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The Times

Friday, November 25 2016

Frances Gibb and Jonathan Ames bring this morning’s must-read of all things legal, including news, comment and gossip.


  • Labour blames legal aid cuts for justice ‘crisis’
  • Asylum appeals fast-track ‘will spawn miscarriages of justice’
  • Law firm comparison sites hailed as boost for clients
  • Royal Marine ‘Q fever’ award could run into millions
  • Solicitors and judges are failing costs budgeting regime
  • January date for £14bn MasterCard class action claim
  • Head of chambers disbarred for more than 40 rule breaches
  • Brexit countdown: Don’t bank on a passport
  • Comment: Public is woefully misinformed about scale of immigration
  • Blue Bag diary: Roll up for the Briggs LJ comedy show

Plus the new Brief Premium ...

  • Ministers must act on gender pay gap reporting, says Cherie Blair, QC
  • Finance focus: Banking on change -- Trump rips up reforms; UK in-house lawyers braced for regulation

Tweet us @TimesLaw with your views.

Story of the Day

Labour blames legal aid cuts for justice ‘crisis’

Cuts to legal aid eligibility have created a two-tier justice system in crisis, a report published today warns.

The Labour Party’s Bach commission on access to justice called for a set of minimum standards to be introduced to ensure legal representation for all. The poor are being left without advice or professional support as a result of the cuts, the interim report released by the Fabian Society says.

Lord Bach (pictured), the former shadow attorney-general who is now police and crime commissioner in Leicestershire, said the “justice system is creaking at the seams”. He blamed cuts implemented in the Legal Aid Sentencing and Punishment of Offenders Act 2012, which Labour claims has hit the poorest.

"This unacceptable state of affairs needs challenging and changing,” Lord Bach said. “This report is the starting point in our ongoing work to redesign the justice system so that it works for all. The commission intends now to turn to working through the policy solutions to fix this crisis."

The commission called for reducing restrictions on claiming legal aid and the introduction of a set of minimum standards for access to justice in England and Wales, overseen by an independent body.

Lord Bach was originally asked to undertake a review of the legal aid system by Jeremy Corbyn last autumn but the peer said he then decided to establish a commission of independent experts to drive a wider investigation of access to justice.

News Round Up
Asylum appeals fast-track ‘will spawn miscarriages of justice’

Revised plans to expedite immigration and asylum claims from those held in detention will sacrifice justice for speed, it was claimed yesterday.

The government wants to create a fast-track process to deal with a growing backlog of cases but lawyers said that if ministers implement the system they will “put more onus on speed than they do on justice and fairness”.

Despite suffering a setback in July last year when the Court of Appeal ruled that the government’s initial proposals were unfair, ministers have recently consulted on a new plan that lawyers said involved only minor tweaks. The main reform the government has proposed since the Court of Appeal ruling has been to extend the fast-track process from 12 days to 25.

In a response to the Home Office, the Law Society, the body that represents solicitors in England and Wales, said the revised proposals “would disproportionately affect groups already vulnerable to discrimination”. The society hints that the revised plans may still breach discrimination legislation “as the vast majority of immigration appeal applicants” are from ethnic minority backgrounds.

The society also claims that the government’s proposals do not adequately describe how vulnerable applicants will be exempted from the fast-track process. “It would be extremely damaging to detain someone with mental health issues, who has been tortured or raped,” it added.

Commenting on the revised Home Office plan, Robert Bourns, the society’s president, said: “There is a real risk that speed may prejudice the integrity of the appeal process, for people who are often extremely vulnerable and anxious, who may have suffered a terrifying ordeal.

“There must be judicial oversight of asylum and immigration appeals. We believe quicker, fair hearings can be more reliably achieved under the existing rules with a better resourced appeal system.”

Law firm comparison sites hailed as boost for consumers

Online law firm comparison tools are the single best way of boosting transparency about fees and service in the legal profession, the lawyers’ regulator said yesterday.

It called on the competition watchdog to support efforts to generate wider awareness of existing consumer sites, claiming there is rising public demand for more
information about the legal services market.

Responding to the Competition and Markets Authority study of so-called digital comparison tools (DCTs), the Solicitors Regulation Authority made it biggest pitch yet for greater trenchancy in law firm offerings. “Increased coverage of the legal services market by comparison websites would be the single best way to enable consumers to compare legal services providers,” it said.

