Contents
CONTENTS PUBLISHER Ian Fletcher Benham Publishing Limited 3tc House 16 Crosby Road North Crosby Liverpool L22 0NY Tel: 0151 236 4141 Fax: 0151 236 0440 email: admin@benhampublishing.com web: www.benhampublishing.com
ADVERTISING AND FEATURES EDITOR Anna Woodhams
Introduction 4 4 5
News 6 7 7 8 10 10
PRODUCTION MANAGER Fern Badman
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ACCOUNTS DIRECTOR Joanne Casey
MEDIA No. 1351
PUBLISHED July 2014 © Benham Publishing Ltd
LIST OF OFFICERS APPLICATION FOR MEMBERSHIP/RENEWAL PRESIDENT’S REVIEW
COUNCIL MEMBER’S REPORT ANNUAL DINNER NOTICE PROGRAMME OF CPD EVENTS 2014 LONDON LEGAL WALK IMMIGRATION LAWYER PICKS UP AWARD FOR GIVING FREE LEGAL ADVICE JUSTICE MINISTER CALLS ON CHARTERED LEGAL EXECUTIVES TO “SHAPE THE LEGAL SERVICES OF TOMORROW” WILL AID: MAKING A POSITIVE DIFFERENCE FOR 25 YEARS AN ETHICAL DILEMMA Spotlight
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LEADING SOUTH LONDON LAWYER – GERALD SHAMASH Property
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CONVEYANCERS PREDICT STRONG FUTURE GROWTH IN SEARCHFLOW SENTIMENT SURVEY Employment Law
LEGAL NOTICE © Benham Publishing. None of the editorial or photographs may be reproduced without prior written permission from the publishers. Benham Publishing would like to point out that all editorial comment and articles are the responsibility of the originators and may or may not reflect the opinions of Benham Publishing. No responsibility can be accepted for any inaccuracies that may occur, correct at time of going to press.
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RIGHTS PRESERVED DESPITE ILLEGALITY ZERO HOURS OR ZERO BENEFIT Human Rights
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FRANK JOHNSON HAS DIED STOP AND SEARCH: WHERE ARE WE NOW? Private Client
Benham Publishing cannot be held responsible for any inaccuracies in web or email links supplied to us. DISCLAIMER The South London Law Society welcomes all persons eligible for membership regardless of Sex, Race, Religion, Age or Sexual Orientation. All views expressed in this publication are the views of the individual writers and not the society unless specifically stated to be otherwise. All statements as to the law are for discussion between member and should not be relied upon as an accurate statement of the law, are of a general nature and do not constitute advice in any particular case or circumstance. Members of the public should not seek to rely on anything published in this magazine in court but seek qualified Legal Advice. COVER INFORMATION The cover image from the London Legal Walk is reproduced with permission of Jamie Phillips.
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PERSONAL INJURY UPDATE Legal Education
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THE FUTURE OF LEGAL EDUCATION – THE VIEW FROM THE INSTITUTION AND FROM THE STUDENT Practice Management
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CHIP, CHIP, HOORAY! TIME IS OF THE ESSENCE EXPERT REPORTS – INSURANCE DISPUTES AND SUBROGATION SRA CONSULTATION ON SOLICITORS PII Junior Lawyers Division
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SOUTH LONDON JLD UPDATE PRENUPTIAL AGREEMENTS AND RADMACHER The Clapham Omnibus 3
Introduction
OFFICERS President
Vice-President
Council Member
Stephen Whitaker 020 7940 4000 Tel: e-mail: stephen.whitaker@anthonygold.co.uk
Robert Hush 020 7815 6725 Tel: e-mail: hushr@lsbu.ac.uk
David Taylor Tel: 020 7228 0017 e-mail: dxt@hanne.co.uk
Gareth Ledsham 020 8394 6413 Tel: e-mail: gareth.ledsham@Russell-Cooke.co.uk
Lawumi Biriyok 020 7237 4499 Tel: e-mail: birisho@aol.com
Richard Busby Tel: 020 7091 2755 e-mail: richard.busby@fishermeredith.co.uk
Treasurer
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Hon. Secretary
Magazine Editor
Web Address: www.southlondonlawsociety.co.uk
Introduction
PRESIDENT’S REVIEW So at 12:15pm on Monday 16th June, much to the amusement of passing motorists and bus travellers on the A23, some of my colleagues joined me outside our Streatham office to join in the lunchtime protest with a jelfie!
At the instigation of The Justice Alliance, we commemorated Magna Carta Day with the intent to “Stop the Injustice Secretary”. And so the fight goes on. Through South London Law Society and other organisations, we will do all that we can to promote the fight against this Government’s legal reforms, in particular the decimation of Legal Aid. The Justice theme is of course again very prevalent in this Summer Edition of the Clapham Omnibus. Gus Silverman writes an excellent article on Stop and Search Powers and then we are privileged to have a piece from Alastair Logan following his wonderful presentation to us at last year’s AGM. To hear Alistair speak is a real privilege and now he has been kind enough to write for us as well so we are very grateful to him for this contribution. I must also highlight my Committee colleague Sara Chandler’s article on the Future of Legal Education written in conjunction with an LPC student, Fatimah Iqbal. This is another issue of fundamental importance. Our close links with London South Bank University sees the introduction of “Spot Light”, an interview with Gerald Shamash by student Beverley Sowah. I hope very much you enjoy this feature which will become a regular item in forthcoming editions. In the Junior Lawyers Division section, I welcome the first contribution from Hannah Mantle, the new President of the JLD in succession to Harry Dronfield. Obviously, I wish Hannah all the very best in this role and I must take time to thank and acknowledge her predecessor Harry Dronfield who took the project to form a Junior Division and ran with it and it really has been a fantastic success. Harry, I hope very much that you will continue to play a role on the Senior Committee going forward but in the meantime wish you and your wife all the very best on the forthcoming birth of your baby in July. I must also here say grateful thanks to two of my colleagues at Anthony Gold, Katherine Anderson and Sandra De Souza, both of whom have played important roles in the development of the JLD and both of whom are also on the threshold of starting families in the next few months. Quite a hat trick!
I am pleased to say that the Quiz event held at The Horniman at Hays Galleria was a great success with over 50 people present and ten teams competing. It was a really enjoyable evening and grateful thanks to my colleague Gareth Ledsham for writing and delivering the quiz to such a high standard that a colleague of mine who did not know him thought that we had brought in a professional! Our next social event is the Annual Dinner, this year to take place in The Long Room at The Kia Oval on Thursday 23rd October 2014. We are back to the usual format this year and a three course dinner with wine will cost £50 per ticket. I really hope that you will support the event and come along. I myself am co-ordinating the bookings and I very much look forward to hearing from you. I hope to announce guest speakers shortly but it will be a terrific evening at another iconic venue in any event. I hope you all have a good summer and look forward to seeing you at the Dinner in October. Stephen Whitaker President South London Law Society
COPY DEADLINES Autumn 2014 Issue Spring 2015 Issue Summer 2014 Issue
30th September 2014 3rd February 2015 2nd July 2015
Members wishing to submit editorial please contact us before copy deadline. Anyone else wishing to advertise or submit editorial for publication in the Clapham Omnibus please contact Anna Woodhams, before copy deadline.
Email: Tel:
anna@benhampublishing.com 0151 236 4141
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COUNCIL MEMBER’S REPORT News
I should start my report by saying that I was returned un-opposed as the Council Member for South London for another 4 year term to commence in July 2014. Among matters announced to the Council was the election of Robert Bourns, one of the City of London Council members, to take office as Deputy Vice President in July 2014 (and then, according to the Law Society’s constitution, to succeed as Vice President next year and then President in 2016).
ONGOING WORK ON LEGAL AID PROPOSALS
Council heard about 19 roadshows held across the country to assist practitioners deal with the consequences of the Lord Chancellor’s decision on criminal legal aid, attended by over a thousand people. These roadshows, and the Law Society’s response to the criminal legal aid cuts, have been covered in the Gazette and in the legal trade press, and, in the case of our wider response, the Guardian which featured interviews with Lucy ScottMoncrieff (past President) and Richard Atkinson (chair of the Criminal Law Committee).
Women Lawyers’ Division returners’ course, and a practical encryption seminar for small firms. The annual Presidents’ and Secretaries’ conference had taken place on 9-10 May 2014. The library telephone enquiry service began its extended opening hours in the week of 31 March 2014, and there has been a positive impact on enquiry volumes.
EQUALITY, DIVERSITY AND INCLUSION
Council noted that the Law Society has given evidence to three parliamentary committees, including the Crime and Courts Public Bill Committee, and has briefed parliamentarians on the Finance (No 2) Bill, the Immigration Bill, the Deregulation Bill, and the Criminal Justice and Courts Bill. Internally, the Society has set up a team to look at strategic issues affecting the profession and the legal system, and its first project will look at the relationship between the UK and the EU and its implications for legal policy and providers of legal services. The Law Society has also prepared a response to consultations on the future of the Land Registry, and discussions are under way at Ministerial level over concerns about what appears to be a policy by UKBA of trying to bypass solicitors when dealing with migrants.
Council received the annual report from the Equality and Diversity Committee, now renamed the Equality, Diversity and Inclusion Committee to reflect the full range of its remit as covering the inclusion of as wide a range of characteristics as possible among the Law Society’s employees and volunteers as well as the profession at large. Among issues addressed in the report were the ongoing success of the Diversity and Inclusion Charter which now has 431 signatories which between them represent over one third of solicitors in private practice. The regular range of Firms Diversity Forums has continued across England and Wales, BME / Judicial appointments outreach events were run jointly by the Law Society, the Bar Council and CILEx. The Law Society worked with Riliance to develop a free online tool to help firms with collecting the diversity data annually required by the SRA. It was agreed that priorities for next year would include: further activity to enhance the diversity of the volunteer community; and embedding an HR diversity programme within the organisation, including a series of diversity and inclusion workshops targeted at manager, staff, and board and committee chairs; and a continued focus on promoting and implementing the Diversity and Inclusion Charter, Procurement Protocol, and Career Barriers Action Plan externally.
Council heard about events organised for communities, including the Junior Lawyers’ Division annual conference, the
Council discussed and signed off Management Board’s proposals for the recruitment of Des Hudson’s successor as
SHAPING THE ENVIRONMENT
EVENTS AND SERVICES
OTHER ISSUES
David Taylor, Council Member Partner in Hanne & Co, Clapham Junction. Graduated from the University of Kent at Canterbury in 1976 with a degree in Social Policy & Administration. He then joined the Citizens Advice Bureaux service, working in Sheffield & London, specialising in welfare benefits and employment. He was the manager of Battersea CAB for 10 years. He joined Hanne & Co in 1988 and was admitted as a solicitor in 1994. His practice is in employment and regulatory law. He is a member of the Employment Lawyers Association, Association of Regulatory and Disciplinary Lawyers and the Industrial Law Society. He is an accredited mediator through the Centre for Effective Dispute Resolution. He was president of South London Law Society from 2003 to 2006.
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chief executive, a process which will begin with advertisements on 25 May 2014. Council also had a preliminary discussion of issues in relation to the Compensation Fund, the operation of which the SRA is reviewing and on which there is likely to be a consultation later in the year. The discussion covered issues including the effect of ABS on the Fund, the recommendation of the Legal Services Board’s Consumer Panel that there should be a single fund covering all of the regulated legal professions, and the effect of the conveyancing process of claims on the fund. Further consultation with the profession is planned over the next few months. If any constituent has comments or questions on these matters please contact me. Please contact me with any issues that you wish me to take up at dxt@hanne.co.uk or follow me on Twitter on @DavidTaylor364
PASTORAL CARE
PRACTICE ADVICE SERVICE
Tel: 0870 606 2522 practiceadvice@lawsociety.org.uk This provides advice from experienced solicitors on legal practice issues including conveyancing, costs, probate, Law Society policy and practice notes including anti-money laundering. Lines are open from 9:00 am to 5:00pm Monday to Friday.
LAWYERLINE
Tel: 0870 606 2588 lawyerline@lawsociety.org.uk This provides advice on client care and complaints handling. Lines are open from 9:00 am to 5:00pm Monday to Friday.
PASTORAL CARE HELPLINE 020 7320 5795
This provides personal, financial, professional and employment advice. Lines are open from 9:00 am to 5:00pm Monday to Friday.
