Today's Solicitor Issue 13

ISSUE 13

COSTS WAR II: CFAS, DBAS AND ENFORCEABILITY INTERIM PROVISION AND LEGAL SERVICES ORDERS IN FAMILY PROCEEDINGS THE SCOPE OF LEGAL PROFESSIONAL PRIVILEGE

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TO DAY ’S S O L I C I TO R | I ssue 13

TODAY’S SOLICITOR Welcome to the latest issue of Today’s Solicitor magazine by Sweet & Maxwell.

in this issue:

In this issue Judith Ayling looks at the rules regulating the use of Conditional Fee Agreements, Andrew Newbury provides an overview of the courts powers to make provision for interim maintenance and Chloe Carpenter comments on the scope of legal professional privilege.

4

NEWS

6

COSTS WAR II: CFAS, DBAS AND ENFORCEABILITY

12

INTERIM PROVISION AND LEGAL SERVICES ORDERS IN FAMILY PROCEEDINGS

16

QUESTIONS AND ANSWERS WITH SOLCARA

17

Divorce proceedings and the release of confidential documents to HMRC

18

The Commission on a Bill of RIGHTS: an English approach to a UK Bill of Rights

21

PRODUCT PROFILE | SOLICITORS’ CLAIMS: A PRACTICAL GUIDE

22

BOOK SHOP

24

AUTHOR INTERVIEW DONALD RAISTRICK

Jacqueline Ling Editor

26

YOUR SWEET & MAXWELL CONTACTS

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Charles Christian, of Legal Technology Insider, interviews Rob Martin, Director of Federated Search at Thomson Reuters on the topic of Knowledge Management and we interview Donal Raistrick, author of the Index to Legal Citations and Abbreviations.

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NEWS

TENANT EVICTIONS BY LANDLORD REACHES HIGHEST POINT IN THE LAST FIVE YEARS London, September 9, 2013 – The number of tenants being evicted from rental properties by their landlords has reached the highest level in five years, according to our latest research.

Tenant evictions for landlord repossession have risen by 9% over the last year, from 33,199 in 2011/12 to 36,177 in 2012/13*.

Our research shows that landlord repossession orders, obtained through county courts, are mainly used by landlords to reclaim their property from tenants that have fallen behind on their rent.

“Rising rents on residential property and falling real wages are trends that have been in place for a number of years, and have stretched the finances of an increasing number of tenants to breaking point,” says Daniel Dovar, co-author of ‘Residential Possession Proceedings’ published by Sweet & Maxwell. “Low vacancy rates for rental properties especially in London and the South East, mean that landlords are also more willing to remove tenants who have a history of defaulting on their rent from their property.”

“With demand for rental property in many local markets outweighing supply and forcing rents upward, the opportunity cost to a landlord of having a property occupied by someone that can’t or won’t pay their rent has increased. That makes emptying a loss-making property quickly a bigger priority.”

“Landlords are also under a lot of pressure to meet their mortgage payments on buy-to-let investments.”

“If the availability of mortgages to first time buyers continues to improve and the pipeline of new build property recovers, we might see the momentum behind rental price growth ease.

That could go some way to relieving the financial stress some tenants are encountering.”

Sweet & Maxwell says that a landlord must have a reason for trying to repossess their property and must give adequate notice of their intention, followed by an application to the county court. They can then apply for a warrant of execution to have bailiffs remove the tenant from the property.

“Obtaining a repossession order can be an expensive process with no guarantee that the landlord will recover their legal costs or the outstanding rent that they are owed, so it is a last resort,” adds Daniel Dovar.

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The Government’s recent reductions in housing benefits for some claimants, dubbed the “bedroom tax”, may lead to more landlords using a repossession order to evict tenants from their properties as tenants on housing benefits struggle to pay their rent.

Number of landlord repossessions

*Year-end June 30th 2013

40,000 35,000

REUTERS/Amir Cohen

30,000 25,000 15,000

30,225

27,510

2008/09

2009/10

28,745

33,199

2010/11

2011/12

36,177

10,000 2012/13

Number of landlord repossessions increase by approximately 10% in a year

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A LEADING VOICE ON COSTS LENDS HIS EXPERTISE TO EXPLAIN THE CHANGES This year has seen a host of updates to the CPR, not least in relation to costs. To help litigation practitioners to understand and implement the costs reforms we enlisted Senior Costs Judge of the Senior Courts Costs Office and White Book Senior Editorial Board member Peter Hurst to help us bring you the ultimate guide to the reforms.

As an assessor to the Jackson Review and having worked closely with both Lord Justice Jackson and Mr Justice Ramsey on the implementation of the reforms, Peter has had fantastic insight into the changes prior and post the Jackson reforms. The result is the new edition of Civil Costs.

The third edition presents exactly what every practitioner needs – a thorough and authoritative survey of the costs regime under the Civil Procedure Rules since the implementation of the Jackson reforms.

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The title explains costs management, costs budgeting and costs capping in detail and sets out the transitional provisions and in particular the exceptions relating to

Mesothelioma, insolvency and publication and privacy proceedings.

You’ll also find details on the new provisions relating to Conditional Fee Agreements (CFAs), Damages Based Agreements (DBAs), the transitional provisions and exceptions, with an assessment of the implications of these changes alongside a wealth of other coverage.

Civil Costs by Peter Hurst is out now priced £215.

Visit sweetandmaxwell.co.uk to find out more and order your copy.

Thomson Reuters Announces Launch of Practical Law Family New practice area expands scope of Practical Law solution.

Family law resources include interactive Form E financial statement.

LONDON, September 2, 2013 — Thomson Reuters, the world’s leading provider of intelligent information for businesses and professionals, today announced the launch of Practical Law Family, an essential online resource for family lawyers. The new service is available through the recently redesigned practicallaw.com, the UK’s leading source of legal know-how solutions.

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“The launch of Practical Law Family provides family lawyers with instant access to the legal tools and resources they need every day,” said Emma Wilkins, head of Practical Law Family at Thomson Reuters Legal UK & Ireland. “It is fully integrated with the Practical Law online UK service and comes loaded with the essential practice specific documents and tools that will likely make it a one-stop shop for busy family law practitioners.”

