEWS Lincoln's Inn in 1960 and took Silk in 1980. He was appointed a importance of reviewing how far we have come since 1976,NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Recorder in 1985 and a judge of the Queen's Bench Division of which was the first time NEWS the number of women called to theNEWS bar NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS the High Court in 1988 accounted for more than 10 per cent.
22
the barrister
the barrister
Lost in legislation: the legacy of Pepper and Hart Ambiguous statutes; seventeenth-century Bills of Rights; eighteenth-century judges; counterintuitive rules; overseas backup to overturn them; and troublesome research: the stuff of legal nightmares or par for the course in 1992’s law courts? Through interviews with two of the key players, we investigate the background to one of Britain’s most celebrated landmark cases and seek to establish whether things could be on the up in 2009. By Alistair King of Justis Publishing about how and why things played out in the
grow.
way they did? Alongside journalistic instinct,
A
marginal costs like food, this would lead
on comments by the Chief Secretary to the
month and its eventual indexing by Justis’s
to a significant reduction in his client’s tax
Treasury during the committee debates.” It
sister service, the provider-neutral JustCite
burden.
was this clue that made Griffiths look at
citator, will its practitioner uptake rise?
the debates, which resulted in the further The good news was that Section 63 of the
at a fee-paying school, and eight colleagues.
hearing.
With numerous improvements to its intuitive search and results handling, all summarized
(now re-codified) Finance Act of 1976 dealt with this specific point; the bad news was
Woolf’s other abiding memory is the time-
at
that it was arguably ambiguous. “What’s the
consuming process of traipsing to and from
could become the first port of call for all
cost of the benefit?” is how Woolf sums up
the Guildhall Library to request hard copies
parliamentary research.
the ambiguity, a simple question to which
of the debate transcripts. “You had to go and
the statute alone provided an inconclusive
ask the librarians to bring the material up
Among other things, Justis Parliament is the
answer.
to you,” he says. “So obviously it was quite
most user-friendly route into the otherwise
a slow process” to find the text of Standing
nearly-impossible-to-search
Committee debates.
Hansard. With access to title and full-text
Any resolution would have far-reaching
From humble acorns do mighty oaks
23
www.justis.com/justisparliament,
full
text
it
of
searches of parliamentary questions, Bills
implications not just for the private education sector but for all manner of employees of
And all this assumes that you know exactly
going through parliament, Select Committees
awareness of some of the luminaries involved
The taxpayers’ case didn’t initially focus on
organizations
similar
what you’re looking for in the first place;
and debates from the Houses of Commons
nd from humble tax cases
in the story suggested to me that such an
the constitutional aspects of the case. But
benefits, such as airline staff, rail workers
speculative searches would rely on the glacial
and Lords, and from the Welsh and Northern
can mighty changes in
investigation
Woolf’s and others’ research on a particular
and the like.
sifting of index cards.
Ireland Assemblies, its users rely on the
constitutional law grow.
reading if they could be tracked down.
would provide useful inside observations on
“At the first hearing [in the Lords], we
Nevertheless, documentary evidence was
the issue at large.
didn’t get a very receptive audience,” Woolf
found. And for the second House of Lords
It also indexes Standing Committee debates;
chuckles. “But Lord Griffiths went away and
hearing, for which Woolf remained the junior,
crucial for the type of research Woolf was
would
make
enlightening
that
could
offer
tax statute impacted on it. And I suspected he
time-saving device.
Yet my analogy is a little
The second reason is perhaps timelier.
slapdash: the tax case in
Informed in a large part by an examination
question set a significant precedent in its
of the first, it’s the issue of research. Though
Still at these chambers, Woolf has seen his
looked at the Hansard debates, which were
“they wanted to get someone who was more
involved in back in 1992. Though it doesn’t
own right: though initially low-key, humble
it had been around for a while, the World
case portfolio swell in the years since Pepper
referred to in the decision in the High Court.”
of a constitutional lawyer involved, so they
yet provide a search of or link into their full
it was not; and, unlike acorns blooming
Wide Web was still something of a geek’s
and Hart. And, like so many of his peers, his
At the time, recourse to such material wasn’t
brought in Anthony [now Lord] Lester QC,”
texts, this facility is a “superb starting point
into oak trees, there was nothing predictable
preserve in 1992; certainly it wasn’t seen
office is piled with paper tower heirlooms to
allowed, as laid down by an eighteenth-
as the silk.
for tracking down relevant ammunition,”
in its growth: the constitutional questions
by many in the legal profession as a serious
his career, many of them as tall as him. But
century judge who argued that it would
it threw up resulted in the overturning of
means of acquiring usable information.
he retrieves the relevant bound law reports –
violate Article 9 of the 1689 Bill of Rights.
a 200-year-old judge-made convention on
Other electronic media – CD-ROMs and the
which he now uses in conjunction with their
But, adds Woolf, “having looked at the
citing parliamentary debates in court.
like – were used but only for very specific
electronic equivalents on the full-text, online
debates, Lord Griffiths managed to persuade
But first it would be remiss to not touch on
according to Masoud Gerami, managing I’ll introduce Lord Lester in a moment.
director of Justis Publishing, who hints at plans afoot to enhance this side of the service.
tasks, not as the default starting point of
Justis legal library – in record speed and
other members of the House of Lords that
some of the research methods available for
Gerami acknowledges that currently the
Few cases have had an impact as great as
one’s enquiries, which the internet has since
immediately deals with my questions.
they should have further argument on the
similar tasks today.
database goes back only as far as 1979; not
Pepper v Hart, [1993] AC 593.
become. On the back of the re-launch of
ideal for Pepper and Hart, which relied on
issue.” This led to the second hearing and
a website that provides a route into the
I ask him to fill me in on the tax issue at
two questions: should one be able to look
But isn’t this a given? The case that set
sort of information the appellant’s counsel
stake.