JLD HELPLINE 0800 085 6131
Pastoral care for junior lawyers. Lines are open from 9:00 am to 9:00pm Monday to Friday.
News
2014 SOUTH LONDON LAW SOCIETY ANNUAL DINNER
SOUTH LONDON LAW SOCIETY & LONDON SOUTH BANK UNIVERSITY
PROGRAMME OF CONTINUING PROFESSIONAL DEVELOPMENT EVENTS 2014 Seminars start at 6.30 pm (unless otherwise indicated). Refreshments are available from 6.00pm. All seminars attract 1.5 CPD points. Seminars are held in the London South Bank University Keyworth Centre. See http://www.lsbu.ac.uk/about/maps.shtml for a map and directions to the Keyworth Centre, LSBU.
Seminars are free to SLLS members. Seminars cost ÂŁ50 for non-members. Non-member Firms booking more than 1 place are entitled to a 50% discount on all additional bookings. Places on all CPD seminars can be booked with Andy Unger via email - ungerad@lsbu.ac.uk
DATE
TIME
TOPIC
Tuesday 7th October
6.30 pm
Criminal Law Update
Joel Bennathan QC, Barrister at Doughty Street Chambers, Imran Khan, Solicitor, Imran Khan & Partners. Visiting Professors in Law at LSBU
Tuesday 21st October
6.30 pm
Family Law Update
Robert Hush, Solicitor, Vice President SLLS
2014
LECTURER
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LONDON LEGAL WALK News
MONDAY 19TH MAY 2014
On a balmy evening, more than 8,000 walkers took part in this annual event comprising more than 500 teams.
This 10km walk, starting at the Royal Courts of Justice, along the river, through Green Park and Hyde Park and finishing back at the Law Society in Chancery Lane, has become a key event in the London Legal Calendar. The driver of the event is of course The London Legal Support Trust, part of a network of seven such Trusts across England and Wales and working with The Access to Justice Foundation to support pro bono and advice agencies. This 2014 walk marked the 10th anniversary of what is believed to be the largest annual gathering of lawyers and the Judiciary in the world! Certainly, we saw top members of the legal profession, the Lord Chief Justice, the President of the Supreme Court, the Master of the Rolls, leaders of the Law Society and the Bar Council, the Attorney General, the DPP….. the list goes on and on. Gratifying as it is to see such esteemed lawyers walking for the cause, it is perhaps more impressive that so many lawyers and Law Firms throughout London have bought into this event which has come on so strongly since its birth in 2005 and simply grows year on year. In 2005, 330 walkers raised £35,000. By 2013, 7,500 walkers raised £530,000 and that figure is expected to be exceeded this year. Money raised by events such as this is absolutely crucial to the funding and survival of Law Centres, Citizens Advice Bureaux and other charitable organisations providing legal advice in a diverse range of areas to those who simply cannot afford to instruct a lawyer. We at Anthony Gold have again raised over £2,000 this year and have been able to nominate that 50% of our fundraising be given to London South Bank University for their Legal Advice Clinic which was established in 2011. The Legal Advice Clinic provides free face to face community advice and is staffed by law students and supervised by experienced, practising Social Welfare lawyers. This event is a “win win”. It is thoroughly enjoyable, it is extremely well run and marshalled, it ends with a fantastic street party (in Carey Street) and the whole experience is quite simply a joy. If you have not done to date then please get involved and look out for next year’s event. For more information on the London Legal Support Trust, please look at their website: www.londonlegalsupporttrust.org.uk. Stephen Whitaker President South London Law Society
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News
IMMIGRATION LAWYER PICKS UP AWARD FOR GIVING FREE LEGAL ADVICE
An immigration lawyer from Coventry was presented with the Pro Bono Award by the Chartered Institute of Legal Executives (CILEx) on Wednesday, 4 June at the annual presidential dinner at Christ Church Spitalfields, London. 30-year-old Saria Bashir, partner and Chartered Legal Executive lawyer at BHB Law, received the award for giving free legal advice to foreign prisoners and members of her community on immigration and human rights matters. On winning the award, Saria said: “There’s the sense of personal achievement in assisting people who cannot access legal services. The most rewarding thing about the whole experience is how satisfying it is to provide a solution for the client.” She continued: “Receiving this award is truly an honour and I am humbled. I cannot express the mixture of emotions I have gone through since learning that I am to receive this award as I have overcome so many hurdles to get to where I am.” Saria’s portfolio of pro bono work is extensive and has increased since the Legal Aid cuts to immigration were introduced. On a monthly basis, she visits foreign prisoners at HMP Woodhill in Milton Keynes advising them of their immigration status. She said: “The prisoners have been severely affected by Legal Aid cuts and they have such important factors in their cases which if not argued, will mean
they will not receive a fair trial which infringes upon their human rights.” In addition to her work with prisoners, Saria represents a client who is suffering from a life threatening condition who will not receive adequate medical treatment if they are removed back to their home country. She has also set up Free Legal Clinics at her offices in Coventry to assist those who cannot meet legal fees. Chair of the CILEx Pro Bono Trust, Nick Hanning, said: “As ever, the Pro Bono Award was hotly contested by very impressive nominations any of which would have made worthy winners. Miss Bashir stood out on account of her longstanding and varied pro bono immigration advice and representation and especially her prison clinic work. It is very humbling to hear of her dedication and a privilege to be able to show our appreciation of her work. She is a shining example of the very best attributes of CILEx Members.” Tom Curran, chief executive of Title Research who sponsored the award said: “We are delighted to have been sponsors of the CILEx Pro Bono Award this year and commend Saria for her commitment to
Pictured left to right: Tom Curran, chief executive of Title Research; Saria Bashir, Pro Bono Award winner; Nick Hanning, chair of the CILEx Pro Bono Trust.
justice and access to legal services. Congratulations, Saria.” Saria began her legal career as a receptionist at a law firm after leaving school. She is now a partner at her firm, only possible because she was able to qualify as a Chartered Legal Executive lawyer by studying CILEx’s courses whilst working full time. She now hopes to continue her training to become a Chartered Legal Executive Advocate. Title Research will donate £750.00 to a charity of the winner’s choice. Saria has chosen to award the money to Birmingham Children’s Hospital.
JUSTICE MINISTER CALLS ON CHARTERED LEGAL EXECUTIVES TO “SHAPE THE LEGAL SERVICES OF TOMORROW” In his address to newly qualified Chartered Legal Executive lawyers, Justice Minister Shailesh Vara MP spoke of their opportunity to innovatively change the way legal services are delivered, as new rights for independent practice approach. which we live. The Institute offers one of the most flexible routes into becoming a judge, coroner or partner in a law firm and its diverse membership will help make sure the legal system better reflects the make-up of modern Britain.”
Justice Minister Shailesh Vara MP stands with Diane Burleigh OBE as she announced her retirement and collected an honorary fellowship at the CILEx graduation ceremony.
The Minister said: “I am immensely proud of the world-class services our legal system offers. The Chartered Institute of Legal Executives plays a crucial role in this. The legal sector is rapidly changing and Chartered Legal Executives have the opportunity to be innovators and help shape the legal services of tomorrow.” He continued: “I am committed to creating a more diverse legal profession and judiciary that reflects the society in 10 The Clapham Omnibus
Shailesh Vara MP spoke on the second day of the Chartered Institute of Legal Executives’ (CILEx) graduation ceremonies which saw nearly 160 CILEx advocates, lawyers and aspiring lawyers collect their scrolls from the Institute’s president, Stephen Gowland. 37 new Chartered Legal Executives swore the Oath to “act at all times with integrity” as they were formally admitted into the lawyer profession. Four Chartered Legal Executive Advocates celebrated their achievements having completed the academic and portfolio requirements to represent their clients in open court. 117 Graduate members also collected their scrolls as they celebrated completing CILEx’s final academic stage which is set and assessed at honours degree level.
Jen Egginton, CILEx regional development officer for London and the Home Counties graduated today as a Chartered Legal Executive Advocate. Jen said: “The Criminal Advocacy Course was very intensive over six days but thoroughly enjoyable and invaluable. I am delighted to be here amongst everyone graduating today and encourage them all to extend their practice rights through further study.” The ceremony also saw a rare ‘Honorary Fellowship’ being awarded to Diane Burleigh OBE, who retires as CILEx chief executive at the end of 2014. In awarding the surprise Honorary Fellowship, CILEx President Stephen Gowland said: “Diane has changed the lives of thousands of current, former and future CILEx members, and she has transformed the face of the legal profession.” On receiving the Honorary Fellowship, Mrs Burleigh said: “To receive this at my last graduation ceremony was a complete surprise; I am overwhelmed and honoured. I want to thank the Council for giving this to me, and all the wonderful people who have been so supportive in the last fifteen years.”
WILL AID: MAKING A POSITIVE DIFFERENCE FOR 25 YEARS
News
In November 2013, 1,500 generous solicitors all over the UK helped raise more than £2.1m in client donations for Will Aid’s 25th anniversary campaign by dedicating their professional time and skills to write Wills for approximately 24,000 clients. Almost 8,000 of these wills have to date been registered for free with Certainty, generating potential follow-up business and ensuring that the will can be found by relatives when it is needed.
In England and Wales alone, 1,100 firms signed up to the scheme and raised a fantastic £1.72m by writing wills for 20,000 clients. Although the number of wills written varies from firm to firm, many solicitors drew up between 80 and 150 Wills. For instance, hard-working and generous solicitors at Clifton Ingram in Reading and Wokingham achieved a fabulous fundraising total of £11,936 by writing more than 100 Wills. The firm has participated in six Will Aid campaigns to date and has written approximately 1,000 Wills for people locally. In total, they have raised a fabulous grand total of over £42,000. On behalf of the team who put in so much effort to Will Aid, Ms Melissa Baxter commented: “Will Aid offers us an excellent opportunity to use our professional skills to generate significant charitable donations and engage with individuals who would not otherwise have come through the door. Will Aid clients receive the same professional service as our fee-paying clients and are pleased with the level of attention and service given.”
million by 2016 for the ChildLine Schools Service. This will put ChildLine in every primary school across the UK, with visits once every two years to talk to children about abuse, how to protect themselves and where to get help if they need it. By helping children understand and identify abuse in an age appropriate way, they will have more courage to speak out earlier and protect themselves and others from the devastating effects of abuse. Shirley Marsland, Will Aid Campaign Manager, says:
Pictured left to right: Suzanna Woodcock (Garside and Hoy), Alison Linwood (Christian Aid), Julia Newland (Partner, Garside and Hoy)
Red Cross, Christian Aid, NSPCC, Save the Children, Sightsavers, SCIAF (Scotland) and Trocaire (NI) will put the funds raised to good use working to improve the lives of people who need help most in the UK and all over the world. For example, donations from Will Aid 2014 will go towards the NSPCC ‘Now I Know’ appeal, which aims to raise £20
“Will Aid has made such a real and positive difference to those in need of a hand up over the past 25 years. This would not have been achieved without the generous help of our enthusiastic solicitors and the clients they have helped to make a Will. The Will Aid scheme will run again in November 2014 and, as usual, we welcome any solicitors who would like to take part and show their immediate and the wider community that they care.“ For more information about how to take part, please visit: www.willaid.org.uk/solicitors or phone 0300 0300 013.
AN ETHICAL DILEMMA
The charities, ActionAid, Age UK, British
Risha (the name has been changed) was a trainee solicitor with only four months of her training contract left to complete. She called LawCare’s helpline because she had noticed some serious unethical practices in her firm, which she was concerned left it liable to accusations of mortgage fraud. She was fearful that, were the SRA to investigate, she would be implicated. However, if she reported it then it was likely that she would be unable to complete her hard won training contract.