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ARTICLE

Costs war II: CFAs, DBAs and enforceability Judith Ayling

Subject: Civil procedure Other Related Subjects: Legal advice and funding. Personal injury Keywords: Conditional fee agreements; Costs; Damages-based agreements; Enforcement; Personal injury claims Legislation: Courts and Legal Services Act 1990 (c.41) s.58(1), s.58AA Legal Aid, Sentencing and Punishment of Offenders Act 2012 (c.10) Conditional Fee Agreements Order 2013 (SI 2013/689) Damages-Based Agreements Regulations 2013 (SI 2013/609) CPR r.44.18

In this article costs counsel Judith Ayling looks at the rules regulating the use of Conditional Fee Agreements (“CFAs”) and Damages Based Agreements (“ DBAs”) in personal injury and considers how likely they are to be vulnerable to challenge by a paying party. She concludes they are vulnerable and that satellite litigation regarding the enforceability of DBAs may lead to Costs War II

On March 15, 2012, an article by Jeremy Morgan QC1 appeared in the Law Society Gazette. The author said that its purpose was to avert Costs War II: “If the Ministry of Justice takes no notice of it and a costs war ensues, it will not be able to say that it was not warned.”

The article described how Costs War I had been declared by insurers on the basis of the new s.58(1) inserted into the Courts and Legal Services Act 1990 from April 1, 2000, and which used the formula “a CFA which satisfies” the statutory requirements shall be enforceable “but … any other CFA shall be unenforceable”, with no discretion to allow a CFA to be enforceable despite a minor breach which had caused no harm, and which had caused no prejudice to the losing/paying defendant.

See, by comparison, the different treatment of the enforceability problem in the Consumer Credit Act 1974, which contains many regulatory requirements, breach of some of which can lead to the agreement in question being in practice unenforceable.

Under the Consumer Credit Act as originally drafted, the requirements were divided into 1

The author wishes to acknowledge the contribution of Jeremy Morgan’s article to this one, which he has not, however, seen and for which he bears no responsibility at all. She is very grateful to him for his assistance generally over more than a decade of practice in the same chambers at 39 Essex Street.

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From Journal of Personal Injury Law

REUTERS

two groups: under one requirement breach led inexorably to unenforceability, while under the other the court had a discretion.

An example of the first was to be seen in Wilson v First County Trust2 where the effect of s.127(3) of the Act was considered. The potential for injustice of the sort illustrated

by Wilson was removed when the Consumer Credit Act 2006 repealed the subsections of s.127 which had made it mandatory for the court to refuse to enforce a non-compliant agreement.

The effect of Courts and Legal Services Act 1990 s.58(1) was traced in Ch.3 s.5 of Jackson L.J.’s preliminary report entitled The Costs War. With one exception in the many reported cases3 the nominal beneficiaries of the enforceability skirmishes in Costs War I were unsuccessful defendants—almost invariably in personal injury litigation.

The true beneficiaries were, of course, the defendants’ insurers. What is important is that the benefit they obtained was pure windfall—they had done nothing to earn it and had suffered no prejudice which merited compensation by the benefit.

Jackson L.J.’s account included Hollins v Russell,4 which used a purposive construction to arrive at the concept of “material breach” and so limited the

damage, and Garrett v Halton BC,5 which in turn limited the effect of Hollins. He described how hostilities had diminished with the revocation of the CFA Regulations 20006 (the key provisions of which were designed to protect lay clients but which had in fact given paying parties the ammunition required for Costs War I) and the introduction, following mediations sponsored by the Civil Justice Council, of fixed recoverable costs and fixed recoverable success fees in Pt 45 of the Civil Procedure Rules. He drew attention to the wording of the legislation, which gave the courts no power to declare a CFA enforceable despite a breach of the statutory requirements. A key suggestion was to abolish the indemnity principle, which limits costs recovery between parties in litigation to what the client owes his solicitor, and which is therefore the mechanism by which an unenforceable CFA reduces the paying party’s costs burden. If a CFA is unenforceable, then no costs at all are payable under it, and it is not open to a solicitor to claim his costs on an alternative quantum meruit basis, in light of Awwad v Geraghty.7

By November 27, 2010, the Ministry of Justice had decided not to pursue the

2

Wilson v First County Trust Ltd (No.2) [2003] UKHL 40; [2004] 1 A.C. 816.

5

Garrett v Halton BC [2006] EWCA Civ 1017; [2007] 1 W.L.R. 554.

3

Silvera v Bray Walker [2010] EWCA Civ 332; [2010] 4 Costs L.R. 584.

6

Conditional Fee Agreements Regulations 2000 (SI 2000/692).

4

Hollins v Russell [2003] EWCA Civ 718; [2003] 1 W.L.R. 2487.

7

Awwad v Geraghty [1998] EWCA Civ 912.

abolition of the indemnity principle.8 Although the intensity of Costs War I was reduced by the revocation of the highly prescriptive CFA Regulations 2000, the amendments to the funding regime which the draft of the Legal Aid and Sentencing of Offenders Act proposed seemed to set to increase once again the complexity of the statutory provisions around funding arrangements. Jeremy Morgan warned that the manner of the proposed extension of the contingency fee agreement regime beyond the employment tribunal would “create both the incentive and the opportunity for challenges to the enforceability of Damages-Based Agreements (“DBAs”) by opposing parties.”

Although the proposals were to reduce the costs burden to paying parties in that additional liabilities would no longer be recoverable, successful enforceability challenges would continue to mean that no profit costs would be payable at all.

Jeremy Morgan suggested that there were at least 3 ways of avoiding another Costs War. The first was to use s.31 of the Access to Justice Act 1999 to disapply the indemnity principle in cases in which the receiving party’s retainer is a CFA or DBA. The second was to rephrase the statutory provisions by providing a sanction other than 8

See para.276 of the November 2010 consultation paper on Implementation of Lord Justice Jackson’s recommendations.

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unenforceability for a failure to comply. The third was to give the court assessing inter partes costs a discretion in the matter, by providing that a court has the power to grant either total or partial relief from the sanction of unenforceability (in effect, to grant relief from the application of the indemnity principle).

Were the warnings heeded?

The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (“LASPO”) brings in the changes to the funding regime, together with the Conditional Fee Agreements Order 20139 and the Damages-Based Agreements Regulations 2013.10 There are also wideranging changes to the Civil Procedure Rules in order to accommodate the new funding regime, see the Civil Procedure (Amendment) Rules 201311 and the 60th Update—Practice Direction Amendments.