at parliamentary debates? And if so, what
three separate but interwoven precedents
used in their successful litigation, how
– on tax, on statutory construction and on
might the unearthing of such material have
It hinged on the “benefit in kind to
parliamentary privilege – has been flagged
been different had today’s technology been
schoolmasters [of independent schools at
up for study in law schools pretty much since
available in 1992? And could the availability
which they taught] receiving education for
the final House of Lords rulings. And they
of this technology – Justis Parliament and
their children,” he tells me. “The question
were reported 16 years ago. So why bring
related services – have made it more likely
was whether the tax on the benefit should
things up now?
to seek such courtroom backup in the first
be based on the average or marginal cost
It was a little more complicated that this,
is amazingly useful, as is finding older
place?
of educating a child at that school.” In other
explains Woolf. “The issue came to light
documents and odd material that it would
His cautious response is that the further back
words, should the total cost of running
because we referred the first instance judge,
be difficult to locate elsewhere,” says Joy
it goes the more valuable it would be because
Two key reasons spring to mind.
And so, briefly, to Justis Parliament.
debates from 1976. But he explains that, should earlier data on the full service become
Formerly known as Parlianet when its 3
available – as it might well do – the process
million-record-strong set of data was kept
of adding it to Justis Parliament would be
So was it good luck that you dealt with a
separate from the rest of Justis, it has a
straightforward.
forward-thinking law lord who happened to
loyal base of subscribers. “Being able to find
suggest looking at Hansard?
what’s in the House of Commons, the Lords
Can Woolf see the benefits of such a service
and some of the UK’s devolved assemblies
in his general practice?
would be the outcome of this case?
In 1992 Jeremy Woolf was a young barrister
the school be divided by the number of
Vinetlott J, to a tax guide that referred
Caisley, the Law and Official Publications
the service could be “providing something
The first – and I hold my hands up that 2009
of six years’ call at Pump Court Tax Chambers
pupils, attributed to the schoolmaster’s child,
to an Inland Revenue press release that
Librarian at the University of Southampton,
that’s not easily accessible elsewhere.” He
is no more relevant a year to investigate
in central London. A junior on the case since
and taxed accordingly? Or, as Woolf’s side
suggested such benefits should be taxed on
who adds that she “often refer[s] third-year
adds that potential developments on Standing
the topic than any other – is the history
its first hearing, he – as his set’s name might
argued – ultimately successfully – should
a marginal cost basis.” He continues: “The
dissertation students to it and they find it
Committee reports “would clearly be quite
and background of the case. We can all
suggest to astute readers – was focused on
one accept that the school would run at that
Revenue claimed to have no knowledge of the
incredibly helpful.”
valuable because it would save having to
read the law report. But, outside the realm
the tax issue and was one of the counsel who
total cost regardless of the inclusion of the
press release. Further researches suggested
of those involved, what’s actually known
represented the appellant, Mr Hart, a teacher
schoolmaster’s child? By accounting only for
that the comment may have been based
go to the Guildhall Library or the library in But since its incorporation into Justis this
Westminster, the only two places in London
24
the barrister
the barrister
So how did Lester win them over?
that have them for the older years.”
feature on Justis, is one such tool that would help on the tax side of similar cases; on
But I promised to introduce you to Lord Lester,
Clearly the full answer is longer than I have
the constitutional side, JustCite would have
a silk at London’s Blackstone Chambers,
space for. But what is also clear is that
provided a quick and easy means of tracking
which also subscribes to Justis and JustCite.
foreign precedent played an important role
down some of the aforementioned foreign
in the debate.
precedents – its indexing, deep-linking to full-text case reports and citatory information
Lester is a prolific lawyer. Called to the Bar in 1963, he has been a silk for 34 of those
“We relied on many things from America,
currently includes the UK, Ireland, Australia,
46 years in practice. Alongside the countless
India, Ireland, New Zealand and Australia,”
Canada and Singapore.
cases in public and human rights law he has
says Lester. The JustCite record for Pepper and Hart
fought, he was the then Home Secretary Roy Jenkins’s Special Adviser on human rights;
Back in the day, these former British colonies
shows
he’s served on a number of parliamentary
– and Ireland, which was of course once a
were treated in court, along with similar
the
cases
cited
and
how
they
committees;
awarded
constituent part of the UK – adhered to the
information on the subsequent cases in
numerous honorary doctorates. Quite an
1689 Bill of Rights. But one by one they each
which Pepper and Hart has since been cited
embarrassment of riches. But Pepper and
abolished the rule that Lester sought to help
– in tax and constitutional cases. Its sample
Hart holds its own against this backdrop.
abolish here.
record can be seen for free at www.justcite.
and
he’s
been
com/phsample.
The case was “of exceptional difficulty and public importance,” says Lester, who
The persuasiveness of the arguments used in
adds: “It required a great deal of research
their courts was, in part, behind the decision
But what of the legacy of Pepper and Hart?
into comparative law and parliamentary
made in our court.
Has it really had that great an effect on the type of support material sought by legal
practice.” After all, as Lester points out, one of the
practitioners?
