Posts Tagged ‘law reform’

Law Reform Proposals

Reform proposals

In 1986 Lord Gifford QC published proposals for the reform of the justice system, described as a realisable manifesto for a complete overhaul of the legal system. This included the following:


  • The position of Queen’s Counsel to be abolished. It is better, in Gifford’s opinion, for lawyers to be assessed by their talents and reputation rather than by the secret bestowal of honours by the state.

  • Wigs and gowns no longer to be worn. The wig and gown are intended to convey a message: that we, judges and barristers, are different and superior; that we have more in common with each other than with you, the litigants; that we practice a craft which you can never understand.

  • Judges to be appointed from a wide range of people, including younger people, solicitors and academics.

  • Magistrates to be selected from across the whole community.

  • Extension of the right to trial by jury.

  • Court procedures to be reformed to meet the needs of the public.

  • Extension of the legal aid scheme.

  • The creation and proper funding of a network of community law centres across the country. The Legal Aid and Advice Act 1949 was based on the principle that no-one should be prevented from obtaining the services of a lawyer through lack of means. State funds were made available through a means test. In 1950 an estimated 80 per cent of the population was covered by legal aid.

  • The abolition of the monopoly of advocacy. This was a very interesting proposal. Gifford argued that non-lawyers should have the right to represent people in court and that all qualified lawyers should have rights of audience before all courts. This would move towards the democratisation of the legal system. If implemented, it would strike a serious blow at the power of the legal profession.

Gifford also made the following points:


  • Comprehensive legal services should be provided in a similar way to health services.

  • Socially and culturally, the Bar is a privileged profession which is structured to exclude those who do not fit in.

  • The role of judges should be to uphold the law equally and impartially. But when they have no conception of what it is to be, for example, a worker facing redundancy, they are incapable of discharging that role.

This programme of reforms was adopted as part of the election manifesto of the Labour party and then forgotten.

In reality, we have moved backwards since 1986.

It is significant that Gifford’s proposals are similar, in some respects, to those put forward by the Levellers in the Seventeenth Century.

The Levellers’ proposed reforms included:


  • Codification and simplification of the law

  • Prison reform

  • Decentralisation of the legal system

  • The abolition of the lawyers’ monopoly on representation and advocacy.


Compensation Awards

The Ogden Tables

These Tables took their name from Michael Ogden QC who was the chair of the working party which first drew them up. They involve the calculation of multipliers for future financial loss in personal injury cases based on actuarial principles. They are of crucial significance in personal injury cases.

The multiplier takes a claimant’s life expectancy and multiplies it by a rate of annual loss. The age of the claimant is a key factor. The Tables do not refer at all to a claimant who does not know his or her age.

The assessment of compensation is a highly-paid branch of law on its own. It is practically impossible for a successful claimant to accurately calculate his amount of compensation himself. Money can thus be made by lawyers from deciding on an amount of money.

The assessment of amounts of compensation for civil wrongs depends, as a starting point, on the age of the claimant. Legal textbooks dealing with civil procedure state, without further explanation, that formulas for future loss of earnings and other aspects of compensation depend upon the claimant’s age. The assumption of knowledge of age is the basis of the entire system of assessing amounts of compensation. Did the compilers of the Ogden Tables realise that some citizens have no birth certificates? Those of us who have worked with deprived persons from the Afro-Caribbean community know that, for a number of the middle aged and elderly, their date of birth is unknown. They know that they were born in the Caribbean fifty or sixty years ago but they have no record of their date of birth. The absence of proper certification systems in the colonial or post-colonial territories, with the implication of a legacy of slavery, means that such persons are at a huge disadvantage in their dealings with the legal system. On top of their weakness on financial and educational grounds, they face the added disadvantage of a third-world registration system up against a first-world legal system. How can you assess compensation if the client does not know his or her age? The unthinking assumption that all potential claimants know their dates of birth can be characterised as a form of unintentional racism in that it places certain ethnic groups at a disadvantage.

The issue of those who do not know, or cannot prove their age, is significant in the context of asylum and immigration cases, where “age dispute” is a recognised area of law. The Ogden Tables are untouched by this reality.

Mystery Jargon

Mystery jargon


The terminology of the profession can baffle those of us who qualified many years ago, so we can only wonder how it appears to non-lawyers. What, for example, do the following mean? How are they different from their non-legal meanings?


