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The Times

Friday, February 10 2017

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


  • More than half of judges fear for personal safety
  • Minister ‘broke promise over Dubs amendment’
  • Munby to retire as top family court top judge
  • Fraudsters target Supreme Court in ‘phishing’ scam
  • Stalking solicitor hit with £1,000 fine
  • Leading international barrister Elihu Lauterpacht dies
  • Brexit countdown: Global litigants and the English courts
  • Comment: Bar qualification needs radical reform
  • Blue Bag diary: Brexit – Bob Neill’s big moment

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

Story of the Day

More than half of judges fear for personal safety

Judges are suffering a crisis of morale with hundreds thinking of leaving the bench early because of cuts to pay and pensions, expanding workloads and fears about personal safety.

The alarming findings of a “strong level of disenchantment” in all ranks of the judiciary come in a new official survey after successive cuts to earnings alongside deteriorating working conditions.

It also finds that while judges are committed to doing their jobs and almost half feel valued by the public, very few - 2 per cent - feel valued by the government. Only 3 per cent said they were valued by the media.

A large proportion, 36 per cent, said they were considering leaving the bench early over the next five years. That figure rose at senior levels to 47 per cent of High Court judges, 41 per cent of Court of Appeal judges and 40 per cent of circuit judges. Of female judges, 144 - almost one in three - were considering leaving early, as were 30 of the 77 judges from ethnic minority backgrounds.

Fifty-one per cent had concerns for their safety in court and 37 per cent for their safety outside court. Some 15 per cent had concerns for their safety arising from social media, including threats and personal abuse, or being identified and targeted.

Personal safety issues were highest at the lower levels of the judiciary; more than three-quarters of district judges and more than half of first-tier tribunal judges expressed concern.

Some 78 per cent said they had suffered a loss of net earnings in the past two years and 62 per cent had been hit by the changes in pensions. Two thirds felt that their pay and pension entitlements did not adequately reflect their work.

The survey findings will be sent to the Senior Salaries Review Body, which will be making recommendations on pay levels in the public sector, including judges.

News Round Up
Immigration minister ‘broke promise over Dubs amendment’

Home Office ministers have broken a promise to human rights campaigners that the number of child refugees would not be limited in the near future, barristers claimed yesterday.

The government announced that only 150 more children would be admitted to the UK under immigration law provisions commonly known as the Dubs amendment.

The chairwoman of the human rights committee of the Bar Council said that Robert Goodwill, the immigration minister, wrote to her last September and gave an assurance that “more eligible children will be transferred from Europe, in line with the terms of the Immigration Act, in the coming months”.

According to Kirsty Brimelow, QC, of Doughty Street Chambers in London, Goodwill “gave no indication that a closure was looming”. The legislation “does not restrict numbers or time period,” Brimelow said. “It is not in keeping with the spirit of the Dubs amendment, as undoubtedly understood by parliament, to now bring its power to a close.

“At a time when 10,000 lone children are missing in the EU, the UK can and should be doing more to take them in”.

The barristers urged the prime minister “to recall this country’s proud tradition of welcoming vulnerable children displaced by war and terror, and return to implementing these values”.

Munby to retire as top family court top judge

Sir James Munby, the most senior family judge in England and Wales, is to retire from his post in 18 months, Linda Tsang reports.

Munby has been president of the family division of the High Court since 2013, having spent nearly 30 years in practice at the family law bar before going to the bench in 2000.

The judge announced his intended retirement date on Wednesday at the launch of the book Medical Treatment: Decisions and the Law, by Christopher Johnston, QC, of Serjeants’ Inn in London.

Munby outlined planned reforms for the Court of Protection, including a pilot practice direction that would aim to ensure judicial continuity in individual case, identify issues at the outset of proceedings, and impose rigorous timetabling on hearings.

He also flagged up plans to revise the practice direction on permanent or persistent vegetative state and minimally conscious state, along with an assessment of the issues around how long such cases take.

The family division president is probably best known to the public for having been at the centre of an embarrassing row between Earl Spencer and his team of divorce lawyers in 2010.