By the time Lester got onboard, establishing
purposes of Hansard was to help with the
that the essence of the relevant statute was
very thing that lawyers were, until Pepper
Though he retired eighteen months ago, Dr
somewhat different from its wording had, to
and Hart, banned from doing. Its case report
Chris Pond spent 32 years in the House
an extent, become secondary; the primary
notes this absurdity, as highlighted in the
of Commons Library, the body which feeds
issue, for which he, as a constitutional lawyer,
Law Commission of New Zealand Report
much of the data that makes its way on to
had been brought in to debate was whether
from 1990, which was cited: “It is irrational
Justis Parliament.
recourse to transcripts from debates, in order
for the courts to maintain an absolute rule
to iron out ambiguity, was constitutional.
depriving themselves of access to potential
Pond, who for many years has “appreciated
[sic] relevant evidence or information for this
the efficacy of Justis Parliament and JustCite,”
purpose.”
estimates that immediately after the ruling,
In contention was the so-called “Exclusionary
requests for Standing Committee transcripts
Rule”. As stated in the official law report, “Mr Lester did not urge us to abandon the
It must have been quite a task to find all this
exclusionary rule completely.” This was a
collateral.
quadrupled. Though this is good evidence, it’s far from
crucial counterpoint to the detractors’ belief
conclusive.
that it could open the floodgates, meaning
But Lester is a comparative law researcher of
lawyers could potentially waste the courts’
old. He read “textbooks, articles, debates and
time by resorting to legislative history at
other source material,” and he tapped into
But it’s my hunch that with easier access to
every opportunity.
“personal contacts”.
such material, isolated or included alongside
So, when the judges finally found in favour
Though he had access to the technology of
see parliamentary data as little acorns
of Lester’s client, they laid down stringent
the day – “certainly I used a fax machine,
bursting with legal potential.
guidelines for determining whether a statute
as this was before email, to send a fax to
was ambiguous. Whether these explicitly
Kenneth Keith [a renowned judge] in New
And so I close with a metaphor as eloquent
addressed others critics’ concerns, alluded
Zealand,” he says – but it’s clear that to the
and uncontrived as that with which I started.
to by Woolf, that ministers could potentially
likes of Lord Lester, research is rarely much
make self-serving comments, knowing that
of a stumbling block.
cases and legislation, lawyers will gradually
they’d be on-the-record, is moot. But the 30,000-word judgment was fairly watertight.
To those of us less able, innovative research tools can be a boon. As-enacted legislation, a
25
Major changes to pension contributions were announced in this year’s Budget. These changes will mean many barristers will now not receive higher rate tax relief on their pension contributions and will need to seriously reconsider their future financial planning. By Anne Gregory-Jones, partner and Head of tax at Chartered Accountants and tax advisers haysmacintyre
T
he Chancellor announced a restriction on the tax relief for pension contributions for individuals with income of £150,000 per annum or over. The new rules will apply from 6 April 2011 and will reduce the tax relief to basic rate only where income is above £180,000 with a sliding scale for those on income between £150,000 and £180,000. As yet no details are available as to how this will work but consultation is expected in the summer with draft legislation thereafter. In anticipation of this change special “antiforestalling” rules are being introduced immediately to prevent individuals bringing forward their contributions and obtaining relief before it is withdrawn. The anti-forestalling rules apply to anyone whose annual income in 2007/08 exceeded £150,000. Where that applies higher rate relief on pension contributions in the current year 2009/2010 and in 2010/2011 will be restricted to basic rate relief. This restriction does not apply to regular pension contributions; for these purposes regular means those where contributions have been paid quarterly or more frequently and continue to be paid throughout the tax year. Except for regular contributions higher rate tax relief will only be available up to £20,000, the special annual allowance. Anything over and above that will only receive relief at basic rate. The consequences of this is that for the many barristers who pay single contributions each year, they will only receive higher rate relief on pension contributions of £20,000, the special annual allowance. This will have a serious effect on the many barristers whose income exceeds £150,000.
Note that this limit is a total income figure and will include not only earnings but also dividends, interest and rental income etc. Where this does apply it will be important that other tax advantaged investments are considered. Whilst these are few they are now of increasing importance. The annual contribution to an ISA has been increased to £10,200 for those aged over 50 for this year, and to everyone from next year, and of course there is also the tax advantages of Venture Capital Trusts and Enterprise Investment Schemes to consider. Whilst this may signal a significant drop in pension savings, pensions can still be attractive at lower levels. For example if you expect your retirement income to be taxed at 20% it is still very attractive to pay contributions with 20% relief because • 25% of the pension fund can be taken as a tax free lump-sum • the tax deferred is by virtue of the relief • contributions roll-up in pension fund generally free of tax.
It may not however be beneficial to pay contributions that qualify for tax relief at only 20% if the resulting pension will be taxed at 40% or indeed higher if the current proposals for tax rates after April 2010 are introduced. This is clearly not very good news for many barristers but one important point is that where this applies at the very least you should be putting in the £20,000 for both 2009/2010 and 2010/2011 to maximise the reliefs available.
26
the barrister
the barrister
Strands of Evidence For many years now, hair testing has been used as a useful tool within the legal/medico sector to provide crucial evidence of exposure or use and of substances including prescription, over the counter and illegal drugs, but are you making full use of this clever technology? Are you using the right methods and types of analysis? Do you know what is available and how it can help your specific case? What is “Chain of Custody”? Is it legally defensible? Where can I get the best free advice from? What else could I use this technique for? By Matt Taylor, Managing Director of ScreenSafe UK Hair Testing
27
they have robust procedures to ensure this?
first time, then it may need to be done again.
HPLC) coupled to mass spectrometry or
•
Sample Collection and Chain of Custody
tandem mass spectrometry.
widest range of analyses to meet your/your
It is recommended that persons involved
This process including the issuing of results
client/the court’s specific needs? Do they
in commissioning a hair test appoint an
and expert witness statement usually takes
advise what is available and can they offer
independent sampler to collect and verify
on average about 7-10 working days.
choice?
samples, as it is the best way to ensure Chain
•
Choice – Can they provide the
Ability - Can they test for the
of Custody (the strict systems and processes
In Conclusion
widest range of substances and not just the
required to guarantee the authenticity of
Hair testing offers a unique window of
“standard panel”? E.g. Most providers state
the sample and it’s analysis). The donor is
detection for substances, drugs and alcohol.
