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The Times

Thursday, February 9 2017

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

Breaking: Split senate confirms Trump’s attorney-general

US senators approved by a narrow majority Donald Trump’s controversial choice as attorney-general last night. Jeff Sessions – the Republican senator from Alabama, who critics describe as having a chequered record on civil rights -- was backed by a 52-47 margin. The Washington Post reported that only one Democrat senator backed the new US president's nominee.

Today

  • Supreme Court backs woman over partner’s pension
  • Insurers accuse lawyers of fudging whiplash figures
  • Trolls badger ex-wife after landmark divorce settlement
  • Panel for barristers chasing solicitor debtors
  • Murderer sentenced after first extradition from Pakistan in 12 years
  • Partners at defunct KWM face accountancy scrutiny
  • Charity backs bespoke financial mis-selling tribunal
  • Comment: Positive action for women at the Bar
  • Blue Bag diary: Less is more on Court of Appeal bench

And in today's Student Law supplement ...

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

 
Story of the Day

Supreme Court backs woman over dead partner’s pension

A woman won a landmark victory yesterday entitling her to receive her late long-term partner’s occupational pension in a ruling that could help up to seven million unmarried people across Britain.

Denise Brewster (pictured), a lifeguard from Coleraine, Northern Ireland, challenged a ruling that she was not automatically entitled to a “survivor’s pension” as she would have been had she been married to her partner.

The Times reports that five judges ruled unanimously in the Supreme Court that she was entitled to receive payments under the pension scheme.

Brewster had resorted to crowd-funding because the claim did not qualify for legal aid. She Lenny McMullan lived together for ten years and owned their own home. They got engaged on Christmas Eve 2009, but McMullan died suddenly from a haemorrhage in the early hours of Boxing Day morning.

At the time of his death, McMullan had 15 years’ service with Translink, which delivers Northern Ireland’s public transport services. He was paying into Northern Ireland’s local government pension scheme.

Under its regulations, married partners automatically receive a survivor’s pension. Unmarried partners get it only if there has been compliance with an “opt-in” requirement that involves the pension scheme member nominating their partner for payments, with a declaration signed by both partners. Although she met all the other criteria, Brewster was refused a survivor’s pension because she had not sent the appropriate nomination form.

Helen Mountfield, QC, of Matrix Chambers in Gray’s Inn, appearing for Brewster, asked the Supreme Court to declare that the opt-in nomination rule breached the European Convention on Human Rights.

Giving the ruling, Lord Kerr of Kinlochard said he considered that the objective of relevant provisions of the pension regulations “must have been to remove the difference in treatment between a long-standing cohabitant and a married or civil partner of a scheme member”.

“To suggest that, in furtherance of that objective, a requirement that the surviving cohabitant must be nominated by the scheme member justified the limitation of the appellant’s Article 14 [ECHR] right is, at least, highly questionable.”

Brewster’s solicitor, Gareth Mitchell, of the firm Deighton Pierce Glynn, said: “The outcome of this case holds huge significance for perhaps millions of other people across the country. Many pension schemes, particularly in the public sector, continue to discriminate against couples in long-term relationships but who are not married or in civil partnerships.”

 
 
News Round Up
Insurers accuse lawyers of misrepresenting whiplash figures

A row kicked off last night as insurers accused the solicitors’ quasi-trade union of misrepresenting evidence given to the MPs looking at government proposals to reform whiplash compensation.

The Association of British Insurers claimed that the Law Society had “selectively quoted” comments from its director to the House of Commons justice committee.

In a statement yesterday evening, the society, which represents 130,000 solicitors in England and Wales, said that James Dalton had “conceded to MPs that the insurance industry saved ‘hundreds of millions of pounds’ from reforms to personal injury in 2013, and that whiplash claims have come down in the last year”.

Robert Bourns, president of the society, welcomed what he called Dalton’s “acknowledgment that a five-fold increase in the small claims limit to £5,000 should, for now, only be implemented for road traffic accident claims”.