Loraine (the name has been changed) was a chartered legal executive. She was surprised, on receiving a delivery from the firm’s printers one day, to see her own name listed among the solicitors on the firm’s new notepaper. On reporting this to the senior partner she was told that “Clients don’t know the difference”. LawCare regularly receives calls from lawyers from all branches of the profession faced with difficult choices regarding unethical practices. Practice rule 20.04 states “You must (subject, where necessary, to your client’s consent) report to the Solicitors Regulation Authority if you become aware of serious misconduct by a solicitor … [or] you have reason to doubt the professional integrity of a solicitor.” Failure to comply with this rule puts a solicitor at risk of disciplinary proceedings themselves, but in many
cases reporting it can put them in a very difficult position with the firm. The SRA has an Ethics Guidance Helpline for just such dilemmas which you can call anonymously. The number is 0870 606 2577. Another useful service is the Solicitors’ Assistance Scheme. This is a panel of practising solicitors who will offer up to an hour’s free advice. The number to call is 020 7117 8811 and there is also a website at www.thesas.org.uk. We advised Risha and Loraine to get their CVs up to date and confront the person responsible at the firm. Loraine’s Senior Partner agreed not to use the notepaper any more; Risha was forced to report her firm, but was able to transfer her training contract and has recently qualified.
Most lawyers are dedicated and honest professionals who abide by all the rules – but some are not, and the fact that they put colleagues and friends in the difficult position of having to report them makes their behaviour even more odious. If you are facing an ethical dilemma, call LawCare for support. We are specifically exempted from Rule 20.04 so even if you do choose to give us your name we will treat everything you tell us as completely confidential. Our helpline is available from 9 a.m. to 7.30 p.m. on weekdays and 10 a.m. to 4 p.m. at weekends, on 0800 279 6888. We also have a website on www.lawcare.org.uk. LawCare Ltd is registered as a charity in England and Wales no. 1061685 and in Scotland no. SCO39335.
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Spotlight on...
LEADING SOUTH LONDON LAWYER – GERALD SHAMASH Introducing Gerald Shamash, senior partner at Steel & Shamash and the first in our new spotlight feature on top partners in South London firms. Gerald is recognised as one of the leading lawyers in the Capital and is presently The Labour Party’s election lawyer. Some of his areas of expertise include: - Parliamentary boundary enquiries, judicial review and media law which has seen him represent in some high profile cases before the High Court on phone hacking.
WITH THE 2015 UK GENERAL ELECTION COMING UP NEXT YEAR WHAT WILL YOU BE DOING AS AN ELECTION LAWYER BETWEEN NOW AND THEN?
There are problems that come up during election time to do with funding, questions that come up about whether candidates are disqualified who don’t check their requirements, going through the whole process about postal voting and people understanding the regulations and liaising directly with individual candidates or directly with the party themselves.
WHO OR WHAT HAS INFLUENCED YOU TO PURSUE A CAREER IN LAW?
My wife. After completing a politics and sociology degree at the University of Surrey and I did not know what to do when I came out. I went to work for Polydor Records to help them do a computerised distribution system of their record. I became bored quite bored of that and with being involved in politics in a broader sense before, and my wife worked in the law centre movement right at the beginning of the movement in the very early 70’s and she made me realise you could achieve a lot politically by being a lawyer and I qualified and become involved in politics directly and joined the Labour Party and became a councillor and stood for parliament. I have served as a councillor for 8 years but have not been successful to stand as a parliamentarian but I have had a very interesting career being the labour party solicitor for a long time now.
WHAT PATH DID YOU TAKE TO LEGAL QUALIFICATION?
I studied a Politics and Sociology degree at the University of Surrey and in those days, if you had a degree you could go straight to the College of Law, do a 6 month conversion course and do your 2 year articles.
WHAT IS A TYPICAL DAY LIKE FOR YOU AT YOUR FIRM AND HOW DO YOU MANAGE YOUR WORK/LIFE BALANCE?
How do I manage my work life balance? I don’t - and there is no such thing as a typical day. You don’t know what clients are going to expect from you at any given time if you work in the world of politics you just do not know what is going to happen. I do a lot of things outside of work and there are the organisations I belong to. I am Chairman of the Manchester United Supporters Trust with over 200,000 members and is by far the biggest by way of supporters trust. I am Trustee of the Hansard Society, director of Electoral Reform International Services Limited the Electoral reform, treasurer of the Society of Labour Party Lawyers and many more. I am also a dad, a husband and I play tennis.
WHAT HAVE BEEN YOUR HIGHS AND LOWS WORKING IN THE LEGAL PROFESSION?
The high would be setting up this firm. When I started it was just myself and my then partner Elaine Steel and there were about 2 or 3 of us and now we are at 45 odd so it’s relatively a big firm, 12 The Clapham Omnibus
it has a good name and hope a good reputation and I’m very proud of what we have been able to achieve. The lows I’m not too sure. Perhaps losing cases that I thought we should have won and the frustrations with the judiciary for not seeing things the way I saw on behalf of my clients whoever they are be it politicians or what have you. But that goes with the game, if you can’t take the defeat you don’t deserve the victories. It works both ways.
WHAT DO YOU THINK ARE THE CHALLENGES FACING THE LEGAL PROFESSION IN THE NEXT 12 MONTHS?
The answer to that is legal aid. Steel & Shamash is a legal aid practice, 80% of our income is legal aid and the government cuts are making it very difficult for firms like ours to survive. It’s a real battle and what we’re trying to do is marry a good quality service to the disadvantage people in the community. It’s a difficult balance and that is a challenge. I think the other challenge across the legal profession is that a lot of people are much more acute now that lawyers operate on an hourly rate and there is pressure even in the city to have block fees.
WHAT CHANGES WOULD YOU LIKE TO SEE IN THE LEGAL PROFESSION IN THE NEXT 5 YEARS?
In the profession now there are almost more woman then there are men but what we don’t have is women in quite the numbers that there are in the big city firms and that’s something I’d like to see addressed.
WHAT SETS YOUR FIRM APART FROM OTHERS?
The mix of work we do. It’s a very unusual practice. I’m not sure if there is anybody doing election law in quite the way we do it. We also act for the local government, acting for the Labour Party’s 7-8 councillors in terms of their code of conduct and it’s the mix of that kind of work, defamation, phone hacking and with our legal aid work we do we pride ourselves at doing it really well. Even though it means it is a bit of a financial hit, I think the profile as a whole makes us somewhat unusual. We are different in that sense.
WHAT ARE THE QUALITIES THAT MAKE AN EFFECTIVE LAWYER? Just one word; judgement. That comes with experience. Knowing when to stop, when to go.
WHAT ARE YOU READING AT THE MOMENT? I just started the latest John le Carré ‘the perfect spy’.
WHAT MOTTO DO YOU LIVE BY?
Get as much out of life as you possibly can. Don’t miss an opportunity when it presents itself, you don’t know what life holds for you. Enjoy every moment.
News
Property
WINE OF THE SEASON, CONVEYANCERS PREDICT
WITH CONAL GREGORY, MASTER OF WINE
STRONG FUTURE GROWTH IN SEARCHFLOW SENTIMENT SURVEY
2nd June 2014: SearchFlow, the UK’s leading information and data provider for the property transaction market, is today unveiling findings predicting strong sector growth in its second Conveyancer Sentiment Survey.
Northern Portugal provides some of the top value wines in the world, many of which are ideal for informal summer drinking. The steeply terraced hillsides of the Douro valley is the source of rich reds that certainly compete with Claret. Quinta Vale Dona Maria is such a star. Foot treading is still used to make this wine, which could have been turned into Port if brandy had been added. Vines like Amarela, Tinta Roriz and Touriga Nacional create a violet-red wine with dark cherry and plums with great balance. Enjoy now (preferably opened two hours) or keep for five years. £29.90 for 2010 (Tanners).
The research showed that confidence is appearing to return to the marketplace with more than half (59%) of conveyancers expecting their business to continue to grow by 10% or more over the course of the year. Within this figure, a quarter of conveyancers are anticipating growth to exceed 21%. This is despite recent predictions from Nationwide warning against the housing market, particularly in London, facing a “natural correction” and the Bank of England citing the property market as representing the biggest risk to financial stability and longterm recovery. The findings follow an overwhelmingly positive quarter for the conveyancers surveyed. Three-quarters (75%) saw their volume of work increase by 10% or more in the first quarter of 2014 alone, with 41% of this figure seeing volumes grow by more than 25%. This is an increase of 10% on the previous quarter, where 65% of those surveyed experienced similar growth. Elsewhere SearchFlow’s research shows that conveyancers believe Help to Buy has had a negligible impact on market growth; 73% of conveyancers believe it has made no difference with just over a quarter (27%) saying it has contributed “somewhat”. Once again it is direct business that is fuelling growth with nearly three quarters (72%) of conveyancers seeing the highest growth here. Despite this confidence, conveyancers continue to maintain a degree of caution when it comes to investing in recruitment, certainly in the short-term. While over half (52%) are looking at increasing their headcount in the next quarter, 27% said it would be unlikely with one-fifth (21%) saying team growth is “very unlikely”. SearchFlow’s Conveyancer Sentiment Survey highlights a real requirement for the conveyancing sector to educate homebuyers around flooding risk. Sixty-five per cent of conveyancers stated that the floods have changed their view of flood risk when undertaking searches. However this is not reflected in consumer attitudes. Fifty-five per cent of conveyancers see no change in their clients’ attitude to risk with 37% seeing a minor shift in attitudes.
Moss Wood Semillon from Western Australia’s Margaret River has glorious citrus and fig aromas with a mineral elegance to match both monkfish and shellfish. This grape deserves to be enjoyed on its own rather than lost in blends. £16.99 (Waitrose). Content supplied by NFU Mutual Bespoke. 14 The Clapham Omnibus
“Our second survey with The Law Society Gazette indicates that confidence within the sector remains strong,” comments Perran Moon, Marketing Director, at SearchFlow.“However we need to be mindful of the strong dynamics at play here. Although 73% of conveyancers state Help to Buy has had no positive impact, it would appear that the media noise around this has encouraged people who might not otherwise have considered moving to do so. As an industry we need to address the fundamental issue of a lack of housing supply. The Home Builders Federation estimate the UK is now one million homes short, so to create a sustainable market place, this needs to be addressed along with the requirement for resultant infrastructure changes.”
RIGHTS PRESERVED DESPITE ILLEGALITY Employment Law
Ryan Clement is a practising barrister at Conference Chambers
We can all think of ‘contracts’ that would be deemed illegal; some more unsavoury than others. Some are deemed illegal from the outset as to their formation, others become so due to their performance. Generally speaking, parties are prevented from relying on and/or enforcing certain contractual and statutory rights that, but for the illegality, would normally have arisen lawfully under such contracts. Therefore, what is the position when, for example, a successful applicant for a job is harassed or discriminated against by her employer (or its employee) prior to commencing the position for which she later entered into an illegal contract? Assistance can be sought from the recent case of Wijesundera v Heathrow 3PL Logistics Ltd & Anor UKEAT/0222/13/DA.
In Wijesundera, the appellant commenced working for the respondents before she had a valid work permit in place. Materially, prior to being employed she had been sexually assaulted by the second respondent, about which and whom she complained. When a work permit was eventually granted the second respondent said she was no longer required and that she should leave. This she did. She then presented a complaint to the employment tribunal, alleging unfair and wrongful dismissal, sex discrimination and harassment. The respondents claimed she had no rights as she had been working without a valid work permit and, therefore, under an illegal contract. Consequently, the tribunal rejected her complaint on the grounds that either she was not an employee or she was an employee but employed under an illegal contract. Neither outcome was helpful. The effect of the tribunal’s determination was that the alleged illegality had “trumped other rights [she] might have had,” which, of the course, included the sexual assault to which she was subjected before commencing the said employment. Understandably, she appealed the discrimination and harassment decisions. The EAT held that the alleged harassment/discrimination were not so inextricably bound up with the contract of employment or the illegality as to be defeated by the defence. In allowing the appeal, it held that the tribunal had erred in failing to consider s40(1)(b) of the Equality Act 2010 (the Act) that protected applicants seeking employment. You do not have to be an employee to bring a complaint of harassment/discrimination under the Act. For example, someone who applies for a job can present a complaint to the tribunal if, contrary to the Act, they were harassed/discriminated against by the prospective employer irrespective of whether or not they actually work for that prospective employer. Wijesundera is an interesting case, the likes of which we probably have not yet heard the last. For example, one may well ask, what if a claimant, again without a valid work permit and without the promise of one being applied for, were to claim that s/he was an unsuccessful applicant for a job on the grounds of unlawful discrimination? On Wijesundera, s/he could properly present a complaint to the tribunal even though the prospective employer would have been prevented from employing the claimant legally in any case!
