What is the point of being a solicitor?

first_img Trevor F Moore, solicitor and notary, Ibstock, Leicestershire Can someone tell me what is the point of being a solicitor? To get a practising certificate, years of study and financial hardship must be endured. Those who survive struggle to get a training contract. Those that eventually get the coveted practising certificate then join one of the most stressful types of employment, which demands the longest working hours in the highest-regulated profession in the country. Why? Historically, only a solicitor could convey property. We lost that privilege years ago. Only a solicitor could prepare wills. We lost that. Only a solicitor could represent defendants in court. That too is gone. OK. So we could swear people to affidavits and, despite it being worth £4.35 plus VAT, we’ve lost that privilege as well. What about status and respect in the eyes of the public? I will let you decide. I repeat, can someone please tell me what is the purpose or benefit of being a solicitor?last_img read more

‘Exhausted’ lawyers in care cases need more support

first_imgA detailed and enlightening report on the representation of parents in care proceedings was published this week by academics at Bristol University law school. The study, by Julia Pearce and Professor Judith Masson, provides an interesting insight into the pivotal role played by lawyers in the process and the pressures under which they work. Conducted in four court areas of England and Wales between 2008 and 2010, the study observed over 100 hearings, and included 16 case studies and 60 interviews with solicitors, barristers, judges and magistrates’ legal advisers. It notes the collaborative and consensual way that care cases tend to be dealt with by the small nucleus of lawyers who cover the majority of such cases. And reveals that the courts rely heavily on those lawyers involved. ‘It could be said that the progress of cases and often their outcome are effectively decided by the legal representatives rather than the court,’ the report said. This, it explained, occurs because judges do not feel sufficiently well prepared to make decisions, they trust the lawyers who appear before them and prefer that cases proceed by agreement. The profile of the solicitors involved in these cases shows there is a high level of specialisation: two thirds of the 46 solicitors interviewed for the study devoted 70% or more of their time to it. More than half of the solicitors interviewed were partners in their firms and the report showed the population of solicitors handling care cases appeared to be an aging one with few younger solicitors opting for this area. The researchers found large numbers of solicitors with 10 or more years’ experience, but few who were newly qualified. Of those qualified for 10 or more years, 60% had more than 20 years experience. While the level of experience is good, the demographic profile highlights an obvious concern for the future. Other troubling signs for the future were highlighted by the mood of some of the solicitors working on care matters. The study found the lawyers that work in this field were highly motivated by the sense of work they do and have a sense of public service and social justice, but were feeling ‘jaded and exhausted’ by the overwhelming workload pressure. It found that the excessive demands from rising case numbers following the Baby P case were overwhelming solicitors, tipping them into a state of ‘frustration and demoralisation’. In addition, the report found that solicitors representing parents in care cases were under ‘tremendous pressure’ due to continual changes and uncertainties in the legal aid regime, particularly following the move to fixed fees in 2007. It said that practices adopted when this work was better remunerated were not sustainable with the ‘substantially lower fees’ that followed the move to fixed fees in 2007. The report found that the failure of the Pubic Law Outline, introduced in 2008, to deliver shorter proceedings with fewer hearings left lawyers doing the same or more work on individual cases and taking more cases so that the work remained financially viable for their firms. ‘Firms and individual solicitors are adapting their practice, but workload pressures and financial constraints were placing them at breaking point,’ it said. And that is before you factor in further 10% fee cuts and a new fixed fee scheme that are to be brought in. One cannot help wondering how many of these dedicated, experienced and committed lawyers, who are already at ‘breaking point’, will be tipped over the edge by the cuts to come, and will simply stop doing the work because it is not financially viable. And if they stop doing the work that has such life-changing consequences to those involved, how many children and parents could have to live with the consequences of cheap, inexperienced representation?last_img read more

