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The Times

Wednesday, March 22 2017

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


  • Judicial college ‘would make top bench more diverse’
  • Senior judge backs lifetime meal tickets for ex-wives
  • MPs call for EU practice rights deal for UK lawyers
  • Former lecturer in latest challenge to suicide act
  • Top London law firms hit with £30m rates bill rise
  • Watchdog warns against too much fee information
  • Comment: NHS disciplinary regime victimises whistleblowers
  • The Churn: 300 sacked in City tripartite merger
  • Blue Bag diary: Sue me, sue you blues …

Plus, see our plans for Brief Premium and archive of articles so far. Tweet us @TimesLaw with your views.

Story of the Day

Judicial college ‘would make top bench more diverse’

A judicial college should be launched to encourage lawyers to join the bench earlier in their careers in a move that would broaden diversity, one of only two solicitor Court of Appeal judges argues.

Mr Justice Hickinbottom, who in 2008 became only the fourth solicitor to be appointed to the High Court and last year was promoted to the appeal bench, said that he was not in favour of a European-style career judiciary. However, he added that action needed to be taken to make the UK bench better reflect society.

Speaking at a panel discussion organised by London Solicitors Litigation Association, the campaigning group Justice, and Simmons & Simmons, the City of London law firm, the judge acknowledged that a specialist judicial college “would be expensive”. But, he said, “it would change the face of our judiciary very quickly”.

He was joined on the platform by Lord Neuberger, the president of the Supreme Court, who said that too many judges were recruited from the ranks of the Bar. However, while recruiting more solicitors was likely to increase the gender and ethnic diversity of the senior bench, the structure of that side of the profession militated against doing so.

“It can be the death knell of your career at a law firm if you tell your partners that you are considering becoming a judge,” said Lord Neuberger. The country’s top judge called on the Judicial Appointments Commission to revise its procedures so that they are “more clear and open”.

Lord Neuberger also reiterated warnings to the government that there was a recruitment crisis in the judiciary, with judges demoralised over issues around pay and conditions. “Either we will have to lower our standards, or we don’t fill the vacancies,” said Lord Neuberger. “Given those two choices, I am in favour of not filling the vacancies.”

News Round Up
Senior judge backs lifetime meal tickets for divorcing wives

One of the UK’s most senior judges has stepped into the furore over maintenance for divorcees, saying that wives on occasion should be granted a “meal ticket for life”.

Lord Wilson, a Supreme Court judge and family law expert, said it was “unrealistic” to leave a wife at the age of 60 after a long marriage to fend for herself after just three years of maintenance.

He was speaking as pressure mounts for maintenance awards to ex-wives to be limited to three years to mirror the position in Scotland, where that limit is a rule that is varied from only in exceptional circumstances.

In a speech released yesterday, Lord Wilson said it was “usually unrealistic to tell a wife, left on her own perhaps at age 60 after a long marriage, that following payments for say three years she must fend for herself.” Judges, he added, had to “strike a difficult balance”.

And in a sideswipe at critics of judges who make such awards, he said that it “betrayed a lack of insight” when a peer last month suggested that when judges did decide to award long-term maintenance, they were “motivated by antiquated notions of chivalry”.

He was referring to Baroness Deech, a cross-bench peer, who has tabled a private member’s bill calling for a three-year cap on most maintenance payments. The bill has passed its second reading in the House of Lords.

Lady Deech said in a recent newspaper interview: “Our judges are being very old fashioned I’m afraid. They are over-chivalrous and the way they were in the 19th century. People wonder why, 15 years after a marriage has ended, one person has to keep paying money to another.”

In his speech to students at the University of Bristol this week, Lord Wilson said that these “would-be reformers [of the divorce laws] lack experience of practice in the present system.

“I suspect that they believe too readily what they read in the papers and that they regarded the exceptional cases as the norm. This leads them to exaggerate the difficulties of the current system and to ignore the virtue of principles which have a sufficient degree of elasticity to enable a reasonable result to be fitted to each case.”

