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The Times

Tuesday, October 18 2016

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

New Brief Premium

  • Extend fixed costs in civil litigation, says Sir Rupert Jackson
  • The taxman cometh -- cracking down on evasion at home and abroad

Plus also today ...

  • Child abuse inquiry chairwoman pledges to “sharpen focus”
  • Lord chief justice warns against abusing Brexit claimants
  • Birth injuries payment scheme could ‘cover up negligence’
  • Jail sentence reignites debate over McKenzie friends
  • Cambridge law students top cocaine league table
  • Free intellectual property expertise for small businesses
  • Comment: Why big firms are failing on diversity
  • Blue Bag diary: Attorney-general remains calm in face of Brexit flap
  • More Blue Bag: Judge gets to grip with sex toy

Tweet us @TimesLaw with your views.

 
 
 
Story of the Day

Child abuse inquiry chairwoman pledges to 'sharpen focus'

The embattled independent inquiry into child abuse will “sharpen its focus” to considering underlying issues that “have led institutions to fail children”, its chairwoman said in a defiant statement yesterday.

Alexis Jay (pictured) said she would move away from the format of traditional public inquiries by training its view more on recommendations for the future rather than solely an analysis of past events.

Her comments came as the inquiry appeared to lurch between crises. The Times reported last Saturday that home office officials admitted they had been alerted to concerns over the “professionalism and competence” of the former chairwoman, the New Zealand judge Dame Lowell Goddard.

Goddard resigned from the inquiry at the beginning of August and since then the entire legal team, led by Ben Emmerson, QC, has also left.

It is understood that some members of the “victims groups” are so unhappy with recent turmoil that they are threatening to bring judicial review proceedings regarding the operation of the inquiry.

In her statement yesterday, Jay highlighted four “major themes” that she would examine: the “attitudes, behaviours and values within institutions which prevent us from stopping child sexual abuse”; the legislative, governance and organisational frameworks in place; the financial, funding and resource arrangements for relevant institutions and services; and the leadership, professional and practice issues for those working or volunteering in relevant institutions.

 
 
 
 
News Round Up
Lord chief justice warns against abusing Brexit claimants

The prime minister is legitimately giving effect to the “will of the people” in plans to trigger Brexit without seeking parliamentary approval, the attorney-general said yesterday.

Jeremy Wright, QC (pictured), was setting out his defence to a challenge over Theresa May’s decision to use the royal prerogative to start the process for leaving the EU. “It is our case,” he told three senior judges, that “parliament’s consent is not required”.

As the government opened its case, the Lord Chief Justice warned that the “full vigour of the law” would be brought against those found to have harassed or abused those bringing the court challenge.

Various campaigners have mounted a historic challenge to argue that Mrs May lacks power to trigger Article 50 of the Lisbon Treaty to leave the EU without the prior authorisation of parliament. However, Wright, in his most high-profile court case since he became attorney-general in July 2014, said that resort to Article 50 involved the “proper and well established use of the royal prerogative by the executive”. It had been made available after the vote in favour of Brexit, “to give effect to the will of the people – wholly within the expectation of parliament”.

The judicial review application, which is being heard by the Lord Chief Justice, Lord Thomas, and two other judges, has been described as one of the most important constitutional cases in generations. May announced at the Conservative party conference that she intends giving an Article 50 notification by the end of March 2017 using the royal prerogative.

Her opponents are arguing that she would be pre-empting parliament and unlawfully removing statutory rights granted to UK citizens under the European Communities Act 1972, which made EU law part of UK law.

Because of the urgency and constitutional importance of the case, any appeal is expected to be heard by the Supreme Court, the highest court in the land, before the end of the year.

During the hearing, Lord Thomas criticised those who have threatened the businesswoman Gina Miller, an investment fund manager and philanthropist who is at the forefront of the Brexit challenge. On the second day of the hearing, the Lord Chief Justice said the court had been informed that Miller had received abusive emails and “other communications”.

He declared to the packed courtroom: “It is simply wholly wrong for people to be abusive of those who seek to come to the Queen’s courts.” And he warned those responsible that they had to appreciate “the full vigour of the law” would be used against them if the conduct continued.

