Problems viewing this? Click to view in your browser
The Times

Tuesday, March 21 2017

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

Today

  • Whiplash claims cut ‘will boost insurer profits by £700m’
  • Tribunal fees ‘illegal’, say senior law academics
  • Ministers warned over ‘huge volume’ of Brexit law
  • Bounties ‘failing to encourage’ cartel whistleblowers
  • Inquests no longer obligatory in deprivation of liberty deaths
  • Inflation-busting fee rises for solicitor qualification course
  • Comment: Ministers sleepwalking into a judicial crisis, says Ian Gatt, QC
  • The Churn: Former solicitor-general retires from High Court
  • Blue Bag diary: Anyone for an Oxford comma …?

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

 
Story of the Day

Whiplash claims cut ‘will boost insurer profits by £700m’

Government moves to reign in motoring accident whiplash claims are likely to be a goldmine for insurance companies, boosting profits by £700 million annually, according to a report yesterday.

Researchers claimed that only two insurance companies had committed to passing on savings to customers made from the government’s move to increase the small claims limit in personal injury cases.

The report, commissioned by a group of campaigning law firms called Access to Justice, claims that only LV and Aviva had said they would pass on savings to consumers, but even they “have not explained how they plan to do so in a way that is transparent to their customers”.

Ministers have placed the blame for rising insurance premiums on an increased numbers of claims. But Capital Economics, the author of the report, said that the research showed that motor premiums had risen because insurers’ investment returns – the money they make from investing the premium income from customers – fell rapidly after the financial crash in 2008.

Andrew Twambley of the lawyers’ group said that the real issue in the personal injury market was the prevalence of unregulated claims management companies.

He called on the Ministry of Justice and the Association of British Insurers to “stop attacking injured people and instead help us remove rogue claims companies and cold callers”. It added: “The public says cold calling is making their lives a misery and, like them, A2J wants to see the back of it.”

 
 
News Round Up
Tribunal fees ‘illegal’, say senior law academics

Government increases to employment tribunal fees breach domestic and European law, two senior legal academics claimed yesterday.

Ministers significantly increased tribunal fees four years ago in an effort to force those using the courts to pay for them.

However, two Oxford University professors argue that the policy is a “clear violation of long-established” UK and EU law, as the increase in fees means that the cost of bringing a claim now often outweighs the benefit of a potential win for many claimants.

Abi Adams and Jeremias Prassl, an economics and law professor respectively, point out that tribunal fees now run to as much as £1,200 – more than a month’s salary on the minimum wage.

In a forthcoming article in the academic journal Modern Law Review, they argue that claims have dropped by more than 70 per cent since the introduction of the fees. The professors’ research found that as many as half of claimants with a high chance of success could expect to lose money even if they won their cases.

The authors of the report said that claims for relatively low amounts of money, such as those typically brought by low-income, zero-hours workers, have been hit especially hard by the policy.

“The employment tribunal fees are a clear denial of access to the courts,” said Prassl. While Adams commented: “The average award for some employment claims, such as unauthorised deduction from wages, is as low as £600. With fees ranging from £390 to £1,200, it does not make economic sense for many claimants to enforce their rights.”

Ministers warned over ‘huge volume’ of Brexit law

A “huge volume” of new laws will be required as the UK withdraws from the EU, leaving little time for any other legislation, peers suggested to ministers yesterday.

Lawyers and other experts have warned that up to 15 bills may be needed as a result of Brexit. They would be in addition to the Great Repeal Bill, which will incorporate EU law into British statute.

The Institute for Government, a London think tank, has said recently that the prospective welter of Brexit legislation was likely to have a detrimental impact on the government’s domestic agenda.

According to the Press Association, Theresa May will trigger the Article 50 process, which begins two years of withdrawal negotiations, on March 29. In the House of Lords yesterday Labour’s Baroness Hayter of Kentish Town pressed the government over how it planned to deal with the increased legislative workload as a result of leaving the EU.

Responding, the Brexit minister Lord Bridges of Headley said: “I am not going to go into that much detail now. Good things come to those who wait. “A lot of thought has been going into...not just the amount of legislation that will be required be it primary or secondary but also the need to make sure that we get those statutes on to the statute book in time whilst balancing the need for effective and proper scrutiny.”

Bounties ‘failing to encourage’ cartel whistleblowers

Six-figure rewards have not encouraged employees to blow the whistle on illegal cartels, lawyers argued yesterday as the competition watchdog launched a media blitz to promote its scheme.

The Competition and Markets Authority yesterday attempted to reignite awareness of its policy of offering bounties of up to £100,000 – as well as the promise of anonymity – for whistleblowers. Its campaign, “We’re cracking down on cartels”, has been running for some time, prompting lawyers to argue that there is a relative lack of awareness of the scheme.