Automatic disqualification and apparent bias

first_img Highway authorities wishing to take action to prevent vehicles exiting a forecourt onto a public highway should take a look at Cusack v London Borough of Harrow [2011] EWCA Civ 1514. The council sought to prevent – by the erection of barriers – a solicitor’s practice from allowing vehicles parked on its front forecourt from reversing out onto the highway. This was to ‘prevent further footpath damage and increase pedestrian safety’. The council wished primarily to rely on section 80 of the Highways Act 1980 which (at section 80(1)(a)) enables a highway authority to erect and maintain fences or posts for the purpose of preventing access to a highway maintainable at the public expense by them. As a fallback, however, the council would use section 66(2) of the 1980 act which enables the highway authority to erect pillars, walls, rails or fences where they think that they are necessary for the safety of highway users. As Lewison LJ, who gave the lead judgment in Cusak pointed out, that ‘ …safety is the main concern is reinforced by the fact that section 66 appears in a group of sections under the heading “Safety provisions”’. However, the problem with section 66 from the council’s point of view was section 66(8) which requires a highway authority to pay compensation to anyone sustaining damage because of works conducted under the section. While the council accepted that it had a choice of powers (either section 80 or section 66) it wished, as custodian of public funds, to use section 80 to avoid paying compensation. However, the Court of Appeal drew upon a well-established interpretational rule that, where there are general and specific provisions covering the same area, the court will apply the specific to the issues in question (see Pretty v Solly (1859) 26 Beav 606). For lovers of Latin, the maxim is ‘generalia specialibus non derogant’. In the circumstances, section 66 was the applicable power. However, the court would not say that section 80 could never be used to curtail a frontager right of highway access. Nor was Mr Cusak entitled to an injunction restraining the council from erecting forecourt barriers. Moreover, the council’s proposed action was found not to breach the convention right to peaceful enjoyment of possessions, since it sought to ­control use rather than achieve ­deprivation of possessions. Nevertheless, the court did grant ­permission to appeal. Public authority fairness The modern law of public authority fairness (of which bias and apparent bias is arguably part) has evolved in various sophisticated branches from the canonical rules of natural justice (the need to hear both sides and that no one should be a judge in their own cause). Kaur demonstrates that (however the jurisprudence is framed) a perception of bias can unconsciously be built into institutional structures. Local authorities and other institutions which have in place (or may be setting up for various purposes) appeal machinery will therefore need to have regard to this decision. But the potential extent of the judgment remains to be seen. Will it, for instance, require local authorities to institute independent appeals panels for disciplinary issues, particularly when employees also have general law remedies of wrongful and unfair dismissal? As Lord Steyn pointed out in R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532: ‘In law, context is everything.’ We will nevertheless need to await future decisions to see what balance the courts are tending to strike in such matters between acknowledging organisational practicability and securing fairness to the subject. The decisions will inevitably be fact-sensitive. Given drafting uncertainties in the Localism Act 2011 the Association of Council Secretaries and Solicitors (ACSeS) sought the opinion of Clive Sheldon QC on two issues. These were whether former independent standards committee members could become independent persons under the 2011 act and also on the lawful scope of available sanctions for members found to have breached new codes of conduct. The opinion is now available and Sheldon considers that, on a literal reading of the 2011 act, former independent members (ie those within five years of prospective appointment as independent person) are not permitted to become independent persons. As to sanctions, the opinion regards the following as lawful (subject, of course, to the particular facts and circumstances, and lawful and proportionate manner of application): a formal letter to the councillor found to have breached the code; formal censure by motion; removal by the authority of the member from committee(s) (subject to statutory and constitutional requirements); and a press release/other appropriate publicity. ACSeS members can view the opinion. Blocking a forecourtcenter_img Dr Nicholas Dobson is a senior consultant with Pannone specialising in local and public law. He is also communications officer for the Association of Council Secretaries and Solicitors Two jurisprudential strands were brought together by the Court of Appeal on 19 October 2011 when determining a challenge brought by Darsho Kaur, a student member of the Institute of Legal Executives (ILEX). Ms Kaur contended that decisions made by both the disciplinary and appeal tribunals of ILEX that she had cheated in examinations were tainted by apparent bias and in breach of natural justice. This was because an ILEX Council member and director had sat on the disciplinary tribunal (DT) and the vice-president of ILEX had been on the appeal tribunal (IAT). As part of the governance of ILEX they had therefore been acting as judges in their own cause (ie that of ILEX). Kaur’s application was successful in that the orders of both the DT and the IAT were quashed (see R (Kaur) v Institute of Legal Executives Appeal Tribunal and another [2011] EWCA Civ 1168). The substantive judgment was given by Rix LJ with which Sullivan LJ and Black LJ agreed. The modern law of apparent bias was settled by Lord Hope in Porter v Magill [2001] UKHL 67, where Lord Hope indicated that the ‘question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased’. However, before Porter the House of Lords (in R v Bow Street Metropolitan Stipendiary Magistrate (ex parte Pinochet) [2000] 1 AC 119) held that Lord Hoffman had been automatically disqualified from sitting on the House of Lords judicial committee when hearing Pinochet No 1 because he was an unpaid director of a subsidiary of Amnesty International when the latter had intervened as a party in the proceedings. Although Lord Hoffman had no personal interest in the case, both Amnesty International and its subsidiary were parts of a movement working towards the same goals with an interest in the outcome of the proceedings. The House therefore applied the doctrine of ‘automatic disqualification’ on the basis that no one should be a judge in his own cause. In a subsequent case (Davidson v Scottish Ministers [2004] UKHL 34) Lord Bingham remarked that what ‘…disqualifies the judge is the presence of some factor which could prevent the bringing of an objective judgment to bear, which could distort the judge’s judgment’. For: ‘In maintaining the confidence of the parties and the public in the integrity of the judicial process, it is necessary that judicial tribunals should be independent and impartial, and also that they should appear to be so’. The judge must therefore ‘…be free of any influence which could prevent the bringing of an objective judgment to bear or which could distort the judge’s judgment, and must appear to be so’. Lord Hope subsequently remarked in Meerabux v The Attorney General of Belize [2005] UKPC 12 that, if the House of Lords had felt able to apply the apparent bias test in the Pinochet case ‘it is unlikely that it would have found it necessary to find a solution to the problems… by applying the automatic disqualification rule’. Rix LJ in the present case was consequently ‘somewhat sceptical’ that apparent bias and ‘automatic disqualification’ (per Pinochet) ‘remain to this day separate doctrines’. For he found force in Lord Hope’s Meerabux indication that if the Porter v Magill development had been available to the House of Lords in Pinochet they would have turned more naturally to that doctrine. Rix LJ therefore thought that it may be possible in the present case to see the two doctrines ‘…as two strands of a single overarching requirement: that judges should not sit or should face recusal or disqualification where there is a real possibility on the objective appearances of things, assessed by the fair-minded and informed observer (a role which ultimately, when these matters are challenged, is performed by the court), that the tribunal could be biased’. In the light of the jurisprudence, the Court of Appeal noted that participation ‘…in a prosecutorial capacity, even if not in the case in question, will disqualify or else raise concern in the mind of the fair-minded observer about the appearance of impartial justice’. Consequently, applying either test, the vice-president of ILEX was disqualified from sitting on a disciplinary or appeal tribunal on account of her leading role in ILEX and her consequent ‘inevitable interest in ILEX’s policy of disciplinary regulation’. The doctrines in question, said Rix LJ, ‘are to guard against the insidious effects of which those concerned are not even conscious’. And the necessary insulation between regulation and representation are prejudiced ‘if those principally concerned in governance are permitted to move from representative to regulatory functions as ex officio members of disciplinary or appeal tribunals’. last_img read more