16 The Clapham Omnibus
Employment Law
ZERO HOURS OR ZERO BENEFIT
Helena Woodward-Vukcevic, Employment Solicitor at law firm Hart Brown, comments on the proposed ministerial plans to impose sanctions on jobseekers refusing to accept zero hours roles. Helena Woodward-Vukcevic Employment Solicitor Hart Brown
It has been reported that a letter from conservative party Employment minister, Esther McVey, reveals plans to impose sanctions on jobseekers refusing to accept zero hours roles. Zero hours contracts are controversial because they do not actually require an employer to provide any work for an employee. Whereas the employee must agree to be available for work as and when required. This provides flexibility to employers whereby they do not necessarily have to pay their staff during quiet periods whilst keeping them available on short notice for when they are needed. The Department for Work and Pensions has
said that “if a claimant turns down a particular vacancy (including zero hours contract jobs) a sanction may be applied, but we will look into the circumstances of the case and consider whether they had good reason” and clarified that “A job seeker would not be required to take a zero hours contract that tied them in exclusively to work for a single employer.” The use of zero hours contracts has increased considerably since the financial crisis in 2008 particularly in low-paid sectors creating insecurity amongst workers. No minimum number of hours or times of work are specified. The employee is expected to be on call and receives payment only for those hours worked. Under the contracts workers lose out on holiday, sick pay, redundancy and other benefits in addition to having no guaranteed income. Whilst these arrangements may be ideal for some people such as students or retirees who want occasional earnings,
seasonal work or are able to be flexible about when they work, others have the risk of unpredictable hours and earnings with no guaranteed shifts or income. This had led to a government review of zerohours contracts with politicians calling for employers to offer at least minimum guaranteed hours. Business Secretary, Vince Cable, suggested that zero-hours contracts may soon be subject to legislation but ruled out a complete ban instead considering a change in the rules preventing restrictions on workers being tied to work exclusively for a single employer. In conclusion, it is a positive that the use of these contracts is now being closely monitored by the government. It is vital that those claiming unemployment benefits are encouraged to get back into work as quickly as possible where work is available to them. However, the concern is that those workers do not lose out on fundamental employment rights in the long run.
The Clapham Omnibus 17
FRANK JOHNSON HAS DIED Human Rights
by Alastair Logan
Frank Johnson has died. He died in November 2013 of cancer. In his typical way, as someone who did not try to pretty up the facts or mislead, he rang me eight days before he died to tell me he was dying and we might not be able to speak again. I had not been aware that he had cancer but he had struggled with it for over a year and there was, as he told me, nothing more the doctors could do for him so they had sent him home from hospital to die. Frank came from Newcastle. He was born there on 22 June 1949, the eldest of three children. His mother suffered from multiple sclerosis which progressed over time confining her to a wheelchair in later life. Frank looked after her for many years. Frank was very fond of his Grandfather and as a youngster he accompanied him on his trips in his timber wagon all over the country. Frank was academically bright and did well at school. He took on the headmaster at chess and frequently won. Frank was good at science and maths and he took a scientific approach to the things of that he encountered in life. He had a very enquiring mind and was interested in and knowledgeable about a vast range of things. When he left school he trained as a teacher to begin with but decided that was not where his future lay and so he went to work for the River Authority as a trainee engineer. Over the years he had many different jobs including working for Social Services caring for the elderly – a job he really enjoyed. Frank loved the countryside and walked all over Northumberland. Frank was one of those people who could walk down a street and bump into somebody he knew, whether it was in Amsterdam or County Donegal. He loved Ireland and had hitchhiked over most of it. Frank was a political person, very interested in politics and current affairs. He was an avid reader of the Guardian and kept up his knowledge of events by listening to the radio, reading, following stories online and discussion with others who shared his interests. He took part in the antiapartheid protests. Frank loved music and had very broad tastes but he particularly liked country music. He also had a phenomenal memory with the ability to recall even the smallest details. Frank was a man of the highest integrity. A man of principle and a man who stood up for truth and justice. He was well liked and had many, many friends. I first met Frank in 1975. He was an alibi witness for one of the Guildford Four. He gave evidence at the committal proceedings and again at trial as a witness for the defence of Carole Richardson. How he had come to be in that position was a story in itself. In October 1974 Frank was in London and had met a number of Irishmen in Kilburn 18 The Clapham Omnibus
from the Athlone area of Ireland. They were living in squats in Kilburn and through them he got to know others who lived in squats although he himself never did. One of those he got to know was Carole Richardson. She was a refugee from her own home because of her stepfather’s abuse and having nowhere else to live she had joined one of the Athlone boys’ squats. One of Frank’s favourite groups was Jack the Lad, a Newcastle group formed in 1973 by 3 former members of the most successful band of the period from north-east England called Lindisfarne. They were an important part of the roots movement rediscovering traditional Northumbrian music. Frank learned that they were due to play a gig at the South Bank Polytechnic, now called London South Bank University. Frank’s knowledge of the group enabled him to get tickets which would enable him and anyone he brought with him to go to the gig as guests of the group which in turn enabled them to mix with the group in their dressing room as well as attend the gig. Frank offered two tickets to Carole Richardson and her friend Lisa Astin. Carole was 17 and Lisa was just 16. Frank was 25. Frank arranged to meet Carole and Lisa at the Charlie Chaplin public house at the Elephant and Castle at 6:30 on the evening of the gig. Frank met the girls at the Charlie Chaplin and bought them a drink. Frank could even remember which drinks they had and could describe the Barman who served them. They then walked to the South Bank Polytechnic. To gain entry they had to have a member of the group admit them and as a guest of the group the back of their hand was stamped with an indelible mark to show that they were permitted access and their names were recorded in a book maintained by the Polytechnic but not the time at which they were admitted. Frank and the girls spent time with the group for some time before the group performed and during that time one of the group took photographs. Shortly after the gig Frank went back to Newcastle to care for his mother again. He took a job in an abattoir where his responsibilities were to gut the animals – a messy job that forced him to change his clothes daily. In December 1974 he became aware that the arrests had taken place of those who were believed to be responsible for the bombing of two public houses in Guildford, Surrey on 5 October 1974. Later, after the initial court proceedings were reported, he became aware that one of those charged was a girl called Carole Richardson. Frank immediately realised that if the girl charged with the Guildford bombings was the girl that he knew then he knew that she could not possibly have carried out the bombings because she was with him that night at the South Bank Polytechnic.
THE GUILDFORD FOUR
Frank wanted to get in touch with Carole’s solicitors to tell them what he knew. He did not know who they were so he rang Guildford Magistrates’ Court and asked them to give him the name of the solicitors acting for her. They refused to do so. Having been prevented from getting that information, Frank reasoned that if he went to a solicitor himself that solicitor would be able to find out the name and address of the solicitors acting for Carole. He went to see a solicitor in Newcastle, a man who was subsequently elevated to the House of Lords. He made an appointment, attended the offices of the solicitor and explained the situation to him. The solicitor told him that he was not prepared to help Frank because he wanted nothing to do with terrorism. Frank thought that he had run out of options and was thinking of travelling down to Guildford. However he could not leave his mother and he needed to keep the job. Frank decided to go to the police. He went to his local police station. He told them that if the Carole Richardson who had been charged with the Guildford bombings was the Carole Richardson that he knew then she was innocent of the offence because he was with her all that evening at the South Bank Polytechnic in London. The reaction of the police was to arrest him and place him in a cell in the police station where he waited until the next day. He was refused access to a telephone so that he could inform his mother of what had happened. The next day two officers from the Surrey Constabulary arrived at the police station and interviewed Frank taking a statement from him in which he gave, in considerable detail, all the information he had concerning that evening especially the times that he was in Carole’s company. At the conclusion of the interview he was released. Frank expected that he would be contacted by Carole’s solicitors having given the statement to the police. However he heard nothing from anyone. Christmas came and went. The case was reported in the newspapers. Frank remained caring for his mother and working at the abattoir.
Human Rights
Alastair Logan is now a retired solicitor having practised Family Law for 40 years in Guildford in a high street law firm as a sole practitioner. In addition to being a family law practitioner Mr Logan had a strong interest in Human Rights law and perhaps most famously made his name in this area, representing the Defendants in what is considered the greatest miscarriage of justice that England and Wales has ever seen: ‘The Guildford Four’. In addition to his representation of the Guildford Four and the associated case of the Maguire Seven Mr Logan acted as a defence solicitor in a further 11 terrorist trials between 1974 and 1985. Between 1985 and 2006 Mr Logan was a member of the Solicitors Assistance Scheme which involved giving advice and assistance to solicitors who were ‘in trouble’ with the Solicitors Disciplinary Tribunal. He is a trained mediator and pioneered training for solicitors in family and commercial mediation. In 2002 Alastair Logan was awarded an OBE for his services to Justice. In January 1975 as Frank was leaving the abattoir in the early evening after work dressed in his contaminated clothing two policeman approached him and told him that officers from the Surrey Constabulary wanted to talk to him. He was taken by these officers to the local police station where he was told he was arrested under the Prevention of Terrorism Act. All his clothing was removed save his underpants and he was thrown into a cell which was unheated and the window of which was broken. The temperature was sub-zero and there was no blanket in the cell. Frank repeatedly asked for his clothing back, a warm drink, for a blanket and something to eat since he had not eaten since breakfast. His demands were ignored. Unsurprisingly he got no sleep that night despite working hard during the day in a job that was physically demanding. The following morning he was told to dress in the clothing he had been wearing at the time of his arrest. He asked to be able to wash but his request was refused. He asked for food and for a hot drink. This was refused as well. He was handcuffed to the same to police officers who had interviewed him in December taken to the airport put onto a plane still handcuffed and flown down to London and thereafter taken to Guildford police station. During the journey he was unable to take any food or drink because both his wrists were handcuffed to police officers and they made no effort to provide him with any sustenance. The officers were able to have the breakfast supplied on the aircraft and hot drinks. During the journey they made abusive comments about the smell and ignored any requests he made. When he arrived at Guildford police station he was put into a cell, given no food or drink and not allowed to wash. Later in the day he was taken upstairs and interviewed by the same officers who had escorted him from Newcastle. They told him he had lied to them in order to give Carole an alibi. He denied it for some time. They sought to intimidate him into writing a statement correcting the “lies” he had told in his first statement. He refused. They then told him that they knew that his mother was confined to a wheelchair and that there was no one to care for her and suggested to him that he might like to reflect on what might happen if a fire were to start in the house where his mother lived. They were in possession of sufficient information about him and his family for them to convince him that they were capable of carrying out this threat. He was unable to continue resisting their demands so he told them that he would sign whatever statement they wanted him to make. The statement that they wanted him to make was not that he had told lies but that he had told lies about the timings. When
they had finished the taking of the statement the statement contained a variation on the timing as to the time of arrival at the South Bank Polytechnic and stated that he did not meet them before they arrived there. He was released from Guildford police station with no money, dressed in the clothes that he had been in when he was arrested out of work and with no means of returning to Newcastle. He managed to beg sufficient money to ring his mother and to get himself a cup of tea and he then hitch hiked back to Newcastle. What Frank did not know was that Carole had made a self-incriminating statement to the police after she had been arrested. Carole had gone to see her mother on the evening of her arrest. Those who were living in the squat where she was staying had broken into a chemist’s shop in Kilburn High Road the previous week and stolen a large quantity of drugs including Tuinal. Carole had been taking large quantities of Tuinal in the days before her arrest. Tuinal is a barbiturate depressant which promotes physical and psychological dependency and carries a high risk of overdose. She was taken to a police station in Surrey. When she was initially questioned she said she did not know where she had been on the night of 5 October but that if the police recovered her diary it would say where she was that night. The diary, she told them, was in the squat. The diary was destroyed by the occupants of the squat when they realised that Carole had been arrested and that it was likely the police would be coming to the squat. The police were screaming at Carole that she had to admit that she had bombed the public houses in Guildford. They had made no effort to recover the diary. Her treatment caused Carole to hyperventilate and became emotionally distraught and, finally, to become hysterical. Then the police called in the police surgeon, a GP who worked locally, and he gave her another dose of Tuinal which topped up the drug in her system. After that she was willing to say anything the police asked her to say. Her statement was selfincriminating but did not corroborate any of the statements from the other three defendants and could not be used in evidence against them nor could their statements be used in evidence against her. continued The Clapham Omnibus 19