It pointed to a four-year-old survey that found 42 per cent of consumers said they would use legal services comparison sites. “We want to support the increased availability and use of DCTs in the legal services market as we believe this would bring many benefits to consumers, particularly as a tool to make informed decisions,” it added.

“In addition, there is evidence that comparison websites which provide customer feedback can stimulate competition over quality and raise standards.”

The SRA pointed out that many law firms are reluctant to provide information to comparison websites. It told the CMA that the reasons for that reluctance “may be worth exploring and considering”.

Royal Marine ‘Q fever’ award could run into millions

A Royal Marine has won a five-year legal battle for compensation that could amount to millions of pounds after contracting a rare disease while serving in Afghanistan as judges struck out the government’s defence.

Phillip Eaglesham contracted “Q fever” while on a routine tour of south Afghanistan in 2010. He initially became ill with flu-like symptoms but went on to develop Q fever chronic fatigue syndrome – an illness that has left him profoundly disabled.

The High Court in London struck out the Ministry of Defence’s arguments after it ruled that officials failed to meet their legal obligation to provide copies of all documents relevant to the case despite being granted an additional 15 months to compile the materials.

According to Eaglesham’s lawyers, the claim succeeds in full and the only outstanding issue is the amount of compensation. It is understood that Eaglesham could be entitled to a figure in the “many millions”.

Sue Bowler, a partner at Coffin Mew, the law firm that acted for Eaglesham, said: “Phillip’s case against the Ministry of Defence has been pursued so that he can pay for the specialist care, equipment and housing that he will need for the rest of his life and to help other military personnel who contracted the same illness in Afghanistan and are also pursuing claims.

“Phillip has gone from being a strong fit Royal Marine to someone with very severe disability, all because of contracting Q fever. It has never been about the money for him, no amount could take away his suffering and that of his family.”

A spokesman for the MoD said: “We are studying the judgement and it would be inappropriate to comment further”

Solicitors and judges are failing costs budgeting regime

Law firms are woefully slack in sticking to litigation budgets, a survey has revealed.

Just 2 per cent of costs specialists, formerly known as costs draftsmen, say they routinely work with solicitors that always adhered to their budgets.

Nearly a quarter of costs lawyers exceeded their budgets in individual cases, said respondents to a survey from the Association of Costs Lawyers. More than 70 per cent of costs lawyers said that solicitors “sometimes” overshot budgets agreed at the outset of litigation.

The association speculated that one reason solicitors are missing budget targets is that the process takes place too early in proceedings. Half of costs lawyers said that instead of setting budgets at the first case management conference, the hearing should be held later “once the course of the litigation is clearer”.

Judges were also blamed. More than 60 per cent of costs lawyers said “it depends on which judge you’re before” in assessing how well the budgeting regime is working. Nearly a third of respondents claimed that “judicial inconsistency” was “killing” the three-year-old scheme. Only 10 per cent of costs lawyers said that judges generally operated budgeting well.

Iain Stark, chairman of the ACL, said that costs budgeting “has been of benefit in some instances” but “has not delivered in the way that was hoped. This is, at least in part, because many solicitors have still not properly engaged with the process, even though they risk court sanctions as a result.”

January court date for £14bn MasterCard class action claim

Britain’s biggest ever class action lawsuit, involving a £14 billion claim against one of the world’s biggest credit card companies, will kick off early in the new year.

A specialist tribunal will sit on January 18 to determine whether the case against MasterCard, which allegedly imposed excessive fees on UK retailers for 16 years, can be heard as a collective action.

The lead claimant, Walter Merricks, the former financial services ombudsman, argues that the case should be heard under the provisions of the Consumer Rights Act, which came into force last year. Merricks, who has instructed the City of London office of Quinn Emanuel, a specialist US firm of litigators, has this week launched a website updating consumers on the action.

EU regulators have already found MasterCard charged unlawful cross-border interchange fees between 1992 and 2008. Merricks claims that the fees were passed on by retailers in the form of increased retail prices charged to consumers. The claimants case is that all UK consumers and not just MasterCard holders who made purchases in the relevant period should be eligible for compensation if the claim is successful.

Lawyers for Merricks said that consumers will automatically be included in the case and will be eligible for any compensation and will not need to do anything to register a claim at this stage.

Head of chambers disbarred for more than 40 rule breaches

A leading immigration barrister was disbarred after more than 40 different complaints to the legal ombudsman over two years.

