Archive for the 'Lawyers' Category

Daniel Barnett reaches milestone

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on April 23, 2009
in Lawyers, Rambling and Usefully Employed
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Part of the lack of updates to this blog recently means I’m late reporting on a true employment law internet luminary reaching a real milestone. Daniel Barnett, barrister at 1 Temple Gardens, has been sending email employment law bulletins to just about everyone in the industry, from barristers to CIPD students, for ten years. And 1999 was a looong time ago in the IT world. Most of you, dear readers, may well not have even had an email address for him to write to.

To celebrate his anniversary Daniel launched a charity appeal to try to raise £10,000 for the Starlight Foundation. He’s achieved it in a very short space of time, but you can still donate at http://www.justgiving.com/danielbarnett2009.

Article 6 right to legal representation in disciplinaries

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on March 19, 2009
in Disciplinary, Dispute Resolution regulations, Employment Tribunal, Lawyers, Trade Unions and Unfair Dismissal
. 1 Comment

It’s a common request - “Can I bring a solicitor to my disciplinary?” - and a surprise to many employers that they have a right to refuse. There is a right under the Employment Relations Act 1999 to be accompanied at a grievance or disciplinary meeting by a fellow employee or a trade union representative. There is no right to be accompanied by a solicitor, and it’s easy to understand why. These meetings are internal, they are not concerned with deciding someone’s legal rights or making legal judgments. They are for the benefit of the employer in order that he can decide how to treat an employee, whether it’s a disciplinary sanction or the offering of some sort of satisfaction for their grievance.

Indeed, the language of Article 6 refers to ‘determination of civil rights and obligations’ when referring to the need for an impartial tribunal, and so on. Some new areas risk blurring the lines: there are now provisions for workers to be legally prevented for working with children, in schools, and with vulnerable adults where concerns over their behaviour has come to light. In this situation the effect of the disciplinary proceedings can be said to have consequences that go further than the relationship between the employer and employee. 

In the case of G, R (on the application of) v X School & Anor [2009] EWHC 504 (Admin), a teacher was accused of sexual impropriety with a 15 year old, involving a breach of trust. He was found by a disciplinary panel to have been in breach of trust, and the case referred to the Secretary of State to see if a direction should be made forbidding him from working in education. He was refused legal representation at the meeting. He challenged the validity of the meeting by judicial review, claiming that under Article 6 the proceedings were effectively criminal proceedings given the gravity of the allegations and the consequences of adverse findings. In the alternative, he claimed that even were the proceedings civil then they were of sufficient seriousness to require a right of legal represenation under article 6. The High Court found:

In my judgment, the gravity of the particular allegations made against the Claimant (sexual impropriety with a person under 18 and abuse of position of trust), taken together with the very serious impact upon the Claimant’s future working life of a potential s.142 direction, are such that he was, and is, entitled to legal representation at hearings before the Disciplinary Committee and the Appeal Committee. On such matters, the Claimant could not fairly be expected to represent himself, and being accompanied by a trade union official or a work colleague (even if available) was not sufficient.

It is important to realise that direct enforcement of human rights legislation, and judicial review proceedings at all for that matter, is only possible against public sector employers. Even so, this ruling opens the way for a considerable widening in what procedural safeguards must be put in place for more serious disciplinary cases.

Regulation of solicitors

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on March 11, 2009
in Lawyers and Rambling
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It’s been a common view for a while that SRA regulation:

  • is inappropriately one-size-fits-all, with the same requirements of High Street solo practices and of magic circle firms;
  • that the regulation they practice is more suited to the former.

Jordan Furlong’s Law 21 blog looks at a report produced by the Legal Services Policy Institute which contemplates complete divergence, with separate regulation on both a firm level and an individual lawyer level. This leads to the unattractive prospect of two tiers of solicitors emerging, one qualification associated with “big” law, and one for the high street sector. The latter will inevitably be stigmatised as somehow inferior, and as there huge areas of cross-over between the work of High Street and large firms (not least employment!) an unfair differentiation in perceived quality will result.  

http://www.law21.ca/2009/03/03/the-evolution-of-lawyer-regulation/

Will ignorance of the law become an excuse?

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on February 10, 2009
in Dispute Resolution regulations, Employment Tribunal, Lawyers and Rambling
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The recent case in which Counsel for Revenue & Customs had to apologise to the Court of Appeal for relying on regulations that were five years out of date has drawn much comment. For a report, see Frisby Law, a new blog from the firm of Ruthie, one of the UK’s founding blawgers.

