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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.
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  • 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.
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  • Judges to be appointed from a wide range of people, including younger people, solicitors and academics.
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  • Magistrates to be selected from across the whole community.
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  • Extension of the right to trial by jury.
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  • Court procedures to be reformed to meet the needs of the public.
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  • Extension of the legal aid scheme.
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  • 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.
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  • 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.
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Gifford also made the following points:

     

  • Comprehensive legal services should be provided in a similar way to health services.
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  • Socially and culturally, the Bar is a privileged profession which is structured to exclude those who do not fit in.
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  • 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.
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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
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  • Prison reform
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  • Decentralisation of the legal system
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  • The abolition of the lawyers’ monopoly on representation and advocacy.
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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.


Glossary

GLOSSARY (Compiled by Polly Lord)

The following is a provisional explanation of words and phrases which appeared in last week’s blog and which in my experience I have had to explain to students and clients or which have a technical legal meaning different from their normal usage.

Actus reus: Conduct of the accused: see R v Miller (1983)

Advocacy: Professional pleading in court

Advocate: Any person who represents another in legal proceedings

Attorney General: The principal law officer of the government, and head of the Bar

Bands: The development of a neckband into two hanging strips.

Bear Garden: Rooms in the Law Courts where Masters hear short applications (see Chapter 3 for full description)

Bench wig. The wig worn by judges when they are sitting in court.

Bencher: A senior member of an Inn of Court

Bibliography: A systematic list of books and articles used as source material

Black bag. The bag at the back of the barrister’s gown is often called a fee bag. The origin of this is said to be that the barrister’s fee was placed in the bag so that the barrister did not have to demean himself by handling money.

Blue bag. The traditional bag used by junior barristers for carrying fancy dress.

Bona fide: Genuine

Breach of statutory duty: Breaking a duty imposed by statute

Breeks: A Scottish term for trousers

Bundle: A collection of documents

Cab rank principle: A barrister has a public obligation, based on the paramount need for access to justice, to act for any client in cases within their field of practice. A barrister cannot refuse a case because of disapproval of what the client has done or is alleged to have done

Call: A formal ceremony, conducted at the Inns of Court, when a student barrister has completed vocational training and is qualified to act as an advocate under the supervision of another barrister

Case law: Law created by decisions of courts

Caveat emptor: Let the buyer beware: a disclaimer of responsibility

Chambers: A judge sitting in chambers does not mean that he is sitting in any particular room, but that he is not sitting in open court: also, the traditional name for a group of barristers sharing office space
Chambers tea: A traditional gathering of barristers for light refreshments at a particular time

Champerty: The offence of assisting in a case with a view to receiving a share of the disputed property.

Civil action/proceedings: Legal proceedings based on a civil right as opposed to a criminal prosecution

Civil Procedure Rules (CPR): Procedural rules prescribed for civil courts

Class justice: Justice which operates in favour of one class and against another

Clerk: An administrative assistant to judges, magistrates or barristers

Client: Customer

Collar stud: A device for attaching a collar to a tunic shirt. There are two types of collar stud. One is short and used at the back of the shirt. The other is long, hinged and is used at the front

Collarette: A female barrister’s collar. It consists of a high, round, soft collar. The extra fabric forming the front sits over the shoulders and chest and hides clothing

Common law: Law which has been developed by the judiciary through the setting of precedents, as opposed to being created by the legislature through statutes and regulations

Conditional fee agreement: An agreement for the supply of legal services where a fee is payable only in certain circumstances, normally if the client wins

Conduct of litigation: Steps taken by a restricted group of lawyers to progress a case

Conspiracy: An agreement to carry out an unlawful act

Contingency fee: An agreement for the supply of legal services where a fee is payable only if the client wins.

Conveyancing: The transfer of an interest in land.