Actus reus



Bear Garden

Bench wig


Black bag

Blue bag



Cab rank principle


Case law

Chambers tea

Civil action/proceedings







Ex parte

Full bottomed wig

Green bag


Habeas corpus
In camera
Inner Temple

Inns of Court


Junior QC

Ladies’ collar


Lightweight pincetta gown



Master of the Rolls

Mens rea
Middle Temple
Neckband shirt see Tunic shirt


Novus actus interveniens
Ogden Tables


Pecunia non olet


Pro bono
Pro hac vice
Punter see Client




Quantum meruit
Queen’s Counsel
Red bag


Res ipsa loquitur
Rogue and vagabond
Royal Bencher

Senior barrister

Senior junior

Senior QC




Tenant in tail



Treasury Devil


Tunic shirt

Vest, vesting

Answers will be given in the next blog.


Queen’s Counsel

Queen’s Counsel

The rank of QC (Queen’s Counsel) has been awarded, for at least 400 years, to advocates (mostly barristers) who have been recognised, within their own profession, as having shown particular skill and expertise in the conduct of advocacy.

This rank, known as “silk” because QCs wear silk gowns, casts light on a number of features of the legal profession and the English legal system.

The reality is that senior barristers (and a few solicitors), predominantly white, male, public school and Oxford or Cambridge educated, are selected to become QCs (or KCs if the current occupier of Buckingham Palace is a male).

These are the chosen elite of the Bar, who line themselves up for judicial appointment. But the most important point about taking silk is that the barrister’s income can double overnight. This was expressly recognised in the Office of Fair Trading Report of 2001.

It is very difficult to find hard evidence of QC’s earnings. For example, Part 48 of the Civil Procedure Rules sets out a table of guidelines for counsel’s fees. It states that the table does not include any figures in respect of leading counsel (QC)’s fees, since such cases would self-evidently be exceptional.

Anecdotal evidence about QC fees includes a charge of £5000 for an hour’s telephone advice in an insurance-funded commercial dispute.

The QC appointment system, which is regarded with incredulity outside the United Kingdom, was based for centuries on an opaque series of informal soundings. In 2001 the Office of Fair Trading called for the abolition of the rank. It stated that it did not operate as a genuine quality accreditation scheme but rather as an informal quota which raised fees. The OFT went on to make the point that, even if it could be shown that the QC appointment system was transparent, objective and non-discriminatory, and operated as a genuine quality mark, it was of questionable value to consumers. The Malleson Report on QCs concluded that the selection process was riddled with indirect race and sex discrimination.

In November 2004 the Bar Council and the Law Society concluded an agreement on the reform of the QC system. The following points emerged:


  • The new process served the public interest by offering a fair and transparent means of identifying excellence in advocacy in the higher courts.

  • The title QC was an important reference mark for those who chose to purchase the highest quality advocacy services.

  • The rank of QC was the recognition of excellence for advocacy in the higher courts.

  • In April 2003 the award of Silk was suspended. The Lord Chancellor commented that if Silk disappeared, those receiving the award would be the last in an illustrious line of leading counsel recognised by the state as leaders of the profession.

  • There was wide acceptance that abolition of the QC title would damage the international reputation of English law, would close a route to diversity and would weaken the administration of justice. It was not explained exactly how the abolition of the QC concept would “close a route to diversity” or affect the reputation of English law.

  • Key features of the new system included an independent selection panel and letters patent from the Queen.

One expressed aim of the new selection system was to increase diversity. An application for silk now costs £2200 with a further £3500 fee for acceptance of the award if it is granted.

Another aim of the new procedure was to deal with “mischiefs about the tap on the shoulder and that it all happened in smoke-filled rooms”. One view of the new procedure is that the old, informal system has been replaced by a financial hurdle. On the other hand, it has been argued that people seeking appointment as QCs should be able to afford this, and that there was no evidence that people would be deterred from applying by the cost.

One effect of the new procedure for applying for the QC designation is that it has generated, as is common in the English legal system, another layer of profit-making. Consultancy services have been set up to coach applicants through the “long and daunting” application and interview process. One such consultancy offers detailed advice on how to fill in the application form, the selection of assessors and referees, coaching on the interview process and in-depth training and coaching on all competency areas.