“Despite some high-profile cases many smaller businesses still don’t understand competition law well,” said Marc Israel, a partner at the City of London office of White & Case, the US law firm.

He went on to speculate: “The CMA doesn’t feel it is getting enough cases from leniency applications or uncovering cartels from other sources. A reward system for whistleblowers offering up to £100,000 has existed for a number of years but does not seem to have led to many cases.”

And Neil Cuninghame, a partner at City law firm Ashurst, pointed out that “rewards will generally not be paid to those who have directly involved in the relevant cartel conduct, although such individuals can apply for immunity from prosecution for themselves and their companies”.

Kick-starting the campaign, Andrea Coscelli, the authority’s acting chief executive, described cartels as “a form of stealing that cheats ordinary people as well as other businesses by undermining competition”.

She added: “Cartels are carried out in secret to make you think you are getting a fair deal, even when you are being conspired against to keep prices high.”

Inquests no longer obligatory in deprivation of liberty deaths

Coroners will no longer be forced to order inquests into the deaths of those subject to deprivation of liberty safeguards from the beginning of next month.

Measures under the Policing and Crime Act 2017, which received royal assent at the end of January, are due to come into force in the next few days and have been welcomed by social care professionals.

“At present many older people with dementia, whose deaths are expected, are frequently subjected to investigations after death,” said Martin Green, chief executive of Care England, the representative body for independent providers of adult social care.

“Often police who are uniformed attend care homes under their legal duties and begin questioning staff and relatives as though a crime has been committed,” he said. “This is extremely distressing for families, care home staff and fellow residents.”

Care England argues that investigations into deaths under the deprivation of liberty safeguards “take needless time, which prevents families from being able to mourn and proceed with funeral arrangements”.

The change in the law is set for April 3 and comes just a fortnight after the Law Commission criticised the safeguarding system.

It said that hundreds of thousands of people with dementia and learning difficulties were being detained in hospitals and care homes unlawfully after the Supreme Court widened the definition of deprivation of liberty in 2014 to everyone who was not free to leave their accommodation and was subject to continuous supervision.

Inflation-busting fee rises for solicitor qualification course

BPP University law school has the dubious honour of running the most expensive solicitor qualification course in the country after the private institution boosted fees by more than 3 per cent.

Enrolling on the BPP legal practice course in London this September will cost students £15,740 – £70 more than the equivalent course offered by its arch rival the University of Law.

According to figures compiled by the website Legal Cheek, BPP increased its fees for its London course by 3.3 per cent, while ULaw has ramped up costs by only 2.9 per cent in the capital.

The biggest increase overall for the LPC in London was at Westminster University, which increased fees by more than 4 per cent to £14,500.

The fees analysis demonstrated the wide difference between institutions. The cheapest LPC on offer was at Leeds Beckett University, which has kept its charges flat at £7,700. The average LPC fee in England and Wales from September will be £11,554 – an inflation-busting rise of 4.6 per cent.

Legal Cheek pointed out that the LPC rise contrasted with a falling average fee for the bar professional training course, the vocational requirement for barristers. It revealed that the average fee for that course dropped by around £70, or 0.4 per cent, to £15,568.

But the fall was driven exclusively by the University of Law, which has launched a price war with BPP. ULaw has reduced its bar course fee by 8 per cent to £17,500.

In Brief

Former criminal barrister makes the case against pre-recorded evidence at rape trials – Daily Mail

Slater and Gordon in debt for equity swap as banks sell off 94% of loan book – Legal Business

Law lecturer forces ‘ill-educated’ security guard brother out of flat – London Evening Standard

Polanski Once Again Seeks to Resolve 40-Year-Old Sex-Crime Case – Bloomberg

 
 
 
Byline
Comment

Ministers are sleepwalking into a judicial crisis Ian Gatt, QC

Long before the recent furore over the Daily Mail’s infamous “Enemies of the people” headline, the government was sleepwalking into a crisis in the administration of justice.

And unless Liz Truss, the lord chancellor, acts, the judicial infrastructure that is vital to the delivery of our system of justice is seriously threatened.

The English High Court is the forum of choice for many parties with international and complex disputes. The judiciary is working hard to maintain this pre-eminent status, as shown by the recent rebranding of certain specialist civil courts at the Rolls Building in London as the “Business and Property Courts”.

Yet deeply worrying attitudes revealed in the most recent judicial attitudes survey of salaried judges in England and Wales suggest a crisis that jeopardises our international reputation as a centre of legal excellence, not to mention our criminal justice system. This risks damaging both the economy and society.

The survey revealed disconcerting trends. Only 2 per cent of judges feel valued by the government. More than three quarters claimed that working conditions had deteriorated since 2014. More than half expressed concern for their safety in court and 37 per cent for their safety generally.

Many judges are considering retiring early in the next five years; the most common reasons given are further limits on pay, reduction in pension benefits, increased workloads, stress and a lack of administrative support.