Corporate manslaughter: Under the Corporate Manslaughter and Corporate Homicide Act 2007, a company is guilty of corporate manslaughter if the way in which its activities are managed or organised amounts to a gross breach of the duty of care which it owes to employees or the public and those failings have caused a death

Counsel: Barrister

Crown immunity: The ancient principle that the sovereign and many government departments are exempt from legal sanctions

Damages: Financial compensation

Devil: A barrister paid by another barrister to do the latter’s work

Directives: European legislation which imposes a duty on member states to enact legislation

Director of Public Prosecutions: The head of the Crown Prosecution Service who has power to decide whether prosecutions should proceed

Disability Under the Naturalisation Act 1870, “disability” meant “the status of being an infant lunatic, idiot or married woman”. The most recent definition is now set out in the Equality Act 2010 as “a physical or mental impairment that has a substantial and long-term adverse effect on the ability to perform normal day-to-day activities”

Discovery: A civil procedure which enables a party to a case to obtain evidence before a trial by asking the other party questions or requiring the production of documents

Employment Appeal Tribunal: The appellate tribunal for decisions made by employment tribunals

Employment Tribunal: The tribunal with jurisdiction to hear employment disputes

Entail: A settlement of succession in land so that it cannot be bequeathed at pleasure

Eructation: Belching

Ex parte: In summary, legal proceedings brought by one party in the absence of other parties

Fee bag. See Black bag

First instance: The first decision made by a court or tribunal in a case which has subsequently been appealed

Folio: (Obsolete)The number of words (72 or 90) taken as a unit in reckoning the length of a document

Full bottomed wig: The wig worn by judges on ceremonial occasions

Green bag. A bag for exclusive use by judges.

Grievance procedure: Employers’ procedure for complaints by employees

Guinea: 21 shillings. Replaced in 1816 as currency in Britain but retained in legal circles until decimalisation in 1971

Habeas corpus (Have your carcase): An ancient remedy requiring the production of a deatined person to a court


Hearing: A formal session in a court or tribunal.

Human rights: Fundamental rights and freedoms

In camera: Private hearing
Incorrigible rogue: A criminal offence of vagrancy under the Vagrancy Act 1824. Last known to be invoked in 2000 against a 19 year old

Inns of Court: Four legal societies having the exclusive right of admitting persons to practise at the Bar (Inner Temple, Middle Temple, Lincoln’s Inn, Gray’s Inn)

Intellectual property: Exclusive rights to a range of intangible assets, for example copyright, trademarks and patents

Judiciary: Professional judges in a legal system

Justice: Fairness

Ladies’ collar. Similar to a collarette but without the extra fabric front

Law Centre: In summary, an organisation providing free legal assistance

Legal aid: Financial assistance given by the state to those who cannot afford legal advice or representation. Now largely of historical interest

Legal expenses insurance: Insurance, often contained in a wider policy, which provides cover for the cost of legal assistance

Letters Patent (Literae patentes): Writings of the sovereign, sealed with the Great Seal, whereby a person or company is enabled to do acts or enjoy privileges which he or it could not do or enjoy without such authority

Libel: A statement in writing which attacks a person’s reputation

Lightweight pincetta gown: A gown which is “ideally suited to warmer climates”

Litigant in person: A party to legal proceedings who is not represented by a lawyer

Litigation: The conduct and progression of a case

Lord: A member of the House of Lords

Manslaughter: In summary, killing without the intention required for murder

Master: A member of the judiciary who deals, generally, with procedural matters

Mediation: A type of alternative dispute resolution involving negotiation with an independent third party

Mens rea: Guilty mind
Miscarriage of justice: The conviction and punishment of an innocent person

Murder: In summary, killing with intent. May not be criminal if committed by the state

Natural justice: Based on innate moral sense: minimum standards of fairness in judging a dispute

Natural law: Belief in a system of justice common to all men, with vaguely mystical origins

Neckband shirt see Tunic shirt

Negligence: A civil wrong developed by the courts, involving a duty of care, breach of that duty and resulting loss

Novus actus interveniens: A new intervening act which breaks the chain of causation and avoids liability

Ogden Tables: Actuarial tables for use in personal injury and fatal accident cases, based on various factors

Parliamentary draftsman: Professional drafters of legislation

Party: A person involved in litigation

Pecunia non olet: Money does not smell. Reputedly originating from the Roman Emperor Vespasian’s urine tax

Perpetuities: This property law concept is impossible to define concisely. See Chapter 3

Practice: Work as a lawyer

Pro bono: Pro bono publico, for the public good. Professional work done without charge

Pro hac vice. An appointment for a particular occasion only

Public access: Direct access for the public to a barrister without having to employ a solicitor as a go-between