MPs tell ministers to win EU practice rights deal for UK lawyers

Britain’s Brexit negotiators must cut a deal that allows UK lawyers to continue to have rights to practise across the EU, MPs will argue today.

A report from the House of Commons justice committee says that the legal services sector “underpins many areas of UK economic activity” and that “its ability to continue to facilitate these in the EU will diminish without protection of existing practising rights there for UK lawyers”.

Releasing the report, Bob Neill, MP, the committee’s barrister chairman, said: “The UK’s legal services sector makes a £25.7 billion annual economic contribution.

“It relies on openness, and its lawyers’ current rights to practise across EU member states help small businesses and ordinary people as well as large firms and wealthy individuals. We recommend that the government protect these powers.”

The MPs’ report also called for UK family court rulings to be enforced in the EU to prevent child abduction and the non-payment of maintenance. The committee has drafted a list of demands that it claims is vital for continued co-operation with the remaining EU states on legal issues after the UK leaves the bloc.

They include the possibility of maintaining the European arrest warrant and continued association with Europol and Eurojust, two EU organisations that provide cross-border support for police, prosecutors and judges. The committee also argues for continued formal arrangements for sharing between Britain and the EU of information on suspects’ criminal records and biometric data.

The MPs’ report disputes suggestions from hardline Brexiteers that it will be desirable for the UK to ditch completely the jurisdiction of Europe’s highest court, the Court of Justice of the EU. “It remains unclear how civil justice co-operation will work without the CJEU or another court playing a limited arbitral role,” say the MPs.

Former lecturer in latest challenge to suicide act

A terminally ill motor neurone disease sufferer wants to change the law so that he can choose when to end his own life rather than wait for death by choking or suffocation, judges were told yesterday.

Noel Conway, a retired college lecturer, was diagnosed with amyotrophic lateral sclerosis (ALS) in November 2014 and is not expected to live beyond the next 12 months.

He told judges in evidence: “I’m bringing this case not just for me, but for all others facing terminal illness who want and deserve to have the option of a safe, dignified assisted death available to them in the UK.”

In the latest challenge to the Suicide Act 1961, Conway is seeking leave for a judicial review of the ban on assisted dying so that terminally ill adults who meet strict safeguards could decide when to end their lives. He argues that the law is incompatible with Article 8 of the Human Rights Act, which protects private and family life, and Article 14, which protects people from discrimination.

Conway, 67 – who attended the hearing at the Royal Courts of Justice London in a wheelchair with an oxygen mask – used to hike, cycle and travel. However, his deteriorating condition means that while retaining full mental capacity, his ability to move, dress, eat and deal with personal care independently has diminished considerably.

He is now dependent on a ventilator to breathe overnight and much of the day but wants the option of an assisted death when he reaches the final six months of his life. His barrister, Richard Gordon, QC, of Brick Court Chambers in the Temple, said: “Mr Conway wishes to die in the country in which he was born and has lived for his whole adult life.

“The choices facing him therefore are stark: to seek to bring about his own death now whilst he is physically able to do but before he is ready; or await death with no control over when and how it comes.”

Lord Justice Burnett, sitting with Mr Justice Charles and Mr Justice Jay, said the judges would reserve their decision “only for a relatively short time”.

Top London law firms hit with £30m rates bill rise

Reforms to business rates will land many of the UK’s leading law firms with a collective bill for more than £30 million, commercial property experts predict today.

It is estimated that the100 law firms that take the most space in London – in total 10m sq ft – face a rise in business rates of nearly 20 per cent.

Law firms in the capital have been hit with a double dose of property cost increases as rents have crept up by 5 per cent over the past five years. According to an annual survey by CBRE, a property consultancy, total annual rent costs in 2016 were £472 million for those firms. The report goes on to show that nearly 20 per cent of those 100 firms have adopted full open-plan layouts, double the number five years ago. A further 10 per cent of law firms are operating in mixed open plan-cellular configurations, say the researchers.

The researchers claim that cost is the main motivation behind forcing lawyers to ditch their individual offices. On average, firms with open-plan designs occupy 40 per cent less space and pay 35 per cent less per fee earner than those in traditional layouts.