Human Rights
Lisa was also arrested. She was with Carole when Carole was told by police that she had to come with them to the police station and asked the police if she could go with Carole to the police station. Neither of them thought that they were being arrested but suspected that the police might be investigating the break-in to the chemist’s shop. Carole was only formally arrested when Guildford officers attended the London police station where she was held. Lisa was never told that she was arrested but placed in a cell on arrival at the police station. She was then taken to a room that contained five male police officers, made to stand on a table and was threatened and abused by them. She, too, became hysterical and was returned to the cell, given no treatment, not seen by any qualified medical personnel and not even interviewed. She was released the following morning. She made no statement to the police as they did not interview her. When she learned of the alibi she went to the police herself and asked to make a statement as a result of which, reluctantly, they interviewed her. Her statement confirmed Frank’s first statement. The police had gone to see the Jack the Lad group after taking Frank’s initial statement in December. They had confirmed that Frank, Carole and Lisa had gone to the gig. After a good deal of badgering some of the group were prepared to accept timings given to them by the police as to when Carole, Frank and Lisa arrived despite the fact that their initial statements had confirmed what Frank had said in his first statement. They had also acquired from the group the photographs that had been taken by them which included a photograph of Carole holding a doll that she had been given that afternoon by another friend. 20 The Clapham Omnibus
The police intention was to get Frank to make a statement which retracted his earlier statement and opened up a window of time which enabled the prosecution to allege that Carole had travelled down to Guildford, been a part of the bombing team and then had returned to London to attend the gig. That required her to come down to Guildford and take part in the bombing at times when she was in fact with Frank and then be driven back to the South Bank Polytechnic at high speed in crowded traffic conditions along single lane roads. At that stage the A 3 Guildford to London dual carriageway had not been built. The A3 at that time went through a number of small villages which made the journey very slow and then joined a wider dual carriageway road at Kingston. The roads would have been congested on a Saturday night. A police asserted that a Triumph 2.5 squad car was able to do the journey in the time window but omitted to say that they used its blues and twos or that the journey was carried out on the new A 3 and not the old road. Curiously, the prosecution did not think that travelling at high speed up to London was risky or would attract any attention and it never occurred to them that, despite the fact that they alleged that there were 16 people in the bombing team that bombed the two public houses in Guildford (there were actually five), Carole was the only person to be provided by the IRA with this high-speed risky transfer in order to give her (the only English person) an alibi and did not seek to construct alibis for the remainder of the IRA Active Service bombing team. This “false” alibi was clearly designed to provide her with a defence should she be subsequently arrested for the Guildford bombings but she did not remember it and did not produce it herself. It came from Frank who had had no contact with her since 5 October in his first statement to the police in December. At trial in 1975 Frank gave the evidence that was contained in his first statement. The Attorney General, Sir Michael Havers, who led for the prosecution, castigated him as a liar and used the statements from the Jack The Lad Group against him. Protests at the way in which alibi witnesses, one of whom was a juvenile, had been treated by the police were ignored by the court. The Guildford four were sentenced to life imprisonment with massive minimum recommended terms for two of them and life means life for a third. Carole was sentenced to be detained at Her Majesty’s Pleasure because she was under the age of 18 at the time that the offence was alleged to have been committed. The effect on Frank was traumatic. He suffered from PTSD for the rest of his life. He lost his sense of security and was constantly haunted by the fact that his second statement was a principal cause of Carole’s conviction. His belief in justice and sense of self-worth had been irreparably damaged. He was never able to settle after that because he could never feel secure. The Guildford Four were released in 1989 and it was clear, as the Lord Chief Justice said when quashing their convictions, that the police “must have lied”. The prosecution of the Guildford Four was a vast conspiracy to pervert the course of justice because the identities of the perpetrators were known to the police within a couple of months of the arrest of the Guildford Four, long before their trial, and, indeed, some of them had confessed to police on their arrest that they had committed the bombings and did not know the Guildford Four. There were idiosyncratic forensic connections between the IRA personnel arrested and the offences for which they were convicted as well as the Guildford bombings. There were no forensic connections, no identification, no evidence at all against the Guildford Four save for their self-incriminating statements and the destruction of Carole’s alibi For Frank their release lifted a huge burden from him but he remained damaged by the experience for the rest of his life. Four people spent 15 years in jail for an offence they did not commit. However “life sentences” are not just given by courts to defendants as Frank’s story shows. To this day the protection of alibi witnesses, juveniles and the integrity of alibi evidence could still be destroyed by the use of anti-terrorist powers.
Human Rights
STOP AND SEARCH: WHERE ARE WE NOW? by Gus Silverman
On 30 April 2014 the Home Secretary, Theresa May MP, announced a “comprehensive package” of measures aimed at reforming the use of stop and search powers by the police.1 This article will take a brief tour of the main statutory powers upon which the police rely to stop and search individuals; it will consider recent developments in the case law and examine the Home Secretary’s proposals for reforming a system which, critics argue, not only fails to combat crime but undermines vital community support for policing. HOW IS THE SYSTEM WORKING AT PRESENT?
A recent study by Her Majesty’s Inspectorate of Constabulary considered a representative sample of police records detailing the circumstances in which officers had carried out stop and searches.2 Alarmingly, the study found that in 27% of cases the officers involved had not recorded factual grounds capable of justifying their actions. As the Home Secretary explained in her oral statement to Parliament: “If the HMIC sample is accurate, that means more than a quarter of the million or so stops carried out under the Police and Criminal Evidence Act last year could have been illegal”. There are particular concerns regarding the disproportionate use of stop and search powers upon non-white people. Asian people are twice as likely to be stopped and searched as white people; black people are seven times more likely to be stopped and searched than white people. Despite this stark imbalance, there is no correlating disparity between ethnic groups when it comes to the number of arrests arising from stop and searches. The campaigning group Stopwatch has calculated that if white people were stopped and searched as often as their non-white counterparts there would be an additional 4.4 million stop and searches every year.3 Perhaps the most concerning statistic is that over 90% of stop and searches do not result in an arrest. The arrest rate has in fact declined by 30% over the last decade, despite the number of stop and searches increasing by 60%. In the light of such figures it is not hard to see why the case for reform has been gathering momentum.
THE MAIN STOP AND SEARCH POWERS: Section 1 of the Police and Criminal Evidence Act 1984
The most widely used power (accounting for over a million stop and searches every year) stems from section 1 of the Police and Criminal Evidence Act 1984 (PACE). This empowers police officers to stop people or vehicles in public places and search them for stolen goods and other articles, including offensive weapons. 22 The Clapham Omnibus
Before an officer can exercise this power they must have reasonable grounds to believe that they will find a stolen or prohibited article in the course of the search. Furthermore the search will be unlawful unless, prior to the search commencing, the officer produces evidence of being a police officer (for example their warrant card) and gives: their name; the name of the police station to which they are attached; the object of the proposed search; and their grounds for proposing to make the search. The courts have applied these requirements strictly. For example, in R (on the application of Michaels) v Highbury Corner Magistrates’ Court4 the Divisional Court declared a stop and search unlawful where an officer had failed to tell the Claimant his name and the name of his police station, despite both individuals being well known to one another. Section 23 of the Misuse of Drugs Act 1971 Section 23 of the Misuse of Drugs Act provides police officers with the power to stop and search an individual where there are reasonable grounds to suspect they are carrying a prohibited drug. The same strict requirements apply to the information the officer must provide before the search. Section 60 of the Criminal Justice and Public Order Act 1994 Unlike the stop and search powers considered above, Section 60 empowers a police officer in uniform to stop and search an individual for offensive weapons or dangerous instruments without the requirement of reasonable suspicion. The power can only be exercised in an area designated by a senior officer who reasonably believes that incidents involving serious violence may take place or that persons are carrying dangerous instruments or offensive weapons within his policing area without good reason. Unsurprisingly, the absence of a requirement for reasonable suspicion has made the use of section 60 particularly controversial. Concerns have been heighted by the power’s disproportionate use upon ethnic minorities: Asian people are ten times more likely than white people to be stopped and searched under section 60, whereas black people are 37 times more likely to be stopped. Notably, only 0.4% of section 60 stop and searches result in arrests for carrying offensive weapons. In 2010 the European Court of Human Rights found that a similar power allowing for stop and searches in the absence of reasonable suspicion, section 44 of the Terrorism Act 2000, violated Article 8 of the European Convention (the right to privacy, including the right to bodily integrity). The court found that the powers granted to police officers under section 44 were neither sufficiently circumscribed nor subject to adequate legal safeguards against abuse, and therefore offended the principle of legality. In February 2014 the Court of Appeal delivered its judgment in a similar challenge, this time concerning section 60. R. (on the application of Roberts) v Commissioner of Police of the Metropolis5 concerned the use of section 60 to stop and search a woman travelling on a bus in Haringey without a ticket. When challenged by a ticket inspector the Claimant gave a false name and claimed (also falsely) that she did not have any proof of identity on her. The police were called and an officer, purporting to suspect that the woman was carrying an offensive weapon, searched her under section 60. No offensive weapon was found. In its judgment the Court of Appeal (upholding the decision of the High Court) found that section 60 did not breach either the right to liberty (given searches should be relatively brief) or the right to privacy, as the regime was ‘in accordance with the law’. The court found that the section 60 regime was a “short term power exercised in a particular locality, based on local intelligence and violent crime patterns”.6 There are concerns however that the Court of Appeal placed undue reliance upon a distinguishable precedent from the European Court of Human Rights and the Claimant intends to petition the Supreme Court. As with section 44, a judgment from the European Court may be necessary to finally determine whether the broad powers contained within section 60 comply with the rights to liberty and privacy.7
Human Rights
Gus Silverman is a solicitor in the police and prison law team at Fisher Meredith. He has developed his expertise over a number of years working on behalf of clients in actions against the police and other detaining authorities in both the High Court and County Courts. He advises on a broad range of issues including: false imprisonment; malicious prosecution; assault & battery; unlawful stop and searches; judicial review of decisions by the police and Crown Prosecution Service; claims for breaches of the Equality Act, Human Rights Act and Data Protection Act; police complaints and appeals against the outcomes of local investigations. Gus is interested in using the law to achieve justice and accountability for clients who have been harmed by the unlawful actions of the police and other detaining authorities.
Schedule 7 of the Terrorism Act 2000 Perhaps the most high profile single use of stop and search powers over the last 12 months concerns the use of Schedule 7 paragraph 2(1) of the Terrorism Act 2000 by Metropolitan police officers at Heathrow airport upon David Miranda. Schedule 7 allows an ‘examining officer’ to detain, search and question an individual for up to nine hours at a port or border area in order to determine whether they appear to be a terrorist. The power requires no suspicion (reasonable or otherwise) in order to be exercised. The individual’s luggage can be confiscated for up to seven days for further examination. During the period 2011 – 2012 there were 63,902 stops under Schedule 7. Again the statistics are concerning: a recent report by the Equality and Human Rights Commission found that non-white people accounted for 87% of those detained under Schedule 7, despite making up only 12% of the UK population. At the time of Mr Miranda’s stop under Schedule 7 in August 2013 his partner, Glenn Greenwald, was a journalist at the Guardian and had been closely involved in publishing material obtained by former US intelligence contractor Edward Snowden. Mr Miranda was stopped under Schedule 7 by the Metropolitan Police Service at the request of the Security Services, purportedly due to concerns that he was carrying leaked information from Edward Snowden which could be used for terrorist purposes. In R (Miranda) v Secretary of State for the Home Department and Commissioner of Police of the Metropolis8 the Claimant argued that: Schedule 7 had been used for an improper purpose in his case as the authorities were aware that he was carrying material for the purposes of journalism, not terrorism; the use of Schedule 7 in his case breached his right to freedom of expression; and that Schedule 7 in general breached the right to freedom of expression, as it did not contain sufficient safeguards to ensure that it would not be used to counter legitimate journalism as opposed to combatting terrorism. The High Court disagreed. In doing so it found, amongst other things, that the powers contained within Schedule 7 complied with the principle of legality as they were not overbroad, arbitrary or lacking in effective safeguards. The Claimant has sought permission to appeal. The Claimant in another Schedule 7 case has recently been granted permission to appeal to the Supreme Court.