The consultancy company offers, for a fee, a tailored programme to prepare and coach applicants for QC status. The programme includes advice on preparing the application form, the choice of referees, a template for referees, coaching on the interview process and training on all competency areas including integrity and diversity. The company’s publicity states that 100 per cent of applicants who took part in this scheme were successful with their applications. It includes the following:


  • Do you want to have a successful QC interview, make more money and gain the respect of your peers and clients?

  • We provide CONFIDENTIAL results-focused coaching.

  • We will help you with your interview preparation.

  • We will help you answer the very difficult questions on DIVERSITY. 40 per cent of applicants fail because they give the WRONG answers on DIVERSITY.

  • The interview is a MINEFIELD.

One of the most disillusioning aspects of the radical edge of the legal profession is that the soundest, ablest, most courageous and sympathetic progressive lawyers all seem to accept the offer of Silk. Like Herbert Read (the anarchist who said yes to a knighthood), it is very hard to turn down.

The late John Mortimer QC repeatedly ridiculed the pomp, ceremony and fancy dress surrounding the formalities of becoming a QC. His Rumpole stories included the description of QCs as “Queer Customers” and referred to the wearing of silk stockings and suspender belts. It would be interesting to know why he was prepared to go through with the pantomime. But very few people can resist the lure of £200,000 a year.

Recent efforts to reform the QC appointments procedure have been hailed as moving the system away from a closed cabal populated by chaps who were at school, university and chambers together.

The main practical significance of the status of Queen’s Counsel was, and remains, the doubling of fees.

The rank of honorary QC – known as Queen’s Counsel honoris causa – is awarded to lawyers who have made a major contribution to the law of England and Wales outside practice in the courts. Traditionally, it has been awarded to distinguished legal academics and some lawyers in public service for achievements beyond their normal responsibilities. It is not a working rank. It cannot be used in practice as a lawyer and holders are strongly discouraged from exploiting the rank to attract business.

The Law Society Gazette commented that perhaps it was time to take another step towards modernity and consign Silk to the history books.

Peter Herbert, the Chair of the Society of Black Lawyers, is reported to have commented that the increased fees would make it harder for ethnic minority lawyers and women to apply because they often had lower earning capacity than their white or male comparators.

Money and the Law

Each wanton judge new penal statutes drawLaws grind the poor, and rich men rule the lawGoldsmith, The Traveller
A lawyer with his briefcase can steal more than a thousand men with guns 


Mario Puzo, The Godfather

Lord Bingham commented that equality before the law is an aspect of the rule of law. He stated his view that the laws of the land should apply equally to all and that it is the duty of the state to make the machinery of law work alike, for rich and poor.

My own forty years of legal practice have led me to the generalised conclusion that lawyers, as a group, have a vastly inflated sense of their own importance. They see themselves as wealthy, powerful and influential. They have expressly described themselves in the legal press as “fine fellows”. They are not aware that the existence of the legal profession depends on the continued existence of law – indeed, they would be shocked by any suggestion that they might be replaceable. For example, the most wealthy group of lawyers are generally those who deal with tax. They work behind the scenes, weaving webs and arranging the movement of money, dressed up in the highly technical vehicles of trusts and companies. If tax were to be abolished – which it could, because any statute can be repealed – then these lawyers would be out of a job. What needs to be realised is that it is politicians who exercise real power and that lawyers hang onto their coat tails, using their skills, contacts and knowledge of the rules to make fortunes for themselves. They are important only because they exist. If they did not exist, who would care?

Budget 2012

Polly Lord takes a light-hearted look to what yesterday’s Budget means…

Yesterday, I found myself in a rather unusual position…I found myself applauding the Conservatives.

Now, this is not usually a position I adopt. I certainly never agree with the ruling party, that’s for sure. But as a low earning, “thirsty” , 20-something with no children, no desire to buy or sell property, and no comprehension of retirement I would. I have to admit, it’s a budget aimed at me.

The problem I see is that I am rather odd. Aside from the obvious personality reference, my situation is peculiar. I am not unemployed, but a youth. I pay tax, but only a little. I have absolutely no financial, emotional or social ties to speak of (aside from a growing menagerie of animals), and yet I am relatively stable. A good pal of mine is the same age as me, we went to the same university, we live two streets apart from each other here in Bristol, we both have two degrees but the big difference is, he is still unemployed. When I say “still” I mean, actually not yet found a job since doing his Masters. Considering he graduated in 2011, that’s a worrying trend. Yet nothing in yesterday’s budget is going to help my pal get what he really wants…a job. If he had bypassed university he would probably have worked his way up some impressive well known company and be in charge of 100s of people…or at least something like stationary.