Punter see Client

Pupil: A trainee barrister working under the supervision of another barrister

Pupilmaster: The barrister who supervises a pupil

QC tail. A coat worn by Queen’s Counsel

Quantum: The amount of compensation

Quantum meruit. As much as has been earned: reasonable value
Queen’s Counsel: An honour conferred on barristers of standing and experience

Red bag. A bag bestowed as a gift from a QC to a junior barrister for outstanding work. The bag carries the initials of the junior barrister and there is parchment in the bag for the QC to write a message

Refreshers: A barrister’s additional fee when a case overruns its estimated length: effervescent confectionery

Res ipsa loquitur: A circumstantial rule of evidence based on the concept that, where an accident happens under circumstances where it is so improbable that it could have happened without negligence, the mere happening of the accident gives rise to an inference of negligence
Risk assessment: The assessment of potential hazards

Rogue and vagabond: “Every person pretending or professing to tell fortunes, or using any subtle craft, means, or device, by palmistry or otherwise, to deceive and impose on any of his Majesty’s subjects; every person wandering abroad and lodging in nay barn or outhouse, or in any deserted or unoccupied building, or in the open air, or under a tent, or in any cart or waggon… and not giving a good account of himself or herself… every person, wilfully, openly, lewdly, and obscenely exposing his person … with intent to insult any female; every person wandering abroad, and endeavouring by the exposure of wounds or deformities to obtain or gather alms; every person going about as a gatherer or collector of alms, or endeavouring to procure charitable contributions of any nature or kind, under any fals or fraudulent pretence … every person being found in or upon any dwelling house, warehouse, coach-house, stable or outhouse, or in any inclosed yard, garden or area, for any unlawful purpose … and every person apprehended as an idle and disorderly person, and violently resisting any constable, or other peace officer so apprehending him or her, and being subsequently convicted … shall be deemed a rogue and vagabond. (Vagrancy Act 1824, section 4, as amended).

Royal Bencher: A member of the Royal family who holds the office of Bencher in an Inn of Court without having to obtain legal qualifications

Rule of law: The subordination of all authorities to certain legal principles

Senior barrister: A proposal that a barrister with a number of years’ experience should be described as a senior barrister was rejected by the Bar Council because it would confuse the public

Serious Fraud Office: An organisation responsible for the investigation and prosecution of serious criminal offences.

Silk: King’s Counsel or Queen’s Counsel, so-called because they wear silk gowns

Supreme Court: The new name for the House of Lords, the highest appeal court

Table/Tabling: Lists of statutes and cases which appear in legal textbooks

Taxonomy: Principles of classification

Temple. Two Inns of Court – Inner and Middle – originally occupied by the Knights Templars. Part of London between the Strand and the Thames.

Tippet

For those, like me, who have no idea what a tippet is, the Shorter Oxford English Dictionary gives the following guidance:

  • A long narrow strip of cloth or hanging part of dress, either attached to and forming part of the hood, head-dress or sleeve, or loose, as a scarf or the like.
  • A garment, usually of fur or wool, covering the shoulders, or the neck and shoulders; a cape or short cloak.
  • A band of silk or other material worn round the neck, with the two ends pendent from the shoulders in front.
  • A hangman’s rope.

Touting: Soliciting custom

Trousering: Obsolete slang for stealing

Tunic shirt. A collarless shirt worn by lawyers.

Vesting: Conferring an immediate right

Volenti non fit injuria: No injury is done to a person who consents to it. A largely obsolete defence of consent to a claim for compensation for a civil wrong

War crime: A violation of the laws of war

Welfare law: Generally, the law of social security

Wig: A horsehair wig is worn in most courts by barristers. Reputedly imported from France in the seventeenth century to indicate social standing and wealth

Work-related stress: Mental disorder caused by workplace conditions


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.
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  • The title QC was an important reference mark for those who chose to purchase the highest quality advocacy services.
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  • The rank of QC was the recognition of excellence for advocacy in the higher courts.
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  • 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.
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  • 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.
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  • Key features of the new system included an independent selection panel and letters patent from the Queen.
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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?
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  • We provide CONFIDENTIAL results-focused coaching.
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  • We will help you with your interview preparation.
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  • 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.
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  • The interview is a MINEFIELD.
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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.


Alternative Legal Practice

The practice of law in an alternative way attempts to address the fact that the poor are denied justice and to resist the fact that law is used by many lawyers as a means of making large sums of money – in some cases, obscenely large.