Toulson LJ states:

It is a maxim that ignorance of the law is no excuse, but it is profoundly unsatisfactory if the law itself is not practically accessible. To a worryingly large extent, statutory law is not practically accessible today, even to the courts whose constitutional duty it is to interpret and enforce it. There are four principal reasons.

  1. First, the majority of legislation is secondary legislation.
  2. Secondly, the volume of legislation has increased very greatly over the last 40 years. The Law Commission’s Report on Post-Legislative Scrutiny, (2006) Law Com 302, BAILII: [2006] EWLC 302, gave some figures in Appendix C. In 2005 there were 2868 pages of new Public General Acts and approximately 13,000 pages of new Statutory Instruments, making a total well in excess of 15,000 pages (which is equivalent to over 300 pages a week) excluding European Directives and European Regulations, which were responsible for over 5,000 additional pages of legislation.
  3. Thirdly, on many subjects the legislation cannot be found in a single place, but in a patchwork of primary and secondary legislation.
  4. Fourthly, there is no comprehensive statute law database with hyperlinks which would enable an intelligent person, by using a search engine, to find out all the legislation on a particular topic.

That case concerned confiscation orders, but let’s apply the principle to employment law. Remember, if you’re an employee presenting a case in the employment tribunal you do not have recourse to any legal aid. The principle is that it is a forum in which you can represent yourself. But can you look up the law that applies to your case? The only port of call for Joe Public is the government’s own information sites, OPSI and the Statute Law Database. So our imaginary Claimant looks up the Employment Rights Act 1996, in which most of our employment laws are found. But what does he find?

 

So we have a copy of the Act, but without the last five years’ worth of updates. Indeed, the SLD version even goes straight from s98 to s99 - but as we all know this particular Act now sports a shameful ss98ZA - 98ZH, s98A and s98B. Hilariously, the dispute resolution regulations will have been introduced, failed, and been repealed without the SLD text being troubled at any point.

So the brief answer is that the unrepresented Claimant can’t do any meaningful legal research using free resources. Given the complexity of the law, the availability of costs orders where a claim is misconceived, and the unavailability of legal aid, I wonder if there are Article 6 implications. Refusal of legal aid where it is crucial to the presentation of a party’s case can constitute interference with Article 6 rights. One even has to wonder whether ignorance of the law being no excuse is compatible with our legislation being impossible to decipher. The now oft-quoted preface to Archbold 2009 states in relation to criminal law:

It has been a recurring theme of the preface to this work that there is far too much criminal legislation. The willingness of the Labour Government to continue its practice of legislating by trial and error has shown no signs of abating even in its eleventh year in office… The state of the criminal statute book is a disgrace. The Criminal Justice and Immigration Act 2008 is the usual hotchpotch of measures, with no theme, with much of the detail tucked away from close scrutiny in the schedules, and consisting in large part of textual amendment to earlier legislation. Much of the amendment is by way of undoing this Government’s earlier legislation.

This issue is a timebomb. Concerned practictioners and campaigners could do worse than visit Nick Holmes’ page for the Free Legal Web project.

Costs orders in favour of non-lawyers

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on August 17, 2008
in Lawyers and Solicitors
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Employment law solicitors who have spotted the judgment of the EAT in Ramsay & Ors v.Bowercross Construction Ltd & Anor ought to be cracking out the champagne. I have blogged before about the fact that solicitors are in severe competition with ‘consultancy’ outfits, such as RBS Mentor, Croner, Peninsula, First Assist, Qdos and the like, who do a huge amount of the tribunal litigation in this country. In practice, many of their litigators are “former solicitors” or “non-practicing barristers”. The reason for this is that those legal professionals have identified that, for them, working for these organisations can be an attractive career move away from a law firm or self-employment.

Current regulations forbid any practicing solicitors from providing legal services to the public through any medium other than an actual law firm regulated by the SRA. One rule for any such firm is that it is 100% solicitor owned; so all partners or shareholders must be solicitors themselves. This is of course no good for an organisation like RBS Mentor, owned by a bank, or First Assist and Qdos, privately-owned insurance services and consultancy providers. So these businesses set themselves up as litigators, but simply do not describe any of their litigators as solicitors or barristers, simply “representatives” or “consultants”. As there are no rules on rights of audience in the tribunals, these people may then do casework and appear in the tribunal to their heart’s content. They sometimes still farm the work out to solicitors, and sometimes book counsel to appear at hearings, simply as their work waxes and wanes. A solicitor employee will simply shelve his or her practicing certificate and then not hold out as a solicitor. There is still a question mark over the professional acceptability of this, although it is commonplace.