Claimant personal injury solicitors are adamantly opposed to government proposals to increase the small claims limit. "Not everyone drives a car,” Bourns said, “but under the government's whiplash proposals everyone would suffer because all personal injury claims worth £5,000 and under will be processed under the small claims track - a system that was designed to handle low-value disputes such as faulty goods or small unpaid invoices”.

The ABI told The Brief that Bourns and the Law Society were telling only part of the story. “While injuries recorded as whiplash have fallen,” a spokeswoman said, “the number of neck and back injuries being reported instead has soared by almost the same amount, as claimant firms try to game the system.”

She said the insurance industry was “highly competitive”, with a record of passing on savings to customers, and maintained that motorists had saved £1.2 billion on premiums since the previous reforms to the civil justice system.

“Insurers remain committed to paying fair compensation, and to reducing unnecessary costs to ensure that motorists get the best possible insurance deals,” she said.

Trolls badger ex-wife after landmark divorce settlement

Internet trolls have launched a hate campaign against a woman who won a second divorce settlement from her ex-husband after she lost the first award on ill-advised property investments.

Maria Mills, 51, blamed media coverage of her victory in the Court of Appeal this week for triggering a flurry of internet hate mail from the public. She had originally been awarded a £230,000 lump sum after her divorce 15 years ago, plus £1,100 in monthly maintenance payments.

However, the Court of Appeal ruled that her former husband, Graham, 50, must support her for life because she had spent all the original money. Mr Mills was ordered to increase monthly payments to about £1,400 because his ex-wife was unable to pay for her basic needs.

In a statement issued through her legal team, Mrs Mills said that the media coverage of the ruling had provoked the spiteful messages. "There have been a number of articles published recently in respect of this appeal which give a very one-sided version of the facts in this case,” the statement said. “The tone and content of the reporting has caused me considerable distress.”

Mrs Mills pointed out that she had not instigated the latest court hearing, and that it was her ex-husband who had brought the appeal in an attempt to reduce the maintenance he was paying. "It should be noted that since the divorce … I have never returned to the court to increase my maintenance, despite my financial difficulty and bad health and low earnings," her statement said.

"This was Mr Mills's application to the court to reduce or eliminate the maintenance, despite the fact our son is still in full-time education and still living with me at home."

Former husband calls for time-limited maintenance

Mr Mills also spoke after the ruling, to call for a time limit on maintenance payments after divorce. “I don’t think it is right that after divorce you should be tied together for ever,” the businessman told the London Evening Standard yesterday. “I don’t think you can move on mentally or physically with that tie in place. The law is wrong in that regard.”

He was “angry and frustrated” by the ruling which, he said, made him feel that he was “insuring” his ex-wife’s decisions. “I shouldn’t be held responsible … It’s grossly unfair.”

Panel for barristers chasing debtor solicitors

Bar leaders have launched an outsourced debt recovery facility for barristers who need to prise cash from slow-paying solicitors, in a move designed to fill a gap after a two-year hiatus.

The Bar Council appointed two specialist law firms yesterday to a panel with the aim of assisting barristers to recover debts from professional clients.

Thrings, a law firm in London and the west country, and Veale Wasbrough Vizards, a firm in London, Birmingham and Bristol, will launch the service. Council officials said that other practices would also be added to the panel.

The move comes nearly two years after the council, which represents barristers in England and Wales, closed its fees collection service after standard contractual terms were introduced at the beginning of 2013. That scheme was designed to avoid instructions being taken on non-contractual terms.

The council pointed out that the new panel was not an exclusive list of firms offering debt-recovery services for the Bar and said it would welcome “further recommendations from barristers and chambers for further additions to the panel”. Andrew Langdon, QC, chairman of the council, said it would be “an essential service for many barristers”.

He pointed out that, because most barristers are self-employed, “income is essential to our livelihoods. Balanced against that is the need to maintain long-term commercial relationships with our professional clients.

“With that in mind, the law firms on the panel are adept at handling the sensitivities around debt recovery and are able to handle the recovery of fees owed to barristers delicately.”