Complaints about Tariq Rehman, the head of Kings Court Chambers in Birmingham, included overcharging, failing to perform work after being instructed, not providing client care letters and not providing refunds.

Rehman’s disbarment came after two separate tribunal decisions that resulted in suspensions totalling 41 months.

The Bar Standards Board said yesterday that it also inspected the chambers, “leading to the discovery of further and more systemic failures” in how it was run.
Sara Jagger, the regulator’s director of professional conduct, said Rehman had “accepted instructions on a public access basis in immigration matters, where clients were particularly vulnerable and the cases were potentially time-sensitive.

“The Tribunal’s decision to disbar Mr Rehman reflects the need to protect the public from his serious and persistent failures in this case and in the cases decided previously.”

Brexit countdown – legal update as leave approaches

Don’t bank on a passport

Philip Hammond’s autumn statement earlier this week arguably could have been renamed the “autumnal statement” since the chancellor’s underlying tone suggested the UK is entering a period of gradual decline and slowdown. Does a Brexit Winter lie ahead? And if so, how can we prepare for it?

Charles Proctor, a partner at City of London law firm Fladgate, has been analysing how Brexit could affect banking. By now, the concept of “passporting” in financial services has become increasingly familiar and the suggestion is that the UK might continue to enjoy its current status based on the principle of equivalence.

Nonetheless, the rules are complicated and, as Proctor points out, in a globalised business “the location from which a service is provided may not always be entirely clear”. But the consequence is that post-Brexit “transactions will have to be structured carefully and will thus carry additional costs”.

As a result, Proctor continues, “the loss of the EU passport will clearly place UK banks at a significant competitive disadvantage when seeking business from customers within the EU. UK banks that have provided facilities to customers in other EU member states will therefore need to plan carefully for Brexit and review their loan portfolios.”

Specific issues that will need to be addressed include an analysis of whether any of those facilities been provided on the basis of a services passport into the other member state; if so, will it become unlawful to maintain, renew or enforce that loan post-Brexit when the passport expires; and based on that analysis, and if necessary, the bank may need to consider whether the facility should be transferred to a subsidiary authorised or passported in another member state.

According to Proctor, “matters may become even more complex in considering new business opportunities”. For example, should a UK bank provide, or participate in, a five-year loan to finance the purchase of real estate in Germany? The UK will have left the EU by the time of the final repayment date, and the UK bank’s passport into Germany will therefore have expired. In the absence of a suitable banking permission, the UK bank may find that its right to enforce repayment of the loan and/or its security is challenged by the borrower.

Proctor speculates that there might be agreed transitional arrangements for deals with this type of problem. But, for the present, this must be categorised as a “known unknown”. The trouble is that there are also likely to be many unknown unknowns out there.

In Brief

Hammond reveals plans to tackle 'partnership taxation' in autumn statement – Legal Business

'We're looking for raw intelligence': law tutors share Oxbridge interview tips – The Guardian

15,000 lawyers sign letter opposing Trump’s appointment of Steve Bannon as top aide – The Huffington Post


Public is woefully misinformed about scale of immigration Emma Brooksbank

Concerns over immigration formed the backbone of the UK’s vote to leave the EU. It was cited as the second most important reason but the reality is that most people on the Clapham Omnibus have a completely inaccurate view of immigration in this country.

Figures from the Office for National Statistics show the proportion of EU citizens entering the UK stands at just 42 per cent of the total number of overseas immigrants. The remaining 58 per cent consist of returning British citizens or migrants coming from non-EU countries.

Yet, according to recent a survey of more than 4,000 British adults, conducted by Comres on behalf of my law firm, only 15 per cent of UK citizens have a grasp of those figures. Campaigners and the media failed to communicate the facts to UK citizens in the run up to the referendum.

In the wake of figures from the ONS last May that showed net migration – the difference between the number of people leaving Britain and the numbers of people coming in – had risen to 333,000 last year, Leave campaigners stated that Britain was “adding a population the size of Oxford to the UK every year just from EU migration”, and that mass immigration is “still hopelessly out of control and set to get worse if we remain inside the EU”.

However, with the rise in immigration driven by a fall in the number of British citizens emigrating abroad as well as an increase in short-term migrants coming to the UK to work for a period of between three and 12 months, the ONS said the small rise in net migration was not statistically significant.

We still do not know definitively whether EU migrants will be entitled to remain in Britain post-Brexit and then given permanent residence. Nonetheless, more than 80 per cent of people in the UK believe EU migrants already living in the country should be allowed to remain after Brexit. Indeed, 77 per cent of Leave voters agree with that view.