See Blue Bag below

Birth injuries payment scheme could ‘cover up negligence’

Government plans to reduce the number of court cases involving babies harmed by the NHS during labour risk sweeping the core causes of clinical negligence under the carpet, lawyers warned yesterday.

Specialists said that health service-conducted investigations into the causes of birth trauma often do not reveal the full circumstances of the mistakes.

“It is often only when specialist lawyers and independent medical experts are involved in investigating these incidents that the true failures are revealed,” said Lisa Jordan, head of medical negligence at Irwin Mitchell, a national law firm.”

Jordan continued: “The NHS does not have a great track record of learning from mistakes that have often caused life-changing injuries and this has to change if we are to reduce the number of birth-related tragedies that occur … We have a number of cases which would not have even been investigated without the intervention of independent medical negligence lawyers.”

Others agreed that the NHS’s record on dealing with claims has been driven by “economics rather than legal merit”. According to Douglas Miller, a partner at law firm Coffin Mew, “currently, if you have an expensive claim, the NHS will fight longer to keep its money. We have seen matters where early admission would prove beneficial to all involved, but the NHS still makes the victim prove their claim.”

Mark Bowman, a partner at Fieldfisher, said it was important for parents to “be made aware of the costs of bringing up a brain-injured child for life and not just be encouraged to accept a lump sum early that sounds fantastic but in reality is nowhere near enough”.

Neil Sugarman, president of the Association of Personal Injury Lawyers and a partner at GLP Solicitors in Manchester, backed that view. He said his organisation would “be reminding the Department of Health that children suffering cerebral palsy and brain damage at birth need round-the-clock medical care, specialist equipment and support for the rest of their lives”.

Jail sentence reignites debate over McKenzie friends

A London judge yesterday sentenced a paid McKenzie friend to a one-year prison term for perverting the course of justice in a case that will reignite debate over the regulation of non-qualified court advocates.

David Bright was sentenced at Wood Green crown court after submitting a psychology report during a family court case earlier in the year that was prepared by his partner, who had falsely claimed to be a clinical psychologist.

Both Bright and Claire Mann – who used her maiden name, Silverstone – were convicted of perverting the course of justice. According to the Law Gazette, the recorder Robert Morrison sentenced Mann, who pleaded guilty, to nine months in jail for the offence.

Both the Law Society, which represents solicitors in England and Wales, and the Bar Council, the body representing barristers, have campaigned against the use of paid McKenzie friends and have lobbied for their fees not to be recoverable.

Earlier this year, the Judicial Executive Board proposed to ban non-professionals who charge for legal services from recovering fees for litigation or advocacy. However, recent significant cuts to civil legal aid eligibility implemented by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 triggered a rise in the prevalence of McKenzie friends.

Cambridge law students top cocaine league table

Cambridge University may have topped this year’s table for best law degree course but it seems the stress of going to No 1 is driving some students to substance abuse.

The law faculty is alleged to have been rife with traces of cocaine, according to a drugs survey conducted by a leading online student website.

The Tab reported that the law and history faculties at the ancient university yielded the most prevalent traces of cocaine use. “The English faculty and Econ faculty were boring,” said the website’s drugs squad, “but the Law faculty (unsurprising, given the amount of work they have) and the History faculty (surprising, given how little work they have) tested positive.”

The revelation comes just over a year after Legal Cheek, a website aimed specifically at law students, revealed that aspiring barristers were “the biggest druggies at law school”. That survey revealed that marijuana was easily the drug of choice for law students, with more than 72 per cent of those admitting to taking illegal substances opting for weed.

Ecstasy/MDMA came in second place on 41.5 per cent, while 22 per cent of law students taking drugs put their hands up to a fondness for cocaine.

Experts offer free intellectual property advice to small businesses

Small businesses are to be offered free legal advice in David and Goliath intellectual property disputes as part of a scheme launched yesterday.

The programme has been launched in response to a recent call from Judge Hacon – the presiding judge of London’s Intellectual Property Enterprise Court – for intellectual property specialists to offer advice and support to unrepresented claimants and defendants in disputes.

