Welcome to my latest update on what is happening at The Law Society

REPORT

Welcome to my latest update on what is happening at The Law Society

The last Council meeting was in early July some of which I covered in the last issue of this magazine, so I will only refer to remaining topics discussed then that I hope may be of interest to you. I have also mentioned some developments appearing in the news. Council is due to meet again in September.

Solicitors Indemnity Fund

The SRA has taken on board TLS objection to getting rid of SIF altogether, noting that it removes protection for consumers. It has tested the mood of the profession in the last few weeks in a proposal inviting discussion prior to producing another consultation later this year. The amended suggestion is for a Claims Protection Fund – run by a new body to replace SIF Ltd, which currently administers the scheme. The idea of a small levy on solicitors to help fund the scheme was not explored further.

TLS had urged keeping SIF Ltd with the support of a profession-wide levy and also wants the company to cut its huge operating costs. TLS is engaging closely with the SRA on this issue.

Criminal Legal Aid: Since the Government published its response to the Independent Review of Criminal Legal Aid (CLAIR), TLS has engaged closely with MPs and Ministers to highlight its concerns about the shortfall in the Government’s proposed package for solicitors. TLS President gave evidence to the Justice Select Committee, outlining the crisis facing criminal defence practitioners and firms and calling for the Government to meet the recommendations of CLAIR. TLS continues to maintain pressure on this issue.

The crisis was the key topic discussed at the Town Hall meeting held with TLS and local law societies back in May.

Strategic Lawsuits Against Public Participation and reputation of the profession: SLAPPs are set to be overhauled in a move welcomed by TLS, as the UK government seeks to prevent what it sees as potential abuses of the administration of justice.

Since Russia’s invasion of Ukraine in February, there has been a marked increase in criticism of lawyers. TLS was keen to understand what impact this is having on perceptions of the legal profession, so it surveyed members of the public. The findings showed a worsening of public opinion of lawyers overall recently, which seems to have been driven by news/politics. TLS position remains that it is the job of solicitors to represent their clients, whoever they may be. This is how the public can be confident they live in a country that respects the rule of law. TLS is developing a strategy that engages positively with Government reform processes on specific issues such as SLAPPs and which supports solicitors. It will be actively engaging in further dialogue with solicitors and stakeholders, about the ethical challenges of operating in today’s environment.

Judicial Review: TLS has achieved a major influencing success on the Judicial Review and Courts Bill by persuading the Government to drop a statutory presumption that would have directed judges to use particular remedies in judicial review cases. This success was the culmination of nearly two years of lobbying, encompassing engagement with government officials, key parliamentarians and the Public Bill Committee.

Case Interventions

The Law Society intervenes in cases where it can provide the court with balanced, informative and useful submissions, advocating fundamental rights and freedoms and promoting the rule of law. There are two ongoing cases: a test case on fiduciary duty under a CFA and one re the Legal Aid Agency assessing its own bills:

Cam Legal v Belsner: Cam Legal Limited is appealing against a decision of the High Court to the effect that a solicitor acts as a fiduciary prior to entering a retainer and is therefore obliged to ensure that the client had provided ‘informed consent’ to a CFA that is part of the retainer, on the basis of information provided by the firm – which had to meet the requirements of Civil Procedure Rules Part 46.2. This meant providing a specific example of the outcome to be expected if the claim settled at stage 2 of the pre-action protocol for low value PI claims

Unless the decision is overturned, it will become more difficult for members to recover the costs anticipated under a CFA. This will make it more difficult for some firms to continue to provide services to clients with low value personal injury claims which in turn will lead to less access to justice for those of modest means. It is also important because the CFA at the heart of the proceedings was based on a modified version of the Law Society’s model CFA. The hearing date is awaited.

R (On behalf of the Law Society) v Legal Aid Agency (ongoing): TLS issued proceedings in 2020 against the LAA challenging its decision to implement a new cost assessment regime, which, in essence, would have seen it assessing its own bills and removing the right to court assessment in almost all civil claims above £2,500, without adequate consultation. Following the commencement of proceedings by TLS, the Lord Chancellor offered to settle the matter on agreed terms. Pending the launch and outcome now of a consultation. Meanwhile, the MoJ announced practitioners can continue to have bills assessed either by the court or the LAA until November 2022.

The Solicitors Qualifying Exam (SQE)

The first SQE1 and SQE2 sittings results highlighted differences in pass rates between white and ethnic candidates. The SRA has commissioned the University of Exeter to conduct a project to find the main reasons. The new route was introduced to improve accessibility.

Member Experience: which means how TLS engages with us, its members. TLS is actively trying to increase its involvement and relevance for its members. A recent initiative is the launch of a new hub on its website on Diversity and Inclusion and the Small Firms Network. To find these, search on the TLS webpage and sign up to My LS.

Do contact me with questions and concerns, I will be very pleased to hear from you. ■

Adrienne Edgerley Harris

Adrienne Edgerley Harris

aedgerleyharris@shentons.co.uk

01962 844544