The bench has recently seen a number of significant early retirements including Lord Justice Tomlinson (aged 64) and Sir Bernard Eder (62). Returning to private practice as an arbitrator or taking an appointment as a judge in another jurisdiction are attractive alternatives for unhappy or disillusioned judges.

If the bench sees high rates of attrition it will be depleted of the experienced judges who are vital to the efficient administration of justice. Moreover, the Judicial Appointments Commission faces difficulties in finding replacements of equivalent stature. There are currently 25 vacancies for High Court judges.

Perhaps the most worrying statistic is the 36 per cent of High Court judges appointed in the past two years who intend to retire early in the next five years. None of this augurs well for the administration of justice or for London as a centre of excellence for dispute resolution.

What can be done to avert this crisis? Raise the judicial retirement age? Offer more attractive working arrangements? Provide better support to judges in the form of judicial assistance, and more time for pre-reading and writing judgments?

The first step is for the lord chancellor to recognise that there is a problem and further engage with the judiciary to see how she can best comply with her statutory duty, enshrined in the Constitutional Reform Act 2005, to have regard to the need for judges to have the support necessary to enable them to do their jobs.

Ian Gatt, QC, is a partner at Stewarts Law, a litigation specialist law firm in London

 
 
Tweet of the Day

On March 29 502 AD, King Gundobad's Lex Burgundionum made Gallo-Romans and Burgundians subject to the same laws. A sort of proto EU?

Nelson Jones @Heresy_Corner

 
 
Blue Bag

Not so much fun in the sun for Ashurst

The sun and the incessant heat of the Persian Gulf must have gone to the heads of the lawyers at the Dubai office of Ashurst.

The first submission to support that allegation is that the firm is co-organising a triathlon in the sand-swept emirate, which is scheduled for the end of next week. For the uninitiated, triathlons involve cycling, swimming and running – and all of it in unflattering Lycra outfits. There is only about a fortnight when the temperature in Dubai is not unbearably suffocating – and those two weeks do not fall at end of March/beginning of April.

The second piece of evidence to support the allegation that Ashurst’s Dubai lawyers have gone a bit loopy is that they have sent The Brief an invitation to compete in the event .

Anyone for an Oxford comma …?

Usually lawyers eschew punctuation completely, which can be incredibly infuriating. But a Stateside story illustrates why they are tempted obstinately at times to stick with that drafting technique.

The US Court of Appeals for the First Circuit is wrestling with a case over the Oxford comma, a punctuation device that The New York Times points out has kindled hours of entertaining debate at middle-class dinner parties around the English-speaking world.

But a group of delivery drivers for a dairy company in Maine have far more than an academic interest in the punctuation device. They are suing their bosses for what they allege is four years’ of unpaid overtime wages.

And the crux of the debate falls around whether a comma should have been placed between “shipment” and “or” in the following introductory phrase: “The canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution of …”

Grammarians will have fun arguing, but of course the real winners will be the lawyers.

 
 
The Churn

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

Former solicitor-general retires from High Court

Sir Ross Cranston, a former solicitor-general in Tony Blair’s Labour government, has retired from the High Court bench, the officials have announced.

The Australian-born lawyer, 68 – who continues to be a law professor at the London School of Economics – was appointed as a judge in the Queen’s Bench Division in 2007 and judge in charge of the Administrative Court last year.

He was solicitor-general in the early days of the Labour government that came to power in the 1997 landslide, being in post from 1998 to 2001. He left the House of Commons in 2005.

Olswang chief bails to Simmons & Simmons

Michael Burdon, the interim chief executive at Olswang, has become the latest high-profile defector in the wake of the firm’s ongoing merger with CMS and Nabarro. Burdon has jumped ship to Simmons & Simmons, where he will join the City law firm’s intellectual property team, according to The Lawyer magazine.

Elsewhere in the City of London, Jane Weakley, a personal injury and medical negligence lawyer, has rejoined Fieldfisher as a partner. She originally trained with the firm, but has returned after a stint at the national practice Irwin Mitchell.

Over to Mayfair in the capital, where Forsters, fresh from poaching the private client team from Gowling WLG, has lured Rosie Schumm, a family lawyer, to its partnership. She moves from Wedlake Bell.

Farther afield in Stockholm, Mårten Willamo has joined the local office of Bird & Bird as its head of Nordic corporate law. He joins from the Swedish firm Roschier.

Back in the City, the US firm Goodwin has appointed Samantha Lake Coghlan and Paul Lyons as co-chairs of its Square Mile office. They succeed David Evans, who continues as chairman of the firm’s European offices.

 
 
Quote of the Day

“LASPO [the Legal Aid, Sentencing and Punishment of Offenders Act 2012] is not working for the taxpayer, for the government, for people who need to protect and enforce their rights, or for those working within the system.”