Archive for the 'Lawyers' Category

Contingency fees in the ET to be abolished?

Published
by
Usefully Employed
on June 27, 2008
in Employment Tribunal and Lawyers
. 0 Comments

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

Published
by
Usefully Employed
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…

Published
by
Usefully Employed
on April 23, 2008
in Lawyers, Rambling and Solicitors
. 4 Comments

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

Published
by
Usefully Employed
on March 26, 2008
in Employment Tribunal, Lawyers, Rambling and Solicitors
. 2 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.

“Why the fuck should I work for Pinsent Masons?”

Published
by
Usefully Employed
on February 6, 2008
in Lawyers, Rambling and Usefully Employed
. 1 Comment

… is a search term typed into Google, by which someone came across my post on PM’s diversity plaudit. Stats like this are fascinating, but frustrating too. Do they work there already? Are they thinking of applying there? Will Pinsent’s gay-friendly atmosphere be a turn-off or a turn-on?

 I’ll never know, and it makes me sad.

Unfair Competition

Published
by
Usefully Employed
on February 6, 2008
in Lawyers and Rambling
. 2 Comments

The dispute between the Legal Services Commission (providers of what used to be known as Legal Aid) and barristers is fascinating. Read one man’s view of it here.

If you’re several thousand employees, you don’t like your new pay deal, and you go on strike, then few would argue against your right to do so. The right “to freedom of association with others, including the right to form and to join trade unions for the protection of [one's] interests” is even guaranteed by the European Convention of Human Rights. Yet, when the individuals in question are all self-employed, and are dealing with the government as their main customer, this is alleged to breach competition law. I don’t like this. Preventing a profession from campaigning against government practice is not a very laudable use of competition law. It also smacks of vendetta - the argument has to my knowledge never been used against GPs, who are in a similar negotiating position and for whom the BMA campaigns vociferously.

My own view is that the whole chaotic mess shows the government in a very poor light indeed. The disingenuous approach, which may well affect the quality of defence available to those accused of complex crimes, has to be seen against the budget they’re trying to reduce - £105 million. Seem a lot? Not when you consider that this year the Ministry of Justice spent £176 million on a computer system that they then threw in the bin because it was going to cost £900 million-odd more. Quite why barristers are seem as greedy, yet software contractors are always given a blank cheque, is a mystery to me.

Crystal Ball

Published
by
Usefully Employed
on January 19, 2008
in Discrimination, Employment Tribunal and Lawyers
. 2 Comments

Blogger Head of Legal, who like me must be sad enough to browse case reports that fall outside his area of expertise, comments on the odd result in Richmond Adult Community College v McDougall [2008] EWCA Civ 4. The actual point of construction in this case is reasonable - it confirms that in deciding whether or not someone can make a discrimination claim on the grounds of their disability, the tribunal can only look at the information available to their employer at the time he chose to dismiss. This mirrors Unfair Dismissal caselaw - looking at the decision in the light of subsequent events isn’t permissible. IMHO this is the only way to meet the purpose of the law in requiring employers to make reasonable decisions. Asking them to gaze into a crystal ball doesn’t help anyone.

The actual result of the case is more disturbing. A lady, who had initially been offered employment, was then turned down because her history of psychiatric illness was discovered. Fair enough, you might think, but her illness was three years behind her, and her psychiatrist had commented that she was “fully able to return to work and [there were] no concerns about her mental health relating to this”. 

She brought a claim under the Disability Discrimination Act. This may seem logical - disability was the main reason for her dismissal. Non-lawyers will however have their views about us vindicated by the fact that the employer, rather than attempting to justify its decision, used the argument that her case actually rested on the fact that she wasn’t disabled. In those circumstances, since the DDA only protects the disabled, her claim must fail. This is a typical “Yes we’re complete shits, but the law allows us to be” attitude, and one that won through.

Note the difference with other discrimination legislation - that doesn’t create a protected class of person, it simply sets out the grounds on which you cannot discriminate. The nature of the complainant is irrelevant; sack a man because he’s gay and it doesn’t matter a jot whether or not he is. If you use the example of poor old Graeme Le Saux, called gay by his fellow footballers simply because he was nifty at the Guardian crossword; his treatment was on the grounds of sexuality, not because of his sexuality.

Another result of this different approach is that non-disabled workers have no protection at all - if someone else applying for the same job as you has worse qualifications, but is hired because his wheelchair will look good in their recruitment brochures, you’ve no claim whatsoever.

Schadenfreude

Published
by
Usefully Employed
on January 5, 2008
in Discrimination, Employment Tribunal, Lawyers, Rambling, Uncategorized and Unfair Dismissal
. 1 Comment

Celebrities and the media, who fancy each other so much that the flirting can make you sick, leave me wondering what the truth is. Newspapers are full of lies - “a source close to…” and “close personal friends” rarely exist, but the glitterati have little to moan about given that they court the attention when it’ll equal more dosh on the release of their next record. What you and I can rarely do is read a scandal sheet and quote it our friends as having any credibility at all.