Called IP Pro Bono, the scheme has been concocted by a group including the Chartered Institute of Patent Attorneys, the Institute of Trade Mark Attorneys, the Intellectual Property Lawyers’ Association and the Law Society.

Sean Dennehey, acting chief executive of the Intellectual Property Office, said that the service would be available “to those who cannot reasonably afford to pay for professional advice from a firm”. Organisers said that a case officer would assess applications and, if the applicant met the stated criteria, allocate the case to one of the participating firms on a rota basis.

About a dozen law firms have signed up to the scheme so far, but organisers declined to name them before the official launch this evening. “The scheme members are a good cross section of firms from the IP community,” a spokesman said, “including firms of patent and trade mark attorneys and law firms with an IP department.”

In Brief

Judge appeals to child abuse victims and witnesses as Scottish inquiry begins – BBC Scotland

New York Times’ lawyer letter over Trump libel allegation goes viral – Law.com

‘You got a bad attitude’: Agitated judge tears off robe, tackles man in courtroom, video shows – Washington Post

Five myths about studying law, debunked – The Guardian

 
 
 
Byline
Comment

How to make a diverse legal profession Alex McPherson

Diversity is a much overused word with many shades of meaning. For employers, it involves mirroring society, with staff being disparate in gender, race, social and educational background, as well as sexual orientation.

However, most law firms are still struggling and routinely failing to meet diversity targets that they set. Half the legal profession may now be female, but not so those in charge.

Before David Childs stepped down as Clifford Chance’s managing partner three years ago, he acknowledged that despite aiming to have women comprising 30 per cent of the firm’s worldwide partnership, it had only reached half that figure.

But Clifford Chance is not alone; the same picture can be painted in numerous traditional law firms.

In response, the Legal Services Board (LSB) has begun to review its diversity guidance. It proposes delegating responsibility for diversity to allow the Bar Standards Board and Solicitors Regulation Authority to have “more freedom in determining their own targeted approaches to encouraging the diversity of their respective professions, whilst also encouraging those who have not taken their work as far to continue to develop”.

Meanwhile, the lord chancellor, Liz Truss, told the recent Conservative party conference that poor diversity in the legal profession was “hard to justify”. In her pledge, she said she would work to “break down barriers” ensuring that people from all backgrounds “can rise through the profession and that merit wins out”.

Politics apart, no one can disagree with her vision. As their client base is changing, so too must the profile of law firms.

The best way to think about diversity is not as a problem, but as a solution. Law firms should only care about competence and commitment and for those practices using agile working models, having talented staff from diverse backgrounds and with a diverse outlook makes good commercial sense. Offering diversity mirrors clients, reflecting how they think and see the world.

Technology also plays a key part. When providing legal advice online, how you look, which school you attended or your sexual orientation remain unknown; clients care only about the quality, accuracy and timeliness of the advice delivered.

Key technological aids – cloud-based folders, apps for real-time visibility of fees, MacBooks with encrypted solid state memory and antivirus security – all help to encourage excellent client service from diverse and footloose lawyers while keeping costs efficient.

Diversity is much more than a target; it is an asset. To dismiss the significant strides of some traditional firms in trying to catch up would be wrong, but most still have a long way to go and are moving too slowly – hence the LSB initiative.

As for the Liz Truss vision, several virtual firms have already got there. For their lawyers and clients, there is no diversity battle to fight and no target to meet. They simply do the job.

Alex McPherson is co-founder of Ignition Law, a law firm in London

 
 
Tweet of the Day

Sales LJ says he has "slightly lost the thread" of the arguments James Eadie is making for the government.

Schona Jolly @WomaninHavana

 
 
Blue Bag

Attorney-general remains calm in face of Brexit flap

Attorney-general Jeremy Wright’s opening defence in day two of the Brexit challenge at the High Court in London yesterday did not start smoothly.

First, the government’s top silk and chief law officer was interrupted only minutes after starting his submissions when the live transcription reporter announced that his microphone wasn’t working.

Then when Wright turned to a bulging lever-arch file to highlight a legal authority for the justices, the papers cascaded onto the floor, leaving solicitors scrabbling in the aisle to collect them.