that they test for Benzodiazepines, but they
required to give a hair sample with their
It provides a way for you to look back months
will only test for a small few (the easier ones
consent. This would require a sample of
rather than days (in the case of blood or
to detect) and therefore will miss crucial
hair to be cut from the crown of the head,
urine) to ‘rule in’ or ‘rule out’ drug and
evidence. Do you need to look at ALL of a
called the vertex posterior. Compared with
alcohol use or exposure to a substance in a
specific drug type, not just a limited section
other areas of the head, this area has less
specific case. When used correctly, it can be a
had consumed a drug in excess of the cut-off
applied to any drug or substance. This
of that drug type?
variability in the hair growth rate - the
(for example 50pg/mg) for say two months,
method is particularly important when a
powerful tool to demonstrate patterns of use
•
Accuracy – Can they deliver highly
number of hairs in the growing phase is
air testing is unique in
but was abstinent for the next four months,
subject is claiming to have been “spiked”
or exposure allowing professionals to make
accurate and reliable results that will stand
more constant. Underarm, chest or leg hair
its ability to look back
it may be reported back as a NEGATIVE (i.e.
(administered a drug or substance without
informed decisions to build and support
up to external scrutiny or challenge? Do they
is also an option if no head hair is available.
months
than
<50pg/mg) when averaged out over the six-
their knowledge) or where a one off use is
their case adding clarity to allegations or
use the latest technology and methods? Do
An A and B sample can be collected if
days at drug and/or
month period i.e. where a 1 x 6 cm sample
declared or assumed.
even assumptions. It can give confidence to
they “lead” or do they “follow”?
required with the B sample being stored
substance use, making
was analysed. In order to obtain a clearer
The process of hair testing has been proven
professionals to make the right decisions at
•
analyses
securely for a minimum of 12 months. A
it an essential piece
more detailed picture of the levels of the
in a court of law many times and therefore
the right time. There are many applications
sensitive enough to detect drug or substance
sample of approximately 150 hairs (the width
of the jigsaw in child residence, protection
consumption of the drug over time, a head
has grown in popularity because it provides
for this modern technique in all aspects of
use or exposure at ALL levels and not just
of a pen barrel) is required for an average
orders,
hair test should be employed and split into
a complete history of substance, drug (and
law. Its application should be considered in
at the medium-higher levels? E.g. Cannabis
test. It should be noted that accuracy of
segments or sections.
now alcohol) abuse or exposure. Often a
length and how the different techniques can
is difficult to detect at low levels, most
hair analysis is reliant on the weight of the
donor will attend the interview having just
be applied to provide a far more detailed
providers will not inform you of this because
sample. Some companies state that they only
history of use, abuse or exposure than often
H family
and
rather
criminal
cases.
By
providing information on exposure over time, hair analysis can be useful in verifying self-
Sensitivity
–
Are
the
reported histories of use in any situation in
For example:
shaved his head as a way to avoid detection.
they cannot offer a “low” level cannabis test.
need to take a tiny amount of sample. This is
which a past history use is desired. During
However, under-arm, body (chest, leg etc) or
thought or assumed. It is proven, reliable,
A person drinks in excess of 6.25 units
Will you miss that crucial evidence?
one area where their results are left open to
controlled tests of hair, a drug/substance
pubic hair can be utilised, with each offering
accurate and cost-effective - but only when
of alcohol per day each day over the
•
they
challenge. The sample is then placed into a
user is not able to hide the fact that they have
a different “window of detection” (how long
done in the correct manner. It is important to
period of July giving a result in hair for
friendly,
quickly
special envelope, signed by the subject and
used drugs. Once ingested, the drug remains
back you can look at). One UK provider can
get the right advice and employ the services
Ethylglucuronide (Alcohol) for the month of
will they respond? Will invoices be sent
sealed by the “Collection Officer” in front
in the hair as a permanent record. Drugs in
even use nail clippings where no hair at all
of the right experts. When you get the best
July of 52pg/mg. In August and September,
on time and will they be correct? Are you
of the subject. This is then put into a larger
the bloodstream get trapped in the hair shaft
is present.
information, it allows you to make the best
the person did not drink any alcohol. 50pg/
kept informed of any changes that may
envelope and sealed to complete the Chain of
as it grows in the root follicle. Since hair is
decisions. It could be the difference between
mg is assumed as the cut-off level for a
happen along the way? Are they available 24
Custody. The form is signed and completed
an inert protein, the drugs remain trapped
placing children in a harmful environment
positive/negative result.
Choosing a provider
hours a day, 365 days per year? Would you
and sent to the laboratory with the sample.
there until the hair is cut. After about 7 days
or one of safety and wellbeing. It may be the
A 1 x 3cm hair analysis would show
When choosing a provider, you should ask
recommend them to peers?
following drug use or exposure, the hair has
NEGATIVE for Ethylglucuronide on average
yourself a number of questions, including:
•
grown enough to be cropped close to the
Laboratory processes
your case. It could prove or disprove that
over the 3 months (i.e. 52pg/mg divided by 3
•
Quality – Do they meet the required
what best suits the case and get ongoing
scalp, providing the perfect history of drug or
The samples are checked at the laboratory
someone was indeed “drugged” over time
months = <50pg/mg).
UK, European and Worldwide standards? Do
confidential free expert advice throughout
substance abuse/exposure. On average, hair
to ensure tamper proof seals are not broken
(long or short). Whatever the application, you
However…
they have World leading experts in the team?
the whole process? Can I get Expert Witness
grows at about 1cm per month, so a 3 cm
and then follow an approved and accredited
can guarantee that hair testing techniques
A 3 x 1cm hair analysis would show POSITIVE
Do they deliver the most accurate results
from a world-leading expert? Does their
section gives a three month history of drug
(via audit) process through the laboratory.
will continue to improve the availability of
for Ethylglucuronide on average over the
available to me/the client/the court or are we
report hold substance when challenged? Are
use. If more in-depth detail is required, the
The hair analysis involves many processes
reliable evidence, much as DNA has in recent
month of July, and NEGATIVE on average for
settling for “second best”?
they experienced in high profile cases or
hair can be sectioned into, say, 3 x 1cm to
but below are the main 5 steps:
times.
the month’s of August and September.