So my fellow non-grown ups are still suffering. The proper grown-ups, the ones with children and property and cars that bring with it responsibility are likely to be drastically worse off. They will be expected to continue to fight off the constant worry of being placed “at risk of redundancy”, ensuring that they never drive anywhere as their car is apparently fuelled on liquid gold, and also hoping that they or their family never get ill should the NHS reforms come in. On top of this, the HMRC will now be able to hunt them down for the tax that they are willing to pay, but are too confused to do so due to the constant pendulum of changes that occurs in the British tax system. At least by 2014 they will be able to see how other people are spending their hard earned money…

Oh well, at least they can look forward to retirement… Even though we’re not quite sure what the age will be, probably 90 or something by then; we also don’t know if the state pension will exist, or if the complicated layers of tax system will end up meaning that pensioners actually have to pay the government for staying alive.

So as long as you’re a fake grown up that’s playing to be a grown up with no possessions or relationships of any real value, it’s been a good budget. With that depressing thought, I’m off to the pub…

Wasted Costs In Employment Tribunals


Employment law advisers should be well aware of the risk of wasted costs orders in the employment tribunal, and should take note of the following recent case.

Case Godfrey Morgan Solicitors Ltd v Cobalt Systems Ltd [2012] ICR 305, EAT

Statute reference Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004, Sched. 1, r.48

Facts A claimant entered into a contingency fee agreement with solicitors for claims against his employer. The claimant was liable for disbursements, which included the fee for a barrister if the matter went to a hearing. Proceedings were started and the matter could not be settled. The claimant was unable to pay the solicitor, who did not tell the other side that the claim would be withdrawn until a few days before the hearing. The employer’s solicitor applied for a wasted costs order. At an oral hearing, the employment judge refused permission to the claimant’s solicitor to introduce various attendance notes and letters. An order was made for costs wasted from the date when it became clear that the matter would not settle. The claimant’s solicitor appealed to the EAT.

Decision 1. The appeal would be dismissed.

2. The decision of the employment judge not to allow the admission of documents so late in the day was within his discretion, given that an order for disclosure had been made three months previously.

3. The conduct found by the employment judge amounted to a breach of duty to the tribunal. It was plainly an abuse of process for a claim to be proceeded with which the claimant no longer wished to pursue.

4. On the findings made by the judge, who had preferred the claimant’s evidence concerning the advice and instructions, it was the solicitor’s fault that it had occurred.



Horseracing:Health and Safety

Leading racehorse trainer prosecuted for health and safety failings

With Cheltenham Festival coming up this week, it seems appropriate to report on a recent health and safety prosecution following an incident at a top racehorse trainer’s yard.

Flat trainer Alan Swinbank is currently ranked 52nd in the trainer’s rankings, and is notable for his most prolific winner Collier Hill who earned £2.3 million in prize money. His stables up in North Yorkshire are a well-known, sizable and professional yard. However, not even this undoubted success makes Mr Swinabnk immune from both accidents and the Health and Safety Executive.

Paul Cussons, who worked for Mr Swinbank at his yard for 26 years, was asked by his employer to cut down overhanging trees above an old stable block. He had not been trained in how to use a chainsaw or how to work safely at height. He took the chainsaw onto the roof, but while he was sawing through the branches he slipped on leaves and fell through a skylight, landing on the concrete floor. He broke both shoulder blades, fractured a rib and punctured a lung.

Mr Swinbank was prosecuted by the Health and Safety Executive under section 2(1) of the Health and Safety at Work Act for failing to provide training, protective equipment and failing to identify risks. He was fined £10,000 and £6,048 in costs.

Horseracing is the second biggest sporting industry in the UK. It generates more than £3.7 billion, with £325m going directly to the Government through taxation revenue. It also employs 20,000 direct, and 70,000 indirect, full-time employees. It also, however, is notoriously dangerous. In terms of general approach to health and safety it is analogous to agriculture, which is seen as the most dangerous sector in Great Britain. To put into perspective, other sectors average at fatality rate of 0.7 per 100,000 workers, whereas in agriculture the rate is 9.6.