PROPOSALS FOR REFORM
As always, it will take time to assess the effectiveness of these reforms. In the meantime there is some evidence of police forces taking pro-active steps to rein in their use of stop and search, driven no doubt by the obvious dangers of poor practice. For example the Metropolitan Police Service reports reducing its use of stop and search by 20% since February 2012. Notably the force also claims to have reduced its use of “no-suspicion” stop and searches by 90% over the same period. At the same time stabbings have fallen by a third and shootings have fallen by 40% across London, indicating that the reduced use of stops and searches may not be undermining the force’s ability to prevent crime. Most people agree that stop and search powers are an invaluable part of the policing toolkit. At the same time, however, it is clear that reforms are urgently needed to ensure that the police retain (or do not lose more of) the cooperation and trust of the communities they are employed to protect. Even if these reforms result in fewer and better uses of stop and searches powers it is likely to take some time to nurture widespread trust in the police’s ability and willingness to use stop and search powers effectively and proportionately, given the evidence of misuse to date.
FOOTNOTES 1
Stop and search: Comprehensive package of reform for police stop and search powers (Oral statement to Parliament by Theresa May MP, 30 April 2014)
2
Stop and Search Powers: Are the police using them effectively and fairly? (HMIC, 2013, http://www.hmic.gov.uk/inspections/ stop-and-search)
• Assessing whether individual officers have the necessary skills and knowledge to carry out lawful stop and searches. Officers who fail this assessment may be prohibited from carrying out stop and searches until they can demonstrate the necessary capabilities.
3
The statistics in this article are sourced from the Stopwatch website (www.stop-watch.org) unless stated otherwise.
• Limiting the length of authorisations for the use of section 60 powers from 24 to 15 hours.
4
[2009] EWHC 2928 (Admin)
5
[2014] EWCA Civ 69
6
At paragraph 25.
7
[2014] EWCA Civ 69
8
[2014] EWHC 255 (Admin)
The Home Secretary’s proposed reforms include: • A review of national police training to try to counter “unconscious bias” amongst police officers which may result in individuals being stopped and searched because of their ethnicity alone and not due to an officer’s reasonable suspicion. • Revisions to the relevant PACE Code of Practice aimed at providing clearer guidance to police officers as to the meaning of ‘reasonable grounds for suspicion’. • Making stop and search records more readily available to public scrutiny.
• The launch of a ‘Best Use of Stop and Search’ scheme. Amongst other things this will require police forces to record the outcome of stops in more detail, confirm whether and how often the object of the search matched the outcome, and enabling members of the local community to apply to accompany police officers on patrol to see for themselves how stop and searches are conducted.
The Clapham Omnibus 23
PERSONAL INJURY UPDATE Private Client
Last year saw some of the biggest changes in over a decade which radically changed the civil litigation landscape. I am of course talking about the Jackson Reforms, implemented by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (“LASPO”) on 1 April 2013. These reforms have affected funding and running of civil claims significantly. such circumstances, the claimant becomes responsible for the other side’s costs from the last day when they could have accepted the offer. That is the reason why ATE policies will still be taken out so that claimants do not end up losing more than 25% of their compensation. Until very recently, there was no definition of what amounts to “fundamentally” dishonest, though it was envisaged a fraudulent claim was likely to fall into this category. The very first definition has been given in the case of Gosling v Screwfix and another (unreported, Cambridge County Court, 29 March 2014). In this case there was no dispute an accident occurred and the claimant had suffered injury, but quantum was reduced by half when covert surveillance evidence showed the claimant had significantly exaggerated his symptoms. The judge on the defendants’ application ordered the claimant to pay their costs on an indemnity basis as he considered the claimant had been “fundamentally dishonest” with the intent to deceive them and was no longer protected by the QOCS shield.
COSTS BUDGETS – PRECEDENT H
Sana Bibi is a Partner in the firm of Anthony Gold and a Law Society accredited personal injury specialist.
FUNDING
One of the main changes was in relation to funding of claims. Pre Jackson claims funded by CFAs enabled successful claimants to recover 100% of their damages for personal injury and financial losses. In addition, they were entitled to claim their legal fees, including their solicitors’ success fee of up to 100% and after the event insurance premium (“ATE”) from the losing party. Costs were recoverable even if they were disproportionate to the value of the claim provided the claimant proved the work carried out by their solicitors was reasonable and necessary. This no longer applies. The test of necessity in Lownds v Home Office [2002] EWCA Civ 365 has been reversed. Necessity will not now equate to proportionality. Claims now funded by CFAs no longer guarantee 100% damages, though there may be certain exceptions. In successful cases claimants can lose up to 25% of their general damages and past financial losses in order to pay a success fee to their solicitors, capped at 25%. The premium for any ATE policy is also payable by claimants. We now have Qualified One Way Costs Shifting (“QOCS”). The basis on which QOCS operates is that a claimant will not be responsible for the other side’s costs if they lose their claim at trial unless their claim is struck out or they are found, on the balance of probabilities, to have been “fundamentally dishonest”. The QOCS protection is lost if any Part 36 offer made by the other side is not beaten at trial. In 24 The Clapham Omnibus
Another significant change is the requirement of costs budgets. Parties in all multi-track cases issued at court on or after 1 April 2013, (save for those started in the Admiralty and Commercial Courts and litigants in person) are required to exchange and file costs budgets in a form called the “Precedent H” at least seven days before the first CMC unless the court otherwise orders as per CPR 3.13. This essentially contains a detailed plan of what the parties believe would be the costs of bringing or defending the claim to a conclusion up to and including trial. If a party fails to do that they will only be entitled to recover court fees pursuant to CPR 3.14. The judiciary’s approach so far on cases where parties have exceeded their budgets are most notably illustrated in two non-PI cases. The first was Henry v News Group Newspapers Ltd [2013] EWCA Civ 19 where the court at first instance did not allow the claimant to recover the costs which exceeded the budget even though the judge accepted the extra work carried out by the claimant would in normal circumstances be considered “reasonable and proportionate.” This is because the judge felt there was “no good reason” to depart from the approved budget. This was overturned by the Court of Appeal as it found there was good reason. The other was Elvanite Full Circle Ltd v Amec Earth & Environmental (UK) Ltd [2013] EWHC 1643 (TCC) where the defendant’s application to amend or revise a costs management order after judgment was unsuccessful.
TOUGHER APPROACH FROM THE JUDICIARY
The other major consequence of the Jackson reforms is that the judiciary has been taking a “tougher” approach with non-compliance of rules, regulations and court orders following the new version of CPR 3.9 relating to applications for relief from sanctions.The landmark case is Mitchell v News Group Newspapers [2013] EWCA 1537 also known as the “Plebgate” in which the failure to file a costs budget in time effectively meant that the claimant’s solicitors are required to undertake complex, high profile and hotly contested litigation without remuneration. They will only recovery court fees if the case is won in accordance with CPR 3.14. The court effectively held that relief from sanctions will only be granted if there is a “good reason” for non-compliance or if non-compliance is “trivial”. A “good reason” could include a party or their solicitor suffering from a debilitating illness or being involved in an accident. In other words, unforeseen circumstances beyond the control of a party or their solicitor may be a “good reason.” Merely overlooking a deadline or pressures of too much work will not. What will be considered trivial will undoubtedly vary from case to case, though in Mitchell it was suggested that “the court will usually grant relief if there has been no more than insignificant failure to comply with an order, for example, where there has been a failure of form rather than substance; or where there party has narrowly missed the deadline imposed by the order, but has otherwise fully complied with its terms.” In Forstater v Python (Monty) Pictures Ltd [2013] EWHC 3759 relief from sanctions was granted. The claimant had prior to the proceedings given written notice of additional liabilities but failed to serve a notice of funding using form N251. This was accepted as a trivial non-compliance as a result of which there was no prejudice on the defendant.
However in Andrew Harrison (1) Elaine Harrison (2) v Black Horse Limited [2013] EWHC Costs B28 relief from sanctions was not granted. The claimants’ failure to serve a notice of funding relating to one of their three appeals led to loss of recovery of additional liabilities by the operation of CPR 44.3B(1), which essentially stated that failure to provide information of funding within 7 days of a CFA or an ATE policy would result in loss of recovery of additional liabilities. The defendant in that case had alleged prejudice and argued they would have taken a different approach towards the appeals had they been on notice about the funding arrangements in place. While each case is fact sensitive, it does appear that the judiciary is taking a more sensible approach now towards applications for relief from sanctions and there have been recent cases where the defaulting party has been shown some leniency. In Wain v (1) Gloucestershire County Council (2) Atkins (3) Gloucestershire Highways (4) Teasdale [2014] EWHC 1274 (TCC) the fourth defendant who served their costs budget six days instead of the usual seven days before the first CMC was not restricted to recover only the court fees incurred because there were good reasons for the delay. In Chartwell Estate Agents Ltd v (1) Fergies Properties SA (2) Hyam Lehrer [2014] EWCA Civ 506 the claimant was granted relief from sanctions for failing to serve witness statements within the time limit, as refusal would have had the disproportionately severe consequences of ending the claim. Likewise, in Groarke v Fontaine [2014] EWHC 1676 (QB) the court allowed the defendant’s appeal to amend his defence as this was considered just and fair to enable the “real dispute” between the parties to be adjudicated upon. To disallow this would have meant the defendant would lose the opportunity to reduce the scale of his liability.
INTERESTING CASE LAW
There have been many interesting judgments handed down over the course of the past year, but a few of the most noteworthy deserve a mention. In Woodland v Essex County Council [2013] UKSC 66 (2013) the claimant, a 10 year child suffered severe brain injury during a school swimming lesson in July 2000 that was provided by a swimming instructor who had been contracted by her then school. Proceedings were issued against the local authority, Essex County Council for negligence on the basis that among other things, the local authority was liable for the acts or omissions of the swimming instructor because it owed her a ‘non-delegable duty of care’, which applied to all mainstream school activities. It was dismissed in the High Court and the Court of Appeal, but succeeded on appeal to the Supreme Court. The court found it fair, just and reasonable to impose such duty as is consistent with the long-standing policy of the law to protect those who are both inherently vulnerable and highly dependent on the observance of proper standards of care by those with a significant degree of control over their lives. The implications of this case are that it has effectively extended the category of defendants against whom claims can be brought if it can be established they owed the claimant a ‘non-delegable duty of care. This would include those providing public services, health service providers and those in care homes. In Hide v The Steeplechase Company (Cheltenham) Ltd [2013] EWCA Civ 545 the claimant, a jockey sustained serious injury at the first hurdle of a race held at Cheltenham Racecourse in November 2006. After clearing the hurdle his horse stumbled and fell careering sharply and throwing him to the ground. The claimant slid at speed across the ground into contact with a guard rail upright post hitting it with his left hip sustaining a fractured pelvis and a head injury. Crucially, the evidence pointed to the fall being of a very unusual type that could not be expected or reasonably foreseen. A claim was brought alleging that the post and rail were work equipment and were unsuitable for the purposes of regulation 4 of PUWER in that the hurdle was too close to the railing and the post was insufficiently flexible and insufficiently padded. This case was also dismissed at first instance, but succeeded on appeal. This is one such case that would not now succeed in view s69 of The Enterprise and Regulatory Reform Act 2013; however, it will be a useful reference in claims for accidents which pre date 1 October 2013.
The claimant in Joanne Dunhill (a protected party by her litigation friend Tasker) (Respondent) v Burgin (Appellant) [2014] UKSC 18 who had compromised and settled her personal injury claim many years ago was deemed not to have mental capacity to conduct proceedings at the time of settlement. The court therefore set aside the consent order and allowed her to bring this claim to trial. This is due to the fact that CPR Part 21 invalidates any settlement made by a protected party or minor without the court’s approval. This case is exceptional in the sense that the evidence at the time quite clearly suggested a very serious head injury which significantly affected the claimant both physically and psychologically. There was every indication that it was worth substantially more than the £12,500 for which it was compromised.