The new regime, which came into force on April 1, 2013, makes success fees and ATE

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premiums irrecoverable from the losing party in litigation where the funding arrangement was entered into on or after April 1, 2013.12 See Courts and Legal Services Act 1990 s.58A(6), and the repeal of s.29 and s.30 of the Access to Justice Act 1999.

It is still open to solicitors to enter into CFAs with their clients, and to charge their clients success fees. The difference is that it is the client who must pay any such success fee in its entirety. The Conditional Fee Agreements Order 2013 stipulates that the maximum success fee is 100 per cent, but in personal injury claims the CFA must provide that the success fee is subject to a maximum limit, to be expressed as a percentage of specified heads of damage, namely the total of general damages for pain, suffering and loss of amenity and damages for past pecuniary loss, net of any sums recoverable by the Compensation

9

Draft Conditional Fee Agreements Order 2013.

10

Draft Damages-Based Agreements Regulations 2013

12

With very limited exceptions for diffuse mesothelioma cases where the pre-April 1, 2013 regime is for the present still applicable, and clinical negligence claims, where the cost of

11

Civil Procedure (Amendment) Rules 2013 (SI 2013/262).

insuring against the cost of expert reports on liability and causation will still be recoverable.

From Journal of Personal Injury Law

in sub-section 4 is not unenforceable by reason only of its being a DBA. (2) But … a DBA which … does not satisfy those conditions is unenforceable.”

A DBA will need to comply with s.58AA(4) (b) which provides: “if regulations so provide, must not provide for a payment above a prescribed amount or for a payment above an amount calculated in a prescribed manner.”

A DBA must also comply with s.58AA(4)(c), which reads “must comply with such other requirements as to its terms and conditions as are prescribed”.

Regulation 1 defines “payment” as: “that part of the sum recovered in respect of the claim or damages awarded that the client agrees to pay the representative, and excludes expenses but includes [other than in an employment matter] disbursements incurred … in respect of counsel’s fees.”

So far so good: “payment” is the proportion of the damages which the client agrees to pay his legal representative, and disbursements are excluded. It does appear that DBAs are only available to claimants and not defendants, since “payment” is defined as part of the sum recovered.

Recovery Unit; and at first instance the success fee may not be more than 25 per cent of these specified heads of loss.

Interest which has accrued on damages is not mentioned. It would be safe to assume that it must be excluded from the calculation, since the sanction for setting a cap at more than the specified limit is unenforceability. The Conditional Fee Agreements Order 2013 itself is silent as to VAT, but the Explanatory Memorandum to the Conditional Fee Agreements Order 2013 makes it clear that VAT on the solicitor’s costs is to be included within the cap.

Again, it would be a plucky solicitor who would seek to charge VAT on top of the capped sums, given that unenforceability will be the consequence of a breach.

For the first time in contentious proceedings DBAs are permitted. DBAs are made lawful by s.58AA of the Courts and Legal Services Act 1990, amended by s.44 of LASPO. The familiar all-or-nothing formula is used: “A DBA which … satisfies the conditions

Spencer v Wood.13 If a solicitor enters into a DBA with his client in civil litigation, DBA Regulations 2013 reg.4 stipulates that the DBA must not require an amount to be paid other than the “payment” net of any costs paid or payable by another party, plus disbursements (except counsel’s fees). Again, inter partes costs will be recovered on an(hourly rate x time spent + disbursement) basis only, subject to CPR 44.18 which is dealt with below, but the general arrangement is such that a legal representative may not claim from his client both the “payment” and what is recovered from the other side by way of costs, because the “payment” is net of costs paid by another party. In personal injury claims, the only sums from which the “payment” shall be met are general damages for pain, suffering and loss of amenity and damages for past pecuniary loss, again net of any sums recoverable by the Compensation Recovery Unit; and a DBA must not provide for a “payment” which, including VAT, is above 25 per cent of the sums ultimately recovered. The 25 per cent cap only applies at first instance.

The new CPR 44.18Award of costs where there is a DBA is important. At (2) it provides that where costs are assessed in favour of a party who has entered into a Regulation 3 provides that the terms and DBA, that party may not recover by way of conditions of all DBAs (i.e. in employment costs more than the total amount payable matters as well as other claims) must under the DBA—so where the conventional specify the claim or proceedings or parts bill on an hourly rate basis would exceed of them to which the amount payable the DBA relates; under the DBA, the the circumstances amount recoverable that part of the sum in which the under the DBA recovered in respect of representative’s effectively caps the payment, expenses the claim or damages inter partes liability. and costs, or part of awarded that the them, are payable; So again: have the client agrees to pay and the reason for Morgan warnings the representative, setting the amount been heeded? No. The of the payment at indemnity principle and excludes expenses the level agreed. remains. Enforceability but includes [other These are close to is all or nothing, in the than in an employment the provisions CFA case of either a CFA matter] disbursements Regulations 2000 or a DBA. There is no reg.3 which gave incurred … in respect of discretion to grant rise to successful the receiving party counsel’s fees. enforceability discretion from relief challenges, see e.g. from the sanction

“...

”

13

Spencer v Wood (t/a Gordon’s Tyres) [2004] EWCA Civ 352; [2004] 3 Costs L.R. 372.

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of unenforceability. It remains to be seen whether the courts will devise a Hollins v Russell “material breach” solution to a breach of LASPO or the CFA Order 2013 or the DBA Regulations 2013.

Worse, the convoluted wording of some of the key DBA Regulations in particular is likely to increase the prospect of Costs War II. If a DBA charges a client more than the applicable cap, it will simply be unenforceable. In particular, DBA Regulations 2003 reg.4 is not a masterpiece of the draftsman’s art. There is already debate amongst some commercial practitioners as to whether discounted DBAs are permissible at all under the DBA Regulations (i.e. arrangements where discounted fees are payable if the case is lost, and a percentage of the sum recovered if the case is won): whilst such arrangements may not be attractive to claimant personal injury solicitors anyway, it is hardly encouraging that major firms have reached different views as to what is permitted.