Murderer sentenced after first extradition from Pakistan in 12 years

The first man to be extradited to the UK from Pakistan in more than a decade was jailed for life yesterday for the murders of two men in Bradford.

Mohammed Zubair was sentenced at Bradford crown court to a minimum of 32 years in prison after a jury found him guilty of the murders of Ahmedin Khyel and Imran Khan in May 2011.

After a long legal battle, in which Zubair’s lawyers fought for two years to avoid extradition, he was returned to the UK in May 2015 to face trial. It was the first extradition to the UK from Pakistan since 2005.

Richard Sagar, a senior prosecutor with Crown Prosecution Service in Yorkshire and Humberside, described the case as complex, but said the verdict and sentencing made it “abundantly clear that criminals who seek to evade the law will not escape”.

Zubair enlisted the help of his mother, Arab Sultana, to flee the UK. She booked and paid for her son’s flight to Pakistan, despite knowing that he was wanted by the police. She pleaded guilty to perverting the course of justice.

Kainat Bibi, the Zubair’s wife, admitted lying to the police and making a false witness statement. Sultana and Bibi were sentenced in 2012.

Partners at defunct City law firm face accountancy scrutiny

Senior lawyers at the defunct London office of King & Wood Mallesons are likely to face investigation over its accounting practices, it was reported yesterday.

Administrators are said to be preparing for a detailed review of the high profile demise of the practice, which went into administration at the beginning of the year.

According to a report in The Lawyer magazine, managing partners across the practice, including those at the Chinese headquarters of the Sino-Australian firm, will face questions to assess whether they were negligent.

The magazine claims that administrators at Quantuma have already taken the view that senior partners at the firm “repeatedly resisted advice from … accountants and bankers suggesting the firm was undercapitalised”.

It is understood that the senior management team were told by advisers in 2015 that the firm would be severely damaged by the departure of just a few partners.
From the middle of last year, partners started deserting the firm. By the time it went into administration, it had accumulated £35 million in bank debt.

Charity backs calls for bespoke financial mis-selling tribunal

A charity boss has raised pressure on regulators to create a financial services tribunal to deal with allegations of mis-selling to small businesses.

Peter Cabon, executive director of the Wenta Group, a Queen’s Award-winning organisation that boosts British entrepreneurs, called today on the Financial Conduct Authority to put its weight behind calls for a specialist tribunal.

Wenta is suing RBS and NatWest, claiming that in 2009 it was mis-sold a complicated interest rate hedging product. The case is scheduled to be heard in the High Court in London this October. The banks denying any wrongdoing.

In his letter to Andrew Bailey, who took over as chief executive at the FCA last July, Cabon said there was a “lacuna in the justice system” for small businesses.

He said the charity’s law firm, LexLaw, which is based in Middle Temple, was pressing for the creation of a specialist tribunal. He said there were “many businesses depending on you to take a firm stance against the non-compliance and misconduct of banks”.

In Brief

In today’s Times Law …

Also, more from Student Law ...

Elsewhere …

  • Revenge eviction law 'not working' – BBC News
  • Sports Direct failed to tell 30,000 staff about data breach – The Times
  • Bank warns 'lax financial rules' are a route to failure – BBC News

Correction

In The Brief yesterday we described Keith Raynor as having been a recorder before he was appointed to the Kosovo Specialist Chambers; he was in fact a full-time circuit judge.

 
 
 
Byline
Comment

Time to think about positive action for women at the Bar Angela Rafferty, QC

Madeleine Albright, the first female US secretary of state, has been quoted approvingly by Lady Hale, the Supreme Court's deputy president, and many other eminent lawyers: “There is a special place in hell for women who don’t help other women.”

The Criminal Bar Association recently brought together a group of pioneering lawyers to promote career progression for women. A dozen female QCs met on a snowy January evening to give good humoured and hard-edged advice on personal and professional issues to junior barristers.

It was a start. A conversation is important, but so are action and results.