Judges however, now they have credibility - amongst the public at least. Quiz time! Can you remember who a High Court judge is describing here?

To achieve what he wants without confrontation, he is manipulative and has resort to any means, fair or foul, to achieve his ends. … His success and character have combined to create a personality making him strong-willed and both accustomed to and insistent on getting his own way. He is petulant and given to sulking and walking away from situations whenever he considers himself thwarted. He is not ready to make concessions to others. He is a person who cannot tolerate either criticism or the exercise by management of authority over what he does. … He has the temperament of a prima donna. He always expects and demands compliance with his wishes. … When I asked him about the quality of his powers of recollection, he told me that indeed he did have a terrible memory. That part of his evidence I fully accept. Beyond this where it suited his purposes, he had resort to lies.

Yes, it’s the now-rehabilitated-Radio-2-presenting Chris Evans, suffering a character assassination in response to his attempts to sue for wrongful dismissal from Virgin Radio in 2003. What makes me really enjoy judicial celebrity bashing is that it’s always so well deserved; never having had anyone disagree with them for years, their ego pushes these people on to their own downfall. You see, you so rarely need to go to court. You can just settle. When you’re rich, you don’t need to go at all. Quite why anyone famous ever goes if they’ve got any chance of losing at all is baffling. They just end up looking like the (ginger) twats they are.

Fast forward to the present, and the lady with egg on her face is actress Trudie Styler, better perhaps known as wife of musician Sting. When her pregnant chef, Jane Martin, took a fortnight off with gastroenteritis, she had this to say:

Who the fuck does she think she is? She is my chef in the UK. She needs to be available if I need her, or she should re-think her position.

Nice. Bear in mind that this woman is employed to cook for Sting, Mrs Sting, and their family. And they had a sous-chef. One might think that they could last a fortnight without her. After taking her maternity leave (and on the SMP wages of £100-odd quid a week, mind you, you don’t stay rich by overpaying the domestics), Martin found a redundancy at-risk letter awaiting her. Sure, the other chef had one too, but only Martin’s contained a (sinister?) reference to the fact that when the Chauffeur had left they’d got a “gagging order” against him. When our poor chef was selected for redundancy, and brought her unfair dismissal / discrimination claim, this is what the Employment Tribunal had to say:

… the whole redundancy selection was a sham. It was contrived to cloak the Respondent’s actions with respectability which were transparently designed to dismiss her once she fell from favour with the Sumner family as a result of being less flexible about her work arrangements due to her pregnancy and then later by having a small child to consider. Her dismissal is directly linked to her pregnancy and taking of maternity leave. [It] was badly mishandled and conducted in such an incompetent manner that the true purpose shines through the subterfuge and calumnious actions seeking to suppress the true facts. [Mrs Sting's] involvement is clear. She is without doubt the driving force manipulating others to perform her ‘dirty work’ .

Doesn’t get much clearer than that, does it? But what is beyond belief is not that they did this in the first place, but that they turned down sheer number of chances they would have had to bung her a few thousand quid to go away and keep quiet. The eventual award - £25,000-ish - is nothing to them, and there’d have been no publicity. Now they’re in the papers. So what do you do if you’re Mrs Sting? Pay up and let it lie? Or appeal, because to say such nasty things about you the tribunal must have been biased? I refer you to my ego comments above.

So well done, Trudie Styler, Mrs Sting, now you’ve lost twice, and got in the papers twice. Due to appeals being reported, your own character is now writ large on the internet for all to see.

As well as finding another person for my list of who’s first against the wall when the revolution comes, it’s also quite nice to see here that the employer’s far superior legal resources did them naff all good in this case.

Religion & Justice

Published
by
Usefully Employed
on November 12, 2007
in Discrimination and Lawyers
. 0 Comments

I’ve been woefully late in adding my ten cents about the case of the Christian magistrate who doesn’t want to place children with same sex parents. On being refused permission to excuse himself from cases where that might happen, he felt he had no option but to resign. This has been put forward in some quarters of the press as some new horrible blight of political correctness, but it actually comes down to very old rules of how judges and lawyers behave. Whilst judges often refuse to sit in a particular case if it would give the appearance of bias - two famous examples are here and here - they are not allowed to pick and choose which cases they rule on due to their feelings about the law. The judicial oath requires a judge to uphold all laws, not the ones they particularly agree with. What laws we have should be up to Parliament, who we vote for, instead of judges, who we don’t. The only apparent exception in our past has been Mr Justice Christmas Humphreys who, despite his name, was a buddhist and was excused from sitting on cases where the law might require the death penalty.

As for my view: a reading of the case shows that this magistrate’s views weren’t so much informed by his religion as his beliefs that same-sex adoption was an ill-judged ’social experiment’. In a democracy it simply isn’t up to judges to make this kind of call. A judge either supports all the laws or none of them.