Of course this causes problems with the rest of the law and legal system, which is used to giving considerable favour to qualified lawyers that appear before it. A few weeks ago we found out that advice from these non-qualified representatives does not attract privilege (at least before litigation is contemplated). Now we find out that they are not allowed costs orders. The decision springs from the principle that appeared in Agassi v HM Inspector of Taxes [2005] EWCA Civ 1507, which considered the exact same position but with tax specialists rather than employment. Andre Agassi’s tax consultants had done an admirable job of conducting the case on his behalf, but they weren’t a law firm so no costs award for them.

This is a fairly severe impediment to insurers (the most common users of these companies) and those that are paying privately, as although costs orders in the tribunal are comparatively rare, they provide protection to those companies who are forced to litigate a misconceived or mischievous claim. Now a Claimant at risk of a costs order can proceed in the knowledge that if he is against a non-law firm his exposure will be greatly limited.

It should be noted however that the Respondent in this case was allowed its costs of counsel who appeared at the hearing, since he was a qualified lawyer.

Clearly change is needed, as these companies are accepted as a valid part of legal services provision. It is likely reform will come with Alternative Business Structures, due in the next few years.

BVC debacle

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on July 26, 2008
in Lawyers and Rambling
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This post is somewhat off-topic, although I justify it as relevant to careers in general.

I am a former solicitor who is transferring to the bar, and I’m currently in my pupillage. As a result, through visits to my Inn, chats during my call night, and most of all in the last few weeks whilst my chambers recruits next year’s pupils, I’ve realised the enormous struggle faced by wannabe baby barristers.

The number of students graduating from the BVC (which, and sorry to rub it in everyone, I happily never had to do) is grossly outweighed by the number of pupillages available, which are being fought over by several years’ graduates. Law blog Reductio ad Absurdum crunches some of the numbers from the Bar Standards Board’s Wood Report into the problem:

In the present round of OLPAS there are 294 pupillages on offer and there have been applications from 3768 individual students. That’s a ratio of one pupillage per 12.8 applicants!

The human tragedy of this gets to me a bit - I can just imagine all the excited parents packing their kids off to the course before showing off to everyone that little Johnny’s going to be a barrister. Meanwhile, little Johnny begs borrows or steals £10,000-odd fees, pays board and lodging for a year (probably in London), does his dining, maybe even buys a wig and gown, and completes the course with… nothing. It’s unfair.

The proposed solution is the raising of entrance standards, with a focus on written and spoken communication. I can see this - I’ve encountered someone with a Very Competent on the BVC who in cross-examination said, in an impenetrable accent:

You was in toilets three four minutes, isn’t it?

He meant:

You were in the toilets three or four minutes, weren’t you?

The witness had to ask him to repeat the question before she understood him, and the force and flow of his cross-exam went out the window. His every question was like that. His submissions were intelligently structured and the right points addressed, but his level of English simply made him a bad advocate.

If the bar is to survive, it will be because of a reputation for excellence at trial advocacy. There’s nothing wrong with high standards.

But the nature of tests is that people study to beat them, and a grade or a pass on the test isn’t necessarily reflective on that student’s appeal to a prospective chambers. I honestly believe more thought should have been given to requiring an offer of pupillage before the BVC is commenced. The majority of law firms manage perfectly well recruiting solicitor trainees prior to the LPC, on the strength of exam results, interests, and performance at assessment days. Chambers could do this just as well, and I fail to see the disadvantage to anyone, certainly not in comparison to the wasted money and broken dreams of many BVC graduates.

My own advice to someone thinking of a BVC but who is worried about pupillage is to wait - do another job for a couple of years. Make it law related if you like, there are scores of decently paid and fulfilling paralegal jobs in he larger law firms and it will educate you as to whether it’s an industry you want to be in. What’s more, work experience will give you CV points and transferable work and social skills which will help you find a pupillage. The pupils recruited at my current chambers have, for the last couple of years, all had some sort of job before pupillage. It’s not a chambers policy, it’s just that these applicants raise themselves above the pack.