The existing, prescriptive provisions for DBAs in employment cases remain. As Jeremy Morgan pointed out, it might be said that they have not given rise to Costs War (Employment). But inter partes costs awards are a rarity in the employment tribunal, and without inter partes costs liability combined with the indemnity principle, the opponent has neither the interest in nor the possibility of attacking the retainer of the victor’s solicitor. As set out above, the vast majority of CFA challenges came not from clients from paying parties who were the losers and paying parties at the end of the litigation.

Although there have been very few challenges by clients to the enforceability of their CFAs, this is because clients have hitherto had no reason to mount a challenge. In the great majority of cases, certainly personal injury cases, they pay nothing. It seems likely that this will change given that success fees will not now be recoverable from the loser and that the success fee or contingency fee will be payable by the client out of her damages. Clients will now have an incentive to mount enforceability challenges to their CFA or DBA and it is right that they should be able to do so.

It is hard, though, to see why enforceability challenges should remain on all-or-nothing basis where no prejudice has been caused, either for the paying party or for the lay client, who will in many cases have obtained great benefits under the agreement by the time the challenge is mounted.

Judith Ayling Judith Ayling is a barrister specialising in personal injury and clinical negligence and costs litigation. She is in chambers at 39 Essex St. She can be contacted by email at judith.ayling@39essex.com.

J.P.I. Law 2013, 2, 127-130

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ARTICLE

Interim provision and legal services orders in family proceedings Andrew Newbury

Subject: Family law Other Related Subjects: Civil procedure. Legal advice and funding Keywords: Family proceedings; Interim orders; Legal services orders; Maintenance pending suit Legislation: Matrimonial Causes Act 1973 (c.18) s.22, s.22ZA, s.22ZB, s.23

A common source of frustration for applicant spouses in divorce proceedings is the all or nothing structure of the courts’ powers under Matrimonial Causes Act (MCA) 1973. Within a final order the court can exercise a wide range of powers in favour of a spouse, yet its interim powers are extremely limited. Those limited interim powers are brought into sharp focus where proceedings can often last in excess of 12–18 months.

was) in TL v ML1 in which he sought to harness and codify the limited existing case law. The principles which he set out are as follows:

This article provides an overview of the courts’ powers to make provision for interim maintenance, its limited ability to make interim orders of a capital nature and take a more detailed look at the new legal services orders which have been available since April 1, 2013.

2. In determining fairness, a very important factor is the marital standard of living— F v F2 (ancillary relief: substantial assets). That does not however mean that the exercise is merely to replicate that standard of living— M v M3 (maintenance pending suit).

Applications for Interim Provision The courts’ power to make orders for maintenance pending suit derives from MCA 1973 s.22. The section itself provides little by way of further guidance, its principal provision being: “…an order requiring either party to the marriage to make to the other such periodical payments for his or her maintenance…as the court thinks reasonable.”

There are few reported cases on maintenance pending suit. The clearest summary of the principles to be applied is contained in the decision of Nicholas Mostyn QC (as he then

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TO DAY ’S S O L I C I TO R

1. Section 22 provides that the sole criterion is reasonableness.

That could be viewed as being synonymous with fairness, which is used in the application of the s.25 checklist.

3. In every maintenance pending suit application there should be a specific budget for that application. Such a budget should therefore exclude capital or long-term expenditure which should be considered at the final hearing— F v F. The interim budget should be examined critically to exclude any forensic exaggeration— F v F. 4. Where the Form E or statement disclosed by the paying party is deficient, the court should not hesitate to make any robust assumptions about his ability to pay. The court is therefore not confined to the mere say-so of the payer as to the extent of his income or resources— M v M and G v G4 (maintenance pending suit: legal costs). In

1

[2005] EWHC 2860 (Fam).

2

[1995] 2 F.L.R. 45.

3

[2002] 2 F.L.R. 123.

4

[2002] 3 F.C.R. 339.

From Private Client Business

such circumstances the court should err in favour of the payee.

5. In some maintenance pending suit cases the paying party has historically been supported by a third party. Where the position of that third party is ambiguous or unclear, the court may be justified in assuming that the third party will continue to supply the financial support, at least until the final hearing— M v M. This latter issue came before Coleridge J. in the recent decision of S v M5 (maintenance pending suit). Coleridge J. was not only critical of the fact that the original application was dealt with in a 30-minute hearing, but in circumstances where there has been support from third parties, care must be taken to establish the true historical position. Such evidence cannot be fully addressed in the space of 30 minutes.

Interim Capital Orders The established principle is that the family court in divorce proceedings does not have the power to make an interim lump sum order.

This was confirmed by the Court of Appeal in Wicks v Wicks.6

provision. Section 23 sets out the courts’ powers to make substantive financial provision on the granting of a decree of divorce, although s.23(3) enables the court to order a lump sum “before making an application for an order” and “to meet any liabilities or expenses reasonably incurred by him or her in maintaining himself or herself or any child of the family”. Despite this provision having been in force for 40 years, it is rarely applied in practice.

4. Note also interim provision orders made under the Children Act 1989 Sch.1. Although the provisions of Sch.1 and MCA are distinct, comparisons are at times made between the two. As part of a maintenance pending suit order in divorce proceedings, Munby J. (as he then was) ordered a lump sum payment to meet barmitzvah costs in Re G8 (maintenance pending suit). Although the husband initially contended that the court did not have the power to make such an order, “the point was abandoned when it was suggested in riposte that such provision

The courts’ power to make interim orders of a capital nature does however need to be reconsidered in light of the following: 1. During on-going court proceedings, in Miller-Smith v Miller-Smith7 the Court of Appeal held the husband was entitled to pursue an order for interim sale of the family home under the Trusts of Land and Appointment of Trustees Act 1996 even though there was no power to make an interim order under theMCA. In that case the husband was having to service a mortgage debt of £7 million on the family home, which he could not afford.

2. Part 20 of the Family Procedure Rules 2010 introduced a wide-range of interim orders, the majority of which were in relation to injunctions; however, Rule 20.2(1)(c)(v) included the interim power: “for the sale of relevant property which is of a perishable nature or which for any other good reason it is desirable to sell quickly.” So far there is no reported case law regarding the application of this provision.

3. MCA 1973 s.23(3) is an overlooked

REUTERS/Dado Ruvic

could certainly be made, for example, in accordance with Sch 1 to the Children Act 1989”.

5. In the Sch.1 case of CF v KM9 (financial provision for child: costs of legal proceedings) an interim lump sum order was made in respect of the mother’s costs.