An email from Sir Nicholas Mostyn to his client emerged in which the barrister – a keen farmer – revealed he had named a litter of piglets after Munby and his alleged characteristics, including “pompous” and “self-regarding”.

Fraudsters target Supreme Court in ‘phishing’ scam

Online fraudsters are getting everywhere, and it emerged yesterday that even the UK’s highest court is not immune.

Officials at the Supreme Court revealed that fake emails bearing its logo had been distributed by scammers attempting to gather personal details from victims.

The email told recipients that they had “received a subpoena” and were “invited to the law court by the judge because of crime commitment”. The court published an alert on Twitter and on its home page making clear that the email was bogus. A spokesman told The Brief that it had received queries from about 20 recipients of the email.

Officials were keen to point out that the Supreme Court’s systems had not been hacked and that the fraudsters had simply copied its logo and crafted “a rather crude email, complete with typos and terminology not used in the English legal system”.

The scam falls into the loose category of a “phishing” exercise, aiming to gather the personal details of unwitting or vulnerable victims.

The court spokesman said the scam had been reported to Scotland Yard. “Spotting such emails can sometimes be difficult and it is reprehensible for perpetrators to seek to use court insignia to trick vulnerable recipients,” he said.

Stalking solicitor hit with £1,000 fine

A solicitor convicted of stalking a woman who had an affair with her barrister husband can continue in practice, a tribunal has ruled.

Katherine Simpson, 49, now a consultant with the Mayfair firm Pemberton Greenish, was served with a restraining order at Southwark crown court last summer for writing three letters in early 2015.

At a hearing in London on Wednesday, her lawyers told the Solicitors Disciplinary Tribunal (SDT) that she was she was “genuinely remorseful” for her actions and needed “the support of the [legal] profession rather than further censure”. The tribunal agreed, imposing a £1,000 fine and noting Simpson’s was a “wholly exceptional case in extreme circumstances, none of which were of [her] making”.

Simpson’s husband, Jonathan, a criminal law barrister, was suspended for a year by a Bar disciplinary tribunal at a hearing in December.

The SDT hearing did not hear full details of the letters sent by Katherine Simpson, but Andrew Bullock, prosecuting for the SRA, told the tribunal that “the gravity lies in the fact that what Mrs Simpson was convicted for was disreputable conduct in the most literal sense of the word and conduct moreover which was apt to make her look ridiculous in the eyes of the world at large”.

The tribunal heard that Mrs Simpson, described as a leading authority in leasehold and enfranchisement law, had never threatened or even come into contact with the subject of the harassment. Mark Milliken-Smith, QC, of 2 Bedford Row chambers in London, representing Mrs Simpson, said that she had found the publicity the case attracted “utterly humiliating, degrading and embarrassing” for her and her family.

Milliken-Smith said that Mrs Simpson had already been suspended by her firm for three months and lost her status as an equity partner, returning last October as a consultant. He pointed the tribunal to the remarks of the sentencing judge, who described her behaviour as “exemplary”.

Leading international law barrister Elihu Lauterpacht dies

Tributes were paid to Sir Elihu Lauterpacht yesterday afternoon after the leading international law barrister died at the age of 88.

Lauterpacht was born in London, the son of Hersch Lauterpacht, an émigré to the UK in the early 1920s from what was then Austrian Poland. His father became a judge on the International Court of Justice, and Elihu followed his path into the legal profession.

After reading law at Cambridge, Lauterpacht was called to the Bar at Gray’s Inn in 1950, practising at 20 Essex Street chambers in London. He returned to Cambridge to teach law before founding what became the Lauterpacht Centre for International Law at the university in 1983.

He acted as legal adviser to the Australian government for two years in the 1970s, and between 1993 and 2002 was the ad hoc judge at the International Court of Justice for Bosnia and Yugoslavia. He was also the president of the Eritrea and Ethiopia Boundary Commission from 2001.

Lauterpacht was made silk in 1970 and knighted in 1998.

Brexit countdown – legal update as leave approaches

Global litigants and the English courts

MPs may have voted decisively to pass “go” and push the UK towards the EU exit, writes Edward Fennell, but there has been no instant pay-out of £200 in Monopoly money - or euros - to lubricate the transition.