OTHER RECENT AND FORTHCOMING CHANGES
Since 22 April 2014, court issue fees have increased considerably, but claimants are no longer required to pay a fee on filing a directions questionnaire or a pre-trial checklist. From 5 June, the amendment to CPR 3.8 will be in force and this will enable parties to agree, in writing, to an extension of time of up to 28 days without an application to the court, provided this does not affect any hearing date. However, the parties may not make such an agreement, if the court has ordered that such an agreement cannot be made. From 13 June, The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 will come into play. This affects any contract signed away from the solicitors’ office. The cancellation period is extended from seven calendar days to 14 calendar days. It will be a criminal offence to fail to inform a client in an Off-Premises Contract of their right to cancel. Clients will no longer be required to provide written notification, though the burden is on the client to prove notification in the event of a dispute. Failure to give the request notice will extend the cancellation period. Much more information will have to be given to the client in advance of the client being bound by the contract than is the case with On-Premises Contracts. The Clapham Omnibus 25
Legal Education
THE FUTURE OF LEGAL EDUCATION –
THE VIEW FROM THE INSTITUTION AND FROM THE STUDENT The issue of the future of legal education affects us all. It is enlightening to compare and contrast the views from a current LPC student, Fatima Iqbal with those of a Professor in clinical legal education, Sara Chandler.
with skills that will help us excel in our new workplace? Yes absolutely. It is easy to bemoan a system once you realise it’s not really welcoming you with the open arms you expected to receive, but what can be done to update a system so entrenched in traditionalism? It is all fine that we have passed our various undergraduates to get to this phase. However in hindsight the speed with which you need to learn and the breadth of knowledge you need to gain in such a short space of time needs to be reinforced to all students before they invest a further £15,000 into their future. An entrance exam that gives you a glimpse into your impending year would assist in not only making the student aware of their own skill set and limitations but also their competence and place amongst their peers. Of course this would be difficult; to examine students on a course before they have learned it. For this I would take inspiration from the 11+ exams young students take in each county hoping to be awarded grammar school places. These students are not being examined on their knowledge of the GCSE’s; they are being examined on their merit to achieve the results required at the end of the course. The same way young students face verbal and non-verbal exams, we should put young lawyers through their paces, make them aware of their competence before the battle begins so they know how long and wide they will need to fight to win.
Fatimah Iqbal graduated from St Mary’s University in 2011 with an honours degree in Business Law & Sociology. She then went onto complete the Graduate Diploma in Law in London. During her GDL,she shadowed an OISC Advisor at an Immigration Resource Consultancy. Fatimah is now approaching the end of the Legal Practice Course (not at LSBU) and intends to practice in areas such as Family & Private Client.
FATIMA IQBAL – THE STUDENTS PERSPECTIVE
Last year 5411 training contracts were offered to just over 8000 students. The remaining students have little hope of seeing any return on investment of their time or of the approximately £15,000 spent. Are institutions lining their pockets at the expense of the student or is the student a naïve opportunist oblivious to their own limitations? I remember completing the GDL with some difficulty but encouragement from my course tutors ‘well done, the LPC is much easier’ are the echoes through the hall. As my friends and I naively look forward to the ‘easier course’ we are relieved the worst is now behind us. No one has talked to us of the difficulties we now face, the incredible competition that awaits us or the fight to excel in modules such as solicitors accounts which we will rarely if ever have the need for. Should the SRA do more to make the student aware of their chances of success? Should outdated practices we will never need or use be removed and replaced 26 The Clapham Omnibus
Let us understand that there are many invaluable lessons we will learn on the LPC, it cannot be denied that this is a crucial and prestigious course. The importance of the LPC is not under question, it is the format and the lack of regular reform that I question. I would even go so far as to suggest that all students sit a mandatory work experience module, upon which they are put under the daily pressures of their actual role and graded on it. This placement is good for the student, and their understanding of what to expect and prepare for during their training contact – of course that is if they are lucky enough to get one.
SARA CHANDLER - THE PROFESSOR’S PERSPECTIVE
The undoubted mismatch between the number of training contracts available and the number of LPC students is a source of major concern to students and staff alike. There are a number of ways of preparing students to deal with this and London South Bank University is a pioneer among providers of the law degree and the GDL in developing new methods for students to be better equipped. The law degree at LSBU includes a compulsory module called “Working in the Law”, which students take in their second year. Students compete for 36 places in the Legal Advice Clinic, and 42 places in the Lambeth County Court Help Desk, with applications forms and interviews for these opportunities to assist members of the public. Other groups have placements with Southwark Council, and more groups with Southwark Law Centre and Cambridge House Law Centre. At the heart of these placements is not only the experience of working with solicitors but also the reflective report that students must complete and submit for assessment on their placements. At LSBU, GDL students join with the law degree students in the Pro Bono Community scheme which provides training for triage and advice giving for law student volunteers in Law Centres all over Greater London. This opportunity will expand during 2014-2015 to train around 100 students and recruit 15 students from participating universities such as LSBU and City University. LSBU has a weekly session in the curriculum entitled Careers and Employability, in which undergraduate and postgraduate students, including GDL and Masters’ degree students participate. These sessions provide a series of talks from outside practitioners from a variety of different legal settings, as well as workshops on CV’s and application forms. The question and answer opportunity and discussions after the talks do not dodge the difficulties that students will face in competing for the training contracts or pupillages. At one of these sessions GDL students met the Chair of the Free Representation Unit’s Management Committee and were encouraged to apply for FRU training and volunteering to represent at social security and employment tribunals. All law students at LSBU can participate in the student run LSBU Law Society, as well as the South London Law Society which holds CPD lectures at the University and welcomes students to meet local practitioners at these lectures. It is vital that law students at all levels take up as many opportunities as possible to get to know the world of work in a legal context, and in addition to the clinical education schemes now on offer, obtain summer placements and long term placements in law
Employment Law
firms in order to develop their experience and understanding of the realities of the solicitor’s profession. The Legal Education and Training Review (LETR), set up by the SRA, the Bar Standards Board (BSB), and ILEX Professional Standards (IPS) of the Chartered Institute of Legal Executives, reported in June 2013. Among its recommendations is a call to legal education providers to improve information, and to focus on practical skills, and to improve career progression through para-legal work. The primary objective is that future lawyers will have the knowledge, skills and professional attributes to meet present and future needs of business, consumers and the public interest. On the vital issue of access and mobility the LETR recommends that the regulators:
• establish professional standards for internships and work experience; • enhance quality and increase opportunities for career progression and mobility within paralegal work, by encouraging regulatory and representative bodies to collaborate in the development of a single voluntary system of certification/licensing for paralegal staff, based on a common set of paralegal outcomes and standards; • provide higher quality and more accessible information on the range of legal careers and the realities of the legal services job market.
Professor Sara Chandler, London South Bank University Visiting Professor in Clinical Legal Education and Past President South London Law Society.
Now is the time to implement these recommendations and for students to get a better deal when undergoing the training they need to become lawyers.
The Clapham Omnibus 27
CHIP, CHIP, HOORAY! Practice Management
With microchipping set to be made compulsory for all dogs in England in April 2016 – and with an estimated 20% of dogs in the UK still unchipped - demand for the procedure is likely to be significant over the coming year according to Dogs Trust, the UK’s largest dog welfare charity. In 2016, the government will be introducing secondary legislation under the Animal Welfare Act 2006 requiring the microchipping of all dogs. After this time dogs in England that come to the attention of the police or local authorities will be scanned and owners of those found without a microchip given a short period of time to carry out the procedure. If they fail to chip their dog, owners will face a fine of up to £500. To ensure that everyone has easy and free access to a qualified microchipper, Dogs Trust has launched the Microchipping Through Vets Campaign so owners can have their dog microchipped free of charge through vet practices across the country. Visit www.chipmydog.org.uk to find a participating vet in your area. Dogs Trust is extremely grateful to the 1,500 plus practices who have already joined the campaign and hopes that as many as 75% of the 3,075 vet practices in England and Wales will have signed up in the next few weeks.
28 The Clapham Omnibus
TIME IS OF THE ESSENCE Practice Management
Royal Mail’s aim to deliver 93% of First Class post by the next working day is not quick enough….at least for some.
Advances in mobile technology have increased the speed at which we communicate and people are reluctant to allow the requirement to sign a hard copy of a document to slow them down. Welcome the electronic signature. An electronic signature, or e-signature, is defined as anything in electronic form which is incorporated into or logically associated with an electronic communication and which purports to be used for the purposes of establishing the communication’s authenticity or integrity. Common examples are: • Tick boxes – accepting, for example, the terms and conditions of an online retailer; • Scanned signatures – a wet ink signature which is scanned and converted into digital format; and • Digital signatures – created using an electronic pen and pad. The Electronic Communications Act 2000 (in force since July 2000) provides that electronic signatures and related certificates are admissible in evidence in legal proceedings in respect of any question regarding the authenticity or integrity of an electronic communication. What does this mean in practice? The Law Commission published an advice paper to the government in 2001. The Law Commission’s view was that changes are not necessary in relation to statutes requiring signatures, as the test for whether signature requirements are
met is whether the conduct of the wouldbe signatory indicates an authenticating intention to a reasonable person. To create a simple contract there must be offer, acceptance and an intention to create legal relations by the parties. The result of failing to satisfy these requirements is a contract that is not valid between the parties. It is therefore acceptable for an electronic signature to satisfy the requirement that a person must “sign” a document. Although possibly avoided in property transactions, it seems very likely that the demand for this method will increase as technology continues to develop. The above option should be distinguished from deeds and those documents requiring registration at the Land Registry. A transfer or creation of an interest in land must be made by deed. In addition, in order to comply with the Law of Property (Miscellaneous Provisions) Act 1989, a contract for the disposition of land must be: in writing; signed by or on behalf of each party; and incorporate all the terms that have been expressly agreed. At present, it is unclear whether a deed can be validly executed using an electronic signature and as a result solicitors will continue to err on the side of caution. Additionally, the Land Registry does not currently accept documents (be that contracts or deeds) electronically signed and these must continue, therefore, to be made in hard copy and signed by way of a wet ink signature.
Sean Logan is a solicitor in the commercial property department of Hart Brown. He trained in Cheltenham before moving to Guildford to join the commercial property team in 2011. www.hartbrown.co.uk
It seems this is another example of legislation having to catch up with the technology available. However, with the time and cost benefits available from going paperless – and the Land Registry’s aim to create an electronic conveyancing system – it may not be too long before the humble pen is gathering dust at the back of the desk draw.
“It’s clear that electronic communications have affected and will continue to affect the use of the post. However, long-established practices mean that the legal sector, in particular, continues to be reliant on efficient postal services. Lawyers and their clients continue to be unsure of the legal validity of electronic communications and concerned about the information security and their data protection obligations. For this reason, DX has been developing electronic products that will help the legal profession use electronic communications both efficiently and securely, whilst providing the peace of mind they’re used to from physical postal services.” James Timberlake, Director at DX
30 The Clapham Omnibus
EXPERT REPORTS – INSURANCE DISPUTES AND SUBROGATION
Practice Management
Tony Sykes of IT Group looks at some recent insurance disputes and suspected fraudulent claims and discusses a number of areas where hi-tech expertise can be of assistance. Tony Sykes, Senior Partner in IT Group is a Chartered IT Professional and a Chartered Electrical Engineer. He is a Fellow of the Academy of Experts He has more than twenty years’ experience as an IT and Electrical Engineering Consultant and is an experienced Expert Witness. IT Group provides a broad range of consultancy services including Insurance assessment, forensic IT/telecoms/ Electrical systems examination e-Disclosure and expert services. www.itgroup-uk.com As IT experts most instructions we receive from lawyers are in relation to IT disputes and whether software or systems are fit for their purpose. We also get instructed regularly in Intellectual Property disputes particularly with regard to software copyright and IP theft. The combination of our IT consultants and our fully equipped forensic IT facility also means we offer a range of services to Insurance companies and their lawyers when fraud is suspected.
has been determined to pose an assessed threat. If that then in turn leads to an outage and some form of loss leading to a claim, is the root cause the bug or the decision to leave it unattended? Is the root cause simply a poor risk assessment? Non-functional software defects can also be the cause of an outage. Software that either cannot handle a peak load or that causes a blockage leading to similar effects may not contain a bug but may just be poorly written. The incorrect response to an incident may lead to an outage where, had the response either by a person or by some additional software or hardware been more appropriate or faster, there may not have been a loss. Under these and other similar circumstances, the establishment of the correct root cause may be vital in determining blame and, if the problem seems to have reoccurred over time, in establishing whether there was one root cause or more than one unrelated event. With many larger software suites operating from multiple platforms sometimes across continents, it is possible that a single bug could cause outages in a number of locations thousands of miles apart and possibly insured under different policies and jurisdictions. Proper root cause analysis is essential but may only be a small part of a much more complicated assessment.