Contingency fees in the ET to be abolished?

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on June 27, 2008
in Employment Tribunal and Lawyers
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No-one’s daring to say so, but a press release by the Ministry of Justice is reviewing the whole caboodle. Some solicitors are getting worried.

A contingency fee is where the solicitor’s fee is a percentage of what he recovers for the client. In my experience it’s pitched between 33% and 50%. Recover £30,000 for your unfair dismissal, write out a cheque for £15,000-odd to your solicitor.

They should not be confused with conditional fees, where the solicitor charges his normal hourly rate (plus an uplift) if you win, and nothing if you lose.

Contingency fees only really exist in employment tribunals, and what’s more they only exist at all by accident (there are some other times they crop up, like CICA claims). All work that solicitors do is considered either contentious or non-contentious. If it’s in court, it’s contentious, if it’s not, it isn’t. There are long-standing and strict rules that contingency fees are not allowed in contentious proceedings. You cannot say to a client that you’ll pursue their road traffic accident in the county court for a third of whatever they get. Oddly however employment tribunal claims are not specified as contentious. This means that they are non-contentious, and the rule does not apply. The idea that employment tribunals are non-contentious, when they have pleadings, disclosure, statements, orders, judges, judgments, and claims running into the millions is just plain weird. I’ve never seen any suggestion that their exclusion from the definition of contentious is anything other than an anomaly. That’s the word the Bar Council use anyway, at the same time as forbidding barristers from taking work on that basis.

There are arguments for and against. Conditional fees are a bit useless for most tribunal claims as there are no routine costs orders. Costs paid would still therefore come out of awards rather than being paid separately by the loser. The obvious worry for the Claimant is that they win £5,000 and pay out the same or more to their solicitor. This hasn’t been helped by the increasing technicality of employment law and procedure, meaning the tribunal (despite the best efforts of the judges) isn’t the place for the litigant in person that it would like to be. Good firms, like the one I linked to above, are able to help a lot more claimants access the tribunal than they could otherwise.

The attraction of paying a percentage is obvious, you’re guaranteed not to be left out of pocket at the end. But the conflict of interests is strong, and takes a very professional solicitor to overcome. This is because the solicitor effectively funds any work that’s undertaken. Let’s say the claim gets as far as the ET1, and an offer of £10,000 to settle is put in by the employer. If the client accepts it, then the solicitor has made a very easy £3,333 (we’ll assume a one third fee). But the client holds out, and realistically states that he might well be awarded twice that sum. No offer above the £10,000 is forthcoming, and the client does indeed win £20,000 at a full hearing. The solicitors are thus paid £6,666. But they’ve had to do the ET1, all the disclosure, negotiation, maybe make or respond to the odd interim application or attend a CMD or PHR, draft witness statements, and provide representation for the hearing itself. Even simple unfair dismissal cases can be listed for two days. The profit element of the £6,666 thus starts to look very low compared to the £3,333 for just meeting the client, banging out a couple of letters and an ET1.

So whereas in conditional fees there’s a commercial pressure on the solicitor to advise settlement to avoid the risk of losing the case and not being paid at all, in contingency cases there’s the second pressure of settling early before significant work has been done.

I’ve been unfair using the word solicitor - almost all of whom can be trusted to give professional and realistic advice on settlement that is in their clients’ best interest. But fee mechanisms mustn’t just be fair in practice, they must also be seen to be fair. There is also a huge rise in non-solicitor companies offering employment tribunal representation; indeed it was they who opened the contingency fee floodgates. These companies are least now subject to some form of regulation, but the clear conflict of interest present in a contingency fee arrangement leaves a very unsavoury taste in the mouth.

Answers as to what should replace contingency fees on a postcard please…

EAT Judgments

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on June 23, 2008
in Employment Tribunal and Lawyers
. 2 Comments

I’m delighted that I’ve at last spent 30 seconds stealing being inspired by Nick Holmes‘ use of a Yahoo Pipe to provide a good rss feed from bailii. The fruits of my labours are available on the side bar, or here as a feed you can use yourself.

Solicitors - Qualified for…

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on April 23, 2008
in Lawyers, Rambling and Solicitors
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The Law21 blog entry on marketing has again inspired me to rant on the future of the legal profession.

‘Your solicitor, qualified to answer’ is a major national advertising and PR campaign to promote solicitors to the public.