Instead, there are hosts of complex legal issues and, importantly for English lawyers, questions about the status of domestic courts and whether they can sustain their pre-eminence in corporate disputes.

Multinational corporations regularly plump for the English courts to resolve international disputes for a variety of reasons, including a reputation for transparency and technical knowledge. But the Brexit vote has created concern that the popularity of the English courts may be damaged.

There are also worries over cross-border service of process and the enforceability of judgments in a post-Brexit world. The government’s Great Repeal Bill promises to convert all existing EU-derived law into domestic law, but the position is not so simple for laws that require reciprocity: a regime for cross-border jurisdiction and enforcement only works if all the relevant countries agree to it.

In its white paper, the government recognised that “an effective system of civil judicial co-operation will provide certainty and protection for citizens and businesses of a stronger global UK”. The Law Society has also called for maintaining mutual recognition and enforcement of judgments post-Brexit. Ideally, the UK will be able to negotiate continued application of these regimes or equivalent.

Don’t panic

Even if the government fails to cut a deal, some City of London lawyers remain positive about the durability – or adaptability – of London's prowess.

Deirdre Walker, the partner who heads disputes handling the London office of Norton Rose Fulbright, and Andrew Sheftel, one of the transatlantic firm’s senior knowledge lawyers, are advising clients not to panic.

They point out that the reasons for choosing the English courts – a reputation for quality, consistency and honesty, a loser pays costs system, absence of punitive damages and juries in civil cases, and the suitability of the law for commercial disputes – are unrelated to the UK’s membership of the EU.

“If the government does not succeed, the adverse impact on the English courts as the international forum of choice should be limited," the two maintain. "The absence of a regime for service of process is mitigated by parties providing in their contracts for a process agent within the jurisdiction, something well-advised parties already do as a matter of course.”

Hot on The Hague

On the enforcement side, the two lawyers argue: “English judgments are currently enforced throughout the world under a patchwork of bilateral treaties and, more commonly, local laws. If no agreement is reached between the UK and the EU, English judgments would be similarly enforced in member states.”

There is also the possibility of the UK joining the Hague choice of courts convention, to which EU member states along with Mexico and Singapore already belong. Doing so would provide a framework for enforcement of judgments throughout the EU where parties have chosen the English courts exclusively to resolve their disputes.

Walker and Sheftel point out that “even if the UK was not part of any international regime, neither is the US, and this does not prevent the New York courts being considered a suitable location to litigate commercial disputes”.

It seems, then, that whatever deal is reached post-Brexit should not undermine the advantages of litigating in the English courts. Arguably, it will continue to be English litigators who will collect the Monopoly money when the UK passes “go”.

In Brief

Leading legal aid solicitor fined for keeping regulator in dark over cash problems – Law Gazette

Square Mile law firm launches Manchester training contracts – The Lawyer

As KWM cracks, beware re-written history and schadenfreude – Legal Business


Bar qualification needs radical reform Jonathan Ames

If it hasn’t happened already, Bar leaders are in danger of appearing ridiculous and inept over the issue of reforming the training regime for future barristers.

The Bar Standards Board, the regulator of some 15,000 lawyers in England and Wales, is preparing to decide on its consultation on the “future training for the bar” and “future routes to authorisation”.

The watchdog has put forwards three models, each designated by a mysterious label: “evolutionary”, “managed pathways” and “Bar specialist”. In its response to the BSB consultation the Bar Council, the body that represents barristers in the jurisdiction, has ignored all three and proposed its own model.

This posturing and jousting would be laughable if the issue were not so serious. But there is unquestionably a crisis in the Bar qualification regime that urgently needs addressing.

The problem is the combination of deregulation at the academic level with a bottleneck of hyper-regulation at the qualification stage.

There are too many institutions offering too many places on the Bar professional training course. Those institutions are churning out more than three times the number of graduates annually than there are pupillage places at chambers to absorb them. Without doing pupillage, it is impossible to practise in England and Wales.

Law schools will argue that not all BTPC students aspire to qualify at the bar of England and Wales. Indeed, most foreign students are satisfied with being called to the bar after graduation and heading home to leverage the qualification into a better job in their domestic jurisdictions.