Legal Services Orders The insertion of ss.22ZA and 22ZB into the MCA 1973 represent a significant change. The amendments are contained in ss.49 and 50 The Legal Aid, Sentencing and Punishment of Offenders Act 2012. The commencement order that brings the provisions into force with effect from April 1, 2013 is The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (commencement No. 7) Order 2013. (a) Historical Position

Before considering the new provisions, it is worth considering briefly the status of costs allowance provisions within interim maintenance orders. In A v A10 (maintenance pending suit: provision for legal fees), Holman J opined that maintenance under s.22 was broad enough to include a provision for legal expenses. The leading case is the Court of Appeal’s decision in Currey v Currey (No.2)11.

In this case, Wilson L.J. (as he then was) set out the test for securing a costs allowance, having considered the earlier decisions of TL v ML, Moses-Taiga v Taiga12 and C v C13 (Maintenance Pending Suit—Legal Costs). He was of the view that the initial, over-arching enquiry should be whether the applicant for a costs allowance could demonstrate that she cannot reasonably procure legal advice and representation by any other means. He went on to say: “To the extent that she has assets, the applicant has to demonstrate that they cannot reasonably be deployed, whether directly or indirectly or as a means of raising a loan, in funding legal services. Further … she has to demonstrate that she cannot reasonably procure legal services by the offer of a charge upon ultimate capital recovery. I would add fourthly, that the court needs to be satisfied that there is no such public funding available to the applicant as would furnish her with legal advice and representation at a level of expertise apt to the proceedings.”14 As will be seen below, the test is similar to that set out in s.22ZA. Although the new statutory test appears to be mandatory, the approach adopted in Currey provided judges with a degree of discretion. Following on from his comments above, Wilson L.J. went on to say: “Although in making a costs allowance the court has a discretion, I cannot imagine that it would be reasonable to exercise it unless the applicant has duly demonstrated that she could not reasonable procure legal advice and representation by any other means … no doubt the applicant’s due demonstration will incline, often very strongly, towards the making of an allowance. But at this stage other factors may well come into play which will no doubt on occasions lead to court to decline to make it notwithstanding the demonstration.”15 10

[2001] 1 F.L.R. 377.

11

Currey v Currey (No.2)[2006] EWCA Civ 1338.

12

[2005] EWCA Civ 1013.

5

[2012] EWHC 4109 (Fam).

13

[2006] 2 F.L.R. 1207.

6

[1998] 1 F.L.R. 470.

8

[2006] EWHC 1834 (Fam).

14

[2006] 2 F.L.R. 1207 at [20].

7

[2009] EWCA Civ 1297.

9

[2010] EWHC 1754 (Fam).

15

[2006] 2 F.L.R. 1207 at [21].

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Article

(b) Courts’ Power under section 22ZA *P.C.B. 223 The court may make a legal services order in proceedings for divorce, nullity or judicial separation. Corresponding provisions are contained in the Civil Partnership Act 2004 Sch.5. Under s.22ZA(1), an order is defined as “requiring one party to the marriage to pay to the other (“the applicant”) an amount for the purpose of enabling the applicant to obtain legal services for the purposes of the proceedings”.

An order under s.22ZA may be for a specified period or for a specified part of the proceedings. Under Currey it is often the case that the order was made pending the FDR and it is perhaps likely that similar orders will be made under s.22ZA. Under Currey however, as the order was made in the form of a maintenance pending suit order, the costs provision was ordered to be paid on a monthly basis. A legal services order may be a one-off payment, although under ss.22ZA(6) and (7), the legal services order may be in instalments, or deferred instalments or the instalments may be secured. Accordingly, the court has the option of ordering a one-off payment or a series of payments. It should however be noted that the provision does not refer to the payment being a “lump sum” or “periodical payments” and therefore a legal services order is unique in its nature. (c) Factors to be considered in the making of a Legal Services Order The matters to which the court is to have regard are set out in s.22ZB: (i) The income, earning capacity, property and other financial resources which the parties have or are likely to have in the foreseeable future. In the context of earning capacity, that includes any increase in earning capacity which, in the opinion of the court, it would be reasonable to expect either the applicant or the paying party to take steps to acquire. (ii) Their needs, obligations and responsibilities that they have or are likely to have in the foreseeable future. (iii) The subject matter of the proceedings, including the matters in issue within those proceedings. (iv) Whether the paying party is legally represented. (v) Any steps taken by the applicant to avoid all or part of the proceedings,

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whether by proposing or considering mediation or otherwise. (vi) The applicant’s conduct in relation to the proceedings. (vii) Any sums owed by the applicant to the paying party in respect of costs in the proceedings or other proceedings to which they were parties. (viii) The effect of the order or any variation on the paying party. On this issue the court must have regard to the likelihood of the order causing undue hardship to the paying party or whether it would prevent them from obtaining legal services for the purposes of the proceedings.

Section 22ZA(3) provides that the court must not make an order unless it is satisfied that without the amount, “the applicant would not reasonably be able to obtain appropriate legal services for the purposes of the proceedings or any part of the proceedings”. For the purposes of subsection (3), the court must be satisfied that the applicant is not reasonably able to secure a loan to pay for the legal services and that they are unlikely to be able to obtain the services by granting a charge over any assets recovered in the proceedings, i.e., a Sears Tooth agreement.

Of particular note is the requirement for the applicant to show that they cannot reasonably be able to secure a loan.

Although it may be reasonably easy for an applicant to show that she cannot secure borrowing from high street banks, taking into account the number of specialist matrimonial lenders on the market at present, this test may prove to be an insurmountable hurdle for many applicants.

However, the wording of s.22ZA(4) is interesting as it combines both the mandatory and the discretionary, i.e., that the court must be satisfied that the applicant is not reasonably able to secure a loan. How will this be applied in practice?

Even if it can be easily shown that the applicant can secure a loan through one of the specialist matrimonial lenders, could it be argued that the rate of interest offered, the charges applied or the undertakings to be given by the legal representative makes that offer of a loan unreasonable? Unless there are truly limited assets or income, in the majority of middle-money cases, it should be relatively easy to secure legal

funding by way of a specialist loan facility.

Some litigation loan specialists may require the applicant’s solicitors to underwrite the loan or otherwise give undertakings.