•
will their evidence (written or in person) be
show what has been taken month by month.
•
Decontamination of the hair
As demonstrated in this example, the same
they promise and will I get my results in
dependable in court?
Similarly this can be done for as long back as
•
Preparation
3cm sample can be shown as a positive or
time? Can I trust them to “get on with the
•
the subject’s hair measures.
pulverization, segmentation in short pieces
job” while I get on with mine?
court getting for the money? Is it good use
Author: Matt Taylor, Managing Director of
negative result dependent on the type of
•
•
“Chain of Custody” – Do they offer
of public or the client’s funds? Will I get
ScreenSafe UK (World leaders in Hair Testing
analysis used.
sodium hydroxide, buffer
Choosing the correct type of analysis
Therefore, with segmental analysis, more
a flexible (to meet my/my clients’ diary) fully
the specific evidence I need or will it be
•
The result of any hair test is an average over
accurate patterns of use can be obtained
competent and trained collection service to
ambiguous and therefore open to challenge?
phase, solid phase micro-extraction
the time period tested for. If a subject who
and observed. The same principle can be
meet legally defensible Chain of Custody? Do
If it is done incorrectly or insufficiently the
•
Reliability – Do they deliver what
Customer
service
professional
and
–
Are
how
Advice and Support - Can I discuss
Cost – What am I/the client/the
crucial part of evidence that can win or lose
Incubation: Extraction:
of in
the
methanol,
liquid/liquid,
hair: acid,
------------------------------------------------------
services).matt.taylor@screensafeuk.co.uk solid
Analysis: Chromatography (GLC,
www.screensafeuk.co.uk Tel: 08450 50 55 90
28
(2006)
opened their doors to the media; for the High
in children’s cases and/or financial dispute
the Government.
Accordingly, the MoJ
judicial decisions to children who have been
Secondly, there is a lack of clarity about the
advocated media access as of
Court and County Court this has been – to a
resolution (FDR) appointments), nor are
proposes to simplify the legislation “so that it
the subject of decisions in family courts as
extent to which the names of professionals
right;
set
large extent – to harmonise its practice with
the media allowed into hearings under the
is readily accessible and easily understood”
soon as possible after the conclusion of their
and experts contributing to family cases can
The
p.1
29
the barrister
the barrister
first
the
consultation
proposals
there
out were reversed in the second
the Family Proceedings (Magistrates) Court.
Adoption and Children Act 2002 (these
(‘Family Justice in view’).
It is believed
case; and the availability of full transcripts of
or should be reported in the media. These
(2007) consultation; the reversal had been
The reform was achieved by amendments
proceedings are not governed by the FPR
that the Secretary of State will look for
judgments to them on reaching adulthood.
are issues left unresolved by Munby J.’s
particularly informed (it was reported by
made to the Family Proceedings Rules 1991
or FPC(CA)R, but by the Family Procedure
legislative opportunity in the next Parliament
The FJC is anxious to see the launch of
decisions in Re B [2004] and Re Webster
Government) by the nature and strength
by the Family Proceedings (Amendment)
(Adoption) Rules 2005 which have not been
to introduce a consolidating statute.
This
the scheme in the three pilot courts; it is
[2006]. It is not on the face of it a contempt
of the concerns raised by the children who
(No.2) Rules 2009 (SI 2009 No 857) (and for
amended).
would be welcomed by all practitioners in
vital that financial and human resources are
of court to identify a witness in children
had been consulted as part of its process.
the FPC in the Family Proceedings Courts
the field of family law, aswell as those outside
invested in order to allow the scheme to be
proceedings and there is a powerful public
Accordingly, the 2007 Consultation Paper
(Children Act 1989) Rules 1991 (‘FPC(CA)
Other amendments to the 1991 Rules include
(and who wish to report on) it, who need the
properly tested in the pilot.
interest in knowing who the experts are
argued that improving confidence should
R 1991’) by the Family Proceedings Courts
a new regime (Part XI) under which there
clearest guidance about operating within the
be achieved by increasing the information
(Miscellaneous Amendments) Rules 2009, SI
can be more extensive communication of
law.
emanating from family courts. The 2007
2009 No 858).
information from proceedings relating to
Consultation paper predicated that allowing
children to third parties.
whose
theories
and
evidence
underpin
But the FJC continues to have concerns about
judicial decisions which are increasingly
media access to the family courts, and a
coming under critical and sceptical scrutiny
Simultaneous
Will the new rules achieve the combined
weather eye needs to be kept on the scheme
but it is not an exaggeration to observe that
in practice.
some medical experts and social workers
the media in to the family courts as of right
The new legislative scheme can be simply
with these reforms, the MoJ is launching
objectives of promoting confidence and
would not be consistent with the principle
summarised. The new rules (rule 10.28(3))
a pilot scheme in three court centres in
maintaining confidentiality?
that children must come first.
allow a “duly accredited representative of
which anonymised judgments from a range
Justice Council (FJC) has long endorsed
First research needs to be undertaken to
been disproportionately pilloried there (re
news gathering and reporting organisation”
of contested family cases will routinely be
the principle of greater transparency and
monitor the extent to which the presence
B para.129).
Apparently, on receipt of a number of letters
to attend hearings heard in private (the
made available on line.
accountability in the family courts and
of the media in the family courts may
shaming’ of experts is only going adversely to
(200 or so in number, so it is reported) from
accreditation is achieved by membership of
this initiative is to allow a more free flow of
specifically
deter potential applicants from engaging
affect the supply of experts and professionals
“individuals, MPs and constituents around
the UK Press Card Authority); the rules also
information from the Family Courts in the
access to the courts by family members,
with the process.