After living in the UK for a continuous period of five years, an EU citizen acquires permanent residence automatically and it is a good idea for anyone in that position to secure a permanent residence card.

The current level of uncertainty over the future status of people from the EU is difficult for many. I have asked MPs for their thoughts on how the future position will evolve. At this stage, they genuinely do not know what the outcome of Brexit negotiations will be or whether Europeans will have a right to reside in the UK in the future.

The best advice is to secure their position in the UK as quickly as possible before the Brexit deal is done.

Emma Brooksbank, is a partner in the Leeds office of national law firm Simpson Millar; she is head of the practice’s immigration department

Blue Bag

Roll up, roll up, it’s the Briggs LJ comedy show

Court of Appeal judges are not exactly synonymous with stand-up comedy routines, but Lord Justice Briggs thought he would give the joke-telling lark a bit of a go on Wednesday evening.

It was not the toughest of crowds as the annual dinner of the London Solicitor Litigation Association is hardly the midnight slot at the Edinburgh fringe. Even so, there was the odd groan in the room as Briggs LJ (to give him his comedy circuit handle) let rip with this opening: “When your president contacted me to say that he would like to have me for dinner, I thought: toasted, flambéed or tartared …”

As with so many before him, the judge thought when in a comedy hole, keep digging. At a time when three of his fellow judges were in line of fire for being “enemies of the people”, he said that owing to his proposals for creating online courts, he was often seen as “an enemy of solicitors” (presumably he adapts the line when speaking to a barrister crowd).

Somewhat predictably, Lord Justice Briggs was more interesting when he ditched the stand-up routine and turned serious. He described the English jurisdiction as “the whiplash capital of the world” in a clear hint that he backed the government’s controversial plans to crackdown on those claims.

And he encouraged solicitors to apply for the High Court and even Supreme Court bench, pointing out that “both are in the process of widening their catchment areas”.

Who will put funders to the sword? Not Jones Day

No matter how exotic the case name of Excalibur might be, the subject of third-party litigation funding is not one that will feature in much public bar chit-chat. But it gets the pulses of a certain type of lawyer racing. One group riding an emotional rollercoaster over the recent Court of Appeal ruling on whether funders should be liable for indemnity costs is Jones Day, the international law firm based in humble Cleveland.

The London office has been acting for Texas Keystone, an oil and gas company based in equally unfashionable Pittsburgh. On the face of it, the five-year litigation saga has been a good news story for Jones Day, having successfully defended its client in a $1.6 billion claim from Excalibur over a dust-up concerning oil fields in Iraqi Kurdistan; it was then on the winning side in the costs ruck.

Whether that costs ruling from the Court of Appeal was a devastating blow for third-party funders or was simply a confirmation that third-party funding is the best thing since sliced Hovis, is a point of some debate.

One of the leading funders adopted the latter position in The Brief earlier this week, adding that if anything the ruling indicated that part-time funders should get out of the game and leave the field to the grown-up professionals.

Initially, Jones Day was chomping for an opportunity to provide a counter-blast, with Stephen Pearson, a partner who splits his time between London and New York, approaching The Brief with some opinions that just had to be aired.

But then a dose of cold feet set in. Representatives for Jones Day sent up an 11th hour flare saying that with apologies, the firm wasn’t quite as keen to stir the pot over third-party funding as it had been 24 hours earlier.

Someone else will have to put the funders to the sword. Any takers?

Closing Statement

Insulting solicitors

A law court is never a good place to insult lawyers, writes Gary Slapper. In Scotland in 1781, the “Society of Procurators, or Attornies” had been given a royal charter and had changed its name to the “Worshipful Society of Solicitors” as it sounded more genteel.

A paper published a satirical article referring to the “Worshipful Society of Chaldeans [magicians and occultists], Cadies [errand boys] or Running-Stationers...” The Worshipful Society of Solicitors issued a writ faster than you can say abracadabra.

James Boswell represented the paper’s editor, and Dr Johnson wrote the defence for him. Boswell argued that no compensation should be paid to the solicitors for various reasons including that they had no good reputation to defame. “What is their reputation" Boswell asked, "but an instrument of getting money?”

The court awarded damages to the insulted solicitors and the defendant had to pick up their worshipful costs.

Gary Slapper is global professor at New York University, and director of its London campus; twitter @garyslapper