Watchdog warns against too much fee information

Law firms should offer clients clear and “easily accessible” fee information, the legal services consumer watchdog says today as the profession prepares to implement measures dictated by the competition authority.

In a report on “information remedies”, the Legal Services Consumer Panel calls on the lawyer regulators to crack down on any attempt to confuse lay-clients with complicated fee structures.

The panel’s report to the Legal Services Board – the umbrella oversight body for all branches of the profession in England and Wales – comes after calls from the Competition and Markets Authority for law firms to publish fee information. “We know that information can empower consumers and encourage them to make informed decisions and that this is good for competition,” said Jane Martin, the panel’s chairwoman.

“We also know that information remedies are only effective when they meet certain criteria such as being simply presented, easily accessible, provided at the time of need.”

The panel acknowledges that the CMA’s recommendations “had the potential to have a long-lasting and positive impact” on the legal market. However, it warns that “there is a danger of overwhelming consumers with information”.

In Brief

Information watchdog marks own homework; says it didn't break law over Prince Charles request – The Register

Bar’s public access work grows six-fold in only five years – Legal Futures

Saudi Arabia ‘expects Donald Trump to scrap 9/11 victims law’ – The Independent


NHS disciplinary regime victimises whistleblowers Narinder Kapur

Moves to bolster protections to NHS staff who expose unsafe hospital practices may sound positive, but they fail to tackle the real problem – a disciplinary system that victimises whistleblowers.

The enhanced protections from the government focus on extra support for whistleblowers when they are looking for new jobs, effectively shutting the stable door after the justice horse has bolted.

The new rules mean that health service whistleblowers will have levels of protection similar to those in place regarding race or gender bias – namely that they can take their case to an employment tribunal if they believe their whistleblowing past is the reason they are being refused a particular post.

Jeremy Hunt, the health secretary, heralded the protections as “another step closer to creating a culture of openness in the NHS, where people who have the courage to speak up about patient safety concerns are listened to, not vilified”.

But why is the focus on a whistleblower’s next job? Why are ministers not doing more to reinforce protections for NHS staff at the point they are actually blowing the whistle?

What’s needed is a wholesale review of the heavy-handed and unfair NHS disciplinary system, which is designed to intimidate and penalise staff rather than get to the truth.

Litigation over the past five years demonstrates the problem: time and again the courts must rectify wrongs done by internal NHS disciplinary hearings by vindicating unfairly sacked NHS staff. In15 cases during that period, judges have specifically criticised NHS procedures.

In my own case, the judge criticised Addenbrooke’s Hospital management for hacking into my computer and fabricating charges of fraud to discredit me as a witness after I raised patient safety concerns. My sacking was ruled unfair. Two years later the hospital was placed in special measures for putting patients at risk and its chief executive resigned.

And I am by no means alone in having suffered at the hand of antiquated and unfit procedures. The reality is that neither employers nor employees in the health service have confidence that concerns will be resolved quickly and fairly.

In addition to being unfair, the process takes too long and that delay has a negative impact on doctors, their families, other health service employers – and perhaps most importantly on patients and the public purse.

Current procedures are damaging morale and motivation in the health service by having a negative effect on trust and confidence between employers and employees.

Changing the law to give whistleblowers better protection when seeking new posts is a welcome start. But if the government truly wants to change NHS culture and bring in a new openness, it needs to give the disciplinary system a complete overhaul and do more to protect whistleblowers in situ.

Narinder Kapur is visiting professor of neuropsychology at University College London and honorary consultant neuropsychologist at Imperial College NHS Trust. He has just been granted a lifetime achievement award from the British Psychological Society

Tweet of the Day

Where is the press bench in the online court; where does the law reporter sit? What about the principle of open jus…

Delia Venables @deliavenables

Blue Bag

Sue me, sue you blues …

The lyrics and guitar riffs coming from next door may have grated – but not as much as the £500,000 legal bill that a couple now face after having their neighbour arrested for singing a Jimi Hendrix song.