The personal injury “cash-for-crash” style claims are well understood now and techniques including mobile phone tracking and analysis, social network unravelling and metadata analysis of photographs have all combined to reduce the spread of this drain on insurance funds and a commonly cited reason for high motoring insurance premiums. We have recently added Sat Nav interrogation and forensic analysis to our arsenal of forensic tools and this has been instrumental in dismissing “ghost” accident claims by showing that the vehicle was nowhere near the alleged crash scene at the time of the reported “accident”. At the other end of the insurance spectrum, when large software systems fail or cause outages or loss of service, we are noticing an increased interest in the need to analyse the cause not just for a potential subrogation claim but also because the terms of the insurance premium deductible can be significant when software (or computer hardware) fail a number of times in quick succession. Not only is the root cause analysis vital to apportion blame, but opinion on whether there was one outage or two may support a view that there is one deductible or two. When deductibles can be as high as several million pounds, this is an area where intense scrutiny and robust analysis is sought by both the Insurer and the Claimant. The attacks on the World Trade Centre in New York in 2001 brought the matter of whether there was one incident or two into sharp focus. More than a decade later, there are still a number of schools of thought and opinion is still divided on this most shocking of events. Defects in software can be functional or non-functional. Actual “bugs” present an immediate challenge. There are schools of thought that say no bugs are acceptable and in some controlled applications this may be right but with the explosion of software enabled products and the invasion of Microsoft©, Apple© and Google© operating systems into a multitude of devices from the ubiquitous mobile phone to the data-centres in Canary Wharf, it is no longer possible to support the tenet that software has to be free of defects to be fit for its purpose. But if a defect is known about but not yet addressed it is reasonable to assume that a risk analysis has been done and the presence of the bug The Clapham Omnibus 31
Practice Management
SRA CONSULTATION ON SOLICITORS PII – A BROKER’S VIEW FROM JANINE PARKER OF PARAGON INSURANCE BROKERS
The SRA has now launched a new consultation titled “Proportionate regulation: changes to minimum compulsory cover.” The SRA have introduced 5 proposals regarding potential changes to the minimum terms and conditions; 1
Reduce the mandatory PI cover to GBP 500,000
2
Introduce an aggregate limit on claims
3
Require compulsory cover only for claims by individuals, small and medium-sized enterprises, trusts and charities
4
Reduce run off cover to a minimum of 3 years
5
Require firms to assess the level of cover appropriate to their firm beyond the minimum
Whilst these are just proposals, we should consider their potential impact from an insurance perspective on the two key aims; pricing and consumer protection. Reducing the mandatory limit to GBP 500,000 is likely to only affect firms that carry out low value work e.g. low value probate matters. Any work for enterprises/charities with a turnover of greater than GBP 2,000,000 or a trustee of a trust with a net asset value greater than GBP 2,000,000 (as defined by the consultation) may not require the compulsory PI cover, assuming the proposals are passed in full. However, those firms that carry out conveyancing or deal with larger clients are likely to maintain their current levels of cover. In most cases, clients will often stipulate the level and breadth of cover a firm needs to maintain. The SRA is clearly trying to assist smaller firms in finding affordable cover. However, it must be questioned whether reducing the compulsory limit would in fact have any effect on pricing. The reason is that the vast majority of professional indemnity claims from the solicitors’ profession fall under GBP 500,000 meaning that this is where the real exposure exists for insurers. Therefore, any impact on pricing is likely to be negligible. Furthermore, it has to be questioned whether allowing insurers to aggregate their total exposure on any given risk would affect levels of pricing, again due to where the majority of claims fall. The excess layer markets would also have to be considered, as if they were no longer following an “Any One Claim” limit, then it is certain we would no longer see the low levels of pricing and wide levels of coverage that firms currently enjoy. The fourth proposal to reduce the run-off requirement to 3 years may well be a 32 The Clapham Omnibus
welcome one for insurers and legal practices, but it is surely not in the interest of the consumer. The current norm is that a firm will pay between 2-3 times its last annual premium for 6 years of run off cover. Whilst this can be a significant cost for firms wishing to close, that protection is essential for partners and consumers alike. Six years of cover for three times the last annual premium paid does not represent bad value for money. If this were to change you open the possibility of claims against closed firms with no cover in place. Who will pay the claims? If this is to fall to the Compensation Fund then a way of funding this will have to be found, no doubt through the cost of practising certificates. However, if the run off term was reduced then the run off premium cost would certainly fall, although to what extent is unknown, given the majority of claims surface in the first three years after a practice closes. In the final proposal the SRA is clearly putting the responsibility for the level of cover required, over and above the minimum requirement, on the legal practice. This process already exists, assisted by advice from brokers, to ensure appropriate levels of cover. It is highly likely that the vast majority of firms will still maintain their existing levels of cover due to the requirements of their customers and the expectation of Outcome Focussed Regulation. Greater caution will have to be exercised in respect of explaining levels of cover in place at the point of engaging a client. Any potential confusion regarding levels of indemnity could lead to further issues with clients, especially if a firm changes its level of indemnity having previously engaged a client whilst carrying a higher limit. To conclude, it must be questioned whether any of these proposals will benefit legal practices, consumers or public confidence. Debate around the issues of professional indemnity cost is always welcome but the key issue of coverage is being ignored. Fraud is still covered, policy cannot be voided as a result of non-payment of premium, liability cannot be repudiated by insurers – these are the issues that need to be addressed. Though the possibility for adding exclusions into the cover now exists for larger clients, is this in the interest of the profession or consumer. Therefore, the need for your firm to understand its past and future liability is greater than ever, and your broker should be consulted to assist you with this. On a positive note, initial reaction in the market suggests that insurers will continue to offer the “traditional” cover where requested. Firms should use this as a unique selling point when attracting new clients.
SOUTH LONDON JLD UPDATE
Junior Lawyers Division
Following on from our informative and enjoyable Social Networking seminar presented by Emma Jane Clerk of Gertrude & Ivy, we are pleased to confirm the success of our summer drinks event on 5 June 2014. We arranged drinks and canapĂŠs, courtesy of our hosts, Russell-Cooke and our sponsors, 1 Kings Bench Walk and TM Lewin. Having kept our fingers crossed that the sun would make an appearance, we were rewarded with lovely weather and a great turnout! We look forward to welcoming new members from the ranks of new law students, trainees and paralegals starting in September and are keen to hear from anyone who is interested in joining in the meantime. Membership is free for junior lawyers (law students, paralegals, trainees and solicitors with less than five years PQE) studying or working in South London. Please contact us at sllsjuniorlawyers@gmail.com to join or for further information about membership.
The recent event was an opportunity for us to thank the outgoing committee members for their hard work and commitment in forming the South London JLD and developing it to its current position. In particular, we would like to thank the outgoing Chair, Harry Dronfield, who was a founding member of the committee and has been instrumental to the success of the SLJLD.
From June, one of our current representatives to the national JLD, Hannah Mantle, will take over from Harry as Chair. Hannah is a solicitor in the Trust and Estate Disputes team at RussellCooke, where she trained. She has been a member of the committee since December 2011, starting in the sponsorship role, before becoming a representative to the national committee in October 2012. The Clapham Omnibus 33
Junior Lawyers Division
PRENUPTIAL AGREEMENTS AND RADMACHER
In recent weeks the legal world has been talking about the Law Commission’s report Matrimonial Property, Needs and Agreement, which includes a draft bill that would make prenuptial agreements binding. What would be the implications for the legal market and practitioners of these proposals were they to become law?
The legislative seal on prenuptial agreements is widely welcomed by the industry, as it will pave the way for greater financial control and certainty for couples given the unpredictability of judicial discretion. Binding agreements would also restrict excessive costs and avoid exposing couples and their families to the acrimony of burdensome litigation. Some 42% of married couples in England and Wales see their relationship end in divorce; therefore the changes could be sweeping, resulting in a surge in instructions firms receive to draft prenuptial agreements. In the current economic climate, couples will be particularly mindful to safeguard wealth, ring fence future inheritances and existing assets, and make provision for children. Moreover, the newfound significance of such agreements may persuade couples previously dissuaded by the financial exposure of marriage to tie the knot.
Having been called to the Bar in 2008 Emel joined Hanne & Co in September 2010 and qualified in March 2012 and advises on a wide spectrum of issues including private law disputes relating to children, divorce, matrimonial finances, cohabitation disputes, pre-nuptial agreements and domestic violence orders including non-molestation and occupation orders. London has a reputation as the ‘divorce capital of the world’ in view of generous financial settlements made by courts upon divorce. Many jurisdictions already recognise prenuptial agreements, and if England and Wales follows suit this would reflect an interesting shift in attitudes. The present law does not recognise prenuptial agreements as binding. In the landmark Supreme Court decision in Radmacher v Granatino, the legal weight of such agreements was strengthened significantly, as they were likely to be upheld if not unfair. Nonetheless, their application still falls subject to judicial scrutiny, as fairness of terms must be considered on a case-by-case basis. Hence this remains a difficult area for practitioners to advise upon, as they are unable to guarantee couples that the terms of their agreement will be mirrored in court orders. Historically, prenuptial agreements were deemed ‘unromantic’ and a phenomenon reserved to celebrities and the superwealthy, but agreements are now increasingly used by couples seeking financial autonomy. In many cases it is simply a way for the financially dominant party to limit any damage they would otherwise suffer on divorce. The recent recommendations have introduced the concept of ‘qualifying prenuptial agreements’, enabling couples to enter into enforceable agreements subject to preconditions being met. 34 The Clapham Omnibus
If prenuptial agreements become binding, there will be increased pressure to ensure that the agreement is absolutely right for the client. Practitioners must ensure they take sufficient detail from clients and consider all angles. They must be extremely specific and ensure that the agreements are carefully tailored to clients’ individual circumstances. It is a challenge to cater for all possible future scenarios, such as illness, housing needs, changing asset values, income loss and future children. Further, ensuring clients are adequately protected involves negotiation and careful consideration of the fairness of the agreement and the implications arising from the clauses contained therein. Often it is not until parties start discussing the detail through their solicitors that differences between them become clear. What may appear fair at the point of entering an agreement may transpire to be unfair in the light of a change in circumstances that could not necessarily be predicted. Drawing up these agreements is often fraught, as the discussions can easily undermine the personal relationship that the parties are hoping to seal. In a further challenge for family law practitioners, the proposed bill advocates that prenuptial agreements should be signed no more than 28 days before the marriage or civil partnership. Practitioners would have to deal with clients who start to seek legal advice only a few months before their wedding, particularly if the parties do not have a clear idea of terms, if a disclosure exercise is required and the agreement needed is particularly complex. Time must be allowed before completion to allow clients to be fully and comprehensively advised, and for negotiations regarding the terms of the agreement to be completed. Understandably, many clients will want to have a clear idea of the cost implications before proceeding with a prenuptial agreement. Although agreements are often considered to be an area where a fixed fee can be offered, cases and clients vary to the extent that a fixed fee is not always appropriate. Nevertheless, with other pressures caused by legal aid cuts to family work and the new alternative business models coming into the market, we are likely to see more firms offering clients fixed-fee prices. The challenge to law firms is to fix such prices at a competitive level, yet ensure they are still able to turn a profit on what can often be very labour-intensive work. The fixed fee cannot be set so low that practitioners are unable to ensure the agreements produced are drafted with thought and care, and that the client is fully advised on its repercussions. Advice and drafting may well be scrutinised by fresh legal eyes on any future divorce. It is important therefore that practitioners follow correct procedures, such as producing detailed written advice; spend time thoroughly advising on the implications of getting married with or without a prenuptial agreement; and ensure that they have sought to advise on all foreseeable issues. Future financial circumstances are hard to predict and parties must fully understand that in signing the prenuptial agreement they will be bound by its terms, and that such terms, while likely to be considered fair enough for the agreement to be upheld, may be very far indeed from what they would have been awarded in the absence of the agreement. Significantly, if the proposed bill becomes law, practitioners will need to respond to scenarios where judicial discretion has been ousted and the financial fate of clients lies in their hands. Emel Djevdet is a solicitor and Sehaj Lamba a trainee solicitor in the family department at Hanne & Co.