Alternative practice challenges the absurdly unbalanced relationship between the most highly-paid lawyers and poor people who cannot afford their services.

It resists the deliberate obscurity of legal rules, interpreted and explained by the legal priesthood, which mean that even the most articulate and highly educated non-lawyer finds it practically impossible to penetrate the curtain of incomprehensibility.

The following are suggested ideas for the development of a legal practice outside the mainstream. In this context it is important to note that all aspects of legal practice in England have changed significantly during the last decade, and are likely to develop further. Most of these changes have followed a neoliberal agenda and reflect movement towards the free market, for example the permitting of mixed legal businesses and direct access to barristers.

The following proposals have nothing to do with the often-quoted and accepted supremacy of the market. Rather, they defy market forces and aim to develop legal practice, not in the interests of an elite profession, but in the interests of deprived groups, for example the poor, the homeless, the unemployed, the disabled and victims of discrimination.

Campbell’s view (The Left and Rights) is that the radical lawyer is both tolerated and ignored. Tolerated because his existence seems somehow “good” for the profession at large – making it representative of all opinion – and ignored because what he does in the affluent liberal hour threatens no-one. The radical lawyer is entangled in a situation where he is committed to undermining the very structure which provides his own power base.

The theoretical basis of alternative practice involves the following principles:

  • Resistance to war, racism, discrimination and exploitation
  • Opposition to money fetishism
  • A commitment to demystification
  • The pursuit of social justice
  • Opposition to traditional formalities and conventions which hinder access to justice

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Many English lawyers with a social conscience are so involved with making money or with the daily pressures of court work that alternatives to the current system are never considered. The great majority of lawyers, being essentially conservative, practise according to traditional conventions.The time demands of practice can offer few opportunties for lawyers to stand back and think about alternatives to mainstream practice. There is an almost unbridgeable gap between critical academic lawyers on the one hand, and coal-face practitioners on the other (although it is unrealistic to compare the daily work of the lawyer with that of the miner). The dynamics of daily practice can result in lawyers submerging their ideals to economic considerations and pragmatic results.

Traditional practice as a barrister confirms, and indeed encourages, remoteness from the client. Barristers have traditionally kept clients at arms length through the rule that a solicitor must act as an intermediary. This principle has been eroded by the introduction of public access rights, but it is important to be aware that this relaxation was forced upon the profession in the teeth of determined opposition. The profession has always emphasised objectivity, detachment and the application of legal skills as a technical exercise.

An American commentator has stated the view that many of the left-wing lawyers who preached revolution thirty years ago are now well-paid members of the legal establishment. Some use their power and status to help poor people: others do not. The experiences and day-to-day practice of American radical lawyers is very different from their English counterparts: the Americanisation of the English legal system has not extended to the adoption of radical US techniques.

Everyone knows that poor people find it difficult to have effective access to justice. This is accepted as if it were as inevitable as English weather. The mainstream discussion of alternatives to this state of affairs generally involves a tinkering with financial elements of the system, for example franchising or marginally increased money for Law Centres. As these arcane discussions continue, poor people continue to suffer. Are there serious alternatives to traditional practice? This question is seldom raised.

For largely tactical reasons, alternative practice must come within the scope of the detailed practice rules laid down by the Bar Code of Conduct, and in full compliance with the overriding duty of a barrister to promote and protect fearlessly and by all proper and lawful means the client’s best interests and do so without regard to his own interests or to any consequences to himself or any other person.

Practice as a lawyer can be “alternative” in the following ways:

  • Money.
  • Direct access.
  • Demystification.
  • Education.
  • Professional standards.
  • Professional codes of conduct
  • Equal opportunities
  • Seminars.
  • Recruitment.
  • Website.

Typically, the enquirers were unemployed, poor and desperate. Many of them had been dismissed or made redundant. They might complain of discrimination, bullying and harassment. They might have been made ill by workplace conditions. One thing which almost all of them had in common was that they could not afford advice and/or representation through the mainstream legal profession. Most were not members of a trade union, nor did they have legal expenses insurance. Many had approached the Citizens’ Advice Bureau for help and some had contacted Law Centres, only to be told that they were fully occupied and could not take on any more cases.