Should the solicitor refuse to provide that underwriting or give the undertakings, does that put them in conflict with their client?

An associated question is how many refusals will it be necessary for the applicant to provide?

In TL v ML, Nicholas Mostyn QC (as he then was) suggested that “correspondence between her solicitors and at least two banks soliciting a negative response will suffice”. Will such an approach apply for a legal services order? If acting for a paying party, would an email or other correspondence from a litigation funding specialist confirming an agreement in principle to extend funding to the applicant successfully jeopardise an application?

The second hurdle under s.22ZA(4) is that the applicant is unlikely to obtain services by granting a charge over any assets recovered in the proceedings. In TL v ML, Nicolas Mostyn QC stated, “a simple statement from her solicitors stating that they were not prepared to enter into a Sears Tooth v Payne Hicks Beach charge should ordinarily deal with the third requirement”. What if the paying party can demonstrate that another firm of solicitors would be willing to enter into a Sears Tooth agreement? Would that preclude a legal services order?

It is therefore suggested that, although the introduction of the legal services order is a significant step in creating a new form of order under the MCA, in practice few orders may be made as the majority of applicants may otherwise be able to secure litigation funding through one of the many specialist firms. The creation of the legal services order may, however, be a significant step towards the family courts having the ability to grant interim capital provision.

Andrew Newbury Pannone LLP Andrew Newbury is a partner with Pannone LLP, Manchester, and Head of the Family, Personal & Financial division.

P.C.B.2013,4,220-224

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Questions and Answers with Solcara

Questions and Answers with SOLCARA

KNOWLEDGE MANAGEMENT

Charles Christian, of Legal Technology Insider, interviews Rob Martin, Director of Federated Search at Thomson Reuters on the topic of Knowledge Management and how to build a business case in order to justify the investment in such a system.

Charles Christian: Our topic of conversation is Knowledge Management. What it is, what kind of impact it can have on law firms and most importantly, how you build a business case for adopting, implementing, rolling out Knowledge Management. Before we go into the interview in full, can you tell me a little bit about yourself?

Rob Martin: My background is computer science and during my career, I’ve specialized primarily in information and Knowledge Management solutions. I set up Solcara in 2001 to really address a need to look at how technology can address some of the KM issues within legal. And having sold that business to Thomson Reuters in 2011, I now manage a number of different software solutions within the legal business.

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TO DAY ’S S O L I C I TO R

CC: Okay and let’s get on now to the main part. We’re talking here about KM or Knowledge Management. Can you explain a bit about KM in the context of a law firm setting?

RM: Yes, I think KM can become confused with search and particularly when put into the hands of IT directors, the problem gets defined, as a search problem or a pure efficiency problem in relation to search. If you speak to Knowledge Managers or information professionals within the same firm, the problem is much better described, I think, as an issue to do with context. And putting the right information in the right hands at the right time is what drives KM as opposed to simply a faster way to find documents. I think it’s knowing the relevance of information. So who produced the content? When was it produced? Is it actively being maintained by the firm or indeed outside of the firm?

Market your law firm online

REUTERS/Tyrone Siu

CC: And do most firms generate their own KM or do they get it from alternative sources?

RM: I think traditionally much of the content was produced within the firm and firms are increasingly sourcing a large proportion of their know-how content from online services.

CC: How can Knowledge Management bring about efficiencies in law firms?

RM: I think there are two aspects to efficiency. The first is simple time saving.

But as I said, context of information is much more important and what I believe separates the really good KM systems is the ability to transfer higher value work down to more junior lawyers and trainees, thus freeing up your high value, highly experienced, fee earners, partners, to do the truly innovative work.

CC: How do you get law firms to commit to a Knowledge Management project?

RM: The first part of that is getting firms to admit that they have a problem. A large part of what law firms are doing is simply addressing infrastructure and technology problems without a realisation that actually they really need to be addressing business problems. So they may include the pressures on how they charge for work. How they utilise more junior lawyers across the business.

CC: And about pricing with you know billable hours fixed and capped price work and so on?

RM: I think every law firm is under pressure now in terms of hourly rates and how they bill for work. Law firms who know how they deliver work to clients and know how

profitable that work is, can be much more flexible in how they price the work. That gives them a flexibility that is better than the competitor’s and engages with their clients in a much more proactive way rather than simply reactive by dropping hourly rates or reducing hourly rates.

CC: How do you measure the return on investment, the ROI on KM, because it seems to be rather a nebulous concept and firms struggle to justify the expenses and the budgets?

RM: I think there’s probably no perfect way to really measure an ROI when it comes to KM. But there are a number of tools and techniques that can help. One that I’ve used certainly in the past has been articulated by David Maister, who’s a Harvard academic and consultant to professional service firms. And he’s devised a formula that really looks at how efficiency improvements drive profitability per equity partner. And that links in utilisation rates of different levels of lawyer across the firm.

Realisation rates in terms of collectability of fees and so on and, and ultimately, you need some formula like that to underpin a measure of ROI, but you may have to do that on a department-by-department basis. And you may have to really articulate what are the distinct, discreet problems within each department that are being addressed by KM, making an assessment in advance of the solution, as to where you are with each of those areas and then making another assessment following deployment maybe on a six monthly and 12 monthly basis thereafter.

CC: Okay, let’s look at the budgets that you’re going to spend on a KM project. Who owns it? Where’s it come from?

RM: I think it’s not one particular group or one particular department that will own the budget. I think it has got to be something that is centrally funded by the firm and part of that budget will be made up of an IT spend. Part of it may be an information spend and part of it may be even some restructuring of departments in terms of how you resource those departments.

CC: Right, we’re coming to the end of the interview now and Rob, perhaps you could just sum up your thoughts on the approach to Knowledge Management within law firms.

RM: I think it’s important to stress that there is no magic bullet to KM. There’s no one piece of technology that is going to solve the KM problems for any law firm. It all comes down to making sure that you’ve got the right people, the right technology and the commitment from the senior partners within the firm to do things differently. And if you bring those together and you can sustain that and get it engrained in the culture of the firm, then you will have a successful solution.