Respondents to earlier
on whom the court depends to reach its
the country who believe that the family
permit “any other person” (which can of
overall endeavour to promote confidence in
persons requested to attend by the parties,
consultations on this issue highlighted the
difficult decisions: the already inadequate
courts are not being run with the child’s
course in include a non-accredited member
and awareness of the work of the family
and the media. The new rules go further
difficulties of potential litigants from some
number of experts willing to assist the courts
best interests at heart”, the Government
of the media) to be present.
courts.
in allowing media access than the FJC had
BME
in vitally important child protection cases
reversed its position again.
In December
accredited media representative can however
recommended, but the continued widespread
Asian, some African and/or communities
2008, the Lord Chancellor and Secretary of
be excluded on the basis of one of four
If these proposals are designed to achieve
reporting restrictions provide a proper balance
with evangelical or fundamentalist religious
State announced the reforms in his paper
grounds contained in rule 10.28(4): that is to
the ‘confidence’ of the public, how is the
to ensuring appropriate confidentiality. The
beliefs (Association of Lawyers for Children
Thirdly there is a risk that witnesses will
to
not willingly come forward to give evidence
The duly
The purpose of
supports
The Family
judicially
controlled
who have been identified in the media have
communities,
In the foreword
say, (i) where it is necessary in the interests
‘confidentiality’ of the process achieved? The
concerns of the FJC about confidentiality
of the child concerned in or connected
rules relating to the publication and reporting
were informed by its own consultation with
the courts.
In their response to earlier
in family cases if they feel intimidated
said “It is critical that not only do the family
with the proceedings, (ii) for the safety or
of
proceedings
a panel of children and young people as
consultation, Women’s Aid argued that, ‘in
by the media presence; this was a point
courts get the decisions right, but also that
protection of a party, a witness, or person
concerning children has not (yet) changed.
part of its response to the Government’s first
cases where domestic violence is identified as
recognized by the European Court in B v
the public has confidence that they are doing
connected with such a party or witness, (iii)
The enthusiasm of the media for the new
consultation on transparency in 2006. The
an issue such an eventuality creates a further
United Kingdom; P v United Kingdom (Cases
so. In order to have trust in the system,
for the orderly conduct of the proceedings, or
rules has been significantly restrained by
children were clear that they did not want
opportunity for a perpetrator to threaten
36337/97 and 35974/97) [2001] in which it
people need to understand how it works.
(iv) where justice will otherwise be impeded
the continuing, and extensive, prohibition
personal information which could identify
talking to the media to maintain control of a
was said at para.38: “The proceedings which
The challenge we face is to raise public
or prejudiced.
on reporting of family cases. The legislative
them in their communities and schools
victim and will in some cases deter a victim
the present applicants wished to take place
placed in the public domain.
in public concerned the residence of each
Any member of the media
relating
to
seeking
access
might well be even further reduced.
to the document, Rt Hon Jack Straw MP
information
in
South
response,
‘Family Justice in View’.
2006),
particularly
Fear of unfair ‘naming and
understanding of how decisions are made,
must be given an opportunity to make
scheme
This needs
from accessing the family courts’. Litigants
and awareness of the daily duties of those
representations before the decision is made
prohibitions is not a neatly fitting jigsaw of
to be actively monitored, and protected by
may feel inhibited by the social stigmas and
man’s son following the parents’ divorce
working within the family courts to deliver
and brief reasons should be given summarily
matching statutory pieces, creating a well-
future legislation.
shame about the breakdown of the family or
or separation. The Court considers that
the best solution to difficult problems. At the
for the court’s decision.
defined picture. Far from it. It is a hotchpotch
abuse they have suffered, especially victims
such proceedings are prime examples of
same time, we must protect the privacy of
which
contains
the
reporting
of ten free-standing, and in some respects
The FJC has promoted the proposal for
of domestic violence, and in particular
cases where the exclusion of the media and
children and families involved in family court
The new rules do not allow the media to
overlapping,
crafted
publication of judgments in family cases,
those from Black and Asian ethnic minority
public may be justified in order to protect
cases so they are not identified or stigmatised
be present for all types of family hearing.
over the best part of the last 100 years. The
appropriately anonymised, to improve public
communities where shame and ‘honour’ are
the privacy of the child and parties and to
by their community or friends”.
Those hearings from which the media are
protections provided by these statutes are
understanding of how, and why, the family
strong deterrents’. The potential presence of
avoid prejudicing the interests of justice. To enable the deciding judge to gain as full and accurate a picture as possible of the
statutory
provisions
excluded include hearings at which judicially
cumbersome to identify, and when found,
courts make the difficult decisions that the
the media in the courts may dissuade those
The 2008 proposals became law on 27th April
assisted conciliation or negotiation takes
the protections are neither “comprehensive
law requires of them; it has championed the
from accessing justice.
2009, when the Family Courts (at all tiers)
place (particularly conciliation appointments
or
provision of age-appropriate summaries of
particularly
comprehensible”
admits
advantages and disadvantages of the various
30
the barrister
31
the barrister
on effect of the reduction of that supply.
residence and contact options open to the
only a partial picture by attending family
child, it is essential that the parents and other
hearings, where much of the evidence is
witnesses feel able to express themselves
produced in the written word.