It is also important that male barristers deal with their female counterparts in an equal and non-discriminatory way, and vice versa. Younger generations of lawyers now share childcare and other family issues.

Many criminal law barristers are publicly funded, and deal with the most difficult issues in society every day. The work we do in prosecuting and defending is important and we deal with acutely sensitive and traumatic events. We must reflect the society we serve in all its diversity.

The statistics for gender diversity at the Bar reveal a need to act positively and quickly. Only 13 per cent of QCs are women, in contrast to about 48 per cent of barristers at qualification. At around 12 to 15 years’ call, the numbers drop sharply.

We have a big problem with retention and progression. How do we change those statistics?

Historically, the Bar has not embraced positive discrimination to allow women into the profession or to climb through its ranks - although it could be argued that men have got so used to positive discrimination in that they have lost sight of it.

Positive discrimination is seen as undermining those who reach their career goals, as it can be said “she has only got the job because of her gender”.

The arguments are well rehearsed. Barristers who deal with the most serious matters, involving loss of liberty or extreme trauma, must have the skills and experience required for this work regardless of gender. This is what the public would expect.

The Bar should think about every option to deal with gender diversity in an open and curious way, without fear of the furore that can surround raising these issues in public. As advocates, we will be able to debate this in a reasoned and measured way.

Ultimately, we must do something to reverse the loss of female excellence in our profession.

Lady Hale said in her plea for a “search party” to look for candidates to be senior women judges that “we owe it to our sex, but also to the future of the law and the legal system, to step up to the plate”. It is the same for the Bar.

I can understand that positive discrimination is a controversial topic and I can understand why we have not embraced it. However, positive action is needed now.

Angela Rafferty, QC, of Red Lion Chambers in London, is vice-chairwoman of the Criminal Bar Association of England and Wales

 
 
Tweet of the Day

It is in rude health, is it? Once AGFS amended as suggested it will be in intensive care, at best. https://t.co/g7jfKVkbrc

Oliver Kirk @Kirkabout

 
 
Blue Bag

Less is more on Court of Appeal bench

After decades if not centuries of handing down long-winded and interminable judgments, senior figures on the bench appear to be coming round to the view that less is more.

Sir Terence Etherton, master of the rolls and the second most senior judge in England and Wales, is understood to be pushing a mini-campaign for brief judgments that was taken up this week by Lady Justice Rafferty, the Court of Appeal judge.

According to a Press Association report, Lady Justice Rafferty managed to whittle down her final thoughts in one recent case to 24 paragraphs, with a total of 1,200 words.

Absolute brevity in judicial terms. The report pointed out that one recent ruling, involving a Home Office case, resulted in a judgment that beat 20,000 words.

Handing down what she described as a “short-form judgment”, Rafferty said the format would be used for future appellate decisions in “appropriate cases". Her summary of the case was a model of concision: "This appeal raises no issue of law, precedent or other matters of general significance."

Prosecutors have a second pop at the Dewey & LeBoeuf Two

Lawyers in the US are coming to accept the hard fact that it is likely we will all be dead and buried and the universe itself may have expired before the criminal trial in the Dewey & LeBoeuf debacle arrives at a verdict.

But not for the want of trying, as they say. It was reported yesterday that a fresh jury had been empanelled in New York – only five years after the firm went down the pan - and that prosecutors were understood to be “seeking to simplify their arguments”.

Back in the dock are Joel Sanders, the firm’s former chief financial officer, and Stephen DiCarmine, former executive director.

According to the New York Law Journal, Gregory Weiss, the assistant district attorney prosecuting the two, said in his opening statement this week: “These defendants and others were part of a scheme that involved lying to banks and insurance companies to get and keep money for their law firm."

Seems fairly straightforward. But then it needs to be. When he first trial collapsed in 2015, lawyers and the jurors themselves suggested that the facts of the case were “overwhelming” the jury.

 
 
Quote of the Day

“I can't remember a time when I haven't heard warnings like this. Death of the crim bar is unacceptable.”