Contact details: 0845 600 9355 solcara.info@thomsonreuters.com solcara.com

Sources: Office for National Statistics | Law Gazette | Contact Law

ARTICLE

Case Comment The scope of legal professional privilege Chloe Carpenter REUTERS/Eduardo Munoz

Subject: Tax Other Related Subjects: Accountancy. Professions Keywords: Accountancy; Legal advice privilege; Legal professional privilege; Tax planning Case: R. (on the application of Prudential Plc) v Special Commissioner of Income Tax [2013] UKSC 1; [2013] 2 W.L.R. 325 (SC)

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In R (on the application of Prudential Plc) v Special Commissioner of Income Tax, a 7 member Supreme Court was asked by the appellant to extend legal advice privilege to skilled legal advice given by accountants. In addition to the parties, four interveners (the Institute of Chartered Accountants, the Law Society, the Bar Council and AIPPI UK) appeared at the appeal and a further intervener (the Legal Services Board) intervened by way of written submissions only. Lord Neuberger defined the question as follows (at para 1) ‘whether [legal advice privilege] extends, or should be extended, so as to apply to legal advice given by someone other than a member of the legal profession, and, if so, how far [legal advice privilege] thereby extends, or should be extended’. The Supreme Court by a 5:2 majority (Lords Sumption and Clarke dissenting) answered the question ‘no’, affirming what has long been understood or assumed - that legal advice privilege only applies to legal advice given by lawyers.

From Professional Negligence

The facts The appellant had entered into a tax avoidance scheme on the basis of advice from Price Waterhouse Coopers. HMRC began to investigate the appellant's scheme and sought, under section 20B(1) the Tax Management Act 1970, disclosure of documents relating to the seeking (by the appellant) and the giving (by PWC) of legal advice in connection with the scheme. In R (on the application of Morgan Grenfell) v Special Commissioner of Income Taxes [2003] 1 AC 563 the House of Lords had held that section 20B(1) of the Tax Management Act did not allow HMRC to obtain copies of privileged documents. The appellant in this case argued that the documents sought

by HMRC were privileged under the head legal advice privilege even though the legal advice had been provided by PWC (chartered accountants) and not by lawyers.

A principled decision?

As all members of the Supreme Court noted, it has long been understood or at least assumed by the courts, by lawyers, textbook writers and the legislature that legal advice privilege only applies to legal advice given by lawyers (ie barristers, solicitors, members of the Chartered Institute of Legal Executives and foreign lawyers), and not to legal advice given by other professional people even when it is part of the ordinary course of other professional people's work to provide legal advice.

The members of the Supreme Court were divided as to whether this distinction (which the majority decided to maintain) was a principled one:The appellant and the Institute for Chartered Accountants argued that the distinction was unprincipled because the rationale of legal advice privilege is to enable a client to disclose without fear all the facts to his legal adviser in order to obtain reliable advice on the law, and this rationale applies whenever the client instructs a qualified professional competent to give legal advice.

The Respondent, the Law Society and the Bar Council, on the other hand, had put forward a number of contended principled distinctions, namely: (1) The close connection between members

of the legal profession and the courts; (2) The court is involved as a matter of historical relic in the discipline of solicitors and barristers in a way that the court is not involved in supervising other professionals; (3) The duties owed to the court by members of the legal profession; and (4) Lawyers have professional codes of conduct which are more extensive and/or with higher standards than other professions.

A majority of the Supreme Court (Lord Neuberger, Lord Walker, Lord Hope of the majority at paragraphs 39, 42 to 48 and 78 and Lords Sumption and Clarke of the minority) accepted the appellant's contention that the distinction was not a principled one, Lords Neuberger and Lord Walker stating (at paragraph 42) that distinctions put forward by the Respondent/ interveners were ‘weak, but not wholly devoid of force’. In particular, they felt that these supposed rationales were inconsistent with the fact that the privilege applied to advice from foreign lawyers even though none of the above applied to foreign lawyers (paragraph 45). However, despite coming to this conclusion on the question of principle, Lords Neuberger, Walker and Hope declined to allow the appeal, holding the matter was best left to Parliament.

Lord Mance, on the other hand, although agreeing with ‘basically … all the reasons’ Lord Neuberger gave (at paragraph 82), did not appear to agree that the distinction was not a principled one, referring (with apparent disagreement) at paragraph 82 to the ‘suggested logic’ of the appellant's case that legal advice privilege be recognised in legal advice provided by non-lawyers. In particular, he noted that normally, in respect of lawyers, particular areas of their activity do not need to be separately considered when determining whether legal advice privilege applies because they are lawyers and their business is normally dealing with legal matters and hence there is usually broad protection for all their advice (paragraph 83). Conversely, if legal advice privilege were to be extended to other professionals such questions would more readily arise - there would be no general protection for such other professionals' advice and instead ‘… a careful distinction, in practice normally irrelevant in the case of

lawyers, would have to be drawn between privileged and non-privileged activities… and would not necessarily be easy to draw’ (paragraphs 84 and 91).

The rationale for the majority view Lord Neuberger (in a judgment that Lord Walker, Hope, Mance and Reed agreed with) stated that the court should not extend legal advice privilege to non-lawyers for three reasons: The consequences of allowing the appeal were hard to assess and would be likely to lead to what is currently a clear and well understood principle becoming an unclear principle involving uncertainty. For example, it was unclear what would count as a ‘profession’ if the appeal were allowed and which acts and advice of the professional would amount to legal advice protected by the privilege and which would be other advice not so protected; (2) The question of whether legal advice privilege should be extended to cover legal advice given by professional people who are not qualified lawyers raises questions of policy best left to Parliament; and (3) Parliament had enacted legislation relating to legal advice privilege which, at very least, suggested that it would be inappropriate for the court to extend the law of legal advice privilege as proposed by the appellant.

The rationale for the minority view In contrast, the minority (Lord Sumption and Clarke) view was to take a functional approach and to hold that if exactly the same legal advice could be provided by a lawyer or another professional, then there is no logical basis for holding that the same legal advice is privileged if given by a lawyer but not privileged if given by another professional. The sole question should be whether the adviser is skilled in the law and has as part of their ordinary function the giving of legal advice.

Conclusion The minority view is based on the argument that as a question of logic or principle there is no distinction between legal advice given by a lawyer and legal advice given by another skilled professional. However, it seems to me that the logic of the minority's analysis in fact goes further than they say.