But to be fair to the man who is still a tenant at No5 Chambers in Birmingham, Wright continued undeterred without batting an eyelid or even pausing for breath. A good omen for the government’s case that it alone can trigger Article 50?

Meanwhile, debate raged on social media over whether the AG should be on his feet at all in the Brexit court challenge. David Allen Green, one of the legal Twitterati’s most prolific commentators, suggested the government’s case should have been handed to a public/EU law specialist silk. James Turner, QC, a shipping specialist at Quadrant Chambers in the Temple, suggested taxpayers might not be getting value for money from the beleaguered Wright.

But Francis Hoar, who does do public law work at Field Court Chambers in Gray’s Inn, rode to his rescue, saying given the constitutional importance of this Brexit business, the government’s chief law officer should not take a back seat.

Judge gets to grip with sex toy

Fictional Supreme Court judges had to deal with a Russian girl band chanting the phrase “punani power” in the latest instalment of the Bridget Jones film franchise, but last week a real Court of Appeal judge had to grapple with sex toys in court.

Lady Justice Hallett evoked titters at the Royal Courts of Justice when sitting with Mr Justice King and Mr Justice Dove to hear Gayle Newland challenge her conviction for sexual assault. Newland had been sentenced after pretending to be man and having sex with a woman around ten times over two years while using a prosthetic penis.

Before ruling the conviction was unsafe and ordering a retrial, Lady Justice Hallett summed up the case before a crowded court. On coming to the phrase “prosthetic penis”, the judge paused, looked up, and helpfully added, “or otherwise known as a strap-on dildo”.

Who says senior judges are out of touch …

Pro bono and points of light

Legal awards have been flying around like experimental Amazon drones over the last few days. First up is John Collins, a longstanding senior-junior barrister at Zenith Chambers in Leeds, who bagged this year’s Bar pro bono prize “for his outstanding contribution … over a career spanning six decades”.

The property and landlord and tenant specialist was described by the judges as exhibiting “commitment to pro bono work [that] seems to know no bounds”. Over the last five years, Collins has worked on 11 cases for the Bar Pro Bono Unit.

The award was announced at last weekend’s Bar Council conference, where Collins was particularly cited for his pro bono work in last year’s landmark Court of Appeal case, Ilott v Mitson, which was brought under the Inheritance (Provision for Family and Dependants) Act 1975. He will continue to represent the applicant as the case goes to the Supreme Court.

Next comes something that sounds as though it comes out of the drawer labelled “mad cults” – the Points of Light Awards. But fear not, no UFOs are involved.

Funke Abimbola, the ubiquitous general counsel at Roche UK and Ireland, has indeed been awarded point of light status by no lesser personage than the prime minister. Abimbola is the 587th winner of the Points of Light, which was established by President George Bush senior in the US more than a quarter of a century ago to highlight “people who are making a change in their community”.

In a letter to the lawyer, Theresa May said: “You have become a role model for thousands of young people, inspiring them to believe that race or gender should not be a barrier to achieving their potential. By speaking so passionately to groups in parliament, the Law Society and, most importantly, over 2,000 school children and university students, you are supporting the professions to become more diverse.”

 
 
Closing Statement

Tell, don’t show

Courts thrive on oral argument, writes Gary Slapper, and while some physical demonstrations are presented, the bench is circumspect before allowing such evidence.

However, in 1961, Geoffrey Quinn – known as Paul Raymond – was prosecuted for “keeping a disorderly house” in London, a strip club called the Raymond Revuebar.

Quinn’s counsel tried to get the judge to see the entertainment himself so as best to evaluate its alleged indecency. At one point, counsel even offered to bring the strip show into court but the bench politely declined the appearance of a band blasting out “The Stripper” while near-naked ladies twirled and removed their garments before throwing them around the courtroom.

In an appeal in 1966, the master of the rolls, Lord Denning, recounted a case in which a man called Norbert Rondel had admitted taking the hand of a doorman, tearing it in two, and then biting off part of his ear. The judge noted Rondel told the court that “it sounds difficult in cold blood, but I can demonstrate it”. “We did not accept his offer,” said Lord Denning.

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