Our aim is to encourage consumers to use solicitors by promoting their services and highlighting the unique selling points solicitors have to offer. Running from April to June, the campaign will focus on the reasons why solicitors are the only sensible choice for consumers. They are:

  • more expert and reliable than other providers of legal or quasi-legal services
  • properly regulated
  • excellent value for money 

 … or so say the Law Society in their recent marketing campaign to raise the ‘brand’ of solicitors. I’d edit the list as follows:

  • more expert and reliable than [many] other providers of legal or quasi-legal services [but are increasingly inferior to some]
  • properly regulated [and insured for when they fail to be more expert and reliable than the other side]
  • excellent value for money.

I don’t want to be confrontational; there are solicitors firms out there that do all the Law Society says, but they are the minority. Use a solicitor ten times over rather than some internet cowboys, but the badge of ’solicitor’ itself is no guarantee of quality. Solicitors should be the cornerstone of reliability and expertise, but firms must make some real changes. Taking the Law Society’s list:

  • Expertise: I started off a solicitor in a high street firm which did a good amount of employment law for the firm’s size. I moved from there to a consultancy / insurance company you’ve never heard of, which in respect of its consultancy at least is completely unregulated. The quality at the latter was ten times better - the expertise and dedication to employment law was enormous. I’m not saying the law firm wasn’t competent - it was that and more - but it didn’t have the same excellence. I attribute the excellence at the consultancy to the commercial pressure of competition. If you’re Bloggs & Co Solicitors then you immediately have a badge stuck to your chest, and the public will reckon you the best man for the job because of it. If you’re Bloggs Limited and you want to succeed, you’d better make a name for yourself, get out there and network, and deliver on your commitments.
  • Regulation: Boy do you need that. I wouldn’t for a second disagree. When you provide legal services you play with people’s lives, and they need a fundamental reassurance that there is a legal framework for them to seek redress when you cock it up. What’s wrong with the system is the regulator itself - the SRA. Its huge, monolithic, inefficient, and worst of all its one-size-fits-all style of regulation prevents firms from competing effectively. You also need compulsory insurance for professional negligence, and most other professionals would do a double take at the premiums solicitors have to pay.
  • Excellent value for money: Where solicitors lack at the moment is in charging innovation, as the Law21 blog notes every couple of weeks or so, and as I’ve rambled about previously.

This is all terribly sad, as it commercialises the role of solicitor which in previous days wasn’t simply a job, but a vocation. But solicitors haven’t changed for the worst, they’ve simply been outpaced by modern society. They must adapt and they must survive. The Law Society campaign is completely backwards - it tries to educate people that solicitors are the answer to their problems when this message is becoming less and less true every day. Their time and resources would be much better spent in engaging with their own profession on how to rescue the brand of ’solicitor’ and invest it with some meaning in the modern age.

Law in the 21st Century

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on March 26, 2008
in Employment Tribunal, Lawyers, Rambling and Solicitors
. 4 Comments

The Law21 blog, and this post in particular, should be compulsory reading for any member of the British legal profession. The focus on new provision of legal services tends to concentrate on work for individuals - divorces, probate, and so on. In employment law circles however the change is already happening. First Assist, Peninsula, Croner Consulting, EEF and the rest are hardly household names but between them conduct a huge part of Respondents’ litigation in the tribunals.

Many employers simply want to pay an annual premium and be insured against any claims they receive. Any large employer, even if it is well behaved, will receive a claim one day,  and fewer and fewer of these are farmed out to traditional law firms and counsel. If you are a commercial company who has sold an insurance policy then it makes much more financial sense to hire staff yourselves to conduct litigation and advocacy than to farm it out. Why? Because you retain the profit margin. Without any SRA or Bar Council regulation you can also be ultra-competitive in your hourly rates which means you achieve a better loss ratio for the insurance company.

Counsel still have their place for complex cases, or for where you simply must have a bum sat on a tribunal seat somewhere far away at very short notice, but as the Law21 blog notes: traditional law firms must forge alliances with the larger providers if they are to retain the work.

Employment is ahead of the game as tribunals don’t require a special right of audience, and (insured) work can therefore be undertaken by companies without any form of regulation at all. Once Alternative Business Structures and “soft-touch” regulation comes then all manner of commercial legal areas will go the same way, and it’ll be sink or swim for law firms and lawyers. Being legally qualified will be no guarantee of a place in the new order.