But there are still many British students who are being sold a pup. They are encouraged to fork out £19,000 in course fees when they have little or no chance of obtaining pupillage and qualifying as practising barristers.

As commercial businesses, the course providers can argue that graduate students are adults and that caveat emptor applies. But Bar leaders should look beyond commercial imperatives to what is right and fair.

On the face of it, the Bar Council’s proposal looks to be the simplest and fairest of the four main models on offer. It is, nonetheless, brutal. Future students would sit an academic stage that could be completed remotely online, and then sit an exam. Those who fail will not go through to the second, lecture-based stage of advocacy training.

As reported in The Times’s Student Law supplement, out this week, council leaders are brutal in their analysis of the proposed “survival of the fittest” structure. It will weed out weaker students early, thereby saving them future expense and saving the remaining students the trouble of having inferior classmates dragging them down.

However, there are fears that the institutions, which would partially lose out under the Bar Council’s model, will lobby to have the proposal sidelined.

Bar regulators should swallow some pride, ditch their three complicated models with esoteric names, and sign up to the council’s simple plan. Future students will thank them.

Jonathan Ames is co-editor of The Brief

Tweet of the Day

Right. That's it. "Optics" joins the list of words I've come to loathe.

Law Geek @law_geek

Blue Bag

Brexit – Bob Neill’s big moment

Will Brexit be Bob Neill’s big moment? The Conservative MP for Bromley & Chislehurst in the suburbs of southeast London, and chairman of the Commons justice committee, was a surprise rebel in a Brexit-related vote.

The barrister is not exactly a household name even in those households that can name more than one or two MPs. But his definite speech, in which he said it would be a scandal if MPs were not allowed a final vote on the exit deal cut with Brussels, has thrown him into a small spotlight.

Some have even suggested that Neill might be positioning himself as the next lord chancellor, on the grounds that Theresa May might bring the lawyer inside the tent to prevent him from emptying his bladder on the flap from the outside.

Such a move presupposes, however, that the prime minister is unhappy with the current justice secretary, Liz Truss, who so far not put a foot wrong as far as her boss is concerned.

Criminal bar not dead yet … at least on Twitter

There may be a good case that the criminal bar will resemble a dead parrot in ten years’ time, as forecast by James Parry, chairman of the Law Society’s criminal bar committee, in a recent interview.

But for the time being, debate over the issue is very much alive and kicking. The criminal bar’s future was the sujet du jour yesterday at the modern equivalent of speakers’ corner, Twitter.

The focus was on whether the young bar was being stitched up under the government’s revised proposals for the advocates graduated fee scheme. Many are convinced that the deal is good primarily for silks only.

@CrimBarrister is convinced the scheme “is not going to help” the fortunes of most of the criminal bar. Indeed, @CrimBarrister also maintained that the approach of some of the larger criminal defence law firms, of creating in-house advocacy departments, would hasten the Bar’s demise.

Some solicitors, such as @andrewbishoplaw, argued that barristers have not been fulsome in their support for law firms in the battle with the Ministry of Justice.

Predictably some silks – see @SCynic1 (Simon Myerson, QC, of St Pauls Chambers) and @ffgqc (Francis FitzGibbon, QC, of Doughty Street Chambers and chairman of the Criminal Bar Association) – adopted a “seen it all before” approach. “Rumours of the criminal Bar’s death are much exaggerated,” FitzGibbon purred.

Those readers who are still breathing are advised to log on in 2027 to see who was right.

Closing Statement

Hard of hearing

The story about the yellow silk lining on the jacket of Colin Edelman, QC, reminds me of two stories, James Morton writes.

The first involves a young barrister who was reprimanded by a starchy silk at the Old Bailey for wearing a purple shirt under his robes. Not done back in the 1970s.

The second is a variation on an old story. I once appeared in the Chancery Division in what I thought was a chambers hearing. It wasn’t.

I was unrobed and I had no right of audience anyway. When my case was called I apologised, adding sycophantically: “I don’t suppose your Lordship can hear me.” “Only very faintly, Mr Morton,” the judge said.

James Morton is an author and former criminal law solicitor