The majority of enquirers had some idea of their employment rights but most became lost in a fog of incomprehension and despair as they discovered how complex and opaque the law is, and how difficult it is to deal with procedural points.In almost every case, the root of the problem was money.

Working with these clients for free or for a small fee is difficult. The facts are often complex and may involve detailed allegations of bullying or harassment over long periods of time. Medical evidence is normally crucial and expensive to obtain.

An alternative practice may also prepare templates for unrepresented litigants to use in courts and tribunals, particularly where they cannot afford representation. The following is an example of this:

Specimen opening statement for an unrepresented client
The European Convention on Human Rights was intended to guarantee not theoretical or illusory but practical and effective rights. Having regard to the complexity of the procedure and points of law involved, to the evidential questions arising and to the emotional involvement entailed by marital disputes, the possibility open to Mrs Airey of conducting her case herself did not provide her with an effective right of access.

The fact that the alleged right of access stemmed solely from Mrs Airey’s personal circumstances was not decisive. Hindrance in fact could constitute a violation of the Convention just like a legal impediment and certain Convention obligations, such as that to secure an effective right of access to the courts, could on occasion necessitate positive State action.

It was most improbable that a person in Mrs Airey’s position could effectively present his or her own case.

  • Draw the attention of court or tribunal to the decision of the European Court of Human Rights in the case of Steel and Morris v United Kingdom (2005) The Times, February 16, where that court ruled that the denial of legal aid to the applicants deprived them of the opportunity to present their case effectively before the court and contributed to an unacceptable inequality of arms.
  • Point out to the court or tribunal the decision in Bertuzzi v France (2003)In June 1995 B obtained full legal aid to start proceedings against a lawyer. The lawyers assigned to the case applied to withdraw because they had personal links with the defendant. Later in 1995 B asked the president of the legal aid office and the president of the bar council to assign another lawyer. B received no reply until March 1997 when he was told that the grant of legal aid had lapsed.

The European Court of Human Rights ruled that there had been a breach of Article 6 of the European Convention on Human Rights – B had not had effective access to a court. The court made the following points:

The relevant authorities should have arranged for a replacement who would provide B with proper assistance.

Permitting B to represent himself in proceedings against a legal practitioner did not afford him access to a court under conditions which would secure him the effective enjoyment of equality of arms which was inherent in the concept of a fair trial.

The Convention is intended to guarantee not rights which are theoretical or illusory but which are practical and effective. This is particularly so of the right of access to the courts in view of the prominent place held in a democratic society by the right to a fair trial.

  • State that one appreciates that the court or tribunal may regard this submission as not relevant to current proceedings: advise the court or tribunal that the issues raised in the submission may also be raised in future appeal proceedings and/or in an application to the European Court of Human Rights.
The reality of alternative practice

In the summer of 2007 I received an email from a young Slovakian woman telling me, in acceptable English, that she had recently returned home after working in England for a month. She had been working night shifts as an office cleaner and had not been paid by her temporary employer. Her sister was working in England and would contact me to see if I could help.

This was a case where the client was abroad, had no money, and there was no documentation. For the mainstream, it was a non-starter.

For an alternative practice, the case was difficult but not impossible. Starting with the theoretical view that this could be described as a case of modern day slavery, and as such must be fought with the utmost t determination, the first step was to identify the migrant worker’s employer. This was achieved after lengthy inquiries at the Job Centre which had found work for the young woman. Details of the company involved were found via the Internet.

A grievance letter sent to the employing company on behalf of the girl did not succeed in recovering the wages due. With the help of the woman’s sister we lodged a claim for unlawful deduction from wages in the employment tribunal. Shortly after this, the money was paid into the client’s sister’s English bank account. No fee was charged.

Unusually, justice was done and was seen to be done – mainstream issues of hourly billing and cost analysis were wholly irrelevant.

I was invited to visit Slovakia where the woman’s family treated me as an honoured guest.

It seemed to me, and to others with whom I discussed the case (lawyers and non-lawyers) that we were indeed looking at a form of modern-day slavery. This was a young woman, highly intelligent and well-educated, who had come to England to earn money because wages were low and jobs were few in her own country. She also wanted to improve her English. She had worked hard in a menial job, for long hours, and had not been paid. There was a suspicion that she had been treated in this way because she was a migrant worker with a poor grasp of English.