The problem in horse racing, but equally so agriculture, is that while the industries are inherently riskier, the general attitudes of those involved is to downplay health and safety. From my own experience this is due to a range of factors that are peculiar to these industries, e.g;

  • When dealing with livestock, your health and safety tends to be secondary to the animal’s welfare
  • Those involved in the sector tend to come through the family ranks, or certainly be used to certain risks. To an outsider, it looks dangerous, but if someone is used to “risks” they become desensitised.
  • The attitudes of those involved is “to get the job done” as a priority. If this means scrabbling over heath and hedge in precarious positions, so be it.

While I feel utter sympathy for Mr Cussons, particularly as even 16 months after the incident he was still badly affected by his injuries, the Health and Safety Executive must realise that in agriculture and equestrian worlds, people tend to live by their own set of rules. Generally, the employers involved are not cruelly avoiding protecting their employees, or evading the law to cut costs. No, generally, those employers are not used themselves to having to carry out risk assessments etc. They treat their staff as they were treated. The Health and Safety Executive must work with this sector in order to understand what practical in that sector. Then, and only then, will the rate of fatalities come down.

Operation Relentless

Operation Relentless – Avon and Somerset Police

While Chambers does not usually foray into criminal law, today we will make a small exception on this blog.

Operation Relentless is currently underway, and being operated by Avon and Somerset Police. The force has issued arrest warrants for burglars, street robbers and drug dealers through Bristol, South Gloucestershire, Bath and Somerset. This year-round scheme’s aim is to increase communities’ safety, not just by removing criminals from the community, but also by increasing the visibility of police officers.

What is particularly fascinating is that the force is keeping the public up to date on their progress via twitter on their webpage. Criticisms of the police, not just Avon and Somerset but nationally, are almost daily tabloid fodder. It is thus not just interesting to get a glimpse into a police operation, but more importantly it demonstrates a real awareness by Bristol’s police force that accountability and openness are vital to maintaining trust in our local police.

Perhaps it is fitting to leave the final words to Avon and Somerset police;

“Briefing at 5am today. 100 arrest warrants about to be executed. A bad day for criminals in?#Bristol”

For those interested in following the updates, the website is


Employment Tribunal Jurisdiction



Work overseas

Case Ravat v Halliburton Manufacturing and Services Ltd [2012] UKSC 1

Statute reference Employment Rights Act 1996, sections 94(1), 230(1).

Employment lawyers in Bristol, and throughout the United Kingdom, need to be aware of this landmark Supreme Court decision.

Facts R was employed as an accounts manager by H. He was dismissed for redundancy in 2006. He complained of unfair dismissal. At the time of his dismissal he was working in Libya. He continued to live in the United Kingdom and travelled to work for short periods overseas. An employment tribunal found that it had jurisdiction over the complaint. That decision was reversed by the EAT. R appealed to the Scottish Inner House of the Court of Session, which allowed his appeal. H appealed to the Supreme Court.

Decision 1. The question of fact was whether the connection between the circumstances of the employment in Great Britain and with British employment law was sufficiently strong to enable it to be said that it would be appropriate for the employee to have a claim for unfair dismissal in Great Britain.

2. The vehicles which a multinational corporation uses to conduct its business across international boundaries depend upon a variety of factors which may deflect attention from the reality of the situation in which the employee finds himself.

3. It is notorious that the employees of one company within the group may waft to another without alteration to their essential function in pursuit of the common corporate purpose.

4. H’s business was based in Great Britain. It chose to treat R as a commuter, with a rotational working pattern. All the benefits for which he would have been eligible had he been working in Great Britain were preserved for him.

5. R had been given assurances that his employment relationship with H would be governed by British employment law. Matters relating to R’s dismissal were handled by H’s human resources department in Aberdeen. This all fitted into a pattern which pointed quite strongly to British employment law as the system with which his employment had the closest connection.

6. The fact that R’s home was in Great Britain fitted into a pattern which had a very real bearing on the parties’ employment relationship.

7. Considerable respect must be given to the decision of the employment tribunal as the primary fact finder.

8. The appeal would be dismissed. The matter was remitted to an employment tribunal to decide whether or not R had been dismissed unfairly.