Fraud fears over RTA portal fee cap

first_imgClaimant solicitors have reacted with concern to government proposals to cap at £300 the fee for low-value road traffic claims handled through the RTA portal. The proposal emerged at roundtable discussions on the future of the portal with justice minister Jonathan Djanogly (pictured) last Thursday. Djanogly was told that massive cuts to fees would increase the number of fraudulent claims, especially at a time when the maximum value of claims eligible for the portal is set to rise from £10,000 to £25,000. Djanogly’s starting point, to reduce the fees cap from £1,200 to as little as £300, prompted widespread concern among attendees. John Spencer, from Spencers Solicitors, said: ‘Stage two of the portal requires up to five-and-a-half hours of work. Once the costs of running a business properly are taken out, there is nothing left from £300. ‘If you shave costs to these rates people will cut corners or not apply a professional approach. This does nothing to cut spurious claims – indeed it can only spread the risk of fraud.’ The Ministry of Justice has insisted no figures have been finalised and it will listen to stakeholders before its consultation on the portal finishes in May. But there are concerns among claimant lawyers that pressure from above – David Cameron used his first speech of 2012 to call for legal costs to be cut – will force reforms to be rushed through. Labour peers in the House of Lords attempted to halve portal fees earlier this month through an amendment to the Legal Aid, Sentencing and Punishment of Offenders bill. Djanogly wrote to stakeholders last month saying the government planned to revise costs, subject to the consultation.Government proposals to use the portal set-up for employer and public liability claims have also alarmed some lawyers. Deborah Evans, chief executive of the Association of Personal Injury Lawyers, said there were significant differences between employer liability and RTA claims over liability, locating insurers and the complexity of medical reports. ‘Cases are diverse and liability is invariably denied, which means automatic exit from the portal,’ she said.If the portal approach is to be extended, she said, ‘sound evidence must be collected to establish what the work actually costs. The process will need to be mapped, costed and then bespoke portals created.’last_img read more