Both of
It is to be hoped that grossly tendentious (and
candidly on highly personal issues without
these aspects of future media access require
often plainly inaccurate) media reports of
fear of public curiosity or comment.” This
careful review.
alleged miscarriages of justice in the family courts will become a thing of the past, when
needs to be monitored. It is vital that the operation of the new
the media see for themselves the painful
Fourthly, there is a risk that delays in the
rules
conscientiously
processes involved in decision-making over
resolution of family cases will be made
monitored before any legislative change in
children of vulnerable &/or broken families,
worse by arguments over media access to
relation to reporting is introduced.
and how the often exquisitely difficult judicial
the hearings. The Practice Direction (20th
MoJ is encouraged to state its commitment
April 2009) exhorts the judiciary to deal
to effective monitoring of the rules before
with the applications “as they arise and
any change to primary legislation, so that the
by way of oral representations”; the PD
confidence of all participants in the family
goes on “where exclusion is proposed any
justice can be developed.
is
effectively
and
The
decisions in the family courts are reached.
Stephen Cobb QC, family law specialist
1“Confidence and Confidentiality: Improving transparency and privacy in family courts”
media representatives who are present are entitled to make representations about that
The family justice system is far from perfect;
[the 2006 Consultation] and “Confidence &
proposal”; “brief reasons” should be stated
the media will see a system under pressure.
Confidentiality: Openness in family courts a
for the decision to exclude the media. The
It will be able to witness the failures of child
new approach” [the 2007 Consultation]
risks of the best-laid plans for the efficient
protection such as those graphically and
case management of complex family hearings
tragically exposed by the death of Baby Peter;
being cast into disarray by contested ‘media
it will be able to survey the diminishing
access’ arguments are all too clear to see.
capacity of the Courts to deal with an ever
While it is desirable that in many public law
Uncertainty Reigns: Contracting out and ‘a term of years certain’ By JS Sidoli del Ceno, Senior Lecturer in Property Law, Birmingham City University
C Introduction
be costly both in terms of time and money
automatically enjoy the protection of Part II.
o m m e r c i a l
and are no means certain to succeed with
practitioners
and
the landlord having to prove his contentions
This
surveyors are familiar
evidentially. Even if the landlord does succeed
required the approval of the court following
with
contracting
joint
out
application
procedure
the
provisions
in regaining possession of the property there
a
of Part II
Landlord
is the distinct possibility of having to pay the
and
and Tenant Act 1954.
former tenant compensation of the rateable
implementation of the Regulatory Reform
Indeed they are one of the longest standing
value of the property or up to twice the
(Business Tenancies) (England and Wales)
and most well-known of all property statutes.
rateable value of the property if the tenant
Order 2003 (SI2003/3096), a new regime
Part II of this Act (sections 24-28) grants
has been in occupation of the premises for
has been in operation. These new procedures
tenants broad security of tenure. Until the
14 years or more.
were designed to be less cumbersome and
tenant
but
from
since
the
initially
2004,
landlord with
the
less formal. They merely require the tenants
Law of Property Act 1969 landlords had no option but to grant this security of tenure to
The Contracting out procedure is only
to sign a ‘health warning’ – with at least
increasing volume of the most serious and
prospective tenants meeting the fairly simple
possible where the lease was granted for a
14 days before the completion of the lease
(care and similar) cases (consistent with the
complex cases in a timely fashion - stretched
requirements that were needed to obtain
“term certain.” This means that for a term
- detailing that they were aware that they
ambition of the Public Law Outline) contested
now to breaking point.
the Act’s protection namely that a lease was
to be certain then the lease in question
were giving up the particular rights of Part II
issues of media access could be determined
itself the spiraling costs of private ancillary
granted for a term of years certain and that
must specify a fixed period. A break clause
of the 1954 Act by agreeing to a contracted
at the Case Management Conference, in
relief proceedings; it will be able to gauge
out lease. If the lease was to be completed
whether the courts are succeeding in truly
it was granted for commercial purposes.
will not affect the certainty of the term as
reality this is unlikely to occur. It remains to be seen what actually happens.
gaining access to the voice of the children
This latter aspect has always been construed
was decided in Metropolitan Police District
less than 14 days after the ‘health warning’
widely and could include charities and other
Receiver v Palacegate Properties [2000] 13
had been served then the tenant had to sign
operations that are not normally deemed
EG 187 where Pill LJ stated unequivocally
a statutory declaration in front of a solicitor
But it
would be far from desirable for the efficient
It may assess for
who are the subjects of the proceedings.
management of a case to be derailed by arguments over media access when witnesses
The media will be able to observe a family
to be business or commercial. Since the
that “the presence of a break clause [did]
or commissioner for oaths. The recent case of
are in attendance at the start of a contested
justice system driven by a dedicated and
1969 Act landlords have had the option of
not prevent the term being a term of years
Newham London Borough Council v Thomas
final hearing.
hard-working cohort of legal practitioners,
‘Contracting out’ of this security of tenure
certain for the purposes of section 38(4) of
Van-Staden [2008] EWCA Civ 1414, [2009]
provision. This provision is very important to
the Act.” However, a clause which extends,
05 EG 108 has, however, radically changed
landlords for without it tenants can remain
or appears to extend, the tenancy beyond
the established view of what constitutes
experts and specialist judges. At a time about
when the Government appears committed
the Government’s intentions in relation
to unpopular reform of the public funding
to adoption proceedings.
Only a hastily
regime for legal representation in family cases
in possession if they so wish after the end of
that of the final date specified, for example,
a term of years certain and is therefore
generated Practice Direction (30th April
(“Family Legal Aid Funding From 2010: A
the contractual term and can through section
“and thereafter by month to month” will
of considerable to those who maintain an
2009) cured a hiatus over media access to
Consultation: Representation, Advocacy and
26 of the 1954 Act apply for a new lease
render the lease uncertain and will thus be
interest in commercial property.
‘placement order’ proceedings.