Applying the traditional and dominant model of the English legal system, she had no chance whatever of recovering her unpaid wages. She would be denied justice because she was poor.

Through collective action, with the help of the Haldane Society, we were able to achieve some sort of justice. Money for us did not enter into the calculation. Justice was done without a financial incentive.


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?


Wasted Costs In Employment Tribunals

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.

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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

http://www.avonandsomerset.police.uk/operations_and_initiatives/relentless/


Employment Tribunal Jurisdiction

EMPLOYMENT TRIBUNALS

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.


The Socially Acceptable Drug Addict

When we use the phrase “drug addict”, the image of criminals and homeless people appears in our mind. These people that rob, steal and cheat their way through life to focus on gaining their next fix of crack cocaine or heroin that taints the rest of our society. These drug addicts are supplied by dangerous criminal drug dealers that form an underclass of criminality. It is a serious social problem, one that is reflected in the criminal sanctions available to the courts when they are court; those convicted of dealing heroin could face life imprisonment.

So, taking and dealing drugs are bad. Why? Well, most of us would realise it’s because they’re bad for us. However medical opinion, as science, is always subject to change. Heroin was legal up until the 1950s in the UK and regularly prescribed by doctors; it was only made illegal following international pressure to recognise its addictiveness. And there we are lead to the first great paradoxes in current thinking on drugs: illegal drugs are illegal because they are bad for us, therefore legal drugs are legal because they are not bad for us. It is widely viewed as down to this sad paradox that the drug mephedrome was taken by a number of teenagers last year which resulted in their death. This prompted the necessary reviews and reclassification in order to protect society, and a crackdown on those dealing the drug inevitably followed.

And so we have the cyclical circumstance of drug legality, the bad men deal the drugs to the naive population who don’t appreciate the effects of the drugs. They take the drugs, they suffer the bad side effects, and so the drugs are made illegal in order to make it difficult to get (among, obviously, other reasons). Job done.

But what about the biggest drug dealer in the country? The NHS, doctors and nurses who regularly supply drugs that are just as addictive and in some cases as bad for you as heroin and mephedrome? We wouldn’t call them “bad men”…would we?

Today (28th February), the BBC reported that an American study in the BMJ Open has found that that the risk of death among users of the sleeping tablet temazepam is four times higher than in non-users. In 2010, 2.8 million people were prescribed this drug, and 5.3 million were prescribed zopiclone, another common drug. The researchers found that overall 1 in every 16 patients who took sleeping pills died, compared to 1 in 80 of those it did not. Balance this increased risk with the lack of justifiable benefit of these drugs, and the future seems increasingly unclear. In their own words, the researchers said; “the meagre benefits of hypnotics, as critically reviewed by groups without financial interest, would not justify substantial risks.”

This story comes on top of the Independent’s report at the end of last year, which commented that doctors were being sued for inadvertently creating prescription drug addicts by failing to recognise the withdrawal symptoms associated with them.  The failure to follow safety guidelines, which sets out the risks of certain drugs’ effects, has lead to an increase in clinical negligence litigation over long-term prescriptions of benzodiazepines, e.g. Valium. If taken off these drugs too quickly, patients may suffer from serious, disabling pain, and many are not warned about the dangers of withdrawal which can result in seizures and death.

The problem appears the speed at which these drugs are prescribed for a variety of social problems as opposed to purely medical. Professor Malcom Lader told the Independent that;

“There is no sign that such prescribing is diminishing. The Royal College of GPs is in denial about this because they fear being sued. With around a million long-term users, the [legal] defence unions will at some point decide that these cases are indefensible and GPs will have to pay their own costs.”

If increased addictiveness without recognisable benefit is the hallmark of “bad drugs” and thus illegal drugs, why are these prescriptions still being given? Why are the civil courts responsible for dealing with the effects of these drugs, but the criminal courts are required to deal with recreational use? Where’s the crackdown? The policy reclassification? The reaction?! And so we come to the second greatest paradox; the drug dealers that we really ought to be concerned with are perhaps not those who we see loitering on the street corners, but the ones that we pay for and trust almost unconditionally….

References

Michelle Roberts, ‘Sleeping pills ‘linked to increased death risk’’ accessed 28th February 2012

Nina Lakhani, ‘Doctors sued for creating Valium addicts’ accessed 28th February 2012