Getting all the credit

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Consider the evidence

first_imgStay at the forefront of thought leadership with news and analysis from award-winning journalists. Enjoy company features, CEO interviews, architectural reviews, technical project know-how and the latest innovations.Limited access to building.co.ukBreaking industry news as it happensBreaking, daily and weekly e-newsletters To continue enjoying Building.co.uk, sign up for free guest accessExisting subscriber? LOGIN Subscribe now for unlimited access Subscribe to Building today and you will benefit from:Unlimited access to all stories including expert analysis and comment from industry leadersOur league tables, cost models and economics dataOur online archive of over 10,000 articlesBuilding magazine digital editionsBuilding magazine print editionsPrinted/digital supplementsSubscribe now for unlimited access.View our subscription options and join our community Get your free guest access  SIGN UP TODAYlast_img read more

Backing Brown’s green towns

first_imgSubscribe now for unlimited access Stay at the forefront of thought leadership with news and analysis from award-winning journalists. Enjoy company features, CEO interviews, architectural reviews, technical project know-how and the latest innovations.Limited access to building.co.ukBreaking industry news as it happensBreaking, daily and weekly e-newsletters Get your free guest access  SIGN UP TODAY Subscribe to Building today and you will benefit from:Unlimited access to all stories including expert analysis and comment from industry leadersOur league tables, cost models and economics dataOur online archive of over 10,000 articlesBuilding magazine digital editionsBuilding magazine print editionsPrinted/digital supplementsSubscribe now for unlimited access.View our subscription options and join our community To continue enjoying Building.co.uk, sign up for free guest accessExisting subscriber? LOGINlast_img read more

In the frame

first_imgGet your free guest access  SIGN UP TODAY Subscribe now for unlimited access To continue enjoying Building.co.uk, sign up for free guest accessExisting subscriber? LOGIN Stay at the forefront of thought leadership with news and analysis from award-winning journalists. Enjoy company features, CEO interviews, architectural reviews, technical project know-how and the latest innovations.Limited access to building.co.ukBreaking industry news as it happensBreaking, daily and weekly e-newsletters Subscribe to Building today and you will benefit from:Unlimited access to all stories including expert analysis and comment from industry leadersOur league tables, cost models and economics dataOur online archive of over 10,000 articlesBuilding magazine digital editionsBuilding magazine print editionsPrinted/digital supplementsSubscribe now for unlimited access.View our subscription options and join our communitylast_img read more

Doubt its illegality

first_imgGet your free guest access  SIGN UP TODAY Subscribe now for unlimited access Subscribe to Building today and you will benefit from:Unlimited access to all stories including expert analysis and comment from industry leadersOur league tables, cost models and economics dataOur online archive of over 10,000 articlesBuilding magazine digital editionsBuilding magazine print editionsPrinted/digital supplementsSubscribe now for unlimited access.View our subscription options and join our community Stay at the forefront of thought leadership with news and analysis from award-winning journalists. Enjoy company features, CEO interviews, architectural reviews, technical project know-how and the latest innovations.Limited access to building.co.ukBreaking industry news as it happensBreaking, daily and weekly e-newsletters To continue enjoying Building.co.uk, sign up for free guest accessExisting subscriber? LOGINlast_img read more

Yellow card

first_imgStay at the forefront of thought leadership with news and analysis from award-winning journalists. Enjoy company features, CEO interviews, architectural reviews, technical project know-how and the latest innovations.Limited access to building.co.ukBreaking industry news as it happensBreaking, daily and weekly e-newsletters To continue enjoying Building.co.uk, sign up for free guest accessExisting subscriber? LOGIN Subscribe to Building today and you will benefit from:Unlimited access to all stories including expert analysis and comment from industry leadersOur league tables, cost models and economics dataOur online archive of over 10,000 articlesBuilding magazine digital editionsBuilding magazine print editionsPrinted/digital supplementsSubscribe now for unlimited access.View our subscription options and join our community Subscribe now for unlimited access Get your free guest access  SIGN UP TODAYlast_img read more