This latest example of the perils of wheeling in lawyers to resolve a ruck with your neighbour started as a dispute over a parking space. That escalated to the point where Michael Salliss, 74, and his wife Hazel, 62, told police that the pub band guitarist next door, Terry Simou, 53, was threatening to shoot them with a gun.

In fact Simou, with whom they were locked in a bitter boundary dispute, was in his barn practising the Hendrix classic Hey Joe, which all readers of The Brief will know features the lines: “Hey Joe, where you goin’ with that gun of yours? ... I’m goin’ down to shoot my old lady.”

Now that might not be the most politically correct approach to marriage or cohabitation, but then Hendrix was an artist, not a relationship counsellor.

Regardless, the guitarist, who is also a professional acupuncturist, spent seven hours locked up before being released after only ten minutes of questioning at a police station. A county court judge found that the incident in August 2014 was just one episode in a campaign of bullying by his neighbours during the long-running dispute.

It left the couple, from Etchingham, in the East Sussex countryside near Tunbridge Wells, facing legal bills for more than £500,000. Now they are fighting to overturn the ruling as the neighbourhood battle continues at the Court of Appeal in London.

When it is all over, perhaps both sides should get together for a bit of a knees-up and singalong to George Harrison’s 1973 ditty, Sue Me, Sue You Blues.

Freud and the senior judiciary

While their hearts are in the right place, those tasked with training crusty, late middle-aged, heterosexual white men – in other words, the UK’s senior judiciary – about the joys of gender, ethnic and social diversity do not always get it right.

Lord Neuberger, the president of the Supreme Court, told a tale earlier this week at a diversity conference at Simmons & Simmons, the City of London law firm. He and several other senior members of the bench enthusiastically attended an awareness course on subconscious bias.

“On the first day of the course,” related the country’s top judge, “we were asked to identify what our subconscious biases were.” He pointed out that it might have been more helpful – albeit potentially embarrassing – if he had been asked to speculate on the subconscious biases of his colleagues.

The Churn

A run down of the big partner and team moves this week

300 sacked in City tripartite merger

Up to 300 UK support staff jobs are to be shed as part of legal London’s biggest recent mergers, the lead law firm confirmed yesterday.

A spokeswoman for CMS Cameron McKenna confirmed the redundancies of secretarial and other back office staff after reports in the trade press said that hundreds would lose their jobs as a result of the firm’s merger with Nabarro and Olswang.

CMS would not comment on which pre-merger firm’s support staff would bear the brunt of the sackings. But The Lawyer magazine claimed that Nabarro had the biggest support team at 313 staff. It reported that CMS had 269 support staff in the UK while Olswang had 263.

The firm also confirmed that 650 support staff from the three firms were being retained.

Nine IP lawyers defect from Berwin Leighton Paisner to Bristows

Simon Clark is to lead a nine-strong intellectual property lawyer defection from Berwin Leighton Paisner to the fellow City of London law firm Bristows. The team – which also includes BLP’s former director of trademarks, Ian Gruselle – will join Bristows from May 1.

And in magic circle-land, Linklaters is the latest City firm to participate in the annual partnership round by promoting 26 lawyers to the big table, nine of whom are in London: Fionnghuala Griggs, Ian Callaghan,Ilia Ditiatev, James Morgan, Kanyaka Ramamurthi, Mavnick Nerwal, Reza Taylor and Yohan Liyanage.

The Law Gazette pointed out that the firm had missed its own gender target of having 30 per cent of new partners from its female lawyer ranks. The latest promotion round was 19 per cent female.

Closing Statement

Sister act

Counsel often complain that they do not receive proper instructions from solicitors, James Morton relates reluctantly. Sometimes the complaints are justified.

I once saw a brief in a case in which the defendant had been convicted and was appealing. It was short if not sweet and had been prepared by a solicitor whose command of English was suspect.

If I remember correctly, it read in its entirety: “Counsel will please appear on behalf of the defendant who is charged with rape. Counsel will do the best he can because the defendant is a friend of Princess Margaret although instructing solicitors note with surprise that it is her sister who is bringing the prosecution.”

I have no idea if the appeal was successful.

James Morton is a former criminal law solicitor and now author