19

Article

They state that in their view legal advice privilege applies to any skilled professional who gives legal advice as part and parcel of his normal professional functions, on the grounds that the rationale for the rule (client being able to give full disclosure and obtain skilled legal advice) is equally applicable where the adviser is a lawyer or other skilled professional. But if, as the minority seem to suggest, the sole rationale of legal advice privilege is that the client is able to give full disclosure and obtain skilled legal advice then legal advice privilege should also apply even where the client seeks advice on the law from a skilled person who is not a professional - for example:Where a client seeks legal advice from an academic, or a person with a law degree but who is not and has never been qualified; Where a client seeks legal advice from someone who has picked up a lot about the law from their job but who is not in fact a lawyer or a professional of any sort.

advice) to be determined by the rationale for the rule (client being able to give full disclosure and obtain skilled legal advice), it is not clear that the test is as narrow as the one they suggest.

It is submitted that the view of those of the majority (Lords Mance and Lord Kerr) who did not accept that the current rule is unprincipled is to be preferred. It is submitted that the current rule is principled for the four reasons advanced by the Respondent and set out above, and that the application of the privilege to foreign lawyers is not inconsistent with those principles but the application of comity ie that it is assumed (unless the contrary is proven) that foreign lawyers are governed by similar standards and rules.

Chloe Carpenter Fountain Court Chambers P.N. 2013, 29(2), 132-135

Ie once one moves to the functional approach suggested by the minority (namely a consideration of whether the adviser is skilled in the law and has as part of their ordinary function the giving of legal

Email us your thoughts on this article to todayssolicitor@thomsonreuters.com REUTERS/Eduardo Munoz

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Donald Raistrick was Head of Knowledge & Information Resources at the Department for Constitutional Affairs (now the Ministry of Justice) and is well known and respected among law librarians. He is now semi-retired and works as a consultant.

How has the practice changed since you first started?

Author Profile

Donald Raistrick Could you tell us about your professional background?

I started my career in the public library in my home town, Rotherham, but I was always interested in books as sources of information.

I moved to an information post in the motor industry and after two years sought to progress to another technical area.

What led you to be involved in the government library sector?

I had applied for a position at the Royal Aircraft Establishment, a government library post. I was shortlisted but not selected; however, a couple of weeks’ later I was asked if I would be interested in a government library position at the Law Commission. I thought that I would give it a try for a couple of years and then move on to something interesting. I quickly realised that I actually enjoyed working in a legal information environment, and at that time, within the then Lord Chancellor’s Department, I saw that there was potential for development into a wider library/ information scenario.

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The biggest change has been brought about by the advent of the internet and the development of online legal information services.

What do you think are the key challenges facing practitioners in this field today?

The availability of online services and the ease with which other assistance can be found on the internet mean that employers need to be convinced that legal information practitioners can provide added value as information intermediaries. They also need to be aware that IT people are not actually information practitioners.

Can you describe any interesting abbreviations you have dealt with?

There are so many. I knew, as I was compiling, that I should have drawn up a list of unusual abbreviations for just such a question - but I didn’t. I do think it’s worth mentioning though that the HJD (Hague Journal of Diplomacy) was not written by the UK’s current Foreign Secretary.

AUTHOR PROFILE

Index to Legal Citations is into its 4th edition. What led you to become involved in working on this?

Back in 1976, John Rees and I were commissioned by Professional Books to produce a legal bibliography. That appeared as Lawyers’ Law Books in 1977. As part of that arrangement, we also agreed to compile two other books, a guide to the publications of the Law Commission and an index of legal abbreviations. I produced the Law Commission Digest in 1979. John was to compile the abbreviations index, but, as he had just set up his own business, he was unable to complete the work, so I took it over. The first edition of Index to Legal Citations and Abbreviations was published in 1981. Professional Books was taken over by Butterworths who passed on my books to one of their Reed partners, Bowker Saur, who published the second edition in 1993. In 2007, I was asked if I would be able to produce a third edition of the book for Sweet & Maxwell, so I acquired copyright of the book from KG Saur and the third edition was indeed published by Sweet & Maxwell in 2008.

How many new entries will appear in the new edition?

There are just over 3,000 new entries.

How do you manage your time between being an author and your day-to-day work?

I wouldn’t say that I do “day-to-day work” as such any more. The consultancy work is negligible but, since the beginning of 2012, I have been involved with my son in setting up a cycle business. We opened a (very small) shop in June last year. He runs the shop, I do the paperwork. The shop is not a particularly time-consuming activity for me, so when the time for a new edition comes along the book takes priority, as it does over almost everything else during the updating period. Thankfully I have plenty of notice before a new edition is required so I can plan the work over a period of time. I wouldn’t want you to think that I am tied to my desk/computer solidly for months on end without time for other activities.

Do you have any other projects on the horizon you can tell us about?

We’re hoping to make some big changes to the cycle business during the next few months, including an expansion of the shop and a more serious look at setting up a website. There are no other book projects at the moment, although an index of terms in the cycle world might be useful.

Do you know the difference between a hardtail and a full-suss mountain bike? Or where you fit a cassette?

How do you relax in your spare time?

I enjoy the usual things like listening to music, reading, etc., but my preferred activity is cycling. My wife thinks I am reverting to my childhood, but it’s not true as I don’t now have a 100 mile route which I can cover in 6 hours or less. As part of a more general exercise routine, I do aim to average at least 200 miles a month over the year – not easy in winter when snow is on the ground but I have more than managed it for the last three years. I support Leukaemia & Lymphoma Research by cycling the sponsored London Bikeathon each year (52 miles) and I completed my ninth Bikeathon on Sunday 15th September.

I love travelling and meeting people from other cultures and wish I could afford to do more. I’ve become more interested in voluntary work in recent years and last year I was a Games Maker at the London Olympics and Paralympics (all cycling events – what do you expect?). This year I was a volunteer during the week that the UEFA Champions League show was in town. I was based at the UEFA Football Festival at Stratford on the fringes of the Olympic Park. I take my religion seriously – I am a catholic convert – and I enjoy reading around the subject and investigating things I don’t know or understand and visiting sites of religious significance. I am pretty open-minded though and don’t necessarily accept the dictates of officialdom – but then I was always like that!

Index to Legal Citations and Abbreviations is out now and is priced at £115. To order your copy contact your account manager, visit sweetandmaxwell.co.uk or return the enclosed order form.

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