There is
Experts’ Fees”) the media may, ironically, be
which invariably will have to be granted.
unable to be contracted out. The same is
also uncertainty over the extent to which the
able to assess the adverse impact of those
media will in due course be entitled to see
proposals on the ready supply of experienced
The landlord can regain possession of the
true of periodic tenancies, be they monthly,
Newham LBC v Thomas-Van Staden
documents generated for the proceedings.
lawyers on both sides of the profession to
property on a number of grounds under
quarterly or annually as they clearly cannot
The salient facts of this recently decided case
At the moment, they will necessarily receive
commit to this difficult work, and the knock-
section 30 of the 1954 Act but these can
be for term certain and thus the tenant will
are that Newham London Borough Council
There
remains
some
uncertainty
32
the barrister
the barrister
33
granted the tenant, Thomas Van-Staden, a
The words in parenthesis were defined
City of London Corporation v Fell [1993] 4 All
On a more positive note for landlords there
be concise and precise. As there are already
lease on commercial premises 4 and 4A
by Rimer LJ as “the words of extension”.
ER 968. Following this case, which concerned
remains the distinct possibility that advocates
established norms for dealing with matters of
Rathbone Market for a fixed term from
Newham argued that following the expiry
a tenant’s covenantal liabilities following
will try to distinguish the precise wording
‘holding over’ there is no need to complicate
Julian Sidoli del Ceno
January 2003 to September 2004 at a rent
of the fixed term the appellant stayed in
assignment, holding over or extensions sub-
used in Newham from the wording in their
the lease and risk falling foul of uncertainty.
of the Honourable Society of the Inner Temple,
of £7,500 per annum. Following this period
possession as a tenant on sufferance or, in
clauses became more common in order to
particular lease. A number of commentators,
Importantly, better drafted leases should
Barrister.
the council intended to redevelop the whole
the alternative, under a periodic tenancy
provide that the tenant’s liability (or that
broadly hostile to the decision, have expressed
separate the two concepts of length of term
BA (Lond), MSc, FRAS.
site and therefore would require vacant
upon the same terms and conditions as those
of any guarantor) for a particular property
confidence that this will be the case. Most
from the period of the tenant’s liability. The
possession. Clause one of the lease defined
contained under the original lease. Further,
did not end when the lease came to its
leases, even if conveying a similar idea, will
temporal, contractual term must be fixed but
the term to include “any period of holding
Newham pleaded that the words of extension
contractual end. Newham therefore presents
not use the exact words in Newham. Guy
the ‘term’ of the tenant’s covenantal obligations
over or extension of it whether by statute or
should be disregarded as “meaningless
a new challenge to draftsmen and it will now
Fetherstonhaugh QC writing in the Estates
may, and indeed should, include any period of
at common law or by agreement.” Following
surplusage that, read in the context of the
be interesting to see how they respond to
Gazette (28th February 2009) argues that
holding over. Above all practitioners must now
the pre-2004 procedures a court order
lease as a whole, was inconsistent with
many landlords’ understandable desire to
if the wording differs from that in Newham
take very careful note of the precise wording
was obtained and the lease was excluded
other provisions in it.” Both these arguments
contract out securely. Further, it is likely that
then the landlord “should have little difficulty
of any ‘time’ clause. The law has always hated
from sections 24-28 Landlord and Tenant
were rejected. Rimer LJ stated that the
many hundreds if not thousands of leases,
persuading the court to adopt a different
uncertainty and this case although initially
Act 1954. Following the expiry of the fixed
words of extension were: “plainly included
large numbers of which were entered into a
verdict.”
surprising continues in that long established
term the tenant stayed in possession paying
deliberately; they were intended to achieve a
number of years ago may now fall foul of the
rent albeit irregularly. The council accepted
legal effect and a meaning must be attributed
decision in Newham.
this rent. Newham Borough Council served
to them.” He then concluded that the words
a notice in July 2005 requiring possession
of extension in the 2004 lease defining the
Conclusions and Notes for Practice
with 28 days notice. The tenant did not
term to include any period of holding over or
A tenant protected by Part II of the Landlord
comply and argued that following the expiry
extension created a term that was not for a
and Tenant Act 1954 finds themselves in
of her fixed tenancy she had remained in
term of years certain with section 38(4) and
a much stronger position than otherwise.
possession as a periodic business tenant
therefore the contracting-out procedure was
Conversely, the position of the landlord is
thereby enjoying the protection of the 1954
invalid in its entirety and the appellant had at
weaker. It therefore is imperative for the
Act. At first instance the judge decided that
all times enjoyed security of tenure.
landlord not to inadvertently offer this
the tenant had held over on the terms of
It is a moot point whether the whole lease
protection to the tenant either through
the original lease which excluded security
would be considered invalid on the grounds
bad
of tenure and therefore ordered possession
of uncertainty, for which there is a long list of
management.
accordingly. The court of appeal, however,
authorities, but this was not pleaded and the
advisors should now pay particular attention
allowed the appeal and set aside the original
learned Judge declined to comment.
to a tenant’s continuation of occupation
order. The key to the case was construing the
------------------------------------------------------
vein. When drafting a lease it is better to be laboured than to be imprecise, better still to
drafting
or
through
bad
property
For example, professional
Legal Journals on line • Law & Politics Links • International Law Journals • Research Material •
following the expiry of any fixed term in
meaning of Clause 1 of the lease which read:
The implications
a contracted out tenancy. If the landlord
“from and including [1] January [2003] t0
The implications for this case cannot be
agrees to allow the tenant to remain in
[28 September 2004] (hereinafter called “the
overstated. Firstly, the decision is not being
situ it should ideally only be on the basis
Term” which expression shall include any
challenged and therefore will remain a
of a new contracted out tenancy. Failure to
period of holding over or extension of it
leading authority for some time although
do this might open up the landlord to the
whether by statute or at common law or by
there will clearly be attempts to distinguish
suggestion that the tenant now has a periodic
agreement) YIELDING AND PAYING therefor
it. Secondly, clauses, such as that included in
tenancy and therefore has de facto statutory
monthly and proportionately for any part of
the Newham case are widespread, especially
protection.
a month the following rents:-“
since